Divorce, Dissolution and Separation Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I understand that the question to which this clause is an answer was in the consultation and that the answer in consultation was 12 months, whereas here it is six. I just wonder what superior knowledge the Government had in mind in going to six months when the consultation seemed to say 12.

I have had some experience in this area, 20-something years ago. When I proposed the 1996 Bill, I put in 12 months—that is what I am asking for now; I am nothing if not consistent—but on that occasion Parliament decided that it should in fact be 18 months. Putting it up by six months is something with which I am fairly familiar, so I invite my noble and learned friend to explain the situation.

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

My Lords, this amendment more than doubling the period before conditional order seems to be based on the proposition that the law obliging people to stay married for longer will either help children or encourage more reconciliations. In the debate on Amendment 2, speakers on all sides of the House demonstrated the fundamental commitment of us all to the welfare of children, who—as we all agree—suffer badly from family breakdown and its consequences. The noble and learned Lord spoke eloquently on that. For all the reasons given by many noble Lords in the earlier debate, I agree with those who have said there is no basis for saying that the children’s interests would be best served by denying or delaying divorce to one or both parties to a marriage who have determined on a divorce.

As for the second proposition, that keeping unwilling couples tied into a failed marriage for a longer period may lead to more reconciliations, the evidence is overwhelmingly to the contrary. The decision to divorce is a hard one, rarely taken lightly. Of course, changes of mind occur. Separated couples often get back together—sometimes successfully and sometimes not, as the noble and learned Baroness, Lady Butler-Sloss, pointed out earlier—but in every such case they make the decision to reconcile willingly, not because they are obliged by law to try to do so. In some cases, of course, divorced couples even remarry each other. Again, that step is open to couples after divorce and is dependent on free will, not obligation.

Once the decision to divorce has been made, forcing parties to stay married for longer than is necessary to confirm that decision serves no purpose. Enforced delay rarely leads to reconciliation. It extends the unhappiness and uncertainty. It infringes on the parties’ autonomy, preventing them making decisions for themselves, arranging their new personal lives and futures, making safe and secure arrangements for their children and organising their family finances. It also—most significantly, I suggest—extends the hostility between the parties, who are frequently embittered by divorce proceedings and whose embitterment starts to heal only when the divorce is finalised and they go about the business of joint but separate parenting or building new, separate lives. This Bill is all about reducing bitterness by removing fault from the actual process of divorce.

The Government have proposed a 20-week period—reflecting other jurisdictions, such as New York and Finland—as appropriate for the confirmation of the decision to divorce. No period will ever be perfect to the week, but my belief is that the 20-week period to a conditional order is about right and is supported by the evidence. I commend the Government for choosing it.

[Lord Farmer (Con)]

My Lords, I have attached my name to Amendment 21 tabled by my noble and learned friend Lord Mackay of Clashfern. As he said, his original Family Law Act 1996 required this longer period, and explicitly stated that this enabled the children and the finances to be resolved. Importantly, this meant that someone was not free to remarry before these important responsibilities from the former marriage had been put to bed. To quote my noble and learned friend, at Second Reading on the Family Law Bill, he said:

“A very important requirement in the Bill is the requirement that parties decide all arrangements relating to their children, finance and home before a separation or divorce order can be made… In making this change the Government have been influenced by those who responded to their consultation paper who were of the view that parties who marry should discharge their obligations undertaken when they contracted their earlier marriage, and also their responsibilities which they undertook when they became parents, before they become free to remarry.” [Official Report, 30/11/95; col. 703.]


I am fully aware that the report Finding Fault? Divorce Law and Practice in England and Wales states that the average length of divorce proceedings is currently six months. A six-month minimum period would therefore mirror current practice. A longer period would be punitive for those who need to divorce quickly. This would include those experiencing domestic abuse, as we have heard, with 15% of Finding Fault? petitioners citing physical violence.

To this I say two things. First, it seems that when it suits the researchers, behaviour patterns are accurate, so when 15% cite domestic violence, what they say is accurate. Yet as I understand it, one of the main reasons for this no-fault divorce—for removing fault from divorce—is that in the majority of cases, the reason given is either false or inaccurate.

Secondly, in the consultation preceding the Bill before us, in response to the question: “What minimum period do you think would be most appropriate to reduce family conflict, and how should it be measured?”, 1,044 people—33% of the 3,128 responses—said a year. Only 297—9%—said six months.

In their response to the consultation, the Government said:

“Those opposed to reforms proposed a minimum period of one or two years, depending on whether the application was joint or sole, or on whether the couple had children.”


In other words, those opposing the reforms should be ignored, even though they were in the majority. Remember the bigger picture of the consultation: 83% wanted to retain the right for an individual to contest a divorce. Only 15% stated that this right should be removed. Also, some 80% did not agree with the proposal to replace the five facts with a notification process. A mere 17% were in favour. However, the Government also said:

“Those who selected nine months or longer felt that this would enable counselling or mediation and proper reflection to enable reconciliation where possible. In particular, those suggesting a year or more felt that this would more properly reflect the importance of both marriage and divorce as significant life decisions, particularly in cases involving children or where one party wishes to remain in the marriage.”


This Bill takes account only of the worst-case scenario—domestic violence—and deems the application for divorce to be a one-way street towards a final order.

The Bill should also take account of good things happening. The Government have said that they wish to make sure that couples have sufficient time to reflect on the decision to divorce and that that reflection period may result in them pulling back from the brink. I have heard noble Lords say today that when someone applies for a divorce because of irretrievable breakdown there is no going back, but we are introducing a new element into divorce proceedings based on the applicant saying that there is one-fault divorce. For example, a husband who is having an affair with someone in the office and his wife has no idea about it, knows that all he needs to do is write a letter to the court and say that the marriage has irretrievably broken down. The wife has not been advised and this comes as a bombshell to her. There could be many instances like this where, because of the new procedure, a unilateral request for a divorce is not recognised by both parties.

Many people initiate divorce early in the new year, which is also a popular time for booking one’s summer holidays six months hence. We all know that that six months goes extremely quickly and, before you know where you are, you are in June when it was January. Likewise, a divorce which gathers momentum and is all over at the end of six months will seem to come around very quickly, especially for the party who has been unilaterally divorced. Time for reflection and reconciliation will be squeezed out.

If the Government were to accept the amendment, I would expect it to extend to Clause 4 and to civil partnerships.

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[Lord Marks of Henley-on-Thames]

My Lords, I rise to speak to the amendments standing in my name and that of my noble friend Lady Burt of Solihull. Amendments 8 and 9 concern applications for divorce orders, Amendments 11 to 13 concern applications for judicial separation orders, and Amendments 17 and 18 concern applications for dissolution orders in respect of civil partnerships. In speaking, I shall address the applications for divorce orders, but the others run in parallel.

Our amendments have one theme: the Bill starts the 20-week period leading to the conditional order with the start of proceedings. I see the point the noble and learned Lord, Lord Mackay, makes that that is not technically defined, but on any ordinary construction—the construction intended by the drafters of the Bill—the start of the proceedings is the issue of the application.

Concern was expressed at Second Reading and publicly that, under the Bill as drafted, the respondent may not receive notice of the application for a conditional order—this the point the noble and learned Lord was making—before much or all of the 20-week period has passed. He or she may not, therefore, have had time to consider his or her position before the proceedings are effectively determined, so the respondent could find himself or herself subject to a conditional order before even knowing of the proceedings. To that concern, some supporters of the Bill—which I strongly support—respond that to start the 20-week period only on service of the proceedings would encourage, or at the very least enable, unco-operative respondents to evade service or to refrain from acknowledging service, and that would frustrate the proceedings. This concern was mentioned by the noble and learned Lord at Second Reading. Our probing amendments are designed to encourage a search for a compromise by requiring an applicant to serve his or her application for a divorce order quickly, with provision for that applicant to apply to dispense with service, or to apply for an order that service be deemed. Those provisions would involve an obligation to ensure that the applicant knows of the proceedings well before a conditional order is made and, at the same time, to prevent respondents from seeking to frustrate the proceedings by avoiding service or not responding to them.

We have suggested a time limit of six weeks for service by the applicant—of the application for an order or for an alternative order—dispensing with or deeming service. We recognise the concerns of some, including those of Professor Trinder from the University of Exeter—I completely endorse her views on every other aspect of the Bill—but it is difficult, at present, to secure an order dispensing with or deeming service within a six-week time limit. I agree with the noble and learned Lord that rule changes could be made to speed up those procedures. There is a possible concern, also mentioned by some, that “service” needs better definition for this Bill. Perhaps it does, but that can be achieved.

Neither I nor any other noble Lord who supports these amendments is dogmatic about the precise definitions or time limits. At Second Reading, the Minister indicated an openness to discussion on this issue. I am very grateful to him for the time he and his officials have given to the discussions we have had between Second Reading and Committee. I hope that discussions with and within the department will enable a compromise to be reached which will achieve an acceptable balance between applicants and respondents and between simplifying procedures and avoiding injustice. We hope to discuss these issues further, including any necessary rule changes to implement a compromise and the procedures needed to bring about or clarify those rule changes, before Report.

[Lord Farmer]

My Lords, I shall speak now to my Amendments 5 and 15, which includes civil partnerships. If the 20-week period begins as soon as the application is made, the respondent may have less than 20 weeks by the time they have been served notice. There is even the possibility that they may not hear about it until the end of the period. We can all imagine scenarios in which this could have very negative consequences for the respondent in a sole petition who may have been unaware that the marriage was in the dire straits that a divorce application suggests. It also gives the applicant the advantage. One hears of parental alienation syndrome, where one party can persuade the children to come round to their way of thinking. Also, when it comes to talking about and arranging the finances, one party can find that they have been hidden away.

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[Lord Grantchester (Lab)]

I rise to speak briefly in support of Amendment 20, to which the noble Baronesses, Lady Deech and Lady Shackleton, and the noble and learned Lords, Lord Mackay and Lord Walker, have put their names. From a lay, non-legal perspective, it has much to commend it.

