Crime: Rape

Lord Morris of Aberavon Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, we recognise the significant importance of support for those who make complaints of all sexual offences, and rape in particular. It is necessary to look at taking forward further the scheme for the giving of evidence under Section 28. It is also appropriate to have in mind the use and application of Section 41 in relation to the potential for examining complainants about their sexual history. These matters have been under fairly constant review since Dame Vera Baird’s study in 2017, followed by the CPS study the following year and, more recently, in work done by the Criminal Bar Association. We do recognise the need for support and consideration in these cases.

[Lord Morris of Aberavon (Lab)]

My Lords, I have been involved professionally in a number of rape cases. Will the House accept the distinction between the small number of cases where the issue is identification and the much larger number where the issue is consent? The problem is that juries are reluctant to convict in those cases. Are the Government satisfied that the problem of non-disclosure of evidence has been solved? Will they provide resources for the CPS to upgrade the pay of prosecutors so that only the best counsel is available and able to prosecute in these very serious cases?

Prosecutions and Sentencing

Lord Morris of Aberavon Excerpts

Tuesday 3rd September 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, clearly, sentencing decisions are a matter for the independent judiciary, which is of course under a duty to follow any relevant guidelines produced by the independent Sentencing Council. The council produces guidelines specific to particular offences or groups of offences. I entirely acknowledge the points my noble friend Lady Neville-Rolfe makes about the need to complement the increase in policing by ensuring that we have adequate provision in the judiciary and the prison establishment.

[Lord Morris of Aberavon (Lab)]

My Lords, is there not a wider question about the crisis generally in the practice of criminal law, from whom many in the CPS are recruited, because of continuing underpayment for work done? Now that austerity is said to be over, will the Government advocate for more resources to prosecutors and defenders?

[Lord Keen of Elie]

My Lords, we are of course concerned to ensure that the criminal justice system is adequately funded. We do not consider that we are in the midst of a crisis so far as that is concerned. Indeed, we engage with both the CPS and counsel and solicitors engaged in criminal defence work to ensure that they are properly resourced.

Central Courts IT System

Lord Morris of Aberavon Excerpts

Wednesday 23rd January 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, the reported effects narrated by the noble Lord are not accurate; let us be clear about that. There is no evidence of any cases being adjourned in either courts or tribunals with respect to this issue. In addition, it is not true that defendants have had to do their own DVLA checks. Furthermore, the probation service was affected by the outage but no offender appointments were missed, and the service reverted to paper processes where necessary. The IT systems are back up and working as of this morning with respect to the probation service. There was no impact on the Prison Service, which is in fact dependent on entirely separate computer system.

The cause of the outage was identified as a routing server that had become corrupted, and that has been replaced. It fell within one of our contractors’ systems and, as I indicated earlier, we are going to be speaking to our contractors with regard to that matter. At this stage we do not intend to institute the sort of inquiry that the noble Lord alluded to.

[Lord Morris of Aberavon (Lab)]

My Lords, is it correct that thousands of criminal cases in the courts have been disrupted? The National Audit Office criticised the delay in the IT system installation and said that the objectives would not be reached on time and on budget. Given this warning, are there any penalties in the contractual arrangements between the company and HMG?

[Lord Keen of Elie]

With respect to the noble and learned Lord, it is important to distinguish between two entirely separate systems: the existing system, which suffered the corruption of the routing server, and the proposed new common platform system which is in its testing phase. That is entirely unrelated to the existing system, but is of course connected to the modernisation of the courts system and the case management system, which has been allocated considerable funding at the present time.

With regard to the existing contracts, we are engaging with the provider over this issue. We regret the outage that occurred. Back-up systems did operate. Certainly, I am not aware of thousands of criminal cases being disrupted. I am advised that there is no evidence of cases being adjourned due to the IT issue.

Brexit: Legal Position of Withdrawal Agreement

Lord Morris of Aberavon Excerpts

Monday 3rd December 2018 Lords Chamber

[Lord Morris of Aberavon]

My Lords, I speak as a former Attorney-General. I adhere to the convention that it is not in the public interest to disclose the fact or the content of the law officers’ advice. However, there have been exceptions, such as the debate on the Maastricht treaty and the exceptional circumstances of the Chilcot inquiry. We are grateful for the 43-page document setting out the legal position, but I ask specifically whether, in the public interest, without going into detail, the Attorney-General has reserved disclosure on any matters that he has advised on. Secondly, will the Minister confirm that there is nothing in the document incompatible with the advice that the Attorney-General has given to Her Majesty’s Government?

[Lord Keen of Elie]

My Lords, I fear that to answer the first question would be to breach the relevant law officer convention, but with regard to the second, let me be clear: there is no inconsistency between any point made in the legal commentary and anything that might or might not have been said in government.

