Non-Consensual Sexually Explicit Images and Videos (Offences) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Friday 13th December 2024 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I start by acknowledging the point made by the noble Lord, Lord Clement-Jones, that there is obviously formidable support for the Bill, as we have heard in today’s debate. It is an important Bill, and one which is bringing this issue to the very top of the political agenda.

Like the noble Lord, Lord Davies of Gower, I too have experienced in my role as a magistrate many cases of domestic abuse and domestic violence. I know the noble Lord had that experience during his time as a police officer. Sadly, it is not unusual; it is just that the perpetrators are finding different ways to extend such misogynistic abuse towards women. That is what underlies the noble Baroness’s Bill today.

I would be happy to meet my noble friend Lord Knight and other noble Lords to discuss the Bill and, if I may say so, the wider context of how within government we are going to try to meet the objectives of the Bill through other legislation. I will write to noble Lords on any specific questions that I fail to answer.

I thank the guests of the noble Baroness, Lady Owen: the victims and survivors who are here today. Their physical presence here adds an additional seriousness to the debate. I reiterate the point of the noble Lord, Lord Parkinson, that this is a very well-attended debate for a Friday afternoon, which again is a testament to the importance of the issue.

The Government and I share your Lordships’ concern that more needs to be done to protect women from this form of abuse and to punish those responsible for it. Advances in technology have meant that intimate images can now easily be taken, created or shared without consent, and all at the click of a button. The technology to create realistic deepfake sexual images is readily available to turn harmless everyday images from a person’s social media profile into pornographic material which can then be shared with millions in milliseconds. This cannot continue unchecked.

First, I will talk about the criminal law. Our police must have a comprehensive suite of offences, so that they can effectively target these behaviours. There is a range of existing offences to tackle intimate image abuse, both online and offline, but it is clear that some gaps in protection remain. That is why the Government made a clear commitment in the manifesto to ban the creation of sexually explicit deepfake images of adults. I appreciate that noble Lords and campaigners want us to act without delay, and may be concerned that we are not seizing the opportunity to support this Bill. Let me reassure the noble Baroness and the whole House that we will deliver our manifesto commitment in this Session of Parliament. However, we must act carefully, so that any new measures work with existing law and, most importantly, effectively protect victims and bring offenders to justice. That is what our legislation later in this Session will do. Our manifesto commitment is just the beginning. We are considering whether further legislation is needed to strengthen the law around taking intimate images without consent. I will update the House in due course on this issue.

Ahead of that, I want to mention briefly a couple of areas that have been discussed today. The first is the question of solicitation, mentioned by a number of noble Lords, including the noble Baronesses, Lady Morgan and Lady Owen. As I am sure the noble Baronesses know, for every offence, except those that are specifically excluded, it is automatically also an offence to encourage or assist that offence. Therefore, as soon as we have made it an offence to create a sexually explicit deepfake, it will also be an offence to encourage or assist someone else to commit that offence.

I want to be clear on this: you cannot get round the law by asking someone else in this country to break the law for you. I know the noble Baroness, Lady Owen, is also concerned about the solicitation of deepfake sexually explicit images from other jurisdictions. The question of the application of the laws of England and Wales to other countries is very complex, particularly in relation to offences where elements are committed in different jurisdictions. I reassure her that we are looking very carefully at that issue.

I next move on to the deletion of images, again raised by various noble Lords. I share the noble Baroness’s desire to ensure that perpetrators who are convicted of an intimate image abuse offence are not given their device back by the police with images of the victim still on it. There is already provision under Section 153 of the Sentencing Act 2020 for the court to deprive a convicted offender of their rights in any property, including images, which has been used for the purpose of either committing or facilitating any criminal offence, or which the offender intends to use for that purpose, by making a deprivation order. The courts already have the power to deprive offenders of devices used to commit a sharing offence and of the images which are shared without consent. While judges’ use of these powers is a matter of judicial independence, we will closely examine what changes may be necessary to make sure that such incidents do not occur.

To talk a little more widely about the work that we are doing, while the criminal law is important, it is just one lever we can use to tackle intimate image abuse. Let me outline for noble Lords some of the other work that the Government are doing in this area. I noted the point made by the noble Lord, Lord St John of Bletso, about how advertising drives so much of revenue, which may well be encouraging the further development of these forms of abuse.

Intimate image abuse rightly has serious criminal consequences, but we are also taking steps to tackle the prevalence of this harmful online content. In November we legislated to make sharing intimate images without consent a priority offence under the Online Safety Act 2023, which we have heard quite a lot about in today’s debate. These images will therefore become “priority illegal content” under the Act, forcing social media firms and search service companies to take action to remove them. I noted the point made by the noble Baroness, Lady Morgan, about how all these platforms, not just the big ones, should be subject to these new provisions in the Online Safety Act. We know there are concerns about the process of getting images removed online. The Government’s priority is getting Ofcom’s codes of practice in place. Then we will assess, based on evidence, how effective those protections are and whether we need to go further.

As I have already mentioned, the internet has opened up new outlets for misogyny, and I know noble Lords share my concern at the rise of certain influencers who make a living by peddling their vile ideologies to our young men and boys. This toxic online culture can all too easily lead on to violence against women in the real world. That was a point made by the noble Baroness, Lady Morris of Bolton, and the noble Lords, Lord Bethell and Lord Clement-Jones, and I agree.

It is also critical that we support the victims. There are, of course, many victims of this form of abuse. I remind noble Lords that my department provides funding for a number of services to help victims cope and recover from the impact of crime, including intimate image abuse.

I am not going to have time to address all the points, but I want to pick up one particular point, which I had not heard before, made by the noble Baroness, Lady Gohir, about audio abuse. I take that point seriously and will make sure it gets fed into the system when we are considering legislation.

I find it difficult to disagree with any of the points made by noble Lords, but I know there will be frustration across the House about the Government pursuing their own legislation within this Session. I hope that noble Lords will understand that we want to make it sustainable and that we want the legislation to be solid, to use the noble Baroness’s word, and future-proof as far as is possible. I know very well that this is a difficult thing to do. We have a lot of work to do, and I am sure that all noble Lords will support the Government’s efforts in this field.

[Baroness Owen of Alderley Edge (Con)]

My Lords, before the Minister sits down, can I get his assurance that any pledge on a creation offence will be consent-based and that intent will not have to be proved? He has pledged to legislate in this Session of Parliament, creating the offence, but I would really like to know what kind of vehicle that is going to be and what the implementation period is. As all noble Lords have said, we cannot afford to wait. Any legislative vehicle that is going to take a year to pass, with a long implementation period, is simply not good enough.

[Lord Ponsonby of Shulbrede (Lab)]

Regarding the noble Baroness’s question about consent, I would like to reassure the House that in a criminal case the onus is never on the victim to marshal evidence or to prove intent of the perpetrator; it is for the police and the Crown Prosecution Service when investigating the alleged offence or prosecuting the case in court. That is why we work with the CPS when considering changes to the criminal law, to ensure the offence can be prosecuted effectively.

[Lord Clement-Jones (LD)]

My Lords, the whole purpose of the discussion today has been, to use the words of the noble Baroness, Lady Foster, that there should be strict liability and not intent. Surely we are not talking about mens rea in this at all.

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely heard what the noble Baroness said about strict liability offences. The Government’s position is as I just said. However, I listened very carefully to what the noble Baroness said.

[Baroness Kidron (CB)]

For those of us who have been dealing with sexual offences for some time, the one thing we know is that if you have to prove intent, it is worse than useless. I urge the Minister to take that away and to say to the House as a whole that intent will not be a satisfactory solution to the noble Baroness’s Private Member’s Bill.

[Lord Ponsonby of Shulbrede (Lab)]

I am afraid I will have to repeat the point I made previously: we understand very well the strength of feeling on this argument, and we are actively considering it.

[Lord Banner (Con)]

My Lords, I think the Minister said earlier that an offence of soliciting would add nothing because of the current established offences in relation to aiding and abetting, et cetera. Can he elaborate on his rationale for that, particularly in circumstances where the primary offence is committed overseas, perhaps in a jurisdiction where it is not actually an offence?

[Lord Ponsonby of Shulbrede (Lab)]

I am afraid I cannot elaborate further, because of the complexity of the situation that the noble Lord highlighted. We realise that it is difficult, and we need to get the law right. I do not want to say that we are taking our time, because this is an absolute government priority. We are in the process of identifying a suitable vehicle to address these issues in this Session of Parliament. The noble Lord makes a good point.

