Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I too welcome the Bill, and I thank the Minister for the concise way in which he outlined its provisions. However, there are some changes that need to be made. I shall look at three topics. The first is victims, including the position of victims in Wales; secondly, I shall say something about the Parole Board; and, thirdly, I will deal with sentences of imprisonment for public protection.

I support the aim of the Bill to improve the position of victims. Over 20 years ago it was said that the victim should be put at the heart of the criminal justice system; that was a well-known phrase used by the Blair Government. Why is that not the case? When the Minister referred to the means being the subject of debate, I am not sure that he meant “means” in the broadest sense. There are two means that I think are critical: one is culture and the other is money, because we do not improve the position of victims simply by enacting legislation and codes.

I looked at this matter when I had the privilege of chairing the Commission on Justice in Wales, which reported some four years ago. There were four particular complaints about victims. First, they did not have sufficient advice and support, particularly the old and the disabled. The figures given by the noble Baroness, Lady Thornton, for people who said they would never touch the criminal justice system again, we found, were reflected.

Secondly, there was not enough information on the right to challenge the decisions of the police and the CPS, but there the law has been changed, largely due to the actions of Sir Keir Starmer when he was DPP. Again, I suspect that if that is a complaint, there is not enough change in culture.

Thirdly, regular updates should be provided. This is something I have come across when looking at the position of victims across Europe. The best system was then the Dutch one, but the Dutch expended huge sums of money on ensuring that sufficient information was constantly made available.

The fourth area about which there was concern was sentencing. We have a sentencing code that is about an inch thick. Our position is immensely complicated, and it is important that we first explain to victims the range of options before the sentence. If they want to attend the hearing, give them support, but explain it afterwards. That is a big job, and it all costs money and involves cultural change. In Wales we recommended that that issue be addressed collaboratively, taking advantage of the small size of Wales and the fact that people know each other well and—by and large—get on. I think I can safely say that, despite some observations.

Much has been done since our report was published four years ago. I very much welcome the Government’s approach in Clauses 12 to 14, which is confined to England and therefore allows the Government of Wales to carry on the good work they are doing under the various provisions of Welsh legislation providing for duties and strategies. That is all I wanted to say about victims at this stage, but there may be more to say in detail later.

I turn to the Parole Board. First, on Clause 44, if serious cases are to be referred by the Secretary of State, then they must be referred to a body with great experience. Presently, the Upper Tribunal deals essentially with civil cases. I could understand the logic of this if the Parole Board was to be given its proper status as a tribunal, which would solve all these problems. Why is it going to the Upper Tribunal? I look forward to the Minister explaining this. Is a new chamber going to be created? Would it not be better to look at an existing body that could give guidance in cases that go wrong, such as the Court of Appeal Criminal Division?

Turning to Clause 54, the Parole Board is a judicial body. It seems to me that enabling the Secretary of State to remove the chairman is a fundamental contradiction to judicial independence. I simply do not understand the provision. It appears that the Bill seeks to deal with this issue by providing that the chair is not to be involved in judicial work; there is an express provision to that effect. However, I think the drafters of the Bill have overlooked one critical fact. As I understand the rules of the Parole Board, the selection of panel members is still within the compass and duties of the chairman of the Parole Board. Selecting members of a tribunal is a wholly judicial function. In some countries they go so far as to provide for random selection. You cannot have a chairman who is capable of being removed by the Secretary of State responsible for selection.

I cannot understand why this provision is there, because the chairman is not responsible for individual decisions which might cause a loss of confidence. I could have possibly understood why persons other than the present Lord Chancellor might have suggested this; I simply do not understand why it is there. I would suggest that the ability to remove is deleted from the Bill and that the board should be led by someone who is engaged in judicial decision-making so that they bring their experience to bear. It would be wholly intolerable if a senior judicial post was held by, for example, someone who did not sit in criminal work. You have to know what is going on. This bit of the Bill is a relic of something or other—I cannot speculate on what—but it is flawed and should be removed.