While political parties and Governments hesitate to legislate on family matters, in particular divorce, the Matrimonial Causes Act 1973 has persisted over the legal landscape of marriage and divorce without being substantially updated by statute for far too long. For example, in recent times, uncertainty around the implementation in law of prenuptial agreements has resulted in bringing misery to many families, adding to the unpleasantness so often experienced at the difficult time of separation.

The noble Baronesses, Lady Deech and Lady Shackleton, are to be congratulated on their sustained attempts to bring greater legal certainty to couples through their Private Members’ Bills on financial provision on divorce. Resolution around finance should not be dependent on which judge may be allocated to a case, which even now can predictably lead to wildly differing quantitative outcomes. New Clause 1(c), proposed by Amendment 20, could lead to one party seeking to add financial pressure through the cost burden of legal pursuit and representation, knowing full well that the other party will have to bear a proportion, often a large one, of any litigation.

Although some may argue that a deep examination of each individual situation will bring forward the relative merits of each case and each issue, custom and practice is not a useful or fair guide to society’s changes in family life. It should be a matter for Parliament, not the legal profession. The next legal battle is already developing over cohabitation. The decision to conduct a review of sections of the Matrimonial Causes Act 1973 under proposed new Clause 1 must be taken by the Government.

I am grateful to the noble Baroness, Lady Deech, for tabling the amendment. I am also grateful to the other signatories to the amendment for sharing their experience and expertise with the Committee, as well as for highlighting the areas for review under the second part of the amendment. It is certainly unfortunate that the noble Baroness, Lady Shackleton, is unable to be in her place.

I urge the Government to think carefully about this amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I will first address Amendments 7 and 17A, tabled by the noble Lord, Lord Farmer. These would prevent the commencement of financial provision proceedings, except for maintenance pending suit, for 20 or even 12 weeks on his alternative, in the absence of the consent of the other party.

I suggest that these amendments—like earlier amendments that restrict the choice and autonomy of parties to a marriage that has failed—are patronising. As I understand it, they are supposed to allow for periods of reflection. I am all for periods of reflection where they will do any good, but they usually do good if they happen before any divorce proceedings are under way.

There are many cases where, by the time divorce proceedings are commenced, a financial provision application has become urgent. This is particularly so where one partner to a broken marriage has remained in an unhappy marriage or is enduring financial hardship, and even in cases where both parties agree to a divorce, but not to the timing or the form of financial provision. One example is when a home should be sold.

It is very important not to hold up financial provision applications on a blanket basis, given that parties frequently stay together long after their marriages have in reality failed, either because they have to live together in one home for financial reasons, or because they decide to stay together for the sake of their children. Why should parties in their position then be made to wait further for financial relief, when delay may cause considerable hardship and unhappiness?

There is, of course, no compulsion on a party to commence financial provision proceedings immediately. I suggest that the timing should remain within the choice of the parties and—where there are such—their advisers.

There are many other cases where, by the time the proceedings are commenced, the parties are living apart. One spouse may be with someone else. Generally speaking, such parties know of the issues between them relating to financial provision before proceedings are brought.

Take for example a currently well-known case. It would be appallingly high-handed to tell a practicing QC, married to a prominent figure—who was very publicly living with someone else, whom he had committed to marry and who was expecting his child—that she would have to delay for 20 weeks before taking steps to secure financial provision in divorce proceedings without his agreement.

There is no good reason to debar financial proceedings once divorce proceedings are under way, so I oppose these amendments.

On Amendment 20, which calls for the review to which the noble Baroness, Lady Deech, has spoken so eloquently, I agree that a review of the law on financial provision is desirable. However, I do not think that the statutory requirement for such a review sits comfortably within this legislation, which is, and should be, limited to removing fault from the divorce process.

I take the view, eloquently expressed by the noble and learned Baroness, Lady Butler-Sloss, that the process of divorce ought generally to be kept separate from issues of financial provision. I would be happier for the Minister to commit to commissioning, in the near future, a wide-ranging consultation with a review of financial provision on divorce, with a view to updating an area of law that has become, for many, out of date and out of step with modern social mores.

I find in the terms of the noble Baroness’s amendment, borne out in her speech, and discerned and spoken to by the noble and learned Lords, Lord Walker and Lord Mackay, an element of prejudgment of what should come out of such a review. I am not sure that picking out the desirability of importing something like the Scottish provisions, the term of periodical payments and the enforceability of prenuptial and post-nuptial agreements, into what should be a wide-ranging and full review is the best path to conducting it.

I do not share the noble Baroness’s cynicism about the Bar, my profession, nor her view that no barristers support reform of the law in this area. Indeed, I support reform of the law in this area, in many ways on the same basis that she does. I certainly support her view that the law on financial provision is too complex and expensive. I endorse her view and that expressed by the noble and learned Lord, Lord Mackay, that there is scope for some kind of a framework or model for use in the generality of cases.

However, there is room for discussion on the extent of judicial discretion, as the noble and learned Lord, Lord Mackay, pointed out. On the term of maintenance payments, I am particularly concerned about the position of older applicants or those in ill health who would normally expect and be entitled to long-term provision. Cutting maintenance off in the short term might be a bad idea.

While I support the idea of a general review of financial provision, I hope the Bill will not be amended to incorporate a statutory requirement in the terms of the noble Baroness’s amendment—but I would welcome a commitment from the Minister to carry out a consultation and review.

[Lord Keen of Elie]

My Lords, I begin with Amendments 7 and 17A tabled by the noble Lord, Lord Farmer, which seek to allow one party to block applications for financial provision on divorce throughout all the new 20-week minimum period referred to in the Bill. That is an entirely new restriction for which we have seen no justifying evidence. Nor do we know the potential financial impact it could have on people’s lives. These amendments would still allow financial applications by agreement of the other party, of course, and would also allow applications for maintenance pending suit, but financial orders are not there just for one or the other party to the marriage. They are also there to make sure that, for example, the children’s needs can be met. I appreciate that applications for financial provision in respect of children can be made at any time under Schedule 1 to the Children Act 1989, but we hardly want to promote a solution that pushes people towards yet a further set of legal proceedings.

There is no reason to delay applying for an order that in most cases can come into effect only when the divorce order is made final. Of course, the financial adjustment between the parties has to be made at some stage, but it is in no one’s interests to restrict when an application can be put in train. Indeed, it is worth noting that only once an application has been made can the court direct the parties to undertake full and frank disclosure of their assets and liabilities. Furthermore, these amendments could have the rather perverse effect of allowing one party to effectively coerce or control the other by frustrating attempts to secure a financial settlement and essentially to use that as a delaying tactic.

We are not in favour of this amendment at all. The Bill seeks to set out a very clear revised process for divorce within the existing legal framework. That is what we are anxious to implement, without being diverted by additional qualifications or controls.

I turn to Amendment 20 tabled by the noble Baroness, Lady Deech. As I said at Second Reading, the Government are considering how to approach any reform of the law with regard to financial settlement. My officials on this Bill are already at work on how best to take this forward. Drawing on that, it will be necessary to essentially lay the parameters for a review that will require, among other things, knowledge and expertise from outside government, to build an evidence base and to assess the problems that the present situation creates.

I hear what is said about the wide diversity of awards that can be made under the existing law, and the potential benefits of embracing a system such as that reflected in the Family Law (Scotland) Act 1985 as a solution, but it is not a case simply of abandoning the present process of financial provision in the law of England and Wales and embracing that of another jurisdiction. There will be a great deal more than that to do. Therefore, to set a fixed period for review is not, I suspect, helpful, because we are going to have to produce very robust recommendations and proposals that will pass in this House and the other place, and that will require detailed consideration and detailed evidence. I cannot say that such a process would be concluded within a year.

Prisons: Radicalisation

Lord Marks of Henley-on-Thames Excerpts

Tuesday 3rd March 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, I mentioned earlier that 22 imams were engaged in the chaplaincy intervention programme; there is also one Sikh chaplain engaged in that programme. Each of those chaplaincy employees has undergone specialist training with regard to intervention and counterterrorism work. They are subject to vetting and due diligence checks. I am content to meet the noble Lord in due course to discuss this further.

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

My Lords, the Minister mentioned the enlightened separation units recommended by Ian Acheson for serious terrorist offenders, to assist their deradicalisation and prevent the radicalisation of other prisoners. The Government accepted the recommendation, the Prisons Minister describing it as

“a crucial part of our wider strategy”.

Now, more than three years on, only one is open—at HMP Frankland—causing Mr Acheson to express his dismay on BBC radio in January. When will there be more, and why the delay?

[Lord Keen of Elie]

My Lords, there has been no delay in this matter. There are currently three separation centres available—at HMP Frankland, HMP Woodhill and HMP Full Sutton, which are all high-security prisons. They have capacity for 28 individuals. However, given the number of individuals selected for that separation, only one of those facilities is actually in use.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

3: After Clause 2, insert the following new Clause—
“Review of sections 1 and 2
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 and 2 to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review.(3) The review must be completed as soon as practicable after the end of the initial one-year period.(4) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.(6) The Secretary of State may—(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of the review, and(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of the review (including arrangements for the provision of staff, other resources and facilities).(7) In this section, “initial one-year period” means the period of one year beginning with the day when this Act comes into force.”

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

My Lords, my Amendments 3 and 5 seek a review of the working of this legislation one year after the Bill comes into force. Amendment 3 is concerned with Clauses 1 and 2, relating to England and Wales, while Amendment 5 is concerned with Clauses 3 and 4, relating to Scotland.

I suggest it is always sensible to review the working of legislation after it has come into force. That usually occurs in the case of non-urgent legislation after a period of years. However, review is even more important and urgent in the case of emergency legislation. This Bill cries out for a specific review of how its provisions are working, precisely because it is being put through Parliament as emergency legislation. We have had no time for consultation or proper scrutiny—one day in the other place and one day here. The result has been that a number of questions that have arisen today have been inadequately considered, so that the Government have no answers to them. That is not a criticism of the noble and learned Lord, nor of the Government in general. It is the inevitable consequence of the haste with which we are passing this Bill.