[Lord Stevenson of Balmacara (Lab)]

I am still slightly confused about timing. I am sure the Minister understands the difficulty the House is in here. I think he said—and I would like him to repeat it, if this is the case—that the Government’s intention is to complete their considerations of the issues raised by this, and other matters related to it, within this current Session, rather than within this Parliament. The Session we are currently in is due to come to a close in a reasonably short time. Can he confirm that?

[Lord Ponsonby of Shulbrede (Lab)]

I am very happy to confirm the point that my noble friend has raised. In fact, in my briefing, the words “in this Session” are underlined—so, yes, that is indeed the case.

[Lord Browne of Ladyton (Lab)]

Can I ask my noble friend a very simple question? Do the Government anticipate that any woman or girl will ever consent to the creation of what this legislation is aimed at—deepfake pornography to be used for revenge or for misogynistic reasons?

[Lord Ponsonby of Shulbrede (Lab)]

My noble friend raised that point with me the other day, and I checked it with advisers in the department. I think it would be unwise to assume that a woman would never, under any circumstances, consent to images being made.

Prisons: Imprisonment for Public Protection

Lord Ponsonby of Shulbrede Excerpts

Thursday 12th December 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this has undoubtedly been a powerful debate, with views expressed passionately. I have in front of me a reasonably lengthy speech in which I will address most of the points made today; if I do not answer of the questions asked, I will of course write to noble Lords.

I begin by thanking the noble Baroness, Lady Burt, for her opening remarks and for securing this debate. The issue of the IPP sentence is one that continues to generate immense debate across the whole House; indeed, many of the noble Lords who have spoken in today’s debate have been pivotal in ensuring some of the significant steps forward that have been taken already. The Government recognise the obstacles still faced by those serving IPP sentences, especially the 2,694 prisoners who, as at the end of September, remain in prison.

It is pleasing—and, as I say, to the great credit of many in the House—that the first phase of the changes to the IPP licence period in the Victims and Prisoners Act 2024 have now been implemented. As noble Lords will know, the introduction of the automatic licence termination period has led to the end of the IPP sentence for 1,742 people who were on licence in the community up until commencement on 1 November this year; I well remember working with the noble Lord, Lord Moylan, on those amendments when the noble Lord, Lord Wolfson of Tredegar, was in the opposite chair, if I can put it like that. The Government recognise, however, that this does not immediately change the circumstances for those still serving the IPP sentence in prison, and that there is more still to do in order to support these offenders to take the necessary steps towards being cleared as safe for release by the independent Parole Board.

Before I go any further, I am aware that many noble Lords will be familiar with the IPP sentence; however, some may not, including some listening from outside, so I will provide a brief overview before turning to the question at hand. The IPP sentence was first introduced by the Criminal Justice Act 2003 as a means of managing high-risk individuals who had been convicted of serious specified violent or sexual offences. The Act was amended in 2008 to give the courts discretion to impose an IPP sentence provided the tariff was at least two years, or the offender was convicted, at any time, of an offence under Schedule 15A of the Act—top-end violent and sexual offences were incorporated within that.

The Government are clear that it was absolutely right to abolish the IPP sentence, and we are determined to do all we can to support the remaining IPP offenders to finish their sentences. At the time of abolition, there were more than 6,000 offenders serving an IPP sentence in custody. Since then, a substantial number have been released on licence. As of September this year, 1,095 IPP prisoners are in prison having never been released, and a further 1,599 are in prison having been recalled to custody as their risk could not be safely managed in the community. It is right that the release of any IPP prisoner is subject to a thorough risk assessment and that the prisoner will be released only when the independent Parole Board determines that the prisoner’s risk is now capable of being effectively managed in the community on licence.

Legislating to give every IPP prisoner a definite release date and post-release licence, or legislating to provide for resentencing by a court, would result in them being released irrespective of their remaining risk. This would be the case even where the Parole Board had previously determined, in many cases repeatedly, that they continue to be too dangerous to be released, as they have failed to meet the statutory release test. Either legislative approach would put the public at an unacceptable risk of harm, which the Government are not prepared to countenance for any IPP prisoner through any partial resentencing.

The IPP annual report, published on 15 November, covers the period up to the end of March this year but also includes the latest version of the HMPPS IPP action plan for this current financial year. The plan puts a greater emphasis on effective front-line delivery in our prisons, challenging HMPPS operational leaders to ensure that each IPP prisoner has the right sentence plan and access to the right interventions, programmes or rehabilitative services to reduce their risk of reoffending. This is the best way to move them closer to being deemed safe to be released by the Parole Board.

Where these core fundamentals are in place, IPP prisoners can make progress towards release, provided they continue to engage fully with HMPPS staff working with them. The Government are determined to achieve this, including ensuring that HMPPS delivers effective sentence planning and timely prison transfers. As things stand, around 30% of IPP prisoners are not in a prison that can deliver the requirements of their sentence plans. The action plan, and particularly the effective delivery of the workstream that focuses on operational delivery on the ground, are the vehicle through which this situation must and will improve. Let me be very clear that we believe that these key actions will be the bedrock of significant improvements to the support and prospects of IPP prisoners. These are: the right plan, the right place, the right service and the right support for each offender.

The Government are determined to make the necessary progress on this issue. My noble friend Lord Timpson, the Minister for Prisons, Probation and Reducing Reoffending, has met many key stakeholders and is building a deeper understanding of HMPPS governance for overseeing the delivery of the plan. Just last week, he attended the external stakeholder challenge group, and he knows that stakeholders will continue to hold HMPPS and the Government to account. My noble friend remains passionate about this work and will be attending the IPP Progression Board next week to engage with the senior leaders at HMPPS who are responsible for delivery of the action plan. He has already spent significant time with staff across HMPPS, and I know that he is extremely positive about the high quality of leaders and staff, both operationally and centrally, and their huge commitment to deliver effective work to better the prospects of offenders.

The refreshed plan is made up of nine workstreams covering required actions relating to operational delivery, policy and analysis. This includes important policies, such as a new one on progressive prison transfers for indeterminate sentence prisoners, published on 14 November, which provides, for the first time, a formal set of requirements designed to ensure the smooth progress of prisoners to access the required interventions they need. This is important, as it means that where an identified next step is agreed with the prisoner and those who manage their case, the necessary actions to transfer them to the new location can happen swiftly and with care about the inevitable disruption such moves can create for individual offenders.

The refreshed plan also includes the expansion of psychology services through the prison gate for some of the more complex cases. This means additional support for both the offender, for example, through bespoke one-to-one support sessions, and the probation officer in their management of the case. This level of continuity from the prison into the community is important in providing effective support during those often challenging early stages for offenders following release.

The refreshed plan includes a quarterly review of progress for all detention for public protection cases in prison who were convicted prior to their 18th birthday. This review ensures that the offender’s progress remains on track, which means that they have an up-to-date plan and are engaging with it in the right prison. Where there are any concerns identified, appropriate action is taken to try to address them. The refreshed plan includes continuous improvement of the internal IPP data dashboard, which gives HMPPS operational leaders important information about the progress of their specific cohorts. It includes prioritising IPP prisoners for important regular keywork sessions and sentence management activity in times of high resource demand pressure across our prisons.

Health plays a vital role and, sadly, we see some cases where health or mental health issues can impede a person’s ability to progress. These issues must be treated, and I am pleased that the Chief Medical Officer has agreed to the Lord Chancellor’s request to consider the IPP sentence as part of his independent review of offender health. This will help us better to understand the specific health challenges faced by those serving the sentence and enable us to work with the Department for Health and Social Care to improve the support available to them.

HMPPS is taking the IPP issue very seriously at every level of the service, notwithstanding that we are making progress against a backdrop of well-known prison capacity issues and the huge strain on staff resources to implement the necessary measures to tackle it. It is important that we allow the action plan, and particularly the front-line-facing operational delivery plans, a chance to bed in before we review their progress in March next year. I assure noble Lords that if at any point it is clear that more needs to be done, we will review all options to enhance the level and type of support delivered to IPP prisoners even further and take decisive action to deliver any which we believe will make a difference.

Finally, it is important that this review of progress also leads to the setting up of clear measures of success in the next version of the action plan. We will use the review of the current plan early next year to identify those measures and benchmarks against which we can all gauge future progress. These will be shared as part of the next annual report and updated action plan, which will be laid in Parliament before the Summer Recess.