Finally on this part, on Clauses 49 to 52, I cannot understand how the clauses disapplying the Human Rights Act are compatible with the certificate given by the Minister. More importantly, it seems to me that if anyone needs protection of their human rights, it is prisoners.

Finally, I will say a word about IPPs. I leave all the detail to a speech I agree with in advance: that to be given by the noble Lord, Lord Moylan. However, I want to make one very short point; when we come to look at this, we must look at the responsibility of the state. To my mind, it is not right or just to transfer the risk of the commission of further offences to the offender and not accept that there is a strong view, supported I think by some evidence, that the reason so many of these people are dangerous is because the state has failed them—first, by the imposition of this sentence, which is accepted to be wrong in principle and, secondly, by for years doing nothing about it. We as a state ought to bear some of the responsibility. That is why re-sentencing is the only just cause.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will make three brief observations. First, I warmly commend Amendment 115. The law needs to balance very carefully the rights of the defendant and those of the victim. This is an admirable compromise, restricted to professional people, and I hope that it is a good example of the way that Parliament can move the law along to accord with present times.

Secondly, in relation to Amendment 102, consistency is critical. One must remember that the police will have to operate this, and it will be hard work for them as the law is made more and more complicated. Having slight differences between systems makes their life impossible. We need only to look at experience with search warrants and the terrible mess that was made of those to realise why it is essential to have consistency.

The third point relates to Amendment 78. There has been a lot of controversy as to whether victims of rape should have an advocate in court to represent them. As I understand the amendment, it goes nowhere near that; it is merely for advice. It seems to me that an awful lot of the difficulties that occur in rape cases could be solved by the victim having someone who is independent of the prosecution to talk to, because the prosecution cannot go to the extent of the help the victim needs. I am sure that, in the end, this would increase significantly confidence in the criminal justice system. The problem is cost; maybe the Government, with appropriate legislation, should try it in a series of pilots to see how it is best run, rather than rolling out nationwide.

[Baroness Finlay of Llandaff (CB)]

My Lords, I will make a very brief point, following on from that made by my noble and learned friend Lord Thomas of Cwmgiedd.

There is a group of victims who are particularly vulnerable: those with impairments in mental capacity, who may have difficulty in expressing and explaining what has happened to them and are vulnerable to misinterpretation of anything they say—they are in particular need of advocates who understand their needs.

Many years ago, I was asked by Gwent Police to assist them in a prosecution in relation to people with profound mental incapacity who had been abused and raped. It was very difficult to pull the evidence together, and it was a very steep learning curve to see how difficult it is to let the veracity of what they were trying to tell one be heard and come through. I hope the Government will recognise that there is a group in the population who are particularly vulnerable to exploitation and to sexual abuse by the very nature of having learning difficulties and impairments, and of course that also includes young people with autism—we know how vulnerable they are to influence, and to coercion into a situation that they believe.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I raise an issue with regard to the time limit. It is not from the wording of the amendment, which I support, but the wording in the victims’ code. At the moment it says that, first:

“The Attorney General must consider the matter as soon as possible”.


What does that mean? Secondly, it says that they must do so

“no later than the 28th calendar day after the sentence was imposed … in business hours and”—

I emphasise this—

“with sufficient time for consideration”.

How can the victim know how long the Attorney-General needs before the 28 days runs out? It is a hard cut-off, but with something rather woolly leading up to it. The victims’ code could do with a little revision to make it quite clear, in addition to the points that my noble friend has made and the very tough example that she gave, just how this would operate. I would not know, to meet that condition, how long before the end of the 28 days I should get a note through the Attorney-General’s door.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support the principle put forward by the noble Lord, Lord Sandhurst, that there should be proper information provided to victims. This should be proper in the widest sense, so that they fully understand; we do not want disappointment and secondary victimisation. The whole question of time limits and extending them is not a suitable matter for debate at this hour of the night. What is important is the principle.

