Legal Aid: Social Welfare and Family Law

Lord Sandhurst Excerpts

Monday 18th November 2024 Lords Chamber

[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.

Property (Digital Assets etc) Bill

Lord Sandhurst Excerpts

Second reading committee
Wednesday 6th November 2024 Grand Committee

[Lord Sandhurst (Con)]

My Lords, this has been a most interesting debate. I am grateful, as are others, to the Minister for his careful opening.

On this side we welcome the Bill. It may be small in size but it is big in importance, and we may yet find that it is perfectly formed. The last Conservative Administration deserves credit, I suggest, for having asked the Law Commission in 2020 to review this field of law. It is also very timely that we are debating this during the presidential election, because I see from my phone that bitcoin has risen over 7% in value today. So, this is an important, real topic for many people.

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, the Law Commission has produced two admirable reports. The Bill, we suggest, is a necessary but appropriately constrained measure. I shall be interested to hear the evidence in Committee, but it is plain that such a Bill is necessary to clarify the definition of what is capable of being property and to give enforceable rights where there might otherwise be doubt.

The English common law has given property rights to two categories of thing, as we have heard: so-called things in possession, which are generally tangible, visible objects, and so-called things in action, such as debts, and the rights to sue for breach of contract and company shares.

However, the world moves fast, and we are now confronted with digital assets. These sit less easily in our current definitions. They can include crypto tokens, cryptocurrency and non-fungible tokens. They are increasingly important to modern society, whether we personally like them or not. It is important that we keep the strong position that English common law holds in international trade, as the noble and learned Lord, Lord Thomas of Cwmgiedd, reminded us. We need to enforce the position of the City of London and the role of its lawyers in the important commerce that they bring to this country, and the tax and other benefits which flow from that.

There is a need for action to enable ongoing innovation growth in the sector. This has given rise to the Law Commission’s definition of a third category of property. It should take account of recent technological developments without creating hard boundaries which exclude or misdescribe future categories of property as yet unimagined.

The Law Commission is of the view that the common law of England is the better vehicle for determining those things that properly can and should be the object of personal property rights. They need not necessarily even be digital things. It points out that they could include, for example, carbon emission allowances. The world moves fast, and the law must keep up, but it cannot anticipate everything. As the Law Commission points out, an overprescriptive definition will leave things frozen in time.

In chapter 2 of its July report, the commission explains that the common law is in general sufficiently flexible and already able to accommodate digital assets. It agreed with Sir Geoffrey Vos, Master of the Rolls, who, speaking extrajudicially, said:

“We should try to avoid the creation of a new legal and regulatory regime that will discourage the use of new technologies rather than provide the foundation for them to flourish”.


The Law Commission concluded that it should take a tripartite approach to law reform. First, the common law is in general sufficiently flexible and already able to accommodate digital assets, so any law reform should be through further common law development where possible. Secondly, it recommended targeted statutory law reform and no more. That should confirm and support the existing common law position or fill a gap where common law development is not realistically possible. Thirdly, it said the making of arrangements for the provision of further guidance from industry experts should occur. We are not concerned with that third category.

So, the commission concluded, the law in England and Wales is now relatively certain. Most areas of residual legal uncertainty are highly nuanced and complex, in part because both the digital asset markets and the technology that supports them continue to evolve. Although some digital assets are not easy to place in traditional categories of things to which personal property rights can relate, this does not prevent them from being capable of attracting personal property rights.

The commission has said that it is clear what should take place in common law. It was persuaded by consultees that it would be helpful to express in legislation that certain digital assets are capable of attracting personal property rights and, therefore, to support the existing common law and take away any uncertainty. It set out certain principles that are beyond argument, I suggest. We should champion and support the inherent flexibility of the common law; it is already sufficiently flexible to accommodate most, if not all, digital assets. We should seek by statute only to confirm the existing common law position or to reform it where the common law cannot develop the legal certainty that the market requires. We must ensure that there is consistency with other legal and regulatory regimes where possible.