The Government’s priority continues to be the protection of the public, but I hope that noble Lords can see that we also remain fully committed to doing all we can to support the safe progression of those serving IPP sentences. I look forward to updating the House on the progress that I am confident the action plan will achieve in the next IPP annual report next year.

Let me repeat my gratitude to noble Lords who have taken part in this debate and address some of the points made. First, the noble Lord, Lord Moylan, asked how many IPP prisoners will never be released. Obviously, I cannot give him a number for that, but I can say that we apply a red, amber, green rating to prisoners currently on an IPP sentence and, at present, around one-quarter have a red rating, which means they are not engaging with services within prison at all. I think that answers his question. I shall sit down now and will write to noble Lords on any questions I have failed to answer.

Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024

Lord Ponsonby of Shulbrede Excerpts

Tuesday 10th December 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the draft Order laid before the House on 13 November be approved.

Relevant document: 10th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, in moving this order, I thank members of the Secondary Legislation Scrutiny Committee for the scrutiny of this statutory instrument. The Government laid this draft order on 13 November. I hope that has given noble Lords an opportunity to scrutinise the order and its accompanying explanatory documents. I welcome this further opportunity today to be clear about what the order will do and the Government’s reasons for taking these measures.

The draft order is a key part of our continuing efforts to resolve the capacity crisis in our prisons. After inheriting from the previous Government a prison system on the verge of collapse, on 12 July the Lord Chancellor was forced to announce a measure to address the immediate risk of running out of prison places. This was a change to modify the automatic release point for those serving standard determinate sentences from 50% to 40%. Specified offences were excluded from this modification. The draft order before us now makes further important changes to that original measure by excluding further offences from this modification.

As part of our continuing efforts to avoid running out of prison spaces, the order amends the provisions relating to the home detention curfew—HDC—by extending the maximum time that an offender can spend on HDC in the community. HDC enables eligible, risk-assessed offenders to be released from prison six months early, subject to an electronically monitored curfew. We are proposing to extend the maximum time that an offender can spend on HDC from six months to 12 months. To be clear, the eligibility and suitability criteria remain the same—for example, sex offenders are still excluded in statute and those serving sentences linked to domestic abuse are presumed unsuitable under the policy.

It is right that the sentencing review is given time to do its work, but the capacity crisis in our prisons has not gone away. When we introduced emergency measures in July, we believed that they had bought us about a year. However, after the summer of disorder, the next crisis could be just nine months away. For that reason, we must implement further measures urgently to ensure that we do not face running out of places again. This change to HDC will help to ensure that the criminal justice system is able to function as it should, helping to prevent further acute capacity pressures and avoid running out of prison places, which would cause criminal justice gridlock.

As to the purpose of this draft order, it relates to release measures within the Criminal Justice Act 2003. The first part of the draft order deals with HDC. HDC has been in operation since 1999. The scheme enables certain prisoners to be released from prison early while remaining subject to significant restrictions on their liberty. Offenders who are released from custody on this basis are tagged and placed on a curfew. This curfew must be for at least nine hours per day, by law, but is generally around 12 hours per day as a matter of policy. The curfew requirement must remain in force until they reach their conditional or automatic release date. Those released on HDC are subject to probation supervision and other restrictions as necessary. These may include GPS location and alcohol monitoring, exclusion zones, non-contact conditions and travel restrictions. If offenders breach the terms of their conditions, they can be recalled to custody to serve the remainder of their custodial sentence.

The rules on eligibility will not change as a result of this draft order. Offenders must complete half of the custodial part of their sentence before they can be considered eligible for HDC. Release on HDC is also entirely discretionary. There are a number of offences that are excluded from its scope by statute—for example, serious violent offences and all sexual offences. Other types of offending are presumed unsuitable as a matter of policy, including those often associated with domestic abuse, such as stalking, harassment and coercive control. Offenders serving sentences for any of the presumed unsuitable offences will not be considered for release unless the prison governor is satisfied that there are exceptional circumstances justifying this. Any offenders who meet this test will still be subject to a rigorous risk- assessment process before release on HDC is approved.

We are proposing to change the maximum period that an eligible prisoner may spend on HDC. We plan to extend it to 12 months from the current maximum of six months. Offenders eligible for HDC will continue to be risk-assessed and will still be subject to strict licence conditions and an electronically monitored curfew. As the previous Prisons Minister stated in February, the reoffending rate for prisoners released directly from custody was close to 50%, but for the types of offenders released on to HDC it was 23%.

The previous Administration committed to doing a review when HDC was extended from four and a half months to six months. That review did not take place, and the growing crisis in our prisons has meant that we need to take further action. HDC is closely monitored by HMPPS and the MoJ, and data on releases and recalls is regularly published. That will continue. I must be clear that this measure is urgently needed to reduce the pressure on the prison system. The challenges facing us across the prison estate are such that we must take urgent action to allow the sentencing review to take place. By extending HDC, we are using a long-standing mechanism that has robust safeguards built into it.

The order will also amend the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024, which established the SDS40 early release measure by modifying the automatic release point for those serving standard determinate sentences for eligible offences from 50% to 40%. The SI seeks to exclude six further offences from the early release measure.

SDS40 was delivered extremely effectively, but there was a problem with 37 prisoners who were released in error. Those offenders had been prosecuted under a repealed law that we had not excluded from SDS40. The Court of Appeal had ruled that we should treat the offenders who had been prosecuted under this offence after it had been repealed as if they had been prosecuted under the new offence, which was already excluded from SDS40. That ultimately meant that those prisoners were not identified as being ineligible for early release under SDS40. All the offenders released in error were returned to custody.

Subsequently, a thorough search uncovered similar anomalies where legislation creating criminal offences has been repealed and replaced. We had already taken the decision to exclude such offending, which relates to stalking, harassment, sexual harm and so-called revenge pornography, from the scope of emergency early release.

We are therefore acting quickly to exclude five further offences from SDS40 to ensure that the spirit of the original exclusions is delivered. This will ensure that anyone convicted of any of these offences cannot be released early under SDS40.

The draft order also excludes murder from SDS40. Anyone convicted of murder in the UK would have received a mandatory life sentence so would not be eligible for release under SDS40. However, some jurisdictions do not have life sentences so it is possible that in a small number of cases a UK national convicted of murder in a foreign jurisdiction may be given a determinate sentence for murder by that foreign court and may then be repatriated to the UK to serve that sentence in a prison in England and Wales. We want to ensure that no offender in this position could be released under SDS40.

Shortly after coming to power, the Government took decisive action to stop our prisons from collapsing. SDS40 was an emergency response to the crisis that we were faced with. We worked at pace to ensure that the scheme was as effective as possible while protecting the public by excluding the most serious offenders and providing specific protections for victims of certain domestic abuse offences.

We have kept SDS40 under constant review and are now acting quickly to address a small number of anomalies in the original legislation. The draft order extends to England and Wales only, and there should be no direct effect on the devolved Administrations. I beg to move.

[Baroness Newlove (Con)]

My Lords, both as Victims’ Commissioner and a victim going through the criminal justice system, I was horrified to read the NAO report published week which assessed government plans to expand the prison population. The report told us that on current forecasts the population would exceed prison capacity by 12,400 by the end of 2027. It is impossible to see how this can be absorbed by any building programme, let alone one that can be completed in just three years. It leaves the Government in an impossible position of having to explore all alternatives and it is against this backdrop that we find ourselves here today.

I am told that the home detention curfew scheme is hugely effective. Other than in the context of reducing the prison population, I am not sure how this statement can be made. As far as I am aware, there has been no recent evaluation of the scheme, but I would be interested to hear on this point from the Minister. Prison governors are responsible for selecting offenders who are suitable for the scheme. It is to their credit that compliance levels are relatively high. However, can we really be confident that current compliance levels will remain if the scheme is, in effect, doubled in length? Again, I would be interested to hear the Minister’s view.

It will come as no surprise when I say I come to this debate from the perspective of the victim. As I have said before, most victims seek justice, not vengeance. On hearing a sentence being delivered, the victims expect the sentence handed down to be served in full. This is not unreasonable; surely it is what we mean by justice. Victims listen to the remand time that has been deducted from the sentence; they know that part of the sentence will be served on licence, but they struggle to accept a prison sentence being reduced—by up to 12 months—through one or other early release scheme simply to reduce prison population pressures.