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[Lord Roborough (Con)]

My Lords, I thank my noble friend Lord Sandhurst for Amendment 113, in relation to the unduly lenient sentence scheme. It seeks to ensure victims and their families are given the necessary information about the scheme and, where this does not happen, provide for an extension of the relevant deadline. I understand the distress that victims may feel if they believe that the sentence given to an offender is not sufficient. The unduly lenient sentence scheme provides a way to ensure that victims, their families and members of the public can request for sentences for certain serious crimes to be challenged, by asking the Attorney-General to consider making an application to the Court of Appeal for a sentence to be reviewed.

Amendment 114 seeks to allow extension of the time limits for applications under the scheme, which must currently be made within 28 days of sentencing. However, the scheme has a fixed time limit to reflect the importance of finality in sentencing for both the victim and the offender. Although we will keep this this limit under consideration, there are no current plans to remove the certainty of this absolute time limit. The 28-day time limit reflects similar constraints on defendants appealing against conviction or sentence; it is important for both victims and offenders that we avoid ongoing uncertainty about the sentence to be served.

Amendment 113 puts forward a duty to inform victims and families of the scheme. It might reassure my noble friend to know that the current victims’ code is already clear that victims should be informed about the scheme by the police’s witness care units at the same time as they are told about the sentence; this is expected to be done within six days of sentencing. It may also help if I explain that “witness care unit” is the generic name for a police-led function that provides information and support to victims, as well as witnesses, in cases progressing through the criminal justice system. Under the victims’ code, the witness care unit is responsible for providing services to victims who are not witnesses in the trial, as well as those who are.

For example, under right 9 in the code, all victims are entitled to be told at the end of the case the outcome, including a brief summary of reasons for the decision where available. This also includes telling victims about the ULS scheme when they are told the sentence in the case, which is in paragraph 9.6 of the code. It is heartening to hear from the noble and learned Lord, Lord Garnier, that the scheme is well used, despite examples of where it has not worked being given by others in this short debate.

In answer to the noble Lady Baronesses, Lady Brinton and Lady Thornton, as part of the CPS’s bereaved family scheme, the CPS and the trial advocate will meet the family at the court following the sentence to explain it and answer any questions. The scheme will be highlighted in appropriate cases as part of this.

My noble friend Lord Sandhurst raised an unfortunate case in which consideration under the slip rule means that 28 days had elapsed. In general, the law officers and the Attorney-General’s Office endeavour to review any sentence referred to them, the only exception being those where there is insufficient time to do so; for example, if it is received late in the day, the statutory time limit runs out. In those cases where the slip rule applies, CPS guidance instructs prosecutors to apply for the sentence to be corrected under the slip rule quickly and within the 28-day period for the ULS scheme. This means that, if the application is unsuccessful, the Attorney-General is not time-barred from being able to make an application under the ULS scheme within the 28-day period.

Where there seems to be broad consensus in this debate is on the need to do better on informing victims and their families about their rights under the scheme. This has been brought up by the noble Baronesses, Lady Brinton, Lady Hamwee and Lady Newlove. I am open to discussing further with noble Lords how best to ensure that victims are better informed of the scheme and its deadline, but I respectfully ask that my noble friend withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, would it be possible for the Minister to find out whether the police keep records of the notification of the witness unit and, if the records are kept, what the statistics reveal? This is really an argument about whether we have the right mechanism, rather than the principle. Obviously, the Minister cannot do that this evening, but if the Ministry of Justice or the Home Office could find out, that would alleviate the problem.

[Lord Roborough (Con)]

The noble and learned Lord makes a very sensible request, and I will do my best to write to him.

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[Lord Wills (Lab)]

My Lords, Amendments 119A to 119C in my name have been drafted to allow the independent public advocate to act for the victims of incidents, or series of events, that might have occurred before the passage of the Bill. As currently drafted, the Bill does not permit this.

Underpinning my original conception of the independent public advocate in my two Private Members’ Bills that were the genesis of this part of the Bill was the belief in the need for greater support and agency for those who had been failed by the state—which is meant to serve them—in what the Bill describes as “major incidents”. This is particularly the case when the full extent of such an incident may be revealed only over a period of time. In these circumstances, it is perverse to exclude from such support, which is outlined in the Bill the sub-postmasters whose lives were wrecked by the Horizon scandal, for example, or those whose lives were devastated by contaminated blood transfusions in the 1970s and 1980s, or by nuclear tests in the 1950s and 1960s. These are all catastrophic events that have, in some cases, become apparent only over quite a long period of time.

