Property (Digital Assets etc) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Wednesday 30th October 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the Bill be referred to a Second Reading Committee.

Motion agreed.

UK-US Co-operation on Using Atomic Energy for Mutual Defence

Lord Ponsonby of Shulbrede Excerpts

Wednesday 23rd October 2024 Grand Committee

[Lord Anderson of Swansea (Lab)]

I am grateful to the Deputy Chairman for allowing me to speak in the gap. I had applied in proper form, but alas, there was a misunderstanding in the Government Whips’ Office. So here I am, and I am grateful.

I begin by congratulating my noble and learned friend Lord Goldsmith. He follows in the proud tradition of my noble friend Lady Hayter and my very good and late friend Lord Morris of Aberavon.

The report on the MDA gives some indication of the importance of the scrutiny role of the committee and, as the noble Lord, Lord Howell, and others mentioned, of the deficiencies in the current CRaG process—a point also made very well by my noble and learned friend Lord Goldsmith.

The agreement is absolutely fundamental to the excellent defence relationships between our two countries. The MDA provides for the exchange of nuclear material, technology and information, and the debate is also very timely, in that the UK is in the process of modernising its nuclear-powered submarine and the warheads.

This has been a unique defence and security relationship between us and the US. We have heard quite a lot of history during this debate. The McMahon Act 1946 banned the US from sharing its nuclear knowledge. That was modified in 1958, and co-operation then between the UK and the US was a precursor to the Polaris agreement of 1963.

I noted that in the presidential determination of 16 July recommending approval of the amendment, President Biden stated that it was in the interests of the US to continue to assist the UK in maintaining a credible nuclear deterrent,

“which will further improve our mutual defense posture and support our”

collective interests under NATO. It appears clear, from what we have heard as a committee, that the US will indeed shortly ratify these amendments.

As an aside, many years ago, in 1960, I joined the Foreign Office, and what struck me very forcefully at the time was the excellent personal relationships between members of the US Administration and senior members of the Foreign Office, many of whom had served in the US during the war—people such as Sir Frank Lee and Sir Arnold France—and had built up excellent personal relationships. Alas, I do not believe that those personal relationships, which inspire confidence and trust, exist in quite the same way today.

Pace the noble Lord, Lord Hannan, it may well be that, in the current context, the US might be looking not just at the UK for that special relationship but at France and possibly other countries. France was, of course, upended by the AUKUS agreement and may well be brought in now, in some subsidiary way.

Power relationships and the context of today are very different from 1958 and 1959. I hope that the Government will indicate whether they foresee a possible change if there were to be a change of government in the US following the presidential election.

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

I point out to my noble friend that there is a four-minute time limit to interventions in the gap.

[Lord Anderson of Swansea (Lab)]

In that case I end simply by stating—although there is plenty of time left—that there is clearly concern about parliamentary oversight. When the committee met Mr Pitt-Rashid of the MoD, he conceded that the removal of this amendment was “not a great disadvantage”. Surely we would not expect the US to be concerned about our parliamentary procedure, nor should we be concerned about the US. Its removal can be done without difficulty.

I make one point in relation to the noble Lord, Lord Verdirame. The question of relying on a Minister to give an assurance is fundamentally different from having an obligation set in statute.

Criminal Justice System: Capacity

Lord Ponsonby of Shulbrede Excerpts

Tuesday 22nd October 2024 Lords Chamber

[Lord Beith (LD)]

My Lords, the noble and learned Lord, Lord Keen, gave us some interesting historical context, but I had expected an apology—or at least a guilty plea, with the plea in mitigation that he chose to leave the previous Government before the ceiling really started to fall in. They left an appalling situation: overflowing prisons, a huge backlog of untried cases, record numbers of remand prisoners, and victims seeing no outcome or closure to what they had suffered. This Government now have to deal with that, and they are running out of their few options to do so. I welcome their decision to have a fundamental review of sentencing policy and to invite David Gauke to carry it out. I very much agree with the noble and learned Lord on that; he is a good choice and I wish him well in the task.

Why are we filling prisons with more offenders than any other western European country? Why are we failing to recognise that we are putting resources into a prison system that is institutionally ill equipped to do the kind of rehabilitative work that is clearly necessary? Unless we see a significant reduction in prisoner numbers, what hope is there that rehabilitation programmes can work in prisons?

With so few options available to them, it seems logical and sensible for the Government to make use of the available time of magistrates who are willing to sit on more serious cases, freeing up time in Crown Courts. However, last time, this was not found to be very effective; it led to an increase in the demand for prison places. The Lord Chancellor conceded in the Commons:

“That is what happened and what I expect to happen again”.—[Official Report, Commons, 17/10/24; col. 1011.]


It is not even a temporary solution. Do these plans overlook the possibility that some defendants will opt for a jury trial when they no longer have the incentive that magistrates can sentence them only to six months? That means longer sentences and larger prisoner numbers. Will special training be provided to magistrates to try to ensure that good use is made of them in cases dealing with more serious offences that require a longer sentence, but that the new powers do not simply inflate sentences that would otherwise have been given to potentially shorter-sentence prisoners?

The Lord Chancellor has said, and I agree with her, that

“people have to know and believe there are consequences to breaking our laws”.

This is not achieved when prisoners are released without completing their sentences or any serious regard to why they were imprisoned for a long period. Neither is it achieved by using a significant part of our resources in a prison system which is ill equipped, ill resourced and ill prepared to rehabilitate offenders. If this announcement buys the Government some time, can we have some reassurance that it will be used for fundamental change?

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

I thank both noble Lords for their questions. I will first address some of the points made by the noble Lord, Lord Beith, and then turn to the noble and learned Lord, Lord Keen.

On the noble Lord’s final point about buying time, that is the Government’s objective with SDS40; the standard determinate sentencing going from 50% down to 40% is indeed to buy time. As he will know, there was a Statement in the House of Commons today on a sentencing review, which we are very grateful that David Gauke has agreed to chair. That Statement will be repeated in this House in due course, so we can debate the issues raised in it.

The noble Lord, Lord Beith, asked some specific questions, including whether increasing magistrates’ sentencing powers from six to 12 months will incentivise defendants to opt for jury trial. In the brief interlude when that happened before, there was no statistical data to say that might be the case, so on that particular example we are confident that there will not be any appreciable increase in the number of defendants opting for a jury trial.

As far as training goes, there will be refresher training available to magistrates. When I was in opposition, I personally did the training for the increase in sentences. It was not that long ago, but if some magistrates feel they want the refresher training then it will be available to them.

The central point that the noble Lord made was about filling up prisons. As my noble friend Lord Timpson often reminds me, if you do nothing then the prison population will go up by 80 a week. That is the reason we are initiating this review of sentencing, which will get under way very quickly.

The closing remarks of the noble and learned Lord, Lord Keen, were much more acceptable than his opening remarks. In his closing remarks, he acknowledged the complexity of the situation, that there are many interacting factors in the situation we have arrived at today, and that there needs to be a multifaceted approach to try to turn the tide on the ever-increasing number of people we find in our prisons. I agree with the point he made in his closing remarks.

I think the noble and learned Lord might have been tweaking my nose with his other point. He said that magistrates cannot resist a vacuum, but he knows that that is absolutely not true. Magistrates sentence within the sentencing guidelines, as do district judges. The problem with magistrates and district judges is that they sentence quicker than Crown Courts, not that they sentence more harshly. I see that the noble Baroness, Lady Sater, is nodding her head, because she knows that what I have said is correct.

The overall objective of this announcement is to increase magistrates’ sentencing powers back from six to 12 months. I look forward to answering more questions from other noble Lords on that matter.

[Lord Keen of Elie (Con)]

Could the Minister perhaps respond to my inquiry as to why no impact assessment was carried out, given that there is potentially data available from the previous period when magistrates’ sentencing powers were increased from six to 12 months? If this is going to be an interim measure of some relief, we ought to know whether it is going to provide that relief or exacerbate an otherwise very difficult situation.