I fear that retrospective pruning of sentences by all successive Governments over the years has had a corrosive effect on public confidence in our justice system. How can you trust a justice system if all Governments keep moving the goal posts? It also adds an extra layer of complexity on sentencing and, heaven knows, sentencing is already complicated in the first place.

I make a plea to this Government and future Governments: let this be the very last time we have to extend an early release scheme to bail us out of another prison crisis. We need a sustainable sentencing regime where the sentence handed down is the same as that victims hear and the same as that the offender will serve, and we need a prison system that has the resilience and the means to meet the challenge.

--- Later in debate ---

[Lord Garnier (Con)]

My Lords, I briefly intervene, if I may. In doing so, declare my interest: until about 1 pm this afternoon, I was a trustee of the Prison Reform Trust. I largely agree with my noble friend on the Front Bench and the noble Lord, Lord Marks. I agree with them because I have made that very same speech probably about 20 times in the last 10 years—nobody listens, it does not matter. The short point I want to make is this: who monitors the monitors? One of the problems that we have noticed over the last several years, when looking at the use of tags, is that far too often the monitoring organisation falls down. One expects ingenious people on tags to try to get out of the restrictions imposed by them, but one does not expect the monitor to fall down in its duties. Can the Minister please assure us that rigid steps are being taken to make sure that the monitors are monitored, and that if they fail, there is some form of contractual sanction?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who contributed to this short debate. I agreed with all the points of the noble Baroness, Lady Newlove, on the importance of victims, but one point that is worth emphasising is that it is a discretionary matter for the governor as to whether a home detention curfew is granted. My understanding is that 40% of applicants for home detention curfews fail that application. That is distinct from SDS40, where there is a mandatory reduction from 50% to 40%; whether a home detention curfew is granted is a discretionary matter. The noble Baroness was broadly supportive of the measures in this SI, and I thank her for that.

The noble Lord, Lord Marks, raised a number of interesting points. The one I found most interesting was about extending tagging on perpetrators beyond the HDC period and maybe beyond the licence period— I do not know exactly what he is suggesting. As he will know, a sentencing review is under way, and it may be that there is an increased use of technology. I will make sure that the noble Lord’s point is fed back to the Ministers who are enabling David Gauke and his team to do that review.

A couple of days ago, I met the Estonian Justice Minister, and a couple of weeks ago, I was in Poland. It was interesting to talk to the Justice Ministers in both those countries about how they are extending their use of technology in a number of ways—there are a lot of possibilities there. I would not be at all surprised if this is looked at further as part of the sentencing review.

The noble Lord, Lord Marks, went on to talk about the capacity of the prison estate and the need to have spare capacity so that the system can essentially be managed properly for the benefit of the prisoners. This means that they can complete their courses and be relatively near to home, so that family ties are not broken. All the noble Lord’s points on that are absolutely right. What he said is very ambitious, but I hope the Government are matching his ambition in the sequencing of the steps we are taking to try to have a prison system that reduces reoffending—that should be, and is, the primary objective of any prison system.

The noble Lord, Lord Marks, raised a point that the noble and learned Lord, Lord Garnier, raised, on who monitors the monitors. My noble friend Lord Timpson is monitoring the monitors, and he is having absolutely regular meetings with Serco to reassure himself that the technology is working properly and that the further technology that we will need will be available. This is a real issue, and the noble Lord is right to raise it. It is very much alive in my noble friend’s head, if I can put it like that.

The noble Lord, Lord Murray, asked whether we would return to the old regime in due course. The answer to that is that we will keep the current proposed changes under review. One difficulty that we have had is that the situation is changing so quickly that it has proven difficult to do a proper review in a stable regime. The previous Government did not do a review of the previous regime when it went from four and a half to six months, and the current changes from six to 12 months need a suitable amount of time to bed in, to make sure that a proper assessment is done so that the Government can take a view about future steps. I hope that that puts the noble Lord’s mind at rest—the Government will constantly keep these matters under review.

Motion agreed.

Humanist Marriages

Lord Ponsonby of Shulbrede Excerpts

Monday 2nd December 2024 Lords Chamber

[Lord Dubs (Lab)]

On behalf of my noble friend, and with her agreement, I beg leave to ask the Question standing in her name on the Order Paper.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, under the previous Government, the High Court found in Harrison a difference of treatment in weddings law towards humanists. However, it also found that the then Government had demonstrated that the difference in treatment was justified given the legitimate aim to address differences in treatment as part of wholesale reform. As a new Government, we need properly to consider these important issues and will set out our position in due course.

[Lord Dubs (Lab)]

My Lords, when the High Court ruled that the lack of legal recognition for humanist marriages was discriminatory, this was surely an argument for the last Government to do something, which they failed to do. Is it not now time for this Government to go through the process of having an impact assessment?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we will assess marriage in the round, including humanist weddings, and we will announce when we do that in due course. I agree with the general point which my noble friend has made.

[Lord Birt (CB)]

My Lords, just under 20 years ago, Scotland legalised humanist marriage. Remarkably, data from the National Records of Scotland show that more Scots now choose a humanist wedding than those who marry in all other religions combined—that is, the Church of Scotland, the Roman Catholic Church and all other religions and faiths. On present trends, humanist weddings in Scotland will soon overtake civil ceremonies as Scotland’s first choice. How can we any longer deny the humanist option to those who want to wed in England?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. Scotland was able to accommodate humanist weddings within its existing legislative framework for weddings because it operates an officiant-based model, whereby regulation of weddings takes place via the officiant. In contrast, in England and Wales, we have a buildings-based scheme. It is in that difference that Scotland was able to make this accommodation, and that factor will be taken into account in the review to which I have already referred.

[Lord Dobbs (Con)]

My Lords, can I help the Minister? I am afraid I did not understand much of his original reply, but it seems to me that there is a problem that he has that they do not have in Scotland, Northern Ireland or in Jersey, where humanist marriages have been allowed. Indeed, Scientologists were allowed to marry almost 20 years ago. What specifically is the problem? If there is a problem, will he look to other parts of the United Kingdom for the resolution? They got it right; we need to do something about it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are a lot of anomalies within weddings arrangements in England and Wales, and it is for that reason that we want to look at all of them. If we were to go down the route of secondary legislation for humanists, for example, that would create a further anomaly. We do not want to go down that track; we want to look at the whole system in the round.

[Lord Cashman (Non-Afl)]

My Lords, “in good time” and “in the round” are just not good enough. There is a gross unfairness in that couples wishing to have a humanist ceremony in England and Wales must also have a civil ceremony, which means additional cost and outlay. Will the Government, instead of giving excuses, move forward and commit to taking action?

[Lord Ponsonby of Shulbrede (Lab)]

I can say to the noble Lord only what I said to other questioners, which is we want to look at this question in the round. There are many other groups—faith and non-faith—who also feel they are not fairly treated by the current arrangements, and we want to take their views into account when we look at this.

[Baroness Murphy (CB)]

My Lords, it may be an anomaly, but there are now 350 religious organisations in this country which are registered to conduct weddings. In 2013, an order was laid in Parliament that we could approve weddings for humanists. Why are we allowing this anomaly to continue? Is it not straight discrimination?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my answer is the same as that given to the previous questions, which is that there are indeed anomalies in weddings law within England and Wales; they cut across many religious and non-religious groups, and we want to look at the question in the round.

[Baroness Burt of Solihull (LD)]

My Lords, just to change the angle for a little bit, humanists have a long tradition of conducting same-sex wedding ceremonies, with LGBT people much more likely to be non-religious than the population as a whole. Does the Minister agree that such a change in the law would be significant for same-sex couples?

[Lord Ponsonby of Shulbrede (Lab)]

The statistic that the noble Baroness cited is accurate from my experience. Yes, such a change would have a disproportionate benefit for same-sex couples, and that factor should be taken into account in the review.

[Lord Meston (CB)]

My Lords, does the Minister agree that, rather than an equality impact assessment, what are required are certainty, clarity and essential fairness in the law governing all marriages, religious and non-religious, in line with the recommendations of the Law Commission back in 2022? People now use a variety of ceremonies—religious and non-religious—and should, frankly, be confident of their status at the end of each ceremony. Surely, the Government can direct reforms to meet those requirements.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble Lord. The objective of the Government is to have clarity and fairness in relation to weddings within England and Wales. There were 57 recommendations in a 500-page report from the Law Commission, and the Government need to take their time to consider them all carefully.