Northern Ireland: Misoprostol

Lord Morris of Aberavon Excerpts

Wednesday 5th September 2018 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, following my noble friend Lady Thornton’s Question, will the Minister clarify what is devolved and what is not devolved in this issue?

[Lord Duncan of Springbank]

The wider matter of abortion remains fully devolved. The evolution and introduction of new technologies and drugs that can bring about that abortion still rest under the overarching architecture of the legislation as it pertains to abortion. In these areas, to bring about appropriate legislation to address this, it must be developed and taken forward by the Assembly and the democratically elected individuals of Northern Ireland. That is very clearly the position that we must strive toward: to secure a sustainable Executive who can ultimately deliver their response to the very important questions raised by a number of your Lordships today.

Law Commission: Funding

Lord Morris of Aberavon Excerpts

Tuesday 10th July 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Government’s response to the Law Commission’s recommendations has been extremely good. The commission has produced 228 sets of law reform recommendations. Of those, 65% have been accepted and the recommended reforms implemented in whole or in part by government. In addition, since the introduction of the special procedure for statutory provisions from the Law Commission, we have brought forward eight different Acts through that accelerated procedure.

[Lord Morris of Aberavon (Lab)]

My Lords, has there been an estimate of the extent of the diminution in the quality of the commission’s reports because of lower funding?

[Lord Keen of Elie]

My Lords, I am not aware of any diminution in the quality of the reports produced by the Law Commission over the past few years. Indeed, there is no suggestion that that is the case. Although there have been reductions in the Law Commission’s budget, its anticipated core funding for 2019 remained in excess of its anticipated running costs.

Rape Trials

Lord Morris of Aberavon Excerpts

Wednesday 6th June 2018 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government, in light of the statement given by the Director of Public Prosecutions yesterday that between January and mid-February this year there were 47 cases where the CPS failed to disclose vital evidence before a rape trial, what action the Government intend to take to ensure that this does not happen in the future.

[Lord Morris of Aberavon (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice.

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

My Lords, the Government are clear that ensuring disclosure requirements are met is vital for a fair trial and public confidence. The Attorney-General is leading a wide-ranging review of disclosure practices and aims to report by the summer. The findings of the review of rape and serious sexual offence cases, published by the Director of Public Prosecutions yesterday, will feed into a wider operational response to delivering necessary improvements in the system.

[Lord Morris of Aberavon]

My Lords, the disclosure of unused material that assists the defence or undermines the prosecution is vital to a fair trial. Does the noble and learned Lord still stand by his earlier reply that we have not gone backwards? Would he like to comment on yesterday’s evidence by the Director of Public Prosecutions, which differs wholly from her bold assertion in January that she did not think disclosure failings would have led to people being wrongly jailed? Where is the failure to grip the situation: the police or the CPS?

[Lord Keen of Elie]

My Lords, the review that was undertaken involved consideration of 3,637 cases in the period between 1 January and 13 February this year. In respect of those cases, 47 were identified where there were concerns about the management of disclosure. However, that does not mean that this was the reason for the discontinuance of the prosecution in each and every one of those cases. There is of course concern that disclosure should be carried out fully and properly pursuant to the legal requirements of the Criminal Procedure and Investigations Act 1996. That obligation lies not only on the police and Crown Prosecution Service but on the defence, which is required within a certain period—28 days—to give a defence statement. That, in itself, indicates where there may or may not be room for further investigation of material that could pertain to the prosecution case or assist the defence. It is necessary for all parties involved in this process to engage in order that it can be properly discharged.

As I indicated earlier, further work is being undertaken by the Attorney-General to deal with this question, which we hope to report upon by the summer. I do not accept that we are going backwards. Technology is going forward, and very quickly indeed. We now live in an environment in which there are vast quantities of social media apps—Instagram, Facebook and the like—that can be contained on one or two mobile devices and which make demands upon the police service, the Crown Prosecution Service and indeed the defence. They did not exist 10 years ago. We are seeking to meet those demands; it is important that we do so.

European Union (Withdrawal) Bill

Lord Morris of Aberavon Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

The wheels of Brexit re-orientate so many aspects of our lives in these islands, it is time for a new beginning, a new mutual respect, between the peoples of our four nations; and the time is now. As I listened to the previous debate on Ireland, I pondered on what might have been our history had there been a federal solution a century ago; but then I remembered that this was not possible because Westminster always wants to have the whip hand. We should now return to that agenda. We should seek to build a new partnership between the nations of these islands to cope with the new world into which Brexit places us. There needs to be a new order—one based on mutual understanding, mutual tolerance and mutual respect. Only then will we get a lasting settlement of these most difficult issues.