[Lord Ponsonby of Shulbrede (Lab)]

This measure was unavailable to the previous Government, who had to reverse it because they ran the system so close to collapse. They left the backlog unaddressed and victims had to wait far too long for justice. The prediction is that we will see a slight increase in the overall prison population, but by bearing down on the remand population in our reception prisons we will create capacity where we need it most. However, I am confident that there is currently enough capacity in prisons to absorb the initial inflationary impact, and there is no evidence that magistrates send people to prison more or for longer. Because of how precarious the situation is, we believe that now is the right time to take this measure.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, before we move on to Back-Bench questions, let me be absolutely clear that this is 20 minutes of questions—short, succinct and sharp questions—not speeches.

[Baroness Sater (Con)]

My Lords, last month, 37 prisoners were mistakenly released from prison under the early release scheme. One was charged with sexually assaulting a woman on the same day that he was released. Can the Minister please explain what evaluation is given and criteria used when deciding whether a prisoner is eligible to be released under the early release scheme?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for her question. All prisoners who were released in error under the first tranche of releases are now back behind bars. I will write to her on her question but, broadly speaking, the criteria includes whether offences were sexual and violent or related to domestic abuse. I will write to her with the specific list; it is in my notes, but I am not sure that I can find it in proper time today.

[Lord Carter of Haslemere (CB)]

My Lords, I can see why increasing magistrates’ courts’ sentencing powers may be necessary as a short-term measure to deal with the backlog of about 17,000 remand prisoners. However, will it not result in a great increase in the number of short sentences? We know that the reoffending rate for short sentences is around 50%, or even a bit more. Although it may be necessary as a short-term measure, how long will this last? If it lasts for too long, surely it will have a reverse effect and we will end up with the revolving-door syndrome that we have seen for short sentences over many years.

[Lord Ponsonby of Shulbrede (Lab)]

I do not agree with the premise of the noble Lord’s question. It is not right that we will see an increase in the number of short sentences. Certainly, in my experience as a sentencing magistrate who gave short sentences, I gave them only to those who were already on community orders or suspended sentences. I cannot remember giving a short sentence to somebody who had a previous good character.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister say a little more about training? I understood him to say that it would be available to magistrates who feel that they need it. Is it not better that there should be some supervision to identify which magistrates really need training? When will the training be available?

[Lord Ponsonby of Shulbrede (Lab)]

All magistrates were trained the first time these sentencing powers were put in place. Of course, there will be some new magistrates aboard and some who feel that they would like to retrain, so there will be online courses available either for refreshing or for magistrates who are relatively recently in post. The magistrates are regularly appraised—winger magistrates every four years and presiding magistrates every two years—so we can be confident that the standards are being kept up.

[Baroness Mallalieu (Lab)]

My Lords, before his death, the late Lord Ramsbotham regularly asked the same question of the Government: when will there be a royal commission on criminal justice? The mess in the prison system is highlighted by the Statement made the other day, but, as we know, there are nearly 70,000 cases awaiting trial in the Crown Court. Is it not time to stop applying sticking plasters and short-term measures, and instead have a proper look at how the whole system should work?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend Lady Mallalieu for her question. I very much remember the noble Lord regularly asking for a royal commission. The reality is that we feel that we have a big job of work to do on reviewing sentencing and then managing the whole prison population and estate, so that it stops increasing. That is where our focus is right now. I will take back the question of a royal commission to my right honourable friend the Lord Chancellor, but, to be frank, I have not heard it spoken about in the time I have been in government.

[Lord Hogan-Howe (CB)]

My Lords, I support a smaller prison population, not just because there are not enough places for the people who have been sentenced but because there are too many people in prison. However, one of the consequences of releasing people early, at a quicker pace than one might have planned for, is that it will put more pressure on the police service. This Government made a manifesto pledge to increase the size of the police by around 4,000 officers, but we have not heard an awful lot about that since the Government took office.

Secondly, as has been mentioned by the noble and learned Lord, Lord Keen, and by the noble Lord, Lord Timpson, in passing, one of the measures for mitigating the recidivism of those who are released is tagging—normal tagging to determine where the person is and sobriety tagging, where alcohol is an aggravating factor, and now there is also drug tagging. Finally, the response to those tags when they are breached should go straight to the police, not to a private company to be emailed to the police to be dealt with some time later. Is the Minister able to respond to those points about resourcing?

[Lord Ponsonby of Shulbrede (Lab)]

I have just consulted with my noble friend Lord Timpson and I can reassure the noble Lord that we do have enough tags for the process which we are embarking on. I should also mention that both my noble friend Lord Timpson and I were fitted with a sobriety tag for a while to see whether it worked, and I can assure the noble Lord that it does work.

The noble Lord’s opening point was about more pressure on the police. That is right; there will be some more pressure on the police and also on the Probation Service and some social services such as housing. The philosophy underlying the Government’s SDS40 approach rather than the previous approach is planning down the whole pipeline, including people who will regrettably reoffend and how to deal with them. By managing this with a more planned approach, we hope and expect that we will reduce the chances of reoffending.

[Lord Bellingham (Con)]

My Lords, can I refer the Minister to the recent quite appalling race riots that took place during the summer? I think everyone agrees that those involved in violence and incitement to violence, including online incitement to violence, deserved extremely harsh punishment. But the Minister will be aware that many of these people had no previous convictions and posed no immediate threat to the public and yet nearly all were remanded in custody, thus putting greater pressure on the Prison Service. Can the Minister comment on this point?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

Of course, the matter of sentencing is for judges. My personal view is that the sentences I read about seemed entirely appropriate, but this is a matter for them. This was a particular situation where maybe the judges felt that even people who were of previous good character needed to be made an example of—but that was a matter for them.

[Baroness Bloomfield of Hinton Waldrist (Con)]

Speaking as a former magistrate who worked in a young offender institution, I can say that short sentences clearly do not work. To go back to the point made by the noble Lord, Lord Hogan-Howe, that it is preferable to have fewer people in prison, have the Government looked at the prison system in Holland? The Netherlands has managed to reduce its prison population significantly, such that it can even outsource prison spaces to other countries, but this depends on a lot of resources being put into the Probation Service and community sentences. Can the Minister respond?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with every word the noble Baroness has said. My noble friend Lord Timpson has just whispered in my ear that he has been to Holland, so we are looking at that very closely. The other point he made is that they use a lot of tagging in Holland, so that is another factor when we are looking at reviewing sentencing as a whole, although of course the sentencing review will look at adult sentencing and not at youth matters.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am worried about a public loss of confidence in the contradictions around sentencing. I think there was public disquiet about the high-profile case of a woman given a two-and-a-half-year sentence for a social media post, which the noble Lord has pointed out was possibly somebody being made an example of. Yet letting people out before their sentence is up for more serious crimes seems to contradict that. Also—dare I mention?—many IPP prisoners have served their tariff in prison. Will the Minister comment on whether some of those could be looked at to see whether, having done their time, they could be released earlier than their indefinite sentence? They have done their time for the crime they committed and yet they still languish in prison. It just does not seem to make any sense to the public.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for that question. In a sense, she exemplifies the difficulty of the various matters we are grappling with when trying to address the overall problem of having this large number of people in prison at the same time as the riots were happening over the summer period. I acknowledge that that is a difficult situation. Regarding the IPP sentences, the Government have set up an IPP action plan which they are working at full speed on, and proposals will be coming forward in due course.

[Lord Faulks (Non-Afl)]

My Lords, the Minister described very well the process which he undertook when sentencing somebody, giving them a sentence of imprisonment only when other avenues had been properly explored. I was a recorder for some considerable time and that very much echoes my approach and, I suspect, the approach of most judges: a real reluctance to send people to prison unless there is no other alternative. However, during the last Labour Government, there was an enormous amount of legislation changing the sentencing powers of judges and magistrates—particularly judges—and not trusting the judges to make their own assessment of what the appropriate sentence was. When there is this review of the appropriate response to the prison crisis, can the Minister convey to his colleagues that it is not a good idea to fetter the discretion of a judge and prevent them coming to the right conclusion in the right case?

[Lord Ponsonby of Shulbrede (Lab)]

I think I can reassure the noble Lord. It is intended that we will have very senior former judges on the sentencing review, who I am sure will take to heart the noble Lord’s point.