[Lord Watson of Invergowrie (Lab)]

My Lords, as other noble Lords have said, England and Wales are outliers on the issue of humanist marriages, with Scotland having applied legal recognition in 2005, Northern Ireland in 2018 and the Channel Islands at the same time. The Republic of Ireland has had it since 2012. To avoid my noble friend having to repeat the same answer, can I put it to him that this is an equalities issue, and it offers the Government the chance to extend laws that exist for some UK citizens to all of us?

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend for that question. Indeed, it could be seen to be an equalities issue, but the Government’s approach is to look at this matter in the round.

[Noble Lords]

Oh!

[Lord Ponsonby of Shulbrede (Lab)]

I am afraid that my noble friend has been unsuccessful in getting a different answer, but I take the point he makes.

[Baroness Berridge (Con)]

My Lords, the Minister said “in due course”, but it has been more than two years since the Law Commission report. There are people still getting married in either domestic premises or religious premises that are not registered. They find out—it is usually the women—that they are not lawfully married only when it comes to their wanting a divorce that they then, of course, cannot get. Can the Minister put this somewhere into citizenship, so that people are aware that, if it is going to be only in due course, this injustice will be dealt with?

[Lord Ponsonby of Shulbrede (Lab)]

The noble Baroness makes an important point. In my time as a family magistrate, I often had people in front of me who were married in religious ceremonies but not married in the eyes of the law, and we had to unpick the arrangements for those separating couples. The noble Baroness has made a very good point.

[Lord Watts (Lab)]

My Lords, does the Minister understand the concern on these Benches that the last Government used to use “in due course” to do nothing for long periods, sometimes years? Can the Minister start a different process, and give some indication of when this matter will come back to the Chamber and where the Government will take action?

[Lord Ponsonby of Shulbrede (Lab)]

Well, I have been advised by my Leader that I need to say “in the fullness of time”.

Legal Aid: Social Welfare and Family Law

Lord Ponsonby of Shulbrede Excerpts

Monday 18th November 2024 Lords Chamber

[Lord Bach (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I refer the House to my declared interest.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, legal aid is a vital part of the justice system. It underpins our plans to build a justice system that works for victims, supports access to justice and ultimately upholds the rule of law. The previous Government left the legal system facing significant challenges. This Government are committed to ensuring an effective, efficient and sustainable legal aid system, and we have already begun to stabilise the sector and explore ways in which we can rebuild our justice system.

[Lord Bach (Lab)]

My Lords, I thank my noble friend the Minister for his reply. I know that he, like me, believes that the virtual decimation of early legal advice as a direct consequence of the LASPO Act remains an affront to access to justice. Is he aware that every report published on this issue strongly agrees that early legal advice saves the state money by avoiding court and time spent? Of course, we know how sparse resources are, but does he not agree that common sense dictates that restoring early legal advice urgently by an increase in legal aid is a necessary, humane and financially sensible thing to do?

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend for that question, and I agree with the sentiment behind it. The Government are committed to ensuring there is an effective, efficient and sustainable legal aid system and are working toward that end. Our response to the Crime Lower consultation was published on 14 November and confirmed that we will be uplifting the lowest police station fees, introducing a new youth court fee scheme and paying for travel time in certain circumstances. Together, these changes will provide a £24 million boost for criminal aid providers.

[Viscount Hailsham (Con)]

My Lords, on a related matter, may I suggest that, to reduce the backlog in criminal cases, the Government increase the number of judicial sitting hours? I also suggest that the Government give earnest consideration to the recent proposal by the former Justice Minister Mr Chalk that criminal cases of intermediate gravity should be dealt with by a Crown Court judge and two justices, rather than by a jury.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Viscount for that question. As he will be aware, the department is going through an allocation process as a result of the recent Budget. The question of sitting hours and days will be looked at as part of that allocation review. He raised the question of an intermediate court, which I think was in the Auld report. That is being looked at, but a number of questions arise from that suggestion, which was made more than 20 years ago. I can say to the noble Viscount that it is something that is being considered.

[Baroness Butler-Sloss (CB)]

My Lords, as the Minister will know from his past life, many unrepresented litigants appear before family judges and magistrates without any legal advice. Very often, there have to be adjournments because the facts are not available because the parties are so in dispute they cannot give an accurate account. Does the Minister agree that this is not only a waste of court time but a waste of money? Early legal advice in family cases would save a great deal of money.

[Lord Ponsonby of Shulbrede (Lab)]

Of course, I am sympathetic to the point the noble and learned Baroness makes. As she said, I have substantial experience of dealing with litigants in person in family courts. The debate about early legal advice is also being considered as part of the allocation arrangements as a result of the Budget, but I am sympathetic to the point she makes.

[Lord Beith (LD)]

My Lords, is the Minister concerned about the combined effect of the restrictions on scope for legal aid, the enormous complexity of trying to get an exceptional circumstances funding application through, and the creation of advice deserts in many parts of the country? These are severe barriers. The Minister has been strongly in support of legal aid over many years, as I know well, but does he have any hope of making progress on this matter?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question, specifically on the point of advice deserts. There is no doubt we are facing substantial challenges in that respect. The previous Government allowed the number of duty solicitors available to drop by 26% between 2017 and 2023. The MoJ and the Legal Aid Agency are working with providers where there are specific issues; for example, setting up a list of providers available to provide immigration advice to clients in the south-west.

[Lord Falconer of Thoroton (Lab)]

My Lords, my noble friend Lord Bach’s Question is rightly focused on social welfare law and family law, which all too often get forgotten. One of the real pressures on the system is dealing with domestic abuse cases. The courts have introduced a system recently in certain courts, called the pathfinder courts, where there is an early assessment of domestic abuse allegations and the effect trying them will have on children. Could the Minister tell us whether the Government support those pathfinder schemes and how they are getting on?

[Lord Ponsonby of Shulbrede (Lab)]

I pay tribute to my predecessor, the noble and learned Lord, Lord Bellamy. When I was in opposition, he made a point of encouraging me to visit a pathfinder court in Dorset. I was very impressed by what I saw, and the Government are pleased to carry on that initiative. Again, I am afraid the further rollout of pathfinder is also subject to those allocation discussions, which are ongoing, but I absolutely endorse the point my noble friend makes about the importance of pathfinder, not least because it is a way of highlighting and cracking down on domestic abuse in the court system.

[Lord Sandhurst (Con)]

My Lords, until 2012, there was funding for the excellent support scheme for specialist providers of social welfare and housing law. What consideration are the Government giving to its revival? If the Minister is not aware of plans, will he undertake to look at this?

[Lord Ponsonby of Shulbrede (Lab)]

I will undertake to look at that. I am not aware of it in detail; I know that various pilots have been undertaken. I will write to the noble Lord.

[Lord Burnett of Maldon (CB)]

The noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Bach, have referred to the cost that falls on the courts as a result of the removal of legal aid for parents in dispute over their children. That is robbing Peter to pay Paul. I wonder whether the Government could take account also of the wider costs of the removal of legal aid in family cases which flow because parents at war are not as economically effective as they would otherwise be. People at war become ill, and there is untold damage done to the children as they are caught up in protracted disputes that need not happen. When the Minister is undertaking the review he referred to, would he take those matters into account?

[Lord Ponsonby of Shulbrede (Lab)]

I think the noble and learned Lord has hit the nail on the head. Private family law hearings are a destructive process. It is not unusual for situations to get worse for the people engaging in them, in my experience. Having the legal representation helps the court, and it is something I hope we can work towards over time. However, there are other initiatives, such as the pathfinder project, such as early legal advice, such as mediation vouchers, which we would like to use to divert couples away from the court system where it is appropriate and there is not risk to the children.

[Baroness Lister of Burtersett (Lab)]

My Lords, my noble friend the Minister, in response to my noble friend Lord Bach, referred primarily to criminal legal aid. What does he think are the implications for the principle of equality before the law, which underpins the rule of law, of the disastrous impact of LASPO—introduced by the coalition Government—on the provision of legal aid and advice for social welfare law, as referred to by my noble friend?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the sentiments behind my noble friend’s question, but the reality of the situation is that building back better and more comprehensive support will take time. It is a step-by-step process. I understand the frustration which she expresses; nevertheless, I agree with her sentiments and we are working towards that end.