English common law has already proved resilient in the face of new technology. It has been flexible enough to answer legal questions concerning digital assets. It is developing a sophisticated regime that recognises and protects the newest features. It provides the market with a good balance of certainty and flexibility. Our English jurisdiction is well placed to provide a coherent and globally relevant legal regime for existing and new types of digital asset. As the noble Lord, Lord Freyberg, said in his interesting speech, if the Bill leaves gaps—particularly in respect of non-fungible tokens in the art market—we should examine the potential remedies, if there are any, in Committee. However, intervention by statute should not undermine the high level of existing certainty, lead to undue complexity or create a significant risk of boundary issues—the Law Commission was clear on that—because the wrong sort of statutory intervention might not be capable of distinguishing between different implementations of similar technology in the way the common law can.

The Bill, with its one simple clause, is the product of much deliberation at the highest level. The definition has been drafted with great care. I note the subtle differences between the version now before this Committee and the earlier draft, produced in February. The Committee will hear evidence about whether that balance is now right and whether there are appropriate additions or amendments, but, to me, at the present time, it is plain that the draft before us should not be amended without compelling reasons. I commend the Bill to the Committee.

Prisoners: Early Release Scheme

Lord Sandhurst Excerpts

Monday 21st October 2024 Lords Chamber

Asked by

[Lord Sandhurst]

To ask His Majesty’s Government what steps they are taking to prevent criminals who have been released under the prisoner early release scheme from reoffending.

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

After inheriting a prison system on the brink of collapse, we had no choice but to introduce emergency measures, releasing some prisoners a few weeks or months early. Unlike the end of custody supervised licence scheme, or ECSL, introduced by the last Government, SDS40 had an implementation period that allowed prison and probation staff properly to prepare for release, helping us to reduce the risk of reoffending. Planning for release includes having temporary accommodation for those at risk of homelessness; access to employment; and continuity of mental health and substance misuse provision. Those released under SDS40 will also be subject to strict licence conditions. If offenders break those conditions or commit further crimes, they will be punished and could be immediately recalled to prison.

[Lord Sandhurst (Con)]

I thank the Minister for his Answer and welcome him to Question Time. More than 3,000 prisoners serving terms of more than four years for serious offences are due to be released this week, starting from tomorrow. Martin Jones, the Chief Inspector of Probation, told the BBC that it was a certainty that around one-third would reoffend. Of those released in the first batch in September, how many have been recalled to date in connection with a subsequent suspected offence of violence?

[Lord Timpson (Lab)]

We do not yet have all the exact figures but, when they are verified, we will publish them in the normal way. However, the noble Lord is correct that we have inherited a system that is very difficult, in which far too many people are recalled. For the second SDS40 stage, we are as ready as we can be. Victim contact data is very reassuring but, as in a lot of areas that we are dealing with in respect of full prisons, it is not as straightforward as I would like.

Community Sentences (Justice and Home Affairs Committee Report)

Lord Sandhurst Excerpts

Friday 26th July 2024 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I am delighted to respond to this debate from this side of the House. I was and indeed remain a very happy member of the committee. I am also the executive chair of the committee of the Society of Conservative Lawyers.

As others have noted, if it is properly managed through rigorous sentences served in the community, crime can be reduced. With proper investment, intensive community sentences can more often succeed where short custodial sentences too often fail. Only this week, the Secretary of State for Justice observed that

“too often our prisons create better criminals, not better citizens”.—[Official Report, Commons, 25/7/24; col. 835.]

Nearly 80% of offending is reoffending.

These important points were acknowledged by the previous Government at the end of February this year in their response to the committee’s report. The previous Administration was working to improve the quality of community sentence delivery, from the earliest stages of advice to the court through to the delivery of requirements and supervision. They were seeking to ensure the delivery of robust community sentences and had recognised that there was more work to be done. So too, the previous Government acknowledged the persuasive evidence that community sentences can be more effective than custodial sentences in reducing reoffending and rehabilitating offenders.

I shall now highlight the committee’s more significant proposals, together with the synchronicity of the previous Government’s responses. I note the approving remarks of the noble Baroness, Lady Hamwee, in that respect.