[Baroness Wheatcroft (CB)]

My Lords, this measure is intended, in part at least, to take pressure off the Crown Courts, but can the Minister say something about the pressure on magistrates? Is it the case that the number of magistrates fell by 50% over the decade to 2021 and has not yet got anywhere near that number? Can he say something about the backlog of cases at magistrates’ courts, too, please?

[Lord Ponsonby of Shulbrede (Lab)]

I became a magistrate just under 20 years ago and at that point there were 30,000 magistrates in England and Wales. There are now about 14,000 and we are trying to get the number back up to 18,000. So, I accept the point the noble Baroness made on that. The other point is that in the youth court, magistrates have powers to sentence up to two years—I was a youth magistrate as well. The change is important and significant, but it is not such a big step change that magistrates will not be able to handle it in any way. I am confident that they will be able to handle it, and the backlogs in the magistrates’ courts are nowhere near as bad as those in the Crown Court.

[Lord Bellingham (Con)]

My Lords, may I seek some further clarification from the Minister? I asked him about remanding in custody and, having worked in the criminal justice system as a barrister, I am well aware that obviously the sentencing is up to the judges or magistrates. However, remanding in custody is not meant as a punishment; it is meant to protect the public.

[Lord Ponsonby of Shulbrede (Lab)]

Of course, I accept the point. The objective is not to change the number of people who are remanded in custody, because obviously that is a judicial decision, but to reduce the time those who are remanded in custody spend in custody. If we can do that through reducing the backlog, that will be a desirable effect. We think that some 2,000 days of Crown Court sittings could be saved by this change to the rules of magistrates’ sentencing powers.

[Lord Hope of Craighead (CB)]

Can the Minister assure us that the training of magistrates covers the circumstances in which it is right for somebody to be remanded in custody? Following the riots, suspicions were raised that some people were being remanded without true consideration of whether they justified that treatment. It is rather an important issue, and I hope that the training does cover it.

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely assure the noble and learned Lord that remanding in custody is covered in magistrate training. When I used to oversee new magistrates, I said to them on their first day in court that remanding in custody is the most difficult decision they will make, both on the first day and on the last day. It is consistently a difficult decision to make and one that magistrates and the judiciary, I am sure, are fully aware of and trained in.

[Baroness Healy of Primrose Hill (Lab)]

Can my noble friend the Minister give some reassurance that with the increased number of cases before magistrates, they will have increased resources to receive pre-sentencing reports from the Probation Service? That is so important, particularly for women with family responsibilities, before magistrates consider the sentence.

[Lord Ponsonby of Shulbrede (Lab)]

My noble friend raises a good point. There has certainly been increased resource in probation, and we are recruiting additional probation officers. That is going very well, but it takes time to train those probation officers. The other factor is an increased number of legal advisers, who are often the unsung heroes of our court system. Again, recruitment is going okay but they need time to gain the experience so that the system can be in equilibrium with these new sentencing powers.

[Lord Lexden (Con)]

In due course will the Government bring forward proposals to improve the way in which prisoners are rehabilitated?

[Lord Ponsonby of Shulbrede (Lab)]

It is certainly our intention to do so. That underpins so much of what we are going to do. We are increasing the number of people in the Probation Service. Obviously, we want to increase the rehabilitation figures and reduce the reoffending figures. The spotlight will be on the Probation Service to try to deliver that objective.

[Baroness Wheatcroft (CB)]

My Lords, given the importance of employment in stopping reoffending, are there plans to increase the number of employers that will consider taking on ex-offenders? Will the Government provide any incentives for them to do so?

[Lord Ponsonby of Shulbrede (Lab)]

My noble friend Lord Timpson has just whispered in my ear “Employment advisory boards”, of which he was a leading light and which we intend to increase. I accept the noble Baroness’s point that if people can get gainful employment when they leave prison, they are far less likely to reoffend.

[Baroness D'Souza (CB)]

My Lords, the Minister has already had a question about the rehabilitation of prisoners. A number of organisations are having quite good results in the rehabilitation of prisoners. Are the Government working with these organisations, and are they concerned with the lack of funding that many of these small organisations have? Could the Government outsource some of this work?

[Lord Ponsonby of Shulbrede (Lab)]

I acknowledge the noble Baroness’s point, and of course we value the contribution that they make. We all know these organisations. I remember working very closely with them when we were in opposition, and we continue to work with them in government. Many of them bring real expertise to the table. We want to work collaboratively to achieve our overall goal of turning around the ever-increasing prison population we have seen over the last decades.

Infected Blood Compensation Scheme Regulations 2024

Lord Ponsonby of Shulbrede Excerpts

Monday 21st October 2024 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

That the Regulations laid before the House on 23 August be approved.

Relevant document: 2nd 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, I start by reminding the House why we are here. The infected blood scandal is a mark of shame on the British state. The infected blood inquiry’s final report, published on 20 May, shed light on the trauma inflicted on thousands of people across the country, through no fault of their own. People were given contaminated blood or blood products, contracted HIV, hepatitis C and hepatitis B, and then for years had their voices ignored. People who loved, knew and cared for someone who was infected—those who were affected—similarly had their voices ignored. This did nothing but compound the trauma of all involved.

The infected blood inquiry’s second interim report set out 18 recommendations on compensation, informed by Sir Robert Francis’s 2022 compensation scheme study. The inquiry was unequivocal that a compensation scheme must be set up immediately. The regulations we are debating are essential for delivering that compensation scheme and getting money to people as quickly as we can.

The scheme is based on the recommendations and principles put forward by the inquiry. In line with these, and supported by the advice from the inquiry response expert group and the engagement exercise that Sir Robert Francis undertook in June, the Government have sought to design a fair and comprehensive compensation scheme that will be quick and simple for eligible applicants to access. We support the shared determination across the House to deliver compensation as swiftly as possible and with the minimum possible delay. These regulations are a significant step towards that.

I turn first to eligibility. The scheme and the regulations define people who are eligible as infected people, in line with recommendation 2 of the inquiry’s second interim report. This covers people infected with HIV, hepatitis C and hepatitis B, including people directly infected by treatment with blood, as well as people indirectly infected via transmission from a directly infected person.

Secondly, the regulations establish a core route for claiming compensation as an infected person. The core route provides compensation under five awards, or categories of loss, as set out in recommendation 6 of the inquiry’s report. These awards include an injury impact award, a social impact award, a care award, a financial loss award and an autonomy award, which together will comprise the total compensation award to be given to infected individuals, or to the estates of any deceased individuals, to recognise the wide-ranging harm resulting from their infection.

Earlier this year, the Victims and Prisoners Act established the Infected Blood Compensation Authority in law to deliver the scheme, and with these regulations we are providing the authority with the legal powers needed to begin making payments. The regulations also provide further detail on how the Infected Blood Compensation Authority will accept applications and pay awards.

Since the authority was established in law, it has been working hard to design and implement effective, simple and secure processes for members of the community, with their input, to claim the compensation that they so clearly deserve. Last week, the Infected Blood Compensation Authority reached out to the very first claimants under the infected blood compensation scheme. The authority is taking a “test and learn” approach, which will ensure it can take on board feedback and improve the service before it opens its full compensation service. This is a significant step towards our shared intention to begin payments by the end of this year and ultimately will ensure that the service is as fast and as simple as possible when it opens for everyone. I hope this step provides confidence that we, and the authority, are absolutely committed to driving forward progress with the scheme in a way that puts the infected blood community at the heart of our work. The Government expect the authority to begin making payments by the end of this year.

I will speak now to the concerns raised by the Secondary Legislation Scrutiny Committee, which I believe noble Lords may wish to raise in today’s debate. As the committee noted, the infected blood scandal stretches back over many decades and access to records, such as medical records, may not be possible or may be very challenging. Where this is the case, the authority will need to make objective decisions relying on the evidence that is available to determine, on the balance of probabilities, that treatment with infected blood occurred. The authority will provide assistance to those who believe their medical records have been lost or destroyed, and evidencing eligibility will be easier, faster and more compassionate than, for example, through any court proceedings.