Judicial Pensions (Amendment) Regulations 2024

Lord Ponsonby of Shulbrede Excerpts

Monday 18th November 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the draft Regulations laid before the House on 15 October be approved.

Considered in Grand Committee on 11 November.

Motion agreed.

Property (Digital Assets etc) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Wednesday 13th November 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the Bill be now read a second time.

Considered in Second Reading Committee on 6 November.

Bill read a second time and committed to a Special Public Bill Committee.

Judicial Pensions (Amendment) Regulations 2024

Lord Ponsonby of Shulbrede Excerpts

Monday 11th November 2024 Grand Committee

Moved by

[Lord Ponsonby of Shulbrede]

That the Grand Committee do consider the Judicial Pensions (Amendment) Regulations 2024.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, the statutory instrument before us today amends a number of the judicial pensions regulations, specifically: the Judicial Pensions (Fee-Paid Judges) Regulations 2017, referred to as the FPJPS regulations; the Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023, referred to as the 2023 FPJPS amendments; the Judicial Pensions Regulations 2022, referred to as the JPS 2022 regulations; the Judicial Pensions Regulations 2015, referred to as the JPS 2015 regulations; and the Public Service Pensions Act 2013 (Judicial Offices) Order 2015, referred to as the judicial offices order.

The judicial pension scheme is made up of a number of historical pension schemes. Since April 2022, the only scheme open for pension benefit accruals is the judicial pension scheme 2022. All preceding judicial pension schemes closed to further accruals on 31 March 2022, but these older schemes are still relevant as the majority of judges have service extending across multiple schemes.

The FPJPS regulations established the fee-paid judicial pension scheme. The JPS 2015 and JPS 2022 regulations established, respectively, the judicial pension scheme 2015 and the judicial pension scheme 2022. These schemes regulate the pensions of the fee-paid and salaried judiciary. These amendments will make a range of changes to improve and, where necessary, correct the running of these schemes in line with statutory requirements and actuarial advice. The last time we debated the judicial pension scheme, which was when I was in opposition, I said that I suspected it would not be the last time we would have such amendments; it appears I was right. There may be more amendments to come.

By their nature, these regulations are highly technical. In essence, these amendments to the existing schemes do the following. First, they provide for an employer cost cap in the judicial pension scheme 2022, following the completion of the scheme valuation in February 2024. Secondly, they add further eligible judicial offices to their appropriate pension scheme, where that eligibility has now been determined. Thirdly, they extend a number of deadlines for member elections under the fee-paid judicial scheme. Fourthly, they extend powers to reconcile amounts that were paid to judges whose pre-2000 service must now be taken into account as a result of the O’Brien 2 litigation, in respect of those new, pre-2000 entitlements, with their formal entitlements for that period.

A number of technical changes are required to facilitate the smooth running of the pension schemes, which I shall take in turn. The first is the employer cost cap. The inclusion of a cost control mechanism, or CCM, in the JPS 2022 regulations is a statutory requirement under the Public Sector Pensions Act 2013 for all public sector pension schemes. These amendments add the CCM to the JPS 2022 regulations. This must be included by 6 February 2025, one year on from the first actuarial valuation of the scheme by the Government Actuary’s Department.

The CCM is designed to ensure a fair balance of risk with regard to the cost of providing public service defined benefit schemes between members of those schemes and the Exchequer. This is partly achieved through the setting of an employer cost cap. If, when the overall CCM is tested, costs have increased or decreased by more than a specified percentage of the pensionable pay compared with the employer cost cap, members’ benefits and/or contributions in the relevant scheme are adjusted to bring costs back to target. This could mean, for example, that a member’s contribution rate could go up or down. However, the mechanism is designed with the intention that benefit rectification would be triggered only by “extraordinary, unpredictable events”.

Moving on to additional offices, JPS 2015 came into effect on 1 April 2015 and was open to eligible fee-paid and salaried judges with service between 1 April 2015 and 31 March 2022. JPS 2022 came into effect on 1 April 2022, when all eligible judges moved into this scheme in respect of accruals for future service. JPS 2022 covers eligible service in fee-paid and salaried offices from 1 April 2022. These amendments add a number of judicial offices into FPJPS, JPS 2015 and JPS 2022 where their eligibility for a judicial pension has been determined. This will allow these members to accrue pensions in the correct scheme for their office and, where applicable, to have access to retrospective entitlements in JPS 2015 and JPS 2022. This will allow members with service in these offices to access the benefits they are entitled to and make the correct contributions to the scheme.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am not sure whether I need to declare a formal interest, as my wife sits as a fee-paid tribunal judge but, for the avoidance of any doubt, I do. I suspect that the impact of this regulation on her will be de minimis and no doubt happen in many years’ time.

That said, I can be brief because the Minister has been so comprehensive. As we heard from the noble Lord, Lord Marks of Henley-on-Thames, these regulations emanate from the previous Government; this is not an area where, historically, there has been political controversy. Indeed, as the Minister said, we debated similar regulations when our roles were reversed. I echo his comment to me that this is probably not the last time we will come back to debate and discuss these pension regulations, because they are complex. Part of the reason for that is the history and the litigation that has arisen, but the one thing we share around the Committee is the importance of having an attractive pension scheme so that we attract the finest candidates to our judiciary—and retain them. Indeed, one of the things we did in the previous Government was to increase the retirement age to 75. The Minister referred to our outstanding and independent judiciary, and we absolutely endorse those two adjectives; it is outstanding, and it is totally independent.

I also endorse the point made by the noble Lord, Lord Marks of Henley-on-Thames: the fact that we are widening some of these pension schemes to include more tribunal judges is testament to the fact that so much of the important work of our judiciary is done by tribunal judges, both full-time and part-time—I think fee-paid is the proper term. Day in, day out, tribunals up and down the country deal with really important issues for people on the ground, so to speak. They are often unsung, and far from the legal journals and law reports, but they deal with important legal issues on a daily basis.

I have only one question for the Minister, which I ask as a matter of interest rather than in any controversial way. I note that, by these regulations, we are extending the time to enable judges to make choices between the pre-1995 and post-1995 schemes. I am interested in why we are extending time for that and why this particular period of extension has been chosen.

Other than that, I am tempted—as I think they are still debating the Budget in the Chamber—to point out that, although it is important to have attractive and gold-plated pensions in the public sector, that does not mean that we should raid private pensions in the private sector. If I say any more on that I will take this debate to places where it ought not to go, so I will stop there and make it unequivocally clear that we on these Benches are also firmly in favour of these regulations. I thank the Minister for introducing and explaining them so clearly.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank both noble Lords for their support for these regulations. I will first address the question that the noble Lord, Lord Wolfson, asked about why the deadlines for member elections are being extended. The answer is that, for members to be able to make an informed decision on their member elections, we need to provide detailed, illustrative information to affected members, which requires significant data inputs from our suppliers. The extension to 31 March 2027 will ensure that we can get this information to members with enough time for them to make a decision. I think that answers the noble Lord’s question.

I wish to say how much I agree with the noble Lord, Lord Marks, about the wider judicial family, and the importance of tribunal chairs and judges feeling part of that family and of their pensions recognising that fact. Of course, the part-timers—or fee-paid judges—fall into that category as well. That point was well worth reinforcing.

I also reinforce the point that the noble Lord, Lord Wolfson, made in his conclusion, about how our judiciary is a huge asset and resource for our country. It is indeed outstanding and independent—those are appropriate adjectives. There is never any question about its independence or ability. I have never, in either my business life or my political life, heard anyone seriously question judges’ independence or capability, if I may put it like that. We need to value that fact, and do so by making good but fair pension schemes. I hope these regulations are a small step in the road to maintaining that.

Motion agreed.

Property (Digital Assets etc) Bill

Lord Ponsonby of Shulbrede Excerpts

Second reading committee
Wednesday 6th November 2024 Grand Committee

Moved by

[Lord Ponsonby of Shulbrede]

That the Committee do consider the Bill.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, as we begin, I would like to set out some of the history of property law and how this Bill came into being. It is worth noting at the outset that these proposals are concerned with the law of personal property in England and Wales; that is, anything that is not land or real estate. Specifically, the Bill is designed to respond to the challenge the common law faces in recognising certain digital assets, such as crypto tokens, as property; and to position the UK as the pre-eminent jurisdiction for the transaction of digital assets and the resolution of disputes arising from them.