We have heard today from noble Lords around the House about the risks posed by the lack of measures to improve deradicalisation and rehabilitation in prisons, and of the risks of radicalisation in prison of non-terrorists. We have also heard of the dangers of legislation that in practice, even if not in law—as to which there has been much argument—has retrospective effect. I agree with the noble Lord, Lord Pannick—which I have not always done today—in his point that this Bill involves keeping in custody terrorist prisoners who have served half their sentences and who would have been released had they had a safety assessment by the Parole Board at that point.

I have discerned no indication from the Government that the point made by the noble Lord, Lord Pannick, has been considered by them. The noble Lord made his point in the context of serving prisoners, whose time in custody is to be increased by the enactment of this legislation. However, this is presented, rightly, as a public safety Bill, and the point might also be relevant in relation to some terrorist offenders, not yet sentenced and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released following the halfway point on a favourable Parole Board safety assessment.

Then there was the argument put forward by the noble Baroness, Lady Meacher, that a breathing space could be secured by interposing a Parole Board safety assessment, when it can be prepared, but before a release following the halfway point and such an assessment, and before the two-thirds point. That, again, was an argument that the Government could not meet.

Those are all concerns that cry out for review because the emergency treatment of this Bill has cut its consideration to the bone; yet, far from accepting the need for an urgent review, the Government’s position is unclear, inconsistent and, bluntly, all over the place. At paragraph 58 of their impact assessment the Government wrote:

“In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years following Royal Assent.”


Therefore, there will be a review but very late. In contradiction to that position, in the Explanatory Notes, the Government say the following at paragraph 16, in question-and-answer form, on issues raised by fast-track legislation. The question is:

“Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?”


The Government’s answer is:

“No post-legislative scrutiny is planned. However, the Government intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.”


However, we do not know what will be in that Bill, and it does not seem to answer the need for a specific review of the working of this Bill.

Today I have been told by the Government that they are not prepared to agree to a review because the independent reviewer is already engaged upon his review of the Multi Agency Public Protection Arrangements —the so-called MAPPA—and the release and supervision arrangements will inevitably be included in that. Also, it is to be expected—and the independent reviewer, Jonathan Hall QC, has confirmed—that he will scrutinise this legislation in his regular annual review. I am sure that that is so, and it is indeed very welcome, but neither of the independent reviewer’s reviews will be specifically directed to the efficacy or merit of the provisions of this legislation. They cannot therefore take the place of proper parliamentary scrutiny, which we have been denied. It is an inappropriate treatment of Parliament to attempt to piggyback post-legislative scrutiny of this Bill on reviews conducted for a separate and different purpose, however good those reviews might be expected to be.

Our amendments would require the Government to commission a review by an independent professional, whose appointment would be made in consultation with the Independent Reviewer of Terrorism Legislation. No one has seriously challenged the mechanism of our proposed review. I beg to move.

[Lord Anderson of Ipswich]

My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:

“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”


Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.

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[Lord Keen of Elie]

My Lords, this Bill is only one element in a much broader response to terrorism, which includes both legislative and non-legislative measures. The Government’s view is that it would be inappropriate to consider just one element of those measures in isolation. We have announced our intention to introduce a counterterrorism (sentencing and release) Bill, which has been referred to. That will make wider changes to the release arrangements governing terrorist prisoners, as well as the penalties available to the courts. The provisions of this Bill—hopefully by then enacted—and the questions surrounding discretionary release for terrorist offenders will no doubt form part of that ongoing debate.

Last month, the Government launched an independent review of the multiagency public protection arrangements. This review is being led by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, Queen’s Counsel. The release and supervision arrangements for many of the prisoners to whom the Bill applies will inevitably be included in that review. A report following the MAPPA review will be provided to the Home Secretary and Justice Secretary for publication as soon as is practicable.

Taking up the point made by the noble Lord, Lord Anderson of Ipswich, we anticipate that, in the course of his routine duties as the Independent Reviewer of Terrorism Legislation, Jonathan Hall will scrutinise the new release legislation for terrorist offenders in his annual report; that is a statutory commitment. Indeed, as the noble Lord, Lord Anderson, observed, the Independent Reviewer has already said in his comments on the Bill that he envisages doing just that in a future report. I would certainly accept that that falls well within the boundaries of his responsibilities, and it is in these circumstances that we say that a further review is unnecessary.

The Government are clear that we want to see an end to the automatic early release of terrorist prisoners. In the forthcoming counterterrorism Bill, we will make further changes to the law surrounding the release of these offenders. In addition, later in this Session we intend to introduce a sentencing Bill that will cover wider areas of sentencing and release policy. Again, that will provide an opportunity to discuss sentencing and release arrangements. In these circumstances, we consider that there is no requirement for the further review proposed by the noble Lord, Lord Marks, and I urge him to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I turn first to the point made by the noble Lord, Lord Anderson, and the question that he asked me. I accept, of course, that the independent reviewer Jonathan Hall, QC will be looking at the way this Bill is working; but he will do so in a much wider context—that of his annual review and his MAPPA review. An issue of serious principle is involved. What is needed here is a precise review of how the provisions of this emergency legislation, passed with inadequate scrutiny, are working.

I turn now to the observations of the noble Viscount, Lord Hailsham. I am afraid that if this House always took the view that the House of Commons might kick back amendments we make, we would lose a great deal of our usefulness. The points that we make and the amendments we pass are often very influential to a much wider audience. I am not deterred by the fact that my colleagues in the House of Commons, who are slightly less numerous than my colleagues here, failed to get their amendment through that House, or by the fact that the Labour Party’s amendment did not succeed. I suggest that it is for us to form a view of this amendment.

When the noble Viscount went on to explain the kind of review that he foresaw as necessary and should take place, and indeed when the Minister responded to these amendments, they were both considering a much wider, more comprehensive, fuller review of the treatment and punishment of terrorists, including the Acheson recommendations on how to secure rehabilitation and the whole issue of deradicalisation. Those issues are crucial, and my regret Motion was concerned with the lack of those provisions. The very fact that the reviews that the noble Viscount and the Minister have in mind are so general and broad-reaching deprives them of the specific accent that a review of this legislation ought to have.

We should not forget the emergency nature of this legislation: it is just over three weeks since the awful atrocity in Streatham High Road. We will have passed this legislation tonight—as I am sure we will—in response to a promise made by the Lord Chancellor, the Secretary of State for Justice, the very next day. We have done it in double-quick time. Question after question was raised in today’s Second Reading—a very good debate—by noble Lords who know a lot about the subject but have had insufficient time to consider the provisions of this Bill and their consequences. As a matter of principle, it is important that post-legislative scrutiny is directed urgently at Bills that are passed as an emergency, and with this Bill, where the liberty of the subject—however undeserving many of the subjects may be—is at stake, that principle is of great importance. I have not heard anything said today that addresses the requirement for a review of emergency legislation of that kind, and I therefore wish to test the opinion of the House.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

At end insert “but that this House regrets that the bill fails to propose measures to deradicalise and rehabilitate offenders and to provide adequate resources to that end; and that the bill offends against the common law principle that new law should not be made to have retrospective effect.”

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

My Lords, I am grateful to the Minister for the careful way in which he has opened this debate. No one who considers the recent attacks at London Bridge and Streatham High Road can fail to understand the Government’s concern to prevent further such events. At Fishmongers’ Hall on 29 November, Usman Khan, released at the end of 2018 after serving eight years of a 16-year sentence, brutally killed two people and injured three others near London Bridge, ironically and cynically while attending an event on prisoner rehabilitation. On 2 February, just over three weeks ago, on Streatham High Road, Sudesh Amman, released less than a fortnight earlier after serving half of his three and one-third year sentence for possessing and disseminating terrorist documents, stabbed two innocent members of the public.

So it is not surprising that public attention has focused on the fact that these two terrorist offenders had been so recently released from prison at the time of their offences and that the Government are clearly committed to preventing a recurrence of such offences by recently released offenders. And there is much in this Bill that we welcome. For example, it is clear to us that the Parole Board should be involved in assessing whether prisoners can be safely released before their early release on licence.

But there are two aspects of the Bill which cause us particular concern. First, the Bill alters release dates and defers release from prison for all offenders to whom it relates but contains or presages no new measures to improve the chances of deradicalising and rehabilitating such offenders. Secondly, the Bill offends against the common-law principle of retrospectivity: new criminal legislation should not have the effect of increasing the length of a prison sentence imposed on an offender who was sentenced before the new legislation was passed. By “length of the prison sentence” I include the time the offender is statutorily bound to spend in prison.

Taking the first point on rehabilitation and deradicalisation, it is worth noting that the Bill affects all offenders within its ambit, not only those who present a particular danger. For all those offenders, it reduces their time on licence when, for many, it is time spent under supervision, on licence after release, that offers the best chance of deradicalisation and rehabilitation.

We know that the probation service is in crisis, underresourced and demoralised, but we should aim to have an improved and well-resourced probation service with more time to work with prisoners following release, not less. Furthermore, there is real concern that spending longer in prison risks further radicalising not only those terrorist offenders but others they meet in prison. Only last Wednesday, the Times devoted its lead article and its first leader to radicalisation in prisons, and in particular a jihadist knife attack on prison staff by a prisoner in HMP Winchester who was there for non-terrorist offences. As the leader writer put it:

“Prisons are not only failing to deradicalise terrorists; in some cases they risk creating them.”


At Second Reading in the House of Commons, Theresa May, with all her experience, pointed out that the Lord Chancellor and the Government were

“absolutely right to be addressing the question of the automatic early release of terrorist offenders, but terrorist offenders will still be released at some point. That is why rehabilitation—the work that is done both in prison and when they are out of prison—is so important. There have been many efforts at this over the years, but, as recent incidents have shown, not always with success.”—[Official Report, Commons, 12/2/20; col. 867.]

In 2015, the Lord Chancellor commissioned former prison governor Ian Acheson to write a review of Islamist extremism in prisons, probation and youth justice. He reported in March 2016, making 69 recommendations, including the appointment of

“an independent adviser on counterterrorism in prisons … responsible for an overarching counterextremism strategy”,

special enlightened separation units, as he called them, for high-risk extremists, greater training for staff in cultural and religious traditions, tighter vetting of prison chaplains, tackling extremist literature, a focus on the safe management of Friday prayers to prevent their abuse, improving the speed of response to serious violence within prisons, and more involvement of specialist police from outside.