The committee also raised concerns around the complexity of the regulations and the Explanatory Memorandum not being clear enough to explain the practical operation of the scheme. Given the complexity of the regulations, we were aware that they would not enable individuals to understand the scheme. That is why, alongside the publication of the regulations and the Explanatory Memorandum, the Government published a detailed policy paper in August on how the compensation scheme will operate, setting out what individuals can expect to receive, including case study examples. Additionally, the Infected Blood Compensation Authority will aim to ensure that appropriate advice and support are available to assist people with managing their compensation awards, accessing financial services and accessing benefits advice where relevant.

Thirdly, the committee raised a concern regarding how claimants will receive payments. As set out in recommendation 10 of the infected blood inquiry’s second interim report, the regulations include an option for members of the community to choose between receiving payments as periodic compensation or as a lump sum. Providing people who are due compensation with a choice in how they receive their money is something the infected blood community has highlighted as important to claimants. The regulations include a mechanism for electing for periodic compensation payments or a lump sum, responding to the wishes of those who have told us they want this option.

We have also provided an alternative for those currently receiving support scheme payments through the infected blood support schemes. The IBSS route was developed following the recommendations of Sir Robert Francis, who undertook engagement with representatives of the infected blood community in June.

The biggest concern raised in this engagement was around the continuation of the existing support scheme payments. Following Sir Robert’s recommendations, the Government have agreed that support scheme payments will continue for life for those who elect the IBSS route. This route will be available for those who applied to be registered on a support scheme on or before 31 March 2025 and delivered as part of the compensation package.

In a tariff-based scheme designed to be fast, fair, consistent and secure, we hope that people will be satisfied that they have been provided with full and fair compensation, as the scheme sets out. However, should this not be the case, the regulations make provision concerning review of decisions made by the authority and for appeals to the First-tier Tribunal.

I know that this House is in complete agreement when it comes to paying long-overdue compensation to those impacted by this harrowing scandal. Following the passing of the Victims and Prisoners Act, these regulations are the next substantial step towards getting money into the hands of those who deserve it. However, the work is far from finished and I pay tribute to the noble Baroness, Lady Brinton, for providing the opportunity for the House, through the regret amendment that she has laid, to recognise that there is more work to be done to establish the scheme for parents, children, siblings and carers. I reassure the House that a second set of regulations will provide for other elements of the compensation scheme, including compensation payments to people who are affected and for claims outside the core route. Subject to parliamentary approval, the Government are aiming for the second set of regulations to be in place by 31 March 2025 to support our intention that people who are affected can start receiving payments in 2025.

I hope that colleagues will join me in supporting these regulations and I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

The Government have said they will bring forward the necessary regulations for this large cohort of people when parliamentary time permits. However, as the Minister knows, those people see time moving relentlessly on and some are very worried they may not live long enough to receive the compensation promised to them. I am the first to recognise how much work is involved in collecting and collating the names and other information necessary to determine eligibility under the heading of “an affected person” and how complicated the regulations will inevitably have to be. However, without stealing the thunder of the noble Baroness, Lady Brinton, I press the Minister on this issue: is it possible for him to go further than the words “when parliamentary time permits” and give us a sense of a more precise timescale for laying the second set of regulations? Can he also shed a clearer light on when payments are likely to be made to the qualifying individuals?

[Lord Ponsonby of Shulbrede (Lab)]

I thank both the noble Baroness, Lady Brinton, and the noble Earl, Lord Howe, for their very thoughtful discussion of the regulations. I recognise they have both had long experience of these issues. As the noble Baroness, Lady Brinton, said, the three of us were involved in the passing of the Victims and Prisoners Act, which was a precursor to these regulations.

In response to the very last question of the noble Earl, the Government are aiming for a second set of regulations to be in place—regarding affected people—by 31 March 2025. It is our intention that people who are affected can start receiving payments in 2025. That was in my original speech and that is the Government’s commitment.

I will make a general point before I start trying to answer some of the individual questions. It is in the best interests of everybody that the House continues to work collaboratively on this issue—both for infected and affected people. All sides of the House acknowledge the British state has failed the victims, and these regulations are a step on the road to addressing the infected victims.

Of course I will agree to meet the noble Baroness, Lady Brinton, and the noble Earl, Lord Howe, if he so wishes. I will write with detailed answers if I fail to answer any of the questions—no doubt I will fail to answer some.

As the noble Earl quite rightly said as he introduced his comments, these regulations are fulfilling one element of Sir Brian Langstaff’s report. A lot of the questions have been about the second element: the affected people. As he rightly said, 69 of the 74 recommendations were accepted.

On the bulk of the speech by the noble Baroness, Lady Brinton, which was about the affected people, the timetable available to develop these regulations was necessarily limited. The regulations prioritise people who are infected as a result of the infected blood scandal. Where people have sadly died, the recommendations make provisions for claims under their estate. This ensures the Infected Blood Compensation Authority can start delivering the compensation scheme for the infected, as per its statutory function.

The Government’s decision to split, and therefore sequence, infected and affected regulations was taken with the reassurance that it would allow orderly implementation of the legal framework without impacting or delaying the delivery timetable for payments to infected and affected victims. Subject to parliamentary approval, the Government are aiming for the second set of regulations to be in place by 31 March next year, as I mentioned, with an expectation of beginning payments by the end of the year.

The noble Baroness, Lady Brinton, also asked about the eligibility of affected siblings and children. The scheme’s definition of siblings is based on the recommendations made in Sir Robert Francis’s compensation framework study. The definition recognises the likely heightened impacts on a sibling living with an infected person during childhood. This is not to dismiss or deny the suffering of those who were adults when their siblings were infected. Individuals who were adults when their sibling was infected may be eligible for compensation through the scheme as a carer. Siblings will be eligible where under the age of 18 they lived in the same household as an infected person for the period of at least two years after the onset of the infection. Similarly, the scheme’s definition of children of the infected person is based on the recommendations made in Sir Robert Francis’s compensation framework study. The scheme recognises the likely heightened impact on a child who was under 18 while living with a parent who was infected.

I hope that provides some clarity to the noble Baroness. However, I will also acknowledge the examples she gave of the terrible effects on affected people and the terrible experiences, some of which she spoke about. It is absolutely not right to suggest that affected people are somehow second-class citizens. That is not right; it is just a practical decision which the Government have made to try and progress these matters as soon as possible. These regulations are for the infected group, but I have set out as clearly as I can what the Government’s intentions are for the affected group.

The noble Earl, Lord Howe, spoke about the complexity of regulations and the Explanatory Memorandum. Work is under way on a second set of regulations. We will take on board the committee’s helpful feedback when drafting the Explanatory Memorandum for those regulations. We recognise the point made by the SLSC on the complexity of these regulations, but it is absolutely the Government’s intention to carefully consider the committee’s report and findings.

The noble Earl asked about the two channels of funding: the core route and the IBCS route. This is an additional level of complexity, but it was recommended by Sir Robert Francis because it was the wish of the infected group that the existing method of funding should continue. Because we accepted that recommendation, that inevitably adds to the complexity.

The noble Earl also asked about psychological illness, and in particular whether recommendations were accepted by the report. I am afraid I do not know the answer to that, but I will write to the noble Earl and the noble Baroness about it.

The noble Earl also raised Treloar’s school and unethical experimental research on certain young children. It is absolutely not the intention that this particular scandal should lead to any delay in the rollout of infected or affected compensation, but we recognise the particular, scandalous nature of what happened to those victims.

In conclusion, we regard the timetable as realistic. In opposition, we worked constructively with the then Government, and we have continued working as practically as possible to try to move the timetable forward. All of us across this House must continue to work collaboratively. These regulations ensure that we can finally deliver compensation to those who fought so hard; they deserve nothing less. I beg to move.

[Baroness Brinton (LD)]

My Lords, I thank both the noble Earl, Lord Howe, and the Minister for their contributions to this debate. We are all broadly on the same page. I do not think there is a difference on the principles of moving ahead, and certainly absolutely no intention on my part to try to slow down or block the approval of the regulations today.