As your Lordships will be aware, certainty around personal property rights is important for a number of reasons, including: in cases where objects of property rights are interfered with or unlawfully taken; in cases of bankruptcy or insolvency; and for the legal rules concerning succession on death. These rights are also important for the proper characterisation of numerous modern and complex legal relationships, including custody relationships, collateral arrangements and structures involving trusts.

Traditionally, personal property has been categorised into two types: tangible property that you can hold or otherwise physically possess, known as “things in possession”; and intangible property that can be claimed or enforced only through a court action, such as a debt or contractual right, known as “things in action”. These categories have been recognised in English and Welsh law for centuries, long before digital assets existed. It is not surprising that they do not fit neatly into either category, yet some digital assets have characteristics that mean they should be recognised as property by the common law and treated as such.

For example, it has long been held that pure information cannot be the object of property rights because it can be copied exactly without affecting the original version. If one party sends another party a Word document, for example, the original party still has their copy. By contrast, the technology used to create crypto tokens means that they cannot be duplicated or “double spent”. This has been recognised in some recent case law, which found that certain digital assets, specifically crypto assets, can still attract personal property rights even though their unique nature means that they are neither things in action nor things in possession.

It is worth noting, however, that these cases are not definitive in that the decisions were not made by a precedent-setting court. This has left some ambiguity, as there is old case law suggesting that something cannot be personal property if it does not fall within either of the two traditional categories. Under the previous Government, in 2020, the Ministry of Justice asked the Law Commission to review the law on crypto tokens and other digital assets, and to consider whether reform was required. In its 2023 report, the Law Commission concluded that certain types of digital assets can attract property rights and recommended legislation to reflect this. This Government agree wholeheartedly with that approach, which is why we have brought forward this Bill.

I turn to the details of the Bill, which has only one limited and technical operative clause. It recognises that:

“A thing … including a thing that is digital or electronic … is not prevented from”


attracting

“personal property rights merely because it is neither … a thing in possession, nor … a thing in action”.

The Bill simply signals a further category of personal property. What it does not do is state which assets fall within this further category. It also does not provide for the legal consequences of falling into this category. These are matters purposefully left to the common law, which is best placed to respond in a nuanced and flexible way.

The Bill does not mean that all digital assets will be recognised as property. There are many kinds of digital assets with different features, including crypto tokens, non-fungible tokens, virtual carbon credits, digital files, and domain names. The well-established common-law tests for personal property will be applied by the courts to each specific digital asset. This means that only things with the necessary characteristics of property will be recognised as attracting property rights.

We believe that the Bill has clear benefits for England and Wales as a legal jurisdiction, and the UK as a whole, enabling more efficient dispute resolution, attracting international businesses to use our law, and promoting economic growth. The Bill will: first, encourage the use of English and Welsh law by international businesses by increasing confidence in how our law will treat certain digital assets; secondly, ensure protections for owners of crypto tokens and other assets in the event of unauthorised use or misappropriation; thirdly, decrease litigation costs and court time by giving certainty as to the existence of a further category of personal property; and, lastly, empower the courts with the tools to develop our world-leading common law.

Ultimately, the Bill will ensure that our jurisdiction continues to be an attractive place to do business with, and litigate in respect of, crypto tokens and other emerging assets that have the characteristics of property under the common law. The Property (Digital Assets etc) Bill represents a step forward in modernising the law of personal property in England and Wales. By recognising a further category of personal property, it recognises the unique features of digital assets, ensuring that they can be protected and managed effectively under the law.

The Bill underscores our commitment to fostering innovation. It supports our efforts to ensure that our jurisdiction remains at the forefront globally, providing a flexible legal framework that can react to the dynamic nature of digital assets and other emerging technologies. I hope the Bill receives strong support and I look forward to noble Lords’ contributions. I beg to move.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am grateful to those noble Lords who contributed to today’s debate. All of them will, I hope, acknowledge the expertise in the Room. Committee stage is likely to be very expert as well; I look forward to it.

I am keen to emphasise, as the noble Lords, Lord Clement-Jones and Lord Sandhurst, did, the great deal of work that has gone into the Bill: from the Law Commission, which produced an excellent report and followed that up with a consultation on the proposed Bill, and from the practitioners, businesses, academics and organisations that engaged with the process throughout. I give my thanks to all who were involved in that work.

The result of those efforts is a simple but elegant Bill. As has been said, most notably by the noble and learned Lord, Lord Thomas, it will support our efforts to remain a pre-eminent jurisdiction, with English and Welsh law the global law of choice, and it will signal that the UK is a leader in innovation and technology. As our society evolves, so too must our laws. The Bill is just one of the ways in which we are modernising our legal framework. I will endeavour to address some of the points made by noble Lords. If I miss any points in particular, I will of course write to noble Lords.

First, the noble Lord, Lord Holmes, asked a number of questions, and I will have a go at answering them— I recognise his expertise in this matter. The first question was on whether the Government are sure that the current categorisation is not exhaustive and unable to accommodate existing digital assets. The Law Commission considered this option as part of its extensive and detailed report. It acknowledged that it would be possible to recognise crypto tokens as falling within an expanded category of things in action—that is, to treat “things in action” as a catch-all category for all personal property that is not capable of possession. However, crypto tokens and similar assets are fundamentally different from other things in action, which can only be claimed or enforced through a court action. For example, unlike debt they can be stolen, which in some ways makes them more like things in possession despite them not being physical objects.

Digital assets could not have been conceived when the original categories of personal property were developed and so it is no wonder that these do not fit neatly into either category. The commission, and most of its consultees, concluded that it would be better for the law to recognise that this unique combination of features means that they belong to a different category. That is why we chose the third category option, which is promoted in the Bill.

The second point the noble Lord, Lord Holmes, made, was on the implications for our courts. One of the great strengths of the common law is its ability to evolve. We are, however, dependent on the right cases being brought to the precedent-setting courts. While we could have left the law to develop, there is no guarantee of if or when this would happen, and in the meantime the uncertainty would remain about whether digital assets could be treated as personal property. The underlying point of the Bill is to put into statute the way that the common law was developing in any case, and to allow the common law to continue to develop once this particular bit of legislation is in place. To that end, the Government took the decision to legislate to give the market confidence and clarity in English and Welsh law. It also provides a strong indication to the courts that Parliament then intends to develop common law and that there is a further category of personal property that some digital assets can fall within.

The third question the noble Lord, Lord Holmes, asked, was on what this means for the common-law community. The Bill does not put the law of England and Wales at odds with other common-law countries. Courts in New Zealand and Singapore have considered that crypto assets are capable of attracting property rights and question the appropriateness of there being only two categories of personal property. The Bill is consistent with further international legal developments —for example, the US, New Zealand, Singapore and the Dubai International Finance Centre have recognised crypto tokens as property, and the latter has recognised them as specifically belonging to a new category of personal property.

The noble Lord, Lord Holmes, asked about Scotland. Scotland’s law of personal property is distinct and does not share concepts of things in action or things in possession, so any legislative intervention in this area would have to be slightly different. I understand that the Scottish Government recently appointed an expert reference group to consider how Scots private law may best accommodate digital assets. It will be interesting to see how its work develops in this area. No noble Lord raised Northern Ireland, but the Bill could be extended to include Northern Ireland, subject to a legislative consent Motion at the Northern Ireland Assembly’s request.

The noble Lord, Lord Vaizey, spoke about the importance of the financial regulation of crypto assets. The Bill supports and complements the work of the Treasury and the Financial Conduct Authority, which are currently working on appropriate financial regulation of crypto assets.

The noble Baroness, Lady Bennett, asked what impact the Bill will have on things such as illegal transactions, fraud and tax avoidance. I recognise her points, and the answer is that the Bill deals only with a specific issue of personal property law. Illegal transactions, fraud and tax avoidance are properly dealt with by other statutes and initiatives.

The noble Baroness spoke about the environmental impact of crypto in a wider sense, and my noble friend Lord Stansgate also made that point. Of course, the Bill does not have a direct environmental impact, as it does not mandate for an increase in the use of crypto tokens or other digital assets—digital assets will continue to be used and created regardless of the Bill. Rather, the Bill is about clarifying the legal status of digital assets that already exist when a dispute has arisen. The Bill will help keep the courts of England and Wales as a leading place to mitigate these disputes.