On 29 January this year, more than two years after his report, Mr Acheson presented a BBC documentary called “The Crisis Inside”, in which he said that he was appalled that his 69 recommendations had been distilled to 11, of which the Government had recommended the implementation of eight. There would be a new directorate but no new independent adviser.

On separation units, planning at this stage was apparently under way. But just three had been recommended, and of those only one had been opened, at HMP Frankland. In the programme Mr Acheson interviewed Fiyaz Mughal, the founder of Faith Matters, who said that the imams relied on by the Government lacked the strength or the skills to mount a credible challenge to the theological base of extremism that motivated the terrorists. He was also clear that the Government’s Healthy Identity Intervention programme was far too easy for prisoners to game and manipulate.

The probation service feels undervalued and largely ignored. It is significant that Usman Khan’s mentor following his release warned the Government of the danger he presented eight months before the London Bridge attack, but no notice was taken of his warning.

We are not handling this crisis well. In the Netherlands, France and Spain, serious terrorist and Islamic extremist prisoners are separated from others, with improvements in prison safety and order, and more chance of targeted counter-radicalisation interventions working. We have 220-odd terrorists in custody and we must do more to reduce the threat from them, all the way from the period before they are taken into custody to the period following their release.

I turn now more briefly to our second concern with retrospectivity. I shall try not to get bogged down in the detailed legal question of whether altering prisoners’ release dates part way through their sentence is a breach of Article 7 of the European Convention on Human Rights. The noble and learned Lord repeated the view of the Government that it is not such a breach, but there are many who disagree. However, the question cannot be entirely avoided in this debate. On the question of penalties, Article 7.1 provides:

“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”


In the case of Uttley in 2004, the House of Lords considered whether Article 7.1 had been infringed when statutory automatic release at the two-thirds point was changed to release on licence at the same point, because release on licence would involve the imposition of supervision and restrictions on Mr Uttley’s freedom under the terms of the licence. The House decided that the sentence that was “applicable”, to use the terms of the article, was the maximum sentence that could have been passed for the offence for which the defendant was originally convicted. It followed that Article 7.1 would be infringed only if a sentence imposed on a defendant constituted a heavier penalty than that which could have been imposed on him under the law in force when his offence was committed. Since Mr Uttley’s multiple sexual offences included three rapes, for which he could have been sentenced to life imprisonment, and since he was sentenced to only 12 years’ imprisonment, he could not complain that his 12-year sentence was not applicable when his offences were committed. It was also said that altering his release conditions was an act of administration of his sentence, not an increase in that sentence.

However, I would suggest that the decision in Uttley arguably has no application to the changes to the statutory automatic release date proposed in this Bill, because all relevant offenders will spend longer in prison than they were statutorily bound to serve under the terms of the 2003 Act when sentence was passed on them. Furthermore, in a Spanish case in the European Court of Human Rights, Ms Del Río Prada had been sentenced prior to 2000 to a total of more than 3,000 years of imprisonment for serious terrorist offences for the ETA. Under Spanish law, these sentences were subject to a statutory maximum of 30 years. In 2006, the Spanish supreme court decided that remission for work carried out in custody would be deducted not from that 30-year maximum but from the overall sentences, so that her release date was deferred by nine years from 2008 to 2017 and thus she would serve the full 30-year maximum. The Strasbourg court decided that the change in the treatment of remissions had not merely altered the manner of the execution of the penalty but had redefined its scope. Furthermore, when Ms Del Río Prada was sentenced, she was entitled to expect, as a matter of law, that her remissions would be deductible from the 30-year maximum. It followed that there was an infringement of Article 7.1.

For my part, I find it difficult to see how the decision in Uttley could enable this Bill to withstand a challenge under Article 7 on the basis of the Del Río Prada case, where every sentence passed on a relevant offender means that the offender will spend a third longer in prison than he would have done under the 2003 Act. The case of Uttley has been further considered in the UK courts, but I would not wish to predict that the view taken in Uttley could still prevail in Strasbourg.

However, I prefer to rest this regret Motion on the long-held—

[Lord Pannick (CB)]

Is the noble Lord aware of the recent judgment of the European Court of Human Rights in Abedin v the United Kingdom on 12 November 2019? This dealt with the change to the statutory regime and said:

“Nothing in the Court’s judgment in Del Río Prada”—


which the noble Lord is relying upon—

“called into question the central proposition outlined in Uttley that where the nature and purpose of the measure relate exclusively to a change in the regime for early release, this does not fall part of the ‘penalty’ within the meaning of Article 7”.

Therefore, the complaint was dismissed. That case would suggest that there is no basis for a complaint about this Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I am familiar with the case of Abedin. I do not accept, however, that that involves or considers the position here, where the length of time spent in custody is changed by statute from the automatic release that prevailed under the 2003 Act to the prohibition on release before the two-thirds point that would prevail once this Act was passed. Abedin did not answer that point. It concerned the mechanism for release; it did not concern the overall time that was necessary by statute to be spent in custody. That is the answer to the direct point of the noble Lord, Lord Pannick, on the ECHR jurisprudence.

I was saying that I prefer to rest this regret Motion on the traditional common-law principle against retrospectivity. When we debated before the recess the Sentencing (Pre-consolidation Amendments) Bill, the noble and learned Lord rightly described the Bill as ensuring that it did not,

“contravene the general common law presumption against retroactivity.”—[Official Report, 11/2/20; col. 2253.]

The noble and learned Lord, Lord Hope of Craighead, described the principle as being,

“that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed.”—[Official Report, 11/2/20; col. 2249.]

The penalty that applied when the 2003 Act was being applied meant automatic release at the one-half point. This Bill requires consideration of—not automatic —release only at the two-thirds point. That is one-third longer, and that is the point that I make. The noble and learned Lord, Lord Falconer of Thoroton, expressed anxieties on this point during the course of that debate, and I share them.

My concern, therefore, is simply that an offender convicted before this Bill is statutorily entitled to release at one half, under an automatic response. If this Bill is passed unamended, his release will be deferred until after the two-thirds point, and then only on a Parole Board assessment.

At Second Reading in the House of Commons, the Lord Chancellor tried to argue that this does not mean that the Bill will change retrospectively the sentence imposed by the court:

“Release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged.”


That is the point made on Abedin by the noble Lord, Lord Pannick. A little later, however, the Lord Chancellor rather gave the game away in abandoning this position when he said:

“The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist defenders in the coming weeks and months.”—[Official Report, Commons, 12/2/20; col. 872.]


Indeed, the noble and learned Lord today, in opening this debate, accepted that the Bill had retrospective effect but argued that it did not offend against Article 7.1. The Bill is retrospective, whatever the position under Article 7.1, and I do not believe that the Government have made a strong, evidence-based case for retrospection.

I will add only this. To impose apparent injustice on serving prisoners risks their being less amenable to rehabilitation, more resentful of their having their time in custody increased, and so more dangerous on release then they might otherwise have been. Significantly, the impact assessment at page 2 recognises both this risk and the risk to rehabilitation in the Bill, saying:

“A later release date and reduced (or no) licence period could disrupt offenders’ and family relationships and reduce opportunities for rehabilitation in the community, this would be more severe for young offenders and children convicted of terrorist offences. Additionally, there is a risk of prisoner frustration, disengagement or unrest at changing release arrangements, though there is little evidence to support how prisoners will actually react, and reaction is likely to vary from prisoner to prisoner.”


I fear that we abandon long-established principles at our peril. The peril is worse still when we legislate in a rush. We have amendments down in Committee seeking a review after a year of the operation of this legislation. We regard such a review as extremely important to consider its functioning when we have been denied, as we have, proper scrutiny at this stage. It is our intention to press those amendments in Committee. I beg to move.

[The Lord Speaker (Lord Fowler)]

The original question was that this Bill be now read a second time, since when an amendment has been moved, at the end to insert the words as set out on the Order Paper. The question I now therefore have to put is that this amendment be agreed to.

--- Later in debate ---

[Lord Keen of Elie]

My understanding is that under the present legislative regime, there is a duty on the Secretary of State to release the prisoner at the halfway point. We require a regime in which the Parole Board is able to act in determining whether it is satisfied that the prisoner could be released—but you could not hold the prisoner simply on the view that the Parole Board might take a few months to get round to considering his case. That is why it is necessary to look at what was referred to as a breathing space: the requirement to allow time to implement this process. As I say, it is also consistent with other sentences, where release is at the two-thirds point, and it allows for the incapacitation of the terrorist offender for a slightly longer period—which in turn, we suggest, assists in maintaining public confidence in the way in which we are dealing with these offenders.

While I understand the concern about retrospection, it has to be seen in its proper context. The Bill will not achieve its intended objective unless there is that element of retrospectivity in it. The noble Lord, Lord Anderson, alluded to a situation in which a prisoner might remain in custody until the very end of their sentence and then be released without licence. It is in those circumstances that one can find provision for TPIMs, for example. I acknowledge that they have been utilised only to a very limited extent until now, and it may be that their use has to be looked at again. They are very resource-intensive, which may explain to some degree why they have been employed only in limited numbers until now. Again, we are looking at the need to employ such procedures.

The noble Lord, Lord Anderson of Ipswich, also raised Northern Ireland, which I believe the noble Baroness, Lady Hamwee, also referred to. The Justice Minister felt that she would like to see the legislation extended to Northern Ireland. We have discussed the matter with officials in Northern Ireland, and there are very real technical difficulties regarding the way in which sentencing policy is implemented in Northern Ireland. It is quite different to sentencing policy in England and Wales in a number of respects. We fully intend to take forward this legislation, which is why we intend to look at this in the context of the counterterrorism Bill that we intend to bring forward—but at present we feel that it would be too complex an issue to try to deal with in the context of this emergency legislation.

The noble Lord, Lord Pannick, asked why, if this is emergency legislation, there is no sunset clause. The Government’s view is twofold. First, it could create uncertainty and confusion, because a prisoner would not know whether they were to be subject to the regime that we are introducing. Secondly, we are intending to bring forward a more substantive and wide-ranging counterterrorism Bill, properly addressing these issues, when the various committees of the House are available to examine the proposed legislation. I hope that that goes some way towards satisfying the noble Lord.