I will not go through the arguments we have all made, but the key thing the Minister did not cover was the issue of communication, which seems to me to be the most important thing moving forward. If there is confusion and distress on the one hand, and complexity and a large number of recommendations being modified on the other, it is absolutely understandable that the affected and the infected may have concerns about what is going on. I really hope that when we meet, the Minister will talk to us about what he plans to do.

I pay personal tribute to the noble Earl, Lord Howe, for the way he worked with the communities over the years. That baton has clearly been handed over to the other side of the House. We need to rebuild trust; there are a lot of very distressed people out there at the moment. With that, I beg leave to withdraw my amendment.

Humanist Weddings

Lord Ponsonby of Shulbrede Excerpts

Wednesday 16th October 2024 Lords Chamber

[Baroness Thornton]

To ask His Majesty’s Government whether they plan to give legal recognition to humanist weddings.

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

My Lords, I open by wishing my noble friend a happy birthday. However, I cannot give her the birthday present she would wish for. The Government understand humanists’ strength of feeling about legally recognising humanist weddings. I know that this strength of feeling extends to many within this House. As a new Government, we must look closely at the details of any proposed changes before setting out our position, which we will do in due course.

[Baroness Thornton (Lab)]

I hate to say it to my noble friend, but what a huge disappointment that is. Not only did this House put humanist marriage in the equal marriage Act of 2014 but, in 2020, the High Court ruled that the failure to provide humanist marriages in England and Wales means that the present law gives rise to discrimination, and that the Government

“could not sit on its hands”

and do nothing. Given that the Government know they must act here, given that this is Labour policy, given that it will cost nothing and given that the Church of England has given it its blessing, what is the problem and why can we not get on with it?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we are aware that humanists have long been campaigning on this issue, and all the elements which my noble friend mentioned are true. However, the previous Government chose not to respond to the Law Commission report, and we believe that, as a new, incoming Government, we should give ourselves time to respond in as wide a context as possible. Therefore, we will set out our position in due course. We recognise that humanists have been campaigning on this issue for many years. However, there are other issues, such as co-habitation, on which there is also a Labour manifesto commitment, which we want to reflect on before we come forward with our position.

[Lord Desai (CB)]

My Lords, what is the difficulty about the humanists? I have been here for 30 years and again and again I have heard the answer that we cannot do it for humanists. We have can have Hindu, Muslim and Sikh marriages—we can have Satanist marriage—but no humanist marriage. Is the established Church so much against it that no Government here can do anything about humanist marriages? What is going on?

[Lord Ponsonby of Shulbrede (Lab)]

The Government are not in favour of Satanist marriages. I think the noble Lord answers his own question: there are other groups that would claim that they have special beliefs which they would want to be reflected through potential secondary legislation. We do not think that is the way to go. We think we need to look at the question in the round, and that is what the Government intend to do.

[Lord Dobbs (Con)]

My Lords, the noble Baroness, Lady Thornton, made a very eloquent plea, so can the old crusties from this side also join in? It is Labour policy; it is law in Scotland, Northern Ireland and Jersey; and we have been looking at it for ever. Why the delay? Why do the Government have to look at this yet again, when in opposition they were very clear about it? When they have looked at it, what is the timescale? When will the Minister bring the Government’s view back to this House, so that we can deal with something positive?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, unfortunately, the timescale is “in due course”. Nevertheless, there is a commitment to look at this and to look at the question in the round. The noble Lord’s question was answered by the noble Lord, Lord Desai: there are other groups that also believe they are special, and they want special recognition—Sharia wives might be one such group. We do not want to legislate by secondary legislation; we do not think that is appropriate in this example. That is why we will take our time and come back with a considered view.

[Baroness Burt of Solihull (LD)]

My Lords,

“the Liberal Democrats clearly support this change; the Labour Party supports this change; the Government in Wales support this change; the Government in Scotland support this change; and, as we have heard from the noble Lord, Lord Pickles, it is ultimately going to be a political decision, so why are the Government waiting for the Law Commission’s report?”.—[Official Report, 25/04/22; col. 9.]

These are not my words but the words of the Minister himself. I despair, to be honest. The Law Commission has now reported, as he knows. Will he answer now his own question? When will this happen?

[Lord Ponsonby of Shulbrede (Lab)]

Unfortunately, the answer is the same as the one I gave to earlier questions: it will be in due course. I understand the strength of feeling on this matter. There are a lot of other issues to be considered within this context, and the Government want to take time to do it properly.

[The Lord Bishop of Sheffield]

My Lords, on these Benches we would welcome humanist wedding ceremonies being given legal status, but the recommendations of the Law Commission go beyond that and would create a free market celebrant-based approach to the wedding industry. I gather that Humanists UK shares our concern that such a move could undermine the solemn nature of marriage, which is never a trivial transaction. Given this unlikely alliance between the Lords spiritual and Humanists UK, can the Minister confirm that the Government will not enact the recommendations of the Law Commission without considering carefully the impact of a further commercialisation of weddings?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the right reverend Prelate for his question; he makes the point very well. I have heard the phrase “free market approach”, and I have heard people speak about the privatisation of weddings, which would not be the right approach. That is indeed the reason we want to look at this question in the round, and that is what we intend to do.

[Lord Keen of Elie (Con)]

Those who wish a marriage to be conducted in England without any religious significance have always been able to carry out a ceremony with a registrar. The places in which that marriage may be carried out have been extended. The fundamental issue in the law of marriage in England is that it is based upon the place of the celebration and not the identity of the celebrant, and there is no point in making piecemeal reforms to that basic law. It is therefore time, is it not, for the Government to address the key recommendation of the Law Commission to move from the emphasis on building to the emphasis on celebrant? That is not going to open up a free market in marriage; it will simply ensure that particular groups may be able to qualify as celebrants of a ceremony going forward. Does the Minister agree?

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble and learned Lord. That is an important factor within the wider consideration of this issue. It is also a factor concerning which groups would be included. His point about focusing on the celebrant rather than the building is fundamental.

[Lord Meston (CB)]

My Lords, although this Question refers only to humanist weddings, it really does concern the unsatisfactory state of the law on the formation and validity of marriages. The inconsistencies and potential for unfairness have been comprehensively shown by the Law Commission in its report, which I remind the House was produced over two years ago. As to humanist weddings, which are part of the wider problem, there remains the anomalous difference between the law applied in England and Wales and the law in Scotland and other places where humanist marriages are recognised without the need for a separate civil ceremony. Can the Government indicate what work is under way to align and modernise the British law overall? At the very least, surely the Government do not want to become responsible for an exodus of lovelorn humanists to Gretna Green.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord, Lord Meston, for his question, and I agree with his premise that the current state of laws regarding weddings is unsatisfactory. Although the current weddings law is contained within the Marriage Act 1949, the fundamental structure of weddings law dates back to the 18th and 19th centuries. There are profound difficulties, and I acknowledge that point. I am giving a commitment that the Government will look at this in the whole and undertake to come back in due course with rounded recommendations to address these issues.

Commission on Justice in Wales

Lord Ponsonby of Shulbrede Excerpts

Monday 7th October 2024 Lords Chamber

[Baroness Smith of Llanfaes]

To ask His Majesty’s Government whether they plan to implement the recommendations of the report of the Commission on Justice in Wales, chaired by Lord Thomas of Cwmgiedd.

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

My Lords, the commission’s report, published in 2019, is substantial and makes 78 recommendations, a significant number of which are for the Welsh Government to consider. There are some recommendations that the Ministry of Justice is either already delivering or has agreed to take forward, including better disaggregation of Welsh data. However, the report’s principal recommendation to devolve justice to Wales goes considerably further than what is in the current Government’s manifesto. Our manifesto made commitments to explore the devolution of services to enable them to be more locally responsive, and as part of that strategic review we will look into probation as part of wider devolution across England and Wales. We will also work with the Welsh Labour Government to consider the devolution of youth justice. Overall, we will work with the Welsh Government to ensure that we deliver justice in a way that best serves the people of Wales.