Custody, while sometimes necessary, is expensive and fuels reoffending, as others have said today. Community orders are a sound alternative in many cases—not all, of course, but many. Mechanisms to deal with breaches mean that offenders are now being held to account. We know too that over 50% of people sentenced to custody for up to 12 months go on to reoffend within a year. However, for those on community orders, the figures are different: the reoffending rate is 36%. Where there has been a suspended sentence order coupled with requirements, the reoffending rate is lower still: only 24%. That is significant; it is a pointer to the way forward.

The last Government acknowledged the persuasive evidence that community sentences are, in certain circumstances, more effective than short custodial sentences in reducing re-offending. Policy should therefore build on what the last Government started. We should now have more sentences that do not result in immediate short-term prison terms. But identifying the right candidates for non-custodial sentences is crucial. The public must be won over and must have confidence in what is being done. So, what steps will government take to work with the Sentencing Council and the Probation Service to identify criteria to help guide the judges to move in the direction of fewer short-term prison sentences?

Since 2020, under the last Government, over 4,000 trainee probation officers have been recruited. The judicial forum now meets quarterly at a senior level to share information about new projects and to get feedback on probation performance. The last Government deserve credit. The Sentencing Bill of 2023 would have imposed a duty on courts to suspend short sentences of 12 months or less. That Bill was lost with the Dissolution. Like community orders, suspended sentences are available for courts as a robust community-based sentencing disposal and an alternative to immediate custody. So, as there is no mention in the gracious Speech of the Sentencing Bill, which was lost, do the Government intend to revive it? If not, why not?

The committee was clear that government should invest in the services that underpin community orders, and there should be an emphasis on intensive treatment whose effectiveness is established. The previous Government had already invested over £500 million in the treatment and recovery provisions in the first three years of the drugs strategy plan. The committee concluded that a greater proportion of people on probation should be serving sentences with “one or more” treatment requirements. This policy has already been pushed forward, and more orders of this kind are being made, with drug rehabilitation, alcohol treatment or mental health treatment requirements being attached. We have made a start, and it must be carried through, as other noble Lords have said. Will there be further investment in community sentence treatment requirements, which the committee believed should be a priority and key to reducing re-offenders, putting offenders on a path away from crime and protecting the public?

Pilot schemes to incentivise offenders, such as that for deferred sentencing, can encourage offenders to engage in probation and to change their behaviour. The pilot schemes for these and for intensive-supervision courts, started by the last Government, should be pursued and developed where they show promise. Monitoring will be important.

Young offenders bring a subset of problems of their own. As we have heard, there is a cliff edge when they move from the youth justice services to the adult Probation Service. It is not straightforward. They are young adults—often young males, who do not reach psychological maturity until around 25. The last Government acknowledged this and had it very much in mind. Age-appropriate solutions must be implemented to smooth the transition. So, what proposals do the Government have to address the transition of young offenders to adult probation services at 18?

Local entities are key to securing meaningful unpaid work placements and to fostering public support for community sentences. That means that we have to ensure that smaller organisations are enabled and helped to bid for contracts and offered administrative support. To date, the Probation Service has not always made the most of partnerships with local organisations outside the formal commissioning process. Government can spur this on and encourage. There has been a start; the Probation Service must do more in this respect.

The provisions which I have outlined, taken as a whole, are crucial to the management and disposal of lower-level offenders. Supervision of lower-level offenders is essential to the mission of the Probation Service. If people are properly managed, we all benefit.

To conclude, the unification of the Probation Service has been successful. There have been praiseworthy increases in recruitment. Progress has been made in absorbing the new recruits. Now is the time, as others have said, to educate the public that locking up relatively—I emphasise “relatively”—low-level offenders is often not the answer. The previous Government recognised this in their helpful response given in February of this year. They were moving energetically to implement change and to drive the Probation Service and the judiciary forward in this respect. It is vital that our new Government do not give up on this. I have every hope that this new Minister will give serious weight to our report. If not, we are watching.