I am conscious of the time, so let me say this in conclusion. In extending parole release to all terrorist offenders, the Bill provides a sensible and proportionate safeguard against the problem of automatic release. The consequences of such automatic release are reflected at Fishmongers’ Hall and in Streatham. Further releases of prisoners are due within a matter of days. If the Bill is to achieve its desired effect, early commencement of the provisions, including retrospection, is vital. We are concerned not only with public confidence, but also with public safety. That is the first duty of any Government and one that we take extremely seriously. I invite the House to do likewise.

[Lord Marks of Henley-on-Thames]

My Lords, my regret amendment does not ask the House to reject the Bill. If the noble Baroness, Lady Buscombe, or anyone else understood it as so doing, that was not intended. I fully agree with the many noble Lords who said that the Parole Board should carry out a safety assessment before terrorist prisoners are released. I agree with the Minister that that is sensible and proportionate.

Let me briefly take up the point made by the noble Baroness, Lady Meacher, to which I do not accept that the Minister had a satisfactory answer. If the Bill were to achieve Parole Board assessment prior to release but did not increase the minimum time in custody from half to two-thirds of the original sentence, the breathing space for which the Minister asked would be achieved. As soon as the Parole Board had decided that release was safe, release would follow.

I also agree that automatic release is not appropriate in the case of terrorist prisoners. My amendment is confined to expressing some regrets that the Bill will do nothing to improve deradicalisation and rehabilitation, that Ian Acheson’s recommendations are hardly being implemented, that without further measures we risk radicalisation of non-terrorists in custody and that the Bill may cut down the time for supervision of some lower-grade terrorist offenders, who will spend more time in custody and less under supervision, thereby losing the benefits of significant periods of supervision.

On the Bill’s retrospective effect, I agreed with the noble Lord, Lord Harris of Haringey, except when he described his reasoning as “simplistic”. I also agreed with the noble and learned Lords, Lord Falconer and Lord Garnier, the noble Lord, Lord Carlile, and other noble Lords that, whatever the position under Article 7, where a six-year sentence meant three years in custody under the 2003 Act when passed but after this Bill will mean four years in custody, it is mere sophistry to assert that this is not a retrospective change. Similarly, it is mere sophistry to draw legalistic distinctions between a presumption against retrospectivity and a principle against retrospectivity and mere sophistry to draw a legalistic distinction between the sentence passed and the time to be spent in custody. I agree with the noble and learned Lord, Lord Garnier, that such a retrospective change will rightly seem unjust and unfair to serving prisoners, their families and those around them and may fuel further radicalisation.

For the reasons explained by the noble Lords, Lord Anderson and Lord Carlile, the noble and learned Lord, Lord Garnier, my noble friend Lord Beith and others, I will support the amendments to be moved in Committee to introduce pre-release assessment by the Parole Board at the halfway point for terrorist prisoners already serving sentences with the prospect of release, if the Parole Board considers their release is safe. That said, I do not intend to press my amendment to the vote and I therefore beg leave to withdraw it.

Amendment withdrawn.

Bill read a second time and committed to a Committee of the Whole House.

[Lord Bethell]

My Lords, the Legislation Office is open for a further 30 minutes for amendments to be tabled for Committee. If no further amendments have been tabled, Committee will start immediately after the Question for Short Debate in the name of the noble Lord, Lord Lucas. If further amendments are tabled, we may need to adjourn during pleasure, with timings updated via the annunciator.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Lord Marks of Henley-on-Thames Excerpts

Tuesday 11th February 2020 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin with a short apology for the delay in commencing. The purpose of this draft instrument is to enable the Secretary of State to make the alcohol abstinence and monitoring requirement available across England and Wales.

This legislation gives the court a new tool directly to address alcohol-related offending. As part of a community sentence, judges and magistrates will be able to impose a ban on drinking alcohol for up to 120 days, and we will monitor this using continuous electronic monitoring, which is referred to as alcohol tagging. I am grateful for the comments made by the Lords Secondary Legislation Scrutiny Committee and intend to address them below and in the course of this debate.

Alcohol-fuelled crimes put a huge strain on front-line services. Problematic alcohol consumption is associated with crime, particularly heavy or binge drinking and violent crime. The latest published figures from the Crime Survey for England and Wales, in 2018, estimated that in 39% of violent incidents the victim believed the offender to be under the influence of alcohol. Alcohol-related crime is estimated to cost the taxpayer up to £13 billion per year. Public Health England estimates that the total social and economic cost of alcohol-related harm was £21.5 billion in 2018.

AAMRs have a punitive effect on offenders by restricting their ability to drink alcohol while the requirement is in force. In addition, the pilots have shown us the potential of this measure to address the purposes of sentencing more widely. Where the criminal behaviour is driven by alcohol, an alcohol ban has the potential to reduce crime and provide the opportunity for reform and rehabilitation. Through enforcing abstinence, AAMRs are designed to mitigate offending behaviour which is driven by alcohol. Where alcohol is driving or triggering criminal behaviour, the AAMR will interrupt it and should give individuals and communities a break, reduce the number of victims, protect the public and save the costs of dealing with the crimes.

The monitoring will be continuous and delivered via electronic ankle tags, providing assurance with compliance. If alcohol is detected, or attempts are made to avoid the monitoring, the offender can be returned to court. These requirements may not be imposed on dependent drinkers or alongside an alcohol treatment requirement. They are only for adult offenders.

Harnessing innovative technologies such as alcohol tags can not only punish offenders but help turn their lives around. This legislation plays an important role in a wider package of reforms of community penalties that the Government plan to bring forward in due course, which will ensure that community sentences can offer an appropriate level of punishment while effectively tackling underlying drivers of offending.

The alcohol abstinence and monitoring requirement was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This legislation creates a new requirement within the Criminal Justice Act 2003 that can be used where a community order or suspended sentence order is imposed. The 2012 legislation requires the order to be piloted before it can be rolled out. This requirement has been met. There have been two pilot schemes: one in London, initiated by the Prime Minister when he was mayor, and the other in Humberside, Lincolnshire and North Yorkshire. These pilots have shown us that this new measure will be welcomed by criminal justice partners.

The two AAMR pilots were run respectively by the Mayor’s Office for Policing and Crime in London, and by the police and crime commissioners and the Humberside, Lincolnshire & North Yorkshire Community Rehabilitation Company. I appreciate that the absence of published findings was criticised by the Lords Secondary Legislation Scrutiny Committee. I am pleased to say that findings from the pilot in the north-east have now been published and I am happy to be able to highlight some of them during this debate. Some 1,500 orders were imposed during the pilots.

The pilots had significant differences in how they were run, but the compliance rates are very similar, which gives us confidence in the utility of this measure. Compliance was very high indeed—the figure for the requirement itself was 94% for both pilots; and for abstinence from alcohol it was 98% in the London pilot and 97.4% in the Humberside pilot. That is the percentage of monitored days that were free from both alcohol and interference with the equipment. There was significant use of the order in the sentencing of violent offences in the pilots. In London, 45% of requirements were for violent offences, and in the north-east 31% were for domestic abuse offences.

This measure is welcomed by those on the front line. Indeed, as the Humberside police and crime commissioner Keith Hunter said:

“The period in which the offender is tagged will give rehabilitation agencies a real opportunity to work with the individual and get them to recognise and change their behaviour, hopefully for good. I would like to see these orders available nationally as a standard feature of the Criminal Justice System.”


Sentencers in the London pilot were frustrated that they were unable to impose the order on offenders who fell outside the pilot area.

Reports from the pilots demonstrate that offenders also recognised benefits. They were generally optimistic about the requirement and felt that it had a positive impact on their lives, particularly around their health, well-being and offending behaviour. In the north-east, 81% of those surveyed at the end of the requirement reported that they thought they would drink less or no alcohol when the tag was removed.

The scrutiny committee commented on a lack of information about rollout of the new measure. We plan to begin the introduction of the order later this year. Our intention is to take a similar approach to that used for the successful rollout of location monitoring and so avoid disruption to the core electronic monitoring service. We will balance an incremental rollout that allows us to respond to learning from early deployments and further findings from the pilots if necessary, alongside opportunities to prepare stakeholders and inform decision-makers appropriately, with ensuring that the tool is available across England and Wales as quickly as possible. We estimate that when the requirement is fully rolled out and in use nationally, in around 2023-24, some 2,300 people will be sentenced to these orders each year. This will mean that approximately 400 orders will be active at any given point in time.

The order’s requirement imposes an alcohol ban of up to 120 days, while continuous monitoring provides assurance regarding compliance with the sentence of the court. We believe that the introduction of this measure strengthens the community sentence response to alcohol-related offending and is a powerful message that we are tackling this issue. We should not lose time in introducing a new measure which means that our courts can directly address a driver of crime and stop the drinking of those who cause misery, damage and fear by their behaviour, for up to four months. We strongly believe it is in the public interest to introduce this measure. I beg to move.

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

My Lords, there is widespread agreement that a great deal of crime is related to and fuelled by alcohol. Indeed, Members of your Lordships’ House have been saying for many years, in debate after debate, that much offending in this country is related to excess alcohol and drug abuse, so the passage of Section 76 of the LASPO Act was unsurprising. There is also widespread agreement that we all should support measures to reduce the consumption of alcohol in relation to crime, and thus alcohol-related crime.

The alcohol abstinence and monitoring requirements, which I shall call simply alcohol monitoring requirements, use electronic tagging technology to ensure that offenders reduce or eliminate alcohol consumption for a period. The essential elements for the application of Section 76 of the LASPO Act are: first, that the offences concerned are alcohol-related; secondly, that during the period of the order the offender will take no alcohol, or alcohol reduced to a specified level; thirdly, that the consumption of alcohol will be electronically tagged; fourthly, that the period of the requirement will not exceed 120 days; fifthly, that it can be imposed only together with a community order or suspended sentence; and finally, that a breach of the requirement is punishable by a sentence for that breach.