[Baroness Smith of Llanfaes (PC)]

My Lords, this month marks the fifth anniversary of the Thomas commission report, which called for the devolution of policing and justice to Wales. The Welsh Labour Government endorse this recommendation in their programme for government for 2021-26. Meanwhile, we have just heard that the UK Labour Government plan only to “explore” devolving youth justice and probation to Wales. Will His Majesty’s Government follow the calls of their Welsh Labour colleagues and take real action by devolving justice and policing to Wales?

[Lord Ponsonby of Shulbrede (Lab)]

The Welsh Government highlighted, in their May 2022 report Delivering Justice for Wales, the progress that they had made in implementing the Thomas commission recommendations that fall to them. They also commented that implementing the recommendation was delayed partly because of Covid-19. The commitment to pursue the case for devolution of justice and policing was included in the Welsh Government’s programme for government for 2021-26. However, as I made clear in the original Answer to the noble Baroness, the UK Government are not pursuing that option of complete devolution. We want to work in a constructive way on the initiatives that I have outlined to try to make the best possible benefit for the people of Wales.

[Lord Thomas of Gresford (LD)]

My Lords, why would it not be sensible and cost-effective at least to have a Welsh division of the High Court of Justice sitting permanently in Wales to monitor and construe the legislation of the Welsh Senedd and the administrative acts of the Welsh Executive, with increasing expertise from both lawyers and judges in Wales?

[Lord Ponsonby of Shulbrede (Lab)]

A lot of matters that are the responsibility of the Welsh Senedd are also cross-border issues. We are talking about police, courts and the way the court system behaves; probation is another example. My understanding is that this matter has been considered and keeping the arrangements as they currently are is seen to be beneficial for both England and Wales.

[Lord Wigley (PC)]

My Lords, was not the consideration that the Minister referred to a moment ago mainly undertaken under the auspices of the previous Conservative Government? Is now not the time that it would be appropriate to look again at this? Given her remit to look at the relationships with Cardiff and Edinburgh, would this not be a suitable matter for Sue Gray to look into?

[Lord Ponsonby of Shulbrede (Lab)]

I am the Minister of Justice for devolution and the various countries within the UK. The manifesto has made it clear that we want to work in practical ways for the benefit of the people of Wales. Two points that I made in my initial Answer to the noble Baroness were on probation and youth courts. I know that a number of very positive examples of practice in Wales are better than the average within England and Wales. We want to build on what is positive that is already happening rather than look at the overall devolution of these powers.

[Lord Davies of Gower (Con)]

My Lords, any observer of Welsh politics these days will not fail to have noticed that the Welsh NHS has 22,000 people on its waiting list awaiting operations, the Welsh education system is the worst in Europe, the Welsh Government are about to spend roughly £150 million on 36 additional Members, and there are vanity projects such as 20 miles per hour everywhere. Does the Minister really believe that the Welsh Labour Government can cope with the complexities of any aspect of the criminal justice system being devolved?

[Lord Ponsonby of Shulbrede (Lab)]

I notice that the noble Lord is addressing the House from the Back Benches, whereas I understood that he had a Front-Bench position. He is shaking his head, so I apologise. To answer his question, we want to work constructively with the Welsh Government. I personally will be visiting Cardiff and Newport before the end of this month, and I know that many of my colleagues have ministerial visits; we want to work constructively with the local Ministers.

[Lord Keen of Elie (Con)]

Can the Minister please confirm that, as the newly appointed envoy for devolved nations and regions, Sue Gray should have an oversight of the implementation of this sort of devolved policy? If that is not the case, will he please advise the House what she is going to be doing?

[Lord Ponsonby of Shulbrede (Lab)]

The simple answer to the noble and learned Lord’s question is that I do not know the answer to his question.

[Lord Thomas of Cwmgiedd (CB)]

The subject is a complex one; the report was lengthy. Do the Government intend to set out in detail why the report was wrong? It would be very useful to have a chapter-by-chapter explanation of why what was recommended unanimously by a completely apolitical group of experts is thought to be wrong.

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Lord’s report was a large piece of work. As I said in my initial Answer, it is for the Senedd to take forward the vast bulk of the recommendations, and the UK Government are acting on some of the recommendations and are continuing to act particularly on the disaggregation of data. The Labour manifesto made clear that the principal objective of the noble and learned Lord’s report is not one that the current Government share. We want to work in practical ways for the benefit of Wales, and the examples that I gave of youth justice and probation are good examples of that.

[Baroness Bennett of Manor Castle (GP)]

My Lords, following on from the question from the noble Lord, Lord Wigley, who noted that the Labour Government seem, as in many things, to be following the path of the Tory Government, and picking up the point made by the noble and learned Lord, Lord Thomas, if the Government wish to maintain the union, given that there is rising evidence of interest in independence in Wales, would it not be a good idea to explain clearly to the people of Wales why, as the noble and learned Lord said, the Government are going against this report of independent experts that was very carefully considered?

[Lord Ponsonby of Shulbrede (Lab)]

It is worth saying that Welsh lawyers and Welsh law firms benefit from being part of the internationally-renowned English and Welsh legal system, and the Welsh people have consistently voted against devolution—the noble Baroness looks confused, but that is the context within which we are dealing with this question. We are clear that there are profound benefits from keeping a combined legal system for England and Wales. A couple of practical examples are in the context of prisons, where there is no women’s prison in Wales nor any category A offender prison. That is not a cost to Wales, but it is beneficial to the combined system as there are savings to be made through not repeating, for example, women’s prisons in different parts of the country. The benefit is there, and we want to protect it and manage the system for the benefit of the people of both England and Wales.

Public Libraries

Lord Ponsonby of Shulbrede Excerpts

Thursday 12th September 2024 Grand Committee

[Baroness Rebuck (Lab)]

I thank the noble Baroness, Lady Sanderson, for her comprehensive review and recommendations, and thank the noble Lord, Lord Parkinson, for commissioning it. I draw noble Lords’ attention to my interests in the register.

The BBC reported recently that public libraries are in crisis: 800 have closed in nine years; funding has halved, leaving many with reduced opening times; books have been cut by a quarter; and there are fewer computer terminals. However, there are still brilliant libraries busy with rhyme time for babies, homework clubs, employment support, access to local services and cultural activities. This could be the norm. There is no shortage of ideas in this sector, but now is the opportunity for delivery.

The review recommends an awareness campaign, but who would make it work, given that there is no single lead in government to bring policy and funding together? It also recommends a Libraries Minister, while a forthcoming Fabian arts paper suggests adding community digital responsibility, as research shows that 45% of families with children are digitally excluded. The Fabians also ask the BBC to consider local radio, news and community broadcast hubs from libraries to reach a new generation.

Most libraries are run on modest sums, but libraries urgently need a multi-year commitment of funding to plan ahead in the face of local authority funding crises. According to the Reading Agency, low literacy costs us £80 billion a year; as we have heard, its successful universal library membership trial should be rolled out. With a mission-led Government, we can be bold and transformative. My key ask of the Minister is that libraries, prime for action as they are, become central to the mission on breaking down barriers to opportunities; this should join up decision-making, funding and delivery to ensure that libraries guarantee inspiration and opportunities for all.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, let me just say that I will be less indulgent with future contributions.

Arrangement of Business

Lord Ponsonby of Shulbrede Excerpts

Thursday 12th September 2024 Grand Committee

[The Deputy Chairman of Committees (Lord Kennedy of Southwark) (Lab Co-op)]

The Grand Committee is now in session.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, before the noble Baroness, Lady Sanderson, opens this debate, I would like to highlight the one-minute speaking time limit for contributions, other than for the noble Baroness or the Minister. I appreciate that this is tight and that many noble Lords will have more to say. It is indeed a reflection of the popularity of the topic. I respectfully ask that all contributions are limited to one minute maximum to protect the time for the Minister’s response.

Arbitration Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

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

My Lords, perhaps I might read out from Rule 44.2 of the CPR. It says that

“the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but … the court may make a different order”.

There is then considerable further guidance on the assessment of costs in the remainder of Rule 44. I can say, as a non-lawyer, that I think that is pretty clear. I note the point that the noble Lord, Lord Wolfson, made about having some sympathy with the language used, but the language which I just quoted is quite straightforward.