[Lord Morris of Aberavon (Lab)]

My Lords, this series of amendments, as the noble and learned Lord has explained, expresses the changes necessary to implement the agreement between Her Majesty’s Government and the Welsh Government. I immediately congratulate the Welsh Government on having gone the extra mile and skilfully reached an understanding. I also thank the government negotiators for their part. There has been a great deal of give and take on both sides. I make my comments generally on the agreement and I have given notice in my discussions with Ministers of some of my interests.

I also queried the five years mentioned by the noble and learned Lord, Lord Wallace. Perhaps justification for that can be given. I will not repeat the concerns that I have already expressed, at Second Reading and in Committee, at the insensitive drafting of the original Clause 11. In short, there was a failure—nothing new in Whitehall—to take on board that there is a legally constituted Government in Cardiff as well as in Westminster. I will repeat only that, had the JMCs been working properly and regularly, a great deal of time and energy could have been saved. I welcome the promise of a collaborative process of working out the agreement and the development of frameworks in the JMC in the future. I hope it works much better in the future than it has in the past.

But have the Welsh Government missed a trick? The ghost that is missing—completely absent—from this feast is a reference to financial arrangements. Having spent half my life at the Criminal Bar, the overwhelming maxim in fraud cases with which I was involved was “follow the money”. There is no mention of money here. Agriculture and public procurement constitute a substantial amount of money that comes into Wales from Brussels. My interest in farming, with all my family in west Wales in that industry, is well known.

Agricultural support and agricultural matters constitute at least 10 of the 24 temporarily reserved areas. Public procurement deserves a detailed explanation. Why was it included? Could it mean the privatisation of the NHS in Wales through a Westminster input? These matters have not been explained and they are there in the agreement. I would like the Minister to explain the extent of what public procurement means in this context. Have the Welsh Government given away too much under these specified headings?

Mr Gove has promised the continuation of existing agricultural support until, I believe, 2020. Brussels subventions are generally based on need. In general, the present financial arrangements between Westminster and Cardiff are based on the Barnett formula. When I raised the issue with Mr David Lidington at a recent meeting, there was no reply at all on this issue, but it is crucial. What is the future, how is it envisaged and how will the payments be made to Welsh agriculture? Can I have a clear statement of the progress being made by Mr Gove in his negotiations, and what assurances have been given to the Welsh Government in Cardiff?

The implementation of these amendments will be the key to the effectiveness of the agreement between the Welsh Government and Westminster. Could it be confirmed that it is the intention, or at least the hope, that the number of 24 subjects in the temporary arrangements will be reduced in the light of experience? In my day as Secretary of State—I think after I took over agriculture—I had to sign personally all the regulations in addition to the Minister at Westminster signing them. So there were two Ministers signing each regulation. Heaven forbid that this involves the resurrection of such bureaucracy in the future. The agreement states:

“It is possible that some additional areas … will be reserved”.


What timescale is envisaged for this? It is such an open-ended commitment. I hope the Minister will be able to indicate what is meant by that particular term in the agreement.

In paragraph 3 of the agreement, the words “without prejudice” occur in two contexts. What exactly is the effect of those words in this area? Do the references to the Sewel convention and the words “not normally” mean what they say? There were protracted battles to get confirmation from the Government that there would be legislative consent Motions. That was dragged out of the Government. First there was the prevarication of the Prime Minister, then of the Leader of the House of Commons, and then eventually the Minister here agreed that legislative consent would be given. I hope we can have an explanation of how that will operate, and that there will be no further question about it in the future.

I have said before that once devolution is granted then, short of a Westminster intervention, devolved powers cannot be taken away. I hope, and I specifically wish for confirmation, that the effect of these amendments is that all powers and policy areas will continue to rest with Cardiff unless they are specified to be temporarily held by Westminster.

[Lord Lang of Monkton (Con)]

My Lords—

European Union (Withdrawal) Bill

Lord Morris of Aberavon Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.

[Lord Morris of Aberavon (Lab)]

My Lords, I too support the noble and learned Lord, Lord Hope, and I too will reserve my remarks until we come to the government amendments. This is new ground; it needs an explanation, and unless the explanation is reasonable I will certainly oppose the provision.

--- Later in debate ---

[Baroness Goldie]

It is merely a generic description of the power to exercise delegated power-making by regulation, as encompassed by these provisions in the Bill.

I reiterate that I accept that these are serious points. They deserve serious consideration, and I can confirm that the Government are prepared to look again at where such a change may be merited for the use of the powers by the devolved Administrations in this way.

[Lord Morris of Aberavon]

May I pursue the intervention made by the noble Lord, Lord Thomas? “Delegated” is not an appropriate term here; they are devolved powers, not delegated powers.