However, I agree that environmental issues are important. This falls to a much wider discussion on things such as improving energy efficiency and adoptable sustainable power sources, and that is best addressed by other statutes and initiatives. Conversely, it is possible that the Bill could bring positive environmental benefits by enabling innovative green finance for particular projects and things. Nevertheless, I take the noble Baroness’s point.

My noble friend Lord Stansgate asked a number of questions. The first was: is the panel on the legal concept of control proceeding? I am happy to confirm that the UK Jurisdiction Taskforce, an expert group chaired by the Master of the Rolls, is taking forward this work, as a body that already has an internationally credible voice in the intersection of law and technology. In fact, I met Sir Geoffrey Vos last week, and we spoke about that very point.

Secondly, my noble friend asked whether the Bill would help in the division of matrimonial property on divorce—the noble Lord, Lord Meston, made this point as well. I am pleased to say that the Bill will help courts to say with confidence, in divorce cases, that crypto assets are matrimonial property. This is also a case for crypto assets on death.

The third question my noble friend raised was: will the Bill help people access the iPhone photos, for example, of deceased relatives? The situation for other digital assets, such as digital photos, is not addressed by the Bill, as the assets are not personal property. So it will not address that point as such, but it will be for the common law to develop the answers to those sorts of questions.

The noble Lord, Lord Freyberg, in a thoughtful speech of which he gave me good notice—I thank him for that—raised the impact of NFTs on the traditional art market. As he rightly said, there are many different aspects to this, and many uses for digital assets, giving rise to different legal, practical and other issues. This Bill does not purport to deal with all the issues that arise; that would be a very different and hugely extensive Bill. This Bill deals with a discrete issue of personal property law; it does not relate to the existing statutory framework of copyright law, artists’ resale rights or consumer protection law. Those areas of law raise different policy issues and need to be considered separately. I recognise the important work done by the CMS Select Committee on issues such as copyright infringement, and other bodies such as the Financial Conduct Authority on issues of consumer misinformation about crypto. These issues are too varied and complex to be brought within the present Bill, which is deliberately limited in scope.

On the noble Lord’s comments relating to AI, the Government believe in both human-centred creativity and the potential of AI to open up new creative frontiers. The AI and creative sectors are both essential to our mission to grow the UK economy. However, this is an area which requires thoughtful engagement. I understand that the Intellectual Property Office, the Department for Science, Innovation and Technology and the Department for Culture, Media and Sport are working closely with a range of stakeholders, including artists, on issues related to AI, copyright and IP. This includes holding round tables with AI developers and representatives from the creative industries.

I thank the noble Lord, Lord Clement-Jones, for his broad support for the Bill, although he asked whether this should be left to the common law. The idea is that this Bill will enable the common law to continue developing in this field. There will be new technologies, including things that perhaps we have not even thought about in this debate. The law of personal property is an area which has traditionally been developed through common law. If the noble Lord wishes to pursue the issue, we could develop it in Committee.

[Baroness Bennett of Manor Castle (GP)]

Will the Minister write to me about the issue I raised from COP 16 about digital sequence information on genetic resources, and the broader point about digital commons?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I will be happy to write to the noble Baroness.

Motion agreed.

Arbitration Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Wednesday 6th November 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the Bill be now read a third time.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, given the focus of the Arbitration Bill on modifying the arbitral framework, which is devolved to Northern Ireland, we are seeking the legislative consent of the Northern Ireland Assembly. We will continue to work closely with the Northern Ireland Executive to ensure that a legislative consent Motion is put to the Assembly in good time. I beg to move that the Bill is read a third time.

Bill read a third time.

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Moved by

[Lord Ponsonby of Shulbrede]

That the Bill do now pass.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Bill has now benefited from the scrutiny of two parliamentary Sessions, following its introduction in the last Parliament and examination by a Special Public Bill Committee. It has undergone further scrutiny since its reintroduction by this Government.

I take this opportunity to thank some of the noble Lords who have engaged with and supported the Bill over the past year. I begin by thanking the noble and learned Lord, Lord Thomas of Cwmgiedd, in chairing the former Special Public Bill Committee. He marshalled and managed truly expert feedback on these reforms from across the arbitration sector and the judiciary. The committee process resulted in several technical improvements to the Bill, introduced by the noble and learned Lord, Lord Bellamy. I also extend my thanks to the noble and learned Lord for his commitment to driving forward these reforms, while always recognising the importance of getting the details right.

The Bill has been improved during this Session’s Committee stage too, thanks in no small part to the considered and well-informed input from the noble Lords, Lord Wolfson and Lord Verdirame, and the noble and learned Lord, Lord Mance, who advised that the previous Clause 13 did not adequately reflect the case law on arbitral appeals that it sought to codify. We remedied this issue through my amendments in Committee, fixing a long-standing error in what is otherwise considered a supremely well-drafted framework. Based on sector feedback, the Government also made an improvement to Clause 1 ahead of introducing the Bill a second time, ensuring that its default rule on governing law did not apply inappropriately to certain investor-state arbitrations.

I am also grateful to my noble friend Lord Hacking for his contributions, both as a member of the former Special Public Bill Committee and as an active participant throughout the Bill’s passage. I appreciate his continued interest in full and proper arbitration law reform, after witnessing at first hand so much of its development over many years.

The legislative scrutiny provided by this House has served only to give optimal effect to the Law Commission’s recommendations, made after two extensive consultations. I record my thanks to Professor Sarah Green and her colleagues at the commission, Nathan Tamblyn and Laura Burgoyne, for their brilliant work. I also thank the Bill managers, Iona Bonaventura and Harry McNeill Adams, along with the government lawyer, Wan Fan, the parliamentary counsel, Helen Hall and Neil Shah, and my policy lead, Lee Pedder. I also thank my private secretary, Paul Young.

The measures within the Bill have been much sought after by our arbitral community. I am hugely grateful for its support and engagement with these reforms since the Law Commission’s first consultation.

I conclude by reminding noble Lords of the Bill’s benefits. By reforming and modernising our arbitral framework, it will make dispute resolution more efficient, attract international legal business and promote UK economic growth. We pass the Bill to the Commons in excellent condition, and I hope its passage can be completed swiftly. I beg to move.

[Lord Beith (LD)]

My Lords, the noble Lord, Lord Ponsonby, and I share the distinction of being the only people participating in the proceedings on the Bill who have neither presided over arbitration nor appeared before arbitrators. We have had a panoply of very expert noble Lords taking part in proceedings, none more so than the noble and learned Lord, Lord Thomas of Cwmgiedd, and the Public Bill Committee.

This is an important—although small—Bill, because it will effectively underpin an important export earner and an important opportunity for this country to assist in many issues across the world, because of the popularity of London as a centre for resolving disputes. It has had two Law Commission consultations, a very well-argued Law Commission report, excellent drafting and two processes through the full proceedings of this House. Not much legislation gets all that. As a consequence, we can be pleased about what has been achieved and wish it well in the Commons.

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[Lord Bellamy (Con)]

My Lords, I simply associate myself, on behalf of these Benches and as the previous sponsor of this Bill in the previous Government, with the thanks that have been given to the entire team, not only to the special committee and its chair but to the civil servants who have supported the work. I thank the Government and the Minister himself, who worked very hard in the special committee, collaborated very closely with the previous Government and myself and has, as has been said, managed to bring the Bill forward again with remarkable speed. As the noble Lord, Lord Hacking, said, of course there is always unfinished business and we must look to the future, but we now have an extremely good base on which to do so.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this short debate. I continue to be glad that this Bill has the support of so many noble, and noble and learned, Lords. As I said in my opening remarks, the Bill has now enjoyed robust review and precise revision and I hope it will have swift passage through the House of Commons.

I thank the noble Lord, Lord Beith, for noting that we are the only two noble Lords without direct experience who took part in both this Bill and the previous Bill; he was right in saying that. I also thank the noble and learned Lord, Lord Thomas, and I was remiss in not thanking Joey Topping for clerking the previous Committee stage. I also thank the noble and learned Lord, Lord Bellamy, for his best wishes for the Bill.

I will address the substance of what my noble friend Lord Hacking said on arbitral corruption. Of course, we take this very seriously. We believe that it would not be appropriate to use the Bill to address these matters. However, the arbitral sector is reviewing how corruption can be better identified and dealt with. The Government will continue to support this work and push for the adoption of best practices as they are developed. I beg to move that the Bill do now pass.

Bill passed and sent to the Commons.