My noble friend Lord Hacking said that he was imploring me and he called the noble and learned Lord, Lord Hoffman, his nemesis. I might be my noble friend’s nemesis as well, because I will be arguing to reject his amendment. Of course, I thank him for tabling it. It is right that it is common practice that arbitrators already have great discretion on this matter under Section 61 of the 1996 Act. The Law Commission has made no recommendations for reform of Section 61, so we believe there is no reason for having a reform that may introduce some level of uncertainty, which we do not believe is necessary.

The previous arbitration Acts of 1889 and 1950 simply provided that costs were at the discretion of the arbitrators but the 1996 Act then provided the current default rule, which mirrored the position in the rules of the Supreme Court, which were the court rules then in force. Although the language has changed with the CPR now in force, the underlying principle is still the same. The CPR, and the RSC before them, take the view that costs should follow the event as a fair default rule. Section 61 allows arbitrators to depart from that rule as appropriate. In substance, therefore, Section 61 already allows the arbitration tribunal to award whatever costs it thinks fair.

The Law Commission received no representations from stakeholders that Section 61 was causing any difficulties in practice, and it is unusual to change the language of an Act if there is no change in principle. Indeed, it is possible that the amendment could be interpreted as a new, untested principle. In the light of this, I am grateful for the opportunity to clarify the current arrangements and would suggest that no amendment is needed. I therefore invite my noble friend to withdraw his amendment.

[Lord Hacking (Lab)]

My Lords, I intend to withdraw this amendment but perhaps I could say a short word before I do that. Of course, I have to do it because I have no support from anybody; I am doing no better than I did 28 years ago. I still say that this is unfortunate terminology and that it would be much more sensible if we brought the description of what decision should be made by the tribunal on costs into modern language, but if noble Lords like this ancient phrase of following the event they can chase around and look at Mr Justice Bingham’s judgment in Re: Catherine and so forth.

So I am in no better position than I was 28 years ago. However, there is one point I would like to make, which the noble Lord, Lord Wolfson, correctly made when he drew attention to Section 55. He could have drawn attention to Sections 62, 63, 64 or 65, because all of them deal with various provisions that are applicable to the cost issues that the tribunal faces. I respect and agree with that. I agreed with it 28 years ago and I agree with it now, but I still think it would be much nicer if we dropped this strange phraseology of costs “following the event”.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

3: Leave out Clause 13 and insert the following new Clause—
“Appeals to Court of Appeal from High Court decisions(1) In section 18(1) of the Senior Courts Act 1981 (restrictions on appeals to Court of Appeal), for paragraph (g) substitute—“(g) from a decision of the High Court under Part 1 of the Arbitration Act 1996 in a case where that Part makes provision about appeals from the decision, except in accordance with that provision;”.(2) In section 35(2) of the Judicature (Northern Ireland) Act 1978 (appeals to Court of Appeal from High Court), for paragraph (fa) substitute—“(fa) from a decision of the High Court under Part 1 of the Arbitration Act 1996 in a case where that Part makes provision about appeals from the decision, except in accordance with that provision;”.(3) In Schedule 3 to the Arbitration Act 1996 (consequential amendments), omit paragraphs 34(2) and 37(2).”Member’s explanatory statement
This clause corrects a drafting error identified in the House of Lords’ judgment in Inco Europe v First Choice Distribution and makes clear that appeals from High Court decisions under Part 1 of the Arbitration Act 1996 may, subject to provision in that Part, be made to the Court of Appeal.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in this group I will speak to Amendments 3 and 4, tabled in my name.

It has come to light that Clause 13 does not adequately codify the case law on appeals under Part 1 of the Arbitration Act 1996. I have tabled Amendment 3 to replace Clause 13 and correct the root cause of this issue: a drafting error in the 1996 Act that provided for an incorrect approach to appeals under Part 1 of the Act. Allow me to explain both the underlying issue and the approach I am taking to resolve it.

Clause 13 of this Bill as introduced seeks to codify case law regarding leave to appeal decisions on staying legal proceedings under Section 9 of the 1996 Act, namely the House of Lords decision from 2000 in Inco and First Choice Distribution. As such, the current Clause 13 inserts into Section 9 provision that

“the leave of the court is required for any appeal from a decision of the court under this section”.

During the passage of this Bill, certain noble and learned Lords raised the point that Clause 13 as drafted would permit leave for appeal to be sought only from the High Court—the High Court being what is meant by “the court” in the provision. However, the current situation established by case law provides that leave to appeal can be sought directly also from the Court of Appeal. It seems that Clause 13 as drafted would have the effect of inadvertently narrowing the existing position, which was never the intention.

The root cause of this issue is that the 1996 Act made an incorrect consequential amendment to Section 18(1) of the Senior Courts Act 1981 and Section 35(2) of the Judicature (Northern Ireland) Act 1978. In Inco and First Choice Distribution, the late Lord Nicholls of Birkenhead identified that this provision in the Senior Courts Act was originally meant to give effect to restrictions on the right to appeal contained in Sections 1 and 2 of the Arbitration Act 1979. The Senior Courts Act then needed updating to reflect additional appeal restrictions in the 1996 Act. But, as Lord Nicholls put it,

“for once, the draftsmen slipped up”.

The provision in the Senior Courts Act, when read literally, suggests that no appeals against decisions under Part 1 of the 1996 Act are allowed, except where expressly provided for in the 1996 Act. However, the intended and correct position is that appeals are indeed permitted unless expressly restricted by the 1996 Act. Due to this misunderstanding, Clause 13, in inserting its express language on appeals into Section 9 of the 1996 Act, establishes restrictions on those appeals. Accordingly, the provision that

“the leave of the court is required for any appeal from a decision of the court under this section”,

as used in other sections of the 1996 Act, is intended as a restriction providing that leave under those sections can be sought only from the High Court. As it was not the intention of the Law Commission or the Government to add such a restriction on Section 9 appeals, we must correct it.

Simply amending Clause 13 to permit direct appeals to the Court of Appeal under Section 9 could raise questions about other sections of the 1996 Act and whether similar provision should also be made elsewhere. Deleting Clause 13 would maintain the current appeal process but miss the opportunity to fix the issue properly. This seems remiss, given that the clear objective of this Bill is to refine and clarify our arbitral framework.

Amendment 3 therefore rectifies the underlying issue. It replaces the current Clause 13 with amendments to the Senior Courts Act 1981 and the Judicature (Northern Ireland) Act 1978. These clarify that appeals against High Court decisions under Part 1 of the 1996 Act, including under Section 9, may, subject to provision in that part, be made to the Court of Appeal. This will establish beyond doubt the current position on appeals.

Amendment 3 also necessitates a change to the Bill’s Long Title, which is currently:

“A Bill to amend the Arbitration Act 1996”.


However, under Amendment 3, it will now also amend the Senior Courts Act 1981 and the Judicature (Northern Ireland) Act 1978. This will not practically widen the scope of the Bill, given that it modifies that other legislation only to the extent that it relates to the 1996 Act. Nevertheless, Amendment 4 is required and updates the Long Title, adding “and for connected purposes”. I beg to move.

[Lord Beith (LD)]

My Lords, we support this amendment and are grateful to the Government for bringing it forward. The Minister’s remarks could usefully be framed and provided as an object lesson in the fact that drafting really does matter and that, when it goes wrong, the consequences mount up in subsequent legislation. He illustrated that well.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am personally grateful to the Minister for engaging with me and others on this. These are technical matters, but it is important to get them right. I acknowledge the assistance I have had from my colleague Toby Landau KC, who, as the noble Lord, Lord Hacking, said on the previous group, did a lot of work on the original DAC report. I also acknowledge members of the Law Commission team with whom the Minister and I have both engaged, especially Nathan Tamblyn.

As the Minister said in moving his amendment, in Inco Europe, Lord Nicholls of Birkenhead, with whom the rest of the Appellate Committee agreed, said:

“I am left in no doubt that, for once, the draftsman slipped up”.