The Committee has heard from the Minister that there have been two pilots. The London pilot ran from 2014 to June 2018, while the Humber, Lincoln and North Yorkshire pilot—which I shall call the northern pilot—ran from after the 2017 election until April last year. There were different methodologies. The London requirements were imposed on a stand-alone basis, whereas the northern pilot imposed the orders together with community orders, while monitoring and fitting of the tag was carried out by probation staff. In addition, the northern pilot included domestic abuse offenders whereas the London pilot did not.

The only question that warrants the Committee’s attention at this stage is whether enough evidence has been gleaned from the two pilots that alcohol monitoring requirements are or will be effective to justify Parliament’s commencing the section now and rolling out alcohol monitoring requirements. Your Lordships’ Secondary Legislation Scrutiny Committee clearly concluded that there was not. Central to its view was that the results of the northern pilot had not been published, although we have heard from the Minister that they have been now; that was predicted for this month. But published or not, it follows from their recent nature that the results cannot have been publicly evaluated.

The Ministry of Justice sought to justify its position in its Explanatory Memorandum at paragraph 7.3, which bears reading because, I suggest, it is unconvincing. It says that the evaluation of the northern pilot

“is not due until February 2020 but sufficient learning has been shared with the department, through ongoing involvement with the pilot and its evaluation, to indicate findings consistent with, and complementary to”,

the London pilot, and that:

“In addition, the department conducted a proof of concept for using the alcohol monitoring technology for suitable offenders released on licence. This has provided considerable insight into how alcohol monitoring can support the management of risk and rehabilitation. On this basis, we consider that we have a good evidence base around the utility and practice”


of alcohol-monitoring requirements

“which has informed our plans for England and Wales roll-out.”

What the Ministry could not assess was the impact of alcohol monitoring requirements on reoffending. Indeed, paragraph 29 of the committee’s report quoted the department’s response to Questions. It said:

“Reoffending findings will be available well in advance of commencing roll out and will inform the delivery of AAMR. However, it is our view that the findings we already have from the”


pilots

“indicate that AAMR is an effective sentence option. It is the department’s intention to assess impacts much more substantially, including to inform the better targeting of resources to address alcohol harms, when we roll out AAMR.”

The reality is that assessing the effect on reoffending will have to await medium-term evaluation of the behaviour of offenders who have been placed under these monitoring requirements. The Government appear to have accepted that in their impact assessment.

--- Later in debate ---

[Lord Keen of Elie]

I am grateful to noble Lords for their contributions to this debate. I will address a number of the points that have been raised. First, the results of the second pilot in Humberside were known to the ministry as it brought forward this order. The results have now been published and they are quite compelling. We are talking about a compliance rate well over 90% in both pilots. Indeed, it was 98% in the case of the London pilot and 97.4% in respect of Humberside. They were carried out over different periods and applied in the context of different offences. That gave us a spectrum of results, but all were very encouraging. Of course, we should consider not only the immediate importance and impact of the orders—because they stop people taking alcohol for a period of up to 120 days—we should like to be informed whether there is an ongoing impact. In the Humberside pilot, about 81% of those who had undergone such an order were contemplating either stopping taking alcohol or reducing their alcohol intake at the end of the period. It was clearly having an impact, therefore, on people’s intentions—but they were only intentions, of course.

As regards reoffending, it will take time to go through that process. As the noble Lord, Lord Marks, himself said, that is something for the middle term, not something we can immediately analyse. As the noble Baroness, Lady Chakrabarti, said, the primary legislation was enacted in 2012. The pilots were completed only last year. For how many more years are we to analyse the data before we commit to rolling out what appears on the face of it, and on the basis of the pilots already carried out, to be a very successful programme?

On the issue of resuming alcohol consumption, raised by the noble Lord, Lord Marks, yes, that is always a risk, but there are two benefits. First, there is the immediate benefit of taking someone off alcohol for a period after they have committed an offence, one that may well have been induced by excessive alcohol consumption. Secondly, there is the potential for them to learn from the experience that they do not wish to imbibe alcohol to excess in future, in order to modify their behaviour. However, I accept that you cannot guarantee that.

The noble Lord, Lord Beecham, raised the question of medical assistance. Let me be clear: an order of this kind will not be made where an individual is alcohol dependent. It is difficult to see how you could bring in and use doctors in the context of someone who is not alcohol dependent but is being taken off alcohol for 120 days because of a violent crime committed under the influence of alcohol. I find it difficult to understand what their contribution would be. On the other hand, in cases where someone is alcohol dependent, provision is made through the Community Sentence Treatment Requirement Programme for Health and Justice partners to work together to deal with such dependency, be it on alcohol or drugs.

At the end of the day, we have to bear in mind that we intend to roll out this programme on the basis of the probation areas, so we will learn even as we roll out the programme between now and 2023 how effective it is being. But we have already seen the results of the original pilots, and I suggest that they really are impressive. In the circumstances, we consider that now is the time for us to respond to the issue of alcohol-related offending and alcohol-related violent crime by taking the steps proposed in the order. It is in these circumstances that I commend the draft instrument—

[Lord Marks of Henley-on-Thames]

My Lords, before the noble and learned Lord sits down, is it intended that the alcohol monitoring requirements be imposed as a generality in the first stages of the rollout, together with rehabilitative requirements, so that the probation service will be involved, or is the stand-alone imposition of alcohol monitoring requirements likely, as in the London programme? It seems to me that there may be a substantial difference in the effect on future behaviour.

[Lord Keen of Elie]

My understanding is that the monitoring will not be carried out by or related to the probation service; it will be carried out independently. But clearly, the justice system will have an overall picture because, where someone is in breach of the order, that individual will be brought back to court.

May I just clarify a point I made earlier? The period 2023-24 is when we intend to reach steady state and to have completed the rollout. The rollout itself is intended to take place over the next 12 months. I hope that assists noble Lords.

Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Marks of Henley-on-Thames Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

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

My Lords, I will be relatively brief for a number of reasons. First, it is late. Secondly, this Bill has had a unanimous welcome and support from around the House; and, thirdly, we debated this Bill in almost identical terms on 12 June last, and again we have had an excellent debate in which a number of brilliant speeches have powerfully made the case for the Bill.

I too welcome the noble and learned Baroness, Lady Hallett, to this House and congratulate her on her excellent maiden speech. I have admired the noble and learned Baroness for many years as an incisive advocate, as an extremely distinguished judge in the High Court and the Court of Appeal, as a forward-looking chair of the Bar Council, as an effective treasurer of my Inn, the Inner Temple, and in many other roles. She expressed concisely and brilliantly, with all her vast experience of the Court of Appeal Criminal Division, the reasons why this Bill is so welcome when she described the crazy complexity of the existing statutory provisions and expressed the view that this Bill and the sentencing code will, at a stroke, simplify sentencing. The Bench’s loss is of course our gain and we look forward to the noble and learned Baroness’s future contributions to the work of this House.

Perhaps I may add a few words from the perspective of these Benches. First, we are completely committed to the mission of the Law Commission to ensure that the law is as fair, modern, simple and cost-effective as possible. This Bill is essential to that mission and in an area that is central to our law and liberties. We have heard accounts from speakers from the noble and learned Lord, Lord Judge, onwards—including from my noble friend Lord Thomas of Gresford, on military law in particular—of anomalies in existing sentencing law; its fiendish complexity and inaccessibility, to judges and counsel, let alone to the public and defendants who most need, and are entitled, to understand it; the passing of unjust and unlawful sentences, with a frequency that defies belief; and the delays and cost caused by bad sentencing.

The Bill has at its heart the Law Commission’s stated aim

“to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes.”

But I add a few notes of plea and of warning. First, the code will work well only if future sentencing changes are not only incorporated into the code, as the Bill promises, but are themselves kept simple. It has not just been difficulties of understanding that have made sentencing law inaccessible. There have been too many complex variables in the substance of sentencing law, as to when and under what conditions particular sentences may or may not—or must, or must not—be passed. These have made it very difficult for lay people and lawyers to understand the courts’ powers and the rationale for them.

Secondly, I applaud the clean-sweep provisions. It is essential that everyone understands what sentences can be passed by the courts, and I agree that the best reference date for that understanding is the date of sentence. That is subject to the exception outlawing retroactive sentences imposing penalties that would not have been available at the date of the offence. This principle was described in the Explanatory Note, and by the Minister at Second Reading last year, as ensuring

“that the clean sweep does not contravene the general common law presumption against retroactivity”.—[Official Report, 19/6/19; col. GC 15.]

I agree with what the Minister said today: this principle is necessary to protect the “fundamental rights” of the offender. The principle was then rightly described by the noble and learned Lord, Lord Hope—and effectively repeated today—as incorporating a requirement

“that the convicted person must not be dealt with by the imposition of a penalty of any kind which is more onerous than that which he would have faced when the offence was committed.”—[Official Report, 19/6/19; col. GC 19.]

As the noble and learned Lord, Lord Falconer of Thoroton said, we will consider that principle further in connection with the Bill concerning changes to release dates, published today, which we will debate later this month—and I share the noble and learned Lord’s anxieties.

Thirdly, those drafting legislation would be doing lawyers and lay people alike a kindness if they used less cross-referencing. Definitions reading that “phrase A in Act B shall have the meaning ascribed to it in Act C”, should cease to be a feature of our statutes. Simplicity and clarity are all; codification is part of the battle but, alone, it goes nowhere near achieving a statute book that is readily intelligible to the public. And that is what we must aim for, particularly in a society where computer literacy is now happily widespread, so that statutes can be easily researched by many, and also where citizens’ access to legal representation and advice has been substantially diminished by extensive cuts in legal aid.

Finally, as has been said, this Bill will not of itself improve sentencing policy. The Minister in opening made the point that it makes no changes to substantive sentencing law; nor does it. From these Benches, we will continue to argue for a sentencing policy: that puts rehabilitation at its heart; that will involve more community sentences, with improved and better-resourced supervision of community sentences and supervision during and following custodial sentencing; and that will reduce prisoner numbers, improve the prison regime and introduce a presumption against ineffective short sentences. These themes were addressed by the noble Lords, Lord Bates and Lord Adonis, in their welcome broadening of the ambit of this debate.