[Baroness Goldie]

I accept the distinction drawn by the noble and learned Lord. I am trying to address the amendments of the noble and learned Lord, Lord Hope, in the context of what the provisions do and his concern that they appear to cut off what he considers an entitlement of the devolved Administrations. I have tried to explain why, inevitably, these aspects are interlinked with the wider debate we will have on Clause 11.

The Government are prepared to listen to what has been said. I have indicated that we are prepared to look again at these provisions. I thank the noble and learned Lord for bringing forward his amendment, but in the circumstances I urge him to withdraw it.

--- Later in debate ---

[Lord Keen of Elie]

I am not going to indulge in party politics at this stage; I do not think that that is necessary. We all know the ultimate objective of the Scottish National Party. It is not to have a United Kingdom; it is to break up the United Kingdom and have an independent Scotland. Although Scottish nationalists talk about all these powers coming back from the EU, let us remember that they do not want them. If they get them, they want to give them back to Brussels, because they want Scotland, as an independent country, to remain in the EU—and, if it leaves, they want it to join EFTA and the single market. Therefore they will return all the powers they are talking about if they get their ultimate aim.

[Lord Morris of Aberavon]

The noble and learned Lord has distinguished between “consult” and “consent”, and has described consent as a veto. Does he not accept that over the years the normal use of “consent” by both the Scottish Parliament and the National Assembly has been exercised responsibly, and that there is no basis for that fear? How would he define the word “consult”? What does it mean?

[Lord Keen of Elie]

Consultation has been going on in the Joint Ministerial Committees on a regular basis since October of last year. As regards respecting the constitutional settlement on devolution, I entirely agree with the noble and learned Lord—with one qualification. A convention has arisen out of the memorandum of understanding between the Scottish Government and the UK Government about how we ensure that legislation put before the Scottish Parliament is competent. That convention has operated since 1999 and involves an exchange of a note of competence. Prior to a Bill being introduced to the Scottish Parliament, a copy is passed to my office—the Office of the Advocate-General for Scotland. That is always done.

I then confer with the Lord Advocate and his officials—the noble and learned Lord, Lord Wallace, will be familiar with this—and we iron out any differences and come to a view on what is competent and what is not, and consequently these matters are resolved. For the first time in nearly 20 years, that convention was departed from by the Scottish Government in respect of their EU Continuity Bill, which I first heard about after it was introduced to the Scottish Parliament. They did, however, give it to the Presiding Officer of the Scottish Parliament in time for him to take legal advice. Therefore, while I accept the generality of the point the noble and learned Lord made, particular exceptions have arisen very recently.

European Union (Withdrawal) Bill

Lord Morris of Aberavon Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Forsyth of Drumlean]

I hear tittering in the background. Does the noble Lord wish to intervene?

It is a huge step forward, and we should all support the way in which my noble and learned friend Lord Keen—there are so many lawyers in this debate—has explained the thinking behind that and the Government’s ability to try to meet the anxieties, which have been stirred up unnecessarily, in a constructive and forward-looking manner while maintaining the integrity of our United Kingdom constitution.

It is a matter of regret that agreement has not been reached with the Scottish nationalists and the Welsh. I hope that the Welsh Government will take a different view. I doubt very much that the Scottish Government will want to do anything other than continue this dispute, and if that happens, my advice to my noble friends on the Front Bench is to get on with it, because they have gone as far as any reasonable person could expect them to go. I very much welcome this government amendment.

[Lord Morris of Aberavon (Lab)]

My Lords, I will make a few comments in this somewhat bizarre debate on the government amendments that the Government propose to withdraw. I have no experience of this situation; it must have happened before, but it is rather unusual, to say the least. I have emphasised before, and will not repeat, the need for “consent” as opposed to “consult”. That is what the Welsh Government want and what all the other parties in Wales want. I already dealt with the history of the Government’s excessive slowness to agree to legislative consent at all in my speech on Clause 5, and I do not wish to repeat that. But I ask the Government: what does “consult” mean? What is the definition? Is it a chat on the telephone or a face-to-face meeting between the First Minister and the Prime Minister? I think that we would like to know before the end of this debate so that we can consider where we go from here and what the Government’s intentions are regarding “consult”.

On Wales, Carwyn Jones has been trying diligently—he is a good advocate—to reach an agreement with the Government. I welcome very much the fact that, in addition to the meetings with the Chancellor of the Duchy of Lancaster, he has had a face-to-face meeting with the Prime Minister. That is how it should be. These are now grown-up Governments in Cardiff and Scotland, and it shows how redundant the role of the Secretary of State now is, because Prime Ministers deal with First Ministers—and likewise, on Treasury matters, it is Treasury Ministers who should seek an agreement.