He put it in those terms because, again, as the noble Lord, Lord Hacking, said on the previous group, this is an extremely well-drafted Act. It is probably one of the best-drafted Acts on our on our statute book. To pick up the other phrase that Lord Nicholls used in that case, for once, Homer had nodded. This amendment rectifies the position—I am not sure what the opposite of nodding is, but, whatever it is, it puts Homer’s head back upright. I am grateful to the Minister for bringing forward this amendment, which we support.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank both noble Lords for their support for this amendment. I agree with noble Lord, Lord Beith, that drafting matters, and I agree with the points made by the noble Lord, Lord Wolfson. I note the support given to him by those individuals, including Toby Landau, who was an expert witness in the previous consideration of these matters.

Amendment 3 agreed.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

4: Title, line 1, after “1996” insert “; and for connected purposes”
Member’s explanatory statement
The amendment amends the long title to cover my amendment to replace Clause 13.

Arbitration Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Wolfson, for welcoming me to my current position; I am very glad that he has 20/20 eyesight and is looking at these matters so closely. I am also thankful to my noble friend Lord Hacking for initiating this debate. He said very clearly when he introduced his amendment that he supports the Bill, and I am grateful for that. He is again raising the issue of protecting the arbitral process against corruption, and of course that is extremely important. Having considered this very carefully, the Government’s position is that our framework already provides a robust regime and that no law reform is necessary. A tribunal, like a court, must always guard against fraud and corruption, and I will explain what mitigations our existing regime already provides.

Under Section 33 of the Arbitration Act 1996, the tribunal is already under a duty to “act fairly and impartially”, and to

“adopt procedures suitable to the circumstances of the … case”.

An arbitrator who is corrupt would fail in their duties under Section 33. Furthermore, the arbitrator’s appointment can be revoked by the parties under Section 23, or an arbitrator can be removed by the court under Section 24. An arbitrator who acts in bad faith loses their immunity under Section 29 and can be sued.

When arbitral proceedings are tainted by fraud or corruption in the arbitral process, any arbitral award can be challenged in court under Section 68 for serious irregularity, as indeed was successfully done in the recent case of Nigeria v P&ID, which we heard about earlier. Indeed, the reason why arbitral corruption is currently a talking point is that the court identified corruption and prevented abuse in that case. Arbitral awards can also take account of corrupt conduct and deprive a corrupt party of any arbitral award which is sought to permit fraud or corruption. It would be unenforceable as contrary to public policy under Section 81. It is possible for an arbitrator to publish their award and denounce the fraud publicly. In ruling an award to be unenforceable, the court can also publish its judgment publicly. The scheme under the 1996 Act is sufficient and has not revealed any deficiency in practice.

The Government oppose legislative reform here precisely because it is unclear what additional benefit it would provide over the current regime, which provides both parties and arbitrators with routes to challenge and address corrupt conduct, as well as duties on the arbitrator to ensure fair and proper proceedings. A new, untested measure may simply introduce uncertainty for both parties and arbitrators.

The 1996 Act and the modernising impact of this Bill are designed to ensure robust and efficient arbitral proceedings. Our framework provides this balance and well equips the tribunal and courts to deal with corruption. The Government will continue to support the sector’s efforts on arbitral corruption. We will keep track of initiatives that are under way, such as that of the ICC anti-corruption task force, to which a number of noble Lords referred, and engage with the sector to push for the swift adoption of best practices as they are developed. I hope that this explanation reassures my noble friend and that he will withdraw his amendment.

To go a little further, as noble Lords are aware the previous Government wrote to leading arbitral institutions seeking views on the mitigations that are currently in place and whether more are needed. I understand that responses were received from the Chartered Institute of Arbitrators, the International Chamber of Commerce, the London Court of International Arbitration, the London Maritime Arbitrators Association and the Grain and Feed Trade Association, in addition to the Law Society and the Bar Council.

All those institutions mentioned mitigations they had in place against corrupt conduct. None expressed support for amending the Arbitration Bill to strengthen anti-corruption. In addition, concerns were raised that a one-size-fits-all approach would be ineffective and risk unintended consequences. Nigeria v P&ID was raised as a highly unusual case where the court effectively performed its proper role in setting aside the award. Where a role was suggested for the Government, it was in ensuring that the courts continue to be equipped to provide checks in cases put before them, as they did in the Nigeria case, and to engage in discussions with the sector and promote its work combating corruption.

The noble and learned Lords, Lord Bellamy and Lord Thomas, and the noble Lord, Lord Beith, raised the issue of the letters and whether they could be published. I am unable to share those letters. The noble and learned Lord, Lord Bellamy, can see the letters that were responded to when he was a Minister, but they were written specifically to him in that role. I would not necessarily be able to see those letters, which would create a difficult situation. I understand that a couple of letters came in when the new Government were formed. But I can say with complete confidence that the substance of those letters was explained and explored within the letter that I wrote to the noble and learned Lord, Lord Bellamy, which is in the public domain. I am confident that if I was wrong somehow in asserting that the substance was inaccurate, those various bodies would be able to draw that to my attention. I am confident that the substance of the letter I wrote on 15 August is completely accurate. I hope that noble Lords will accept that.

A number of noble Lords spoke of their reasons for opposing my noble friend’s amendment. They said that it might well be duplicative, unnecessary and problematic in various ways, which they explored. I have to say that I agree with the noble Lords who made those points.

In closing on one point, the noble Lord, Lord Wolfson, asked about relevant arbitral bodies being given a nudge regarding corruption. They are of course perfectly able to do that. It would be beneficial, and maybe they should remind themselves that they have that responsibility to give a nudge if they suspect corruption in particular cases. So, having said all that, I ask my noble friend to withdraw his amendment.

[Lord Hacking (Lab)]

My Lords, it is my intention to withdraw my amendment, but perhaps I could say just a few words after a fairly long debate on it. First, I thank those noble Lords—there were several—who accepted the principle that I sought to express. It was nice to have that support but, as was very clear, not one noble Lord accepted my amendment. Therefore, I am not exactly in a strong position to press it now, or indeed on Report.

I did not realise when I cited three cases put before us by Spotlight on Corruption that the noble Lord, Lord Wolfson, was counsel on every one. So he has extensive knowledge—greater than that I gave him credit for in my opening words.

One thing that has been missed in this debate—it was the first point I made—is that I wanted us, by legislation, to set out our standard. I described the first importance of my amendment as putting a flag in the ground so that the world may know that, in arbitration proceedings where England is the seat of the arbitration, we will not countenance corruption and fraud. I still think that is an important point.

I did not know when I got up to speak that there would be such a formidable line of noble and learned Lords alongside me, including the former Lord Chief Justice, who has not actually spoken but who has a devastating commitment to good argument, so I am not inviting him now to make any interventions because he will make some argument that will totally defeat what I am trying to say.

The noble and learned Lord, Lord Hoffmann, said that he thought my amendment was impractical, and of course arbitral tribunals do not have the power of investigation. The point I was making was that, at the commencement of the arbitration, the arbitral tribunal could speak to both counsel and the parties who should be present at the inaugural meeting and remind them of the seriousness of rooting out any corruption or fraud. I also point out, as a former counsel and solicitor, that when you take instruction from a client, and statements from clients’ witnesses, you have a lot of opportunity to know what is going on. So there is a role for counsel and the parties in rooting out corruption, and that is why I thought it useful to have this revision.

The noble and learned Lord, Lord Hope, said that the committee—which was so well chaired by the noble and learned Lord, Lord Thomas—had not reached any view about corruption. There was in fact a reason for that. I do not know whether the noble and learned Lord, Lord Thomas, is listening, but we received these two reports from Spotlight on Corruption at his instigation, and his view, and that of the committee, was that under the timetable we were working to, this was too big an issue for us to take on. That is why we made no pronouncement on that subject.

My Front Bench is getting a bit restless, but I am sure that there will be plenty of time to consider the next amendment. I rather get the feeling that there will be an intervention now in Committee on the Arbitration Bill and we will debate another excitement. I am withdrawing this amendment, but I hope that noble Lords have heard and agree that this is a continuing matter. I am particularly grateful to my noble friend for his promise to keep this under review—and may it continually be kept under review.