We want to see a penal system dedicated to helping offenders turn their lives around—so also cutting reoffending. Perhaps those are matters for another day, but they will nevertheless bear consideration throughout our consideration of sentencing. We will argue for the development of the code, when it comes, in that direction.

Divorce, Dissolution and Separation Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

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

My Lords, as the House has heard, the present law on the grounds for divorce dates from the Divorce Reform Act 1969, which was then reflected in Matrimonial Causes Act 1973. Parliament legislated for no-fault divorce in the Family Law Act 1996, as the noble and learned Lords, Lord Mackay of Clashfern and Lord Walker of Gestingthorpe, and the noble and right reverend Lord, Lord Harries of Pentregarth, have explained, but, partly because of its complexity, the change was never implemented, so the present law has persisted for 50 years.

From these Benches, and in concert with a substantial majority of family lawyers and judges—in that context, I welcome the important longer historical perspective of the noble and learned Lord, Lord Walker—we have consistently campaigned for no-fault divorce, and so, subject to one or two qualifications to which I will turn, we warmly welcome the Bill, which makes a change that is seriously overdue. The noble Baroness, Lady Shackleton, spoke in the gap from all her experience of practising divorce law.

Before turning to the detail of the arguments on the Bill, I will just say how impressive I found the thoughtful and persuasive maiden speech of the noble Baroness, Lady Hunt of Bethnal Green. I greatly look forward to her future contributions to the work of this House on areas that are sadly not as well understood by us as they should be.

Under the present law, to end a failed marriage without waiting two years, one party has to claim that the other party is to blame for the breakdown so, unsurprisingly, most divorces—57% in England and Wales—are based on unreasonable behaviour or adultery, when human experience tells us that most marriage breakdowns result not just from the conduct of one spouse but from failures of both.

I agree with the right reverend Prelate the Bishop of Portsmouth that divorce should be an overall process of securing a collaborative resolution of the difficult issues facing the couple and their family—their children in particular—including financial issues and issues concerning children, but I part company with the right reverend Prelate in his view that the Bill stands in the way of kinder divorce, and I agree with the noble Baroness, Lady Meacher, on the effect of the Bill. Under the present law, the divorce process is kicked off with a hostile and unproductive blame game, one in which the children are often caught in the middle, which sharply aggravates the strain and anxiety of coping with their parents’ divorce, a point well made by my noble friend Lady Burt of Solihull.

The approach of family lawyers in this jurisdiction to the management of securing a divorce decree has largely been conciliatory. Resolution, formerly the Solicitors Family Law Association, has developed a collaborative culture in which allegations of unreasonable behaviour in petitions are reduced in number and often limited to relatively trivial conduct—certainly that was true before the Owens case, as the noble Baroness, Lady Shackleton, said. Then the allegations are, or were, agreed with the other side and the divorce proceeds on that basis. Resolution is to be commended for that approach, which is also pursued by the Family Law Bar Association, but it has gone nowhere near addressing the fundamental objections to a fault-based system, some of which were canvassed in today’s debate.

First, the present system is dishonest. It is based on the fiction that the conduct of one party alone is to blame for the breakdown, and the allegations set out in the petition are the true reason for the breakdown, when both propositions are generally false. To base divorce proceedings—legal proceedings in a court—on falsehood brings the law into disrepute and alienates the parties. As Sir James Munby, former President of the Family Division put it:

“The hypocrisy and lack of intellectual honesty which is so characteristic a feature of the current law and procedure differs only in magnitude from the hypocrisy and lack of intellectual honesty which characterised the ‘hotel divorce’ under the old law”—


a process mentioned by the noble and learned Lord, Lord Hope.

Secondly, in the Owens case, the courts at every level held that the behaviour proved against the husband was insufficiently serious to establish unreasonable behaviour. Mrs Owens was denied a divorce when her marriage had clearly long ago broken down. She had to sit out the balance of five years’ separation before she could secure a decree. That was clearly intolerable but, frankly, the judges were right in their application of the present law and their understandable reluctance to usurp our role as parliamentarians by changing it. It is now up to us to make the change required. It follows from what I have said that I cannot accept the view expressed by the right reverend Prelate the Bishop of Carlisle, the noble Lords, Lord Farmer and Lord Morrow, and others, that one party to a marriage should be able to contest a divorce so as to tie the other into a marriage against his or her will. That point was ably made by the noble Baroness, Lady Shackleton.

There is no persuasive evidence that the Bill would increase the divorce rate, except in the very short term by advancing the date of divorce in the case of parties who are already separated and waiting out the two or five-year periods under the present law; this is the spike acknowledged by the noble Baroness, Lady Eaton. I stress that there is no credible evidence either that no-fault divorce undermines or weakens marriage or the respect in which it is held. I believe that the evidence supports the contrary view: making divorce honest and improving our support for marriage, family stability and relationship support are, as the noble Baroness, Lady Wyld, and the noble and right reverend Lord, Lord Harries, argued, the best ways of expressing society’s commitment to marriage.

I stress, however, that I share the Government’s view that the Bill should be kept within its present compass—making the securing of a divorce order more honest and kinder to the parties—and that improvements to arrangements for financial provision, children’s arrangements and relationship support should be the subject of a fresh consultation, to which I hope the Government will commit, and possible future legislation.

Thirdly, since the decision in the Owens case, we hear of district judges rejecting petitions where they find the allegations made too insubstantial or anodyne to sustain a finding of unreasonable behaviour; so, harsher and more contentious petitions now have to be—and regularly are—filed.

Fourthly, while blame may not matter to the lawyers, because conduct or fault is generally irrelevant to financial proceedings or any issues affecting children, it does matter to the parties. They do not want to be seen as responsible for the breakdown, by the law, the other party, their children, their friends or the world at large. Yet, in most divorces, the present law pins responsibility on the respondent, regardless of reality and truth, and even though many respondents deny the truth of the allegations against them. On the basis of the research carried out by Professor Trinder, only 29% of respondents believe that the facts alleged in the divorce petitions against them represent the real reason for divorce.

To avoid the allocation of blame, we get cross-petitions, even where a marriage is clearly over, whereby each party digs out incidents, often long-forgotten, to try to prove the other at fault. So, we have the absurd position where two adults who once chose to marry each other and now both seek the same remedy and outcome—divorce—but nevertheless poison the early stages of the process in a pointless battle over blame. This depletes their scarce financial resources, aggravates their emotional fragility and severely distresses their children, all for no practical purpose, until one of them is persuaded to give up or they run out of time and can proceed on the basis of two years’ separation and consent to divorce.

Fifthly, the need to make allegations of conduct against a violent or abusive spouse scares many victims of domestic violence or coercive behaviour out of proceeding with a divorce, trapping them in obviously failed marriages. Worse still, abusive spouses often insist that the price of a divorce will be that the victim of the violence allows the abuser to present the petition, while the victim must accept the blame. That is one reason why Women’s Aid and other women’s charities strongly support the Bill.

I move to one improvement to the Bill that we wish to see. With the Bill as it stands, under new Section 1(5)(a) of the Matrimonial Causes Act, the court may make a conditional order after 20 weeks from the start of proceedings by the applicant. However, there is nothing to stop a court making a conditional order once the 20 weeks have passed, even though the applicant has not established that the respondent has been served with or knows of the proceedings, or that the court has sanctioned an order being made without proof of service. It is simply unfair that a respondent may be hit with a divorce when he or she has known nothing about the proceedings before the making of the conditional order or before the 20-week period has run, or nearly run, its course. This is a point that the Law Society, in its helpful briefing, and others, including the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady Howe of Idlicote, have made today.

We have discussed this point with the Minister, to whom I am very grateful for arranging an all-Peers’ drop-in meeting last week, and he has assured us that the Government will consider it. I would like to see a proviso that the court may not make a conditional order unless it is satisfied either that the respondent has been served at least 12 weeks before the making of the order or that deemed or substituted service has been approved by the court in an appropriate case and effected. I pick on 12 weeks because the 20-week period is intended to allow time for reflection and discussion prior to the making of an order, and it seems right that the respondent should have the benefit of the majority of that time to consider his or her position and for any discussions. I have suggested that 60% of that time is an appropriate proportion of the overall period, but of course we are not dogmatic about that.

There will be cases where a respondent evades service and generally will not co-operate with the applicant or the court. However, I suggest that such cases can be dealt with by making provision for deemed or substituted service and ensuring that the rules provide for an extension of the 26-week period to final order where necessary, where service has been effected late. That would require changes to proposed new Sections 1(5) to 1(8) and 17 of the Matrimonial Causes Act set out in Clauses 1 and 2 of this Bill and corresponding changes to the proposed new provisions of the Civil Partnership Act.

We have considered the proposal by the Law Society that there should be a bar to litigation during the first three months of the 20-week period, during which time the parties would not be able to commence any applications for financial provision without agreement. We look forward to further discussion on this suggestion. As yet I am not yet persuaded that delaying proceedings for financial provision is always a good idea, though sometimes it may be.

I agree with my noble friend Lady Burt that the fee for obtaining a divorce, at £550, is far too high. A fee set at that level might generally require savings before proceedings can be commenced. That is unfair to less well-off applicants.

There is a great deal in the Bill that deserves discussion. We have had a very good debate today, and I look forward to meeting the Minister and others and discussing the Bill further during the rest of its passage.

Crime: Support for Children and Young People

Lord Marks of Henley-on-Thames Excerpts

Wednesday 5th February 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, the Keeping Children Safe in Education statutory guidance provides that every school and college should have a designated safeguarding lead, who should be a senior member of staff.

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

My Lords, the recent briefing on the Queen’s Speech reported that only 18% of victims were aware of the victims’ code at all. What steps are the Government taking to improve education among young people and children in particular about the existence of the victims’ code and their rights under it?

[Lord Keen of Elie]

My Lords, we will shortly be consulting on changes to the code, and we have committed to developing targeted, less complex and more accessible guidance aimed particularly at children, young people and their families.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Marks of Henley-on-Thames Excerpts

Wednesday 22nd January 2020 Lords Chamber

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

My Lords, this order is a populist response to perceived public concern and uninformed press comment. Lacking any genuine evidence base, it is, I regret, one among several policies for putting more people in prison, for longer, without any proven justification. The only possible argument in its favour is the simplistic one that individual offenders will be in prison for longer and so personally unable to commit further crimes during their extra time inside.

The impact assessment contains this core justification for the Government’s proposal. Referring to the serious offenders affected, it states:

“They have been given a lengthy sentence to reflect the seriousness of their offence, and, because these are the most serious types of offences with the gravest of consequences, they should therefore serve a greater proportion of their sentence in custody.”


That is a complete non-sequitur, because it attempts to justify counting the seriousness of the offence twice over: once when the judge passes sentence for the serious offence, and again when increasing by a third the proportion of the sentence to be spent in custody. Put simply, you get more time for committing the serious offence—and then even more time for precisely the same reason.

Members of this House and across Parliament, and clear majorities among academics in the field and legal professionals, have long argued, as did the noble Lord, Lord Beecham, that we imprison too many people in this country and for too long, and that we must reduce the prison population to improve rehabilitation. For serious offenders we have argued for a reformed and functioning probation system; more through-the-gate supervision prior to and following release; more, and more effective, supervision of prisoners after their release; more use of early release, through release on temporary licence and home detention curfew schemes; and reducing sentence inflation in the courts. All these steps would help former offenders turn their lives around.

We have regularly debated overcrowding. Our prison estate is still both packed and dilapidated, with degrading and inhumane conditions in many prisons. Overcrowding has been matched by understaffing, so prisoners have spent far too long cooped up in cells that are too small because staff have been unable to manage or provide adequate education, vocational training, meaningful work or sport and leisure activities—a point made by the noble Viscount, Lord Hailsham. As if these failures of our present regime were not enough, issues of mental health and drug and alcohol addiction are addressed inadequately or not at all—and these problems are often worse for women in custody.

It is hardly surprising, then, that this toxic cocktail of neglect and underresourcing has led to a crisis of ever-increasing violence in our prisons, with appalling records set nearly every year for assaults by prisoners on other prisoners and staff, incidents of self-harm, suicides and homicides. It is a tragedy that good work done by prison governors and staff who seek to implement best practice conscientiously and selflessly is undermined by a pervasive bad atmosphere, low morale and failure of rehabilitation across the prison estate. Yet, against this background the Government introduce a measure, with no hard evidence to support it, that will increase the prison population by around 2,000 in a decade, at an annual expected cost of £70 million, with a capital building cost at present rates of £440 million. That is on top of an expected increase flowing from the recruitment of 20,000 more police officers.

The impact assessment accepts that there is a risk that delay in providing the new places may mean that the extra capacity required will be too late or simply insufficient to meet demand. Will the noble and learned Lord say what evidence the Government have taken into account of the risk of overcrowding getting worse, pending the provision of extra prison places? Are the Government to provide extra staff to improve prison staffing levels for the greater number of serious violent and sexual offenders in custody for longer?

Furthermore, the impact assessment takes into account an expected reduction in the cost of probation for 2,000 former offenders, who will have a reduced period on licence post-release, down from half sentences to one-third, representing a reduction of 34% in the time spent on licence. This will lead to an estimated saving of £8 million in reduced case load, but what it does not take into account is all the evidence that supervision for longer periods on licence helps to get former offenders reintegrated into their communities and back into jobs, housing and their families. That reduces reoffending and cuts not only the cost of crime but the number of future victims of crime. A policy intended to help the victims of past offences risks increasing the number of future victims.

The impact assessment recognises this danger and makes two valid points. The first is that longer periods in prison mean longer separations from prisoners’ families. Successful return to family life protects against reoffending and longer separations increase family breakdown. The social and financial costs of family breakdown in human misery, risks to children, risk of homelessness and increased calls on social services, taxation and benefits are considerable.

The second point made in the impact assessment is that the Government acknowledge that shorter periods on licence support former offenders’ transition into the community, a point again made by the noble Viscount, Lord Hailsham. The impact assessment claims that this is an “unknown” but accepts that there is a risk that this could increase demand on prisons to provide offending behaviour interventions in custody and reduce the probation capacity to provide the full range of rehabilitative services. One wonders how the Government could claim that this is an unknown, when all the evidence is that these risks are clear and real.

This is a bad instrument, and I regret that it reflects badly on the instincts of the Government who introduced it.

[Lord Ramsbotham (CB)]

My Lords, as has already been said, this order implements a commitment made by the Prime Minister in the summer of 2019. That commitment was made as part of a review, conducted not after a public consultation—which might have been expected on an issue with such major implications—but merely as an internal Ministry of Justice exercise.

The Secondary Legislation Scrutiny Committee, in its report of 30 October 2019, drew the House’s attention to the fact that the order represents

“one piece of a large and complicated jigsaw.”

Among the other pieces are: the announced sentencing Bill, to be preceded by a White Paper on sentencing more generally; the programme to build 10,000 additional prison places, announced in 2016 and repeated by the Prime Minister in 2019; the announced recruitment of 20,000 more police officers; and the royal commission on improving the efficiency and effectiveness of criminal justice system processes, announced in the 2019 Queen’s Speech. The Secondary Legislation Scrutiny Committee suggested that this House may wish to ask the Minister—which I now do—for more information about how all these pieces fit together.

Last week, the Ministry of Justice released the horrifying statistic that 58% of UK prisons—68 in total —were overcrowded, nine of them by more than 50%. This is not a situation that is likely to be rectified quickly yet, by this order, the Government are knowingly adding another 2,000 prisoners. The Chief Inspector of Prisons is continually drawing attention to the lack of purposeful activity in prison and the number of prisoners who spend all day locked up in their cell doing nothing. One factor leading to this situation is the lack of staff, not least because the Government wilfully dispensed with 80,000 years of operational experience. It is all very well to talk of recruiting additional numbers, but in addition to being inadequately trained, inevitably new recruits are inexperienced and, being frequently subject to horrifying assaults, too many are leaving early.

Frequently in this House I have commented on the poor quality of impact assessments. The one accompanying this order is no exception to that stricture, because only two options are examined: take it or leave it. However, there is what I might describe as a common-sense third option: I urge the Minister to defer until the issue can be properly examined in the context of the “large and complicated jigsaw”.

I have already mentioned the lack of any public consultation about what should be, to quote Erskine May’s definition of the affirmative procedure,

“a substantial and important piece of delegated legislation”.

There has been only an internal review at the Ministry of Justice. The wide implications of the issue, and my suspicion that the proposal results from a confusion about what should be done with terrorist prisoners—highlighted by the tragic events at the Fishmongers’ Hall—reinforce my plea for implementation of the order to be deferred until it has been considered in the context of all related and relevant issues.

Queen’s Speech

Lord Marks of Henley-on-Thames Excerpts

Wednesday 8th January 2020 Lords Chamber

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

My Lords, I, too, congratulate the noble Lords, Lord Parkinson of Whitley Bay and Lord Davies of Gower, on their excellent and powerful maiden speeches.

For Liberal Democrats, committed as we are to remain, the election was a major defeat and a great disappointment. We recognise that we are now headed for Brexit, which we believe will do significant harm to the UK and Europe. Supporters of Brexit now regularly call upon us all to unite behind leaving. While of course we accept the result of the election, I suggest that it is important to recognise that our nation remains deeply divided on Europe, geographically and generationally, that unity will be a long time coming, and that all parties, winners and losers, must seek out common ground. For the winners simply to impose the entirety of their will on the losers, without looking for compromise positions, just will not work.

On justice, there is a chilling passage in the government briefing on the Queen’s Speech that foresees us losing the European arrest warrant, which all security professionals agree makes us safer, as do our membership of Europol and Eurojust and our access to the Schengen databases. Our civil and family justice systems are enormously enhanced by the Rome regulations on choice of law and conflicts, the Brussels regime on determination of forum and recognition and enforcement of judgments and awards, and the enhanced Hague convention provisions on the abduction of children. These are all benefits that the previous Government consistently assured us that a Brexit deal would preserve. I do not share that confidence now. The provisions proposed in the private international law (implementation of agreements) Bill outlined by the Minister in opening will provide an inadequate substitute for the comprehensive co-operation and, importantly, the international reciprocity guaranteed by the existing provisions of EU law. Furthermore, new Clause 26(1) of the European withdrawal Bill, which permits lower courts, not just the Supreme Court, to depart from decisions of the European Court of Justice, reflects the worst consequences of divergence.

Why prohibit an extension of the implementation period, even if the necessary agreements are not yet in place? The Government threaten to act like a driver on a long journey, with a deadline for arrival, who responds to difficulties en route by driving ever faster and more dangerously to arrive on time, when a prudent driver would phone ahead and change the deadline to reach the destination safely. The Government’s approach is irresponsible and naive, the opposite of careful and well-judged diplomacy.

On other proposals on justice, there is much to welcome. We will support the enhanced victims law and the reintroduction of the domestic abuse Bill, which will transform protection for victims. The continuing reform of sentencing law will simplify and improve an overcomplicated area of law. Legislation on no-fault divorce is long overdue.

We particularly look forward to a royal commission on criminal justice. We will advocate greater concentration, from arrest to final completion of sentence, on turning lives around by helping address drug and alcohol abuse and mental health issues, homelessness, deprivation, lack of education, training and employment opportunities, and the specific problems faced by women offenders. We will be arguing for co-ordinated provision for individual offenders, involving the prison and probation services, local authorities, health and training providers, potential employers and others. We will also be calling for the restoration of viable and adequate legal aid to help offenders navigate the unfamiliar and often hostile environment of the criminal justice system.

But my concern is that the Government’s attitude, evidenced by the proposed counterterrorism, sentencing and serious violence Bills, suggests a populist approach—locking up more people and for longer—whereas the reality is that in the UK we imprison far too many for too long. As other noble Lords have said, we must improve prison conditions, reduce overcrowding, increase staffing levels and cut the appalling violence, giving offenders a real chance of rehabilitation, so cutting crime and its human and financial cost accordingly. I hope that in this Parliament we will be able to make some progress on these issues.