The victims need the support of the independent public advocate as they continue to search for justice and to right the wrongs that were done to them. These amendments will rectify this problem with the Bill’s current drafting. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

I have a very short amendment—wholly unrelated to what has just been put forward—and I thank those in the Whips’ Office for suggesting that it remain in this group, and not, as I had proposed, move to a later group, which would be reached much later this evening. It does not really matter which group it is in, because it does not really affect anything else. It is a simple, short point in relation to the co-operation between Governments within the union and, therefore, has to do with devolution.

Clause 33 sets out the functions of the advocate who is to be appointed in respect of a major incident. None of the functions in this clause is a reserved matter, so under the Government of Wales Act, the Senedd has the powers to appoint. Therefore, in any particular incident, the Senedd could make provision so that it could appoint its own advocates. I do not believe a different view is taken by the Government in London.

It may also be the case that Welsh Ministers can appoint a non-statutory inquiry following a major incident in Wales, but that is not the kind of point to go into at this hour. The only power that the Senedd could not make provision for is for an advocate appointed under the Act to automatically secure interested person status in a statutory inquiry—those powers are reserved as they are part of the justice powers. Of course, a public advocate appointed by the Welsh Ministers would be free to apply for interested person status, and would probably get it—so I do not think it makes any practical difference. As I understand it, this point has caused the Senedd’s consent to the legislative consent memorandum to be qualified and reserved until this matter is resolved.

There are four short points to make. First, it seems sensible that the Welsh Government are involved as part of the scheme if there is a major incident in Wales. That would avoid any possibility of duplication. Secondly, it is important that the Welsh Government have a say in the person appointed. The advocate must have knowledge of Wales as well as the necessary ability to do everything in Welsh as well as English, since in Wales, English and Welsh have equal status.

Thirdly, significantly, it would be a further step in underpinning by statute co-operation between the Governments as part of the normal exercise of shared functions within a union. Fourthly, the Minister provided the greatest possible help in achieving something similar in relation to mission statements in the Levelling-up and Regeneration Act, as provided for now in Section 2 of that Act. This seems to be yet another step that can be taken to put in place a strong statutory framework for co-operation to ensure that there is no duplication and there is good working co-operation.

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

My Lords, I support Amendments 119A to 119C in the name of the noble Lord, Lord Wills.

I suggest that the usual basis for avoiding retrospective legislation does not apply in this case. Generally speaking, we take the view that it is wrong for new legislation to have retrospective effect. That is because, if an individual behaves in accordance with the law as it is at a given time, it is regarded as wrong for the law subsequently to be changed—I believe this is a correct analysis—in such a way as to change the legal framework in which that person legitimately operated at the time when they acted as they did. However, that principle cannot be relevant in the treatment of victims of major incidents and the provision of advocacy services to such victims. It is not as if there is anything in the Bill that could affect the behaviour of victims or indeed the behaviour of others in respect of major incidents, regardless of whether or not those others may have been culpable in some way for the occurrence of the incident.

There is a safeguard in the Bill against stale incidents becoming the subject of the amendments of the noble Lord, Lord Wills, simply because they are past and could be a long way past, but the meaning of a “major incident” includes the definition in Clause 28(2)(c), which says that a

“‘major incident’ means an incident that … is declared in writing by the Secretary of State to be a major incident for the purposes of this Part”.

For that reason, the Secretary of State could take the view that, if an incident were so stale that it ought not to be the subject of a major incident determination, he or she simply would not make one.

The other point I wish to make is that the noble Lord’s Amendment 119C shows the importance of the possibility of making the legislation retrospective. It talks about a single event or a series of linked events over time. In the case of a series of linked events, it may be the last event that gives rise to the need to call it a major incident but all previous events need to be taken into account as well. Therefore, the amendment shows how important the Wills amendments could be—if I can put it in that way.

I will speak briefly to Amendment 120 in the name of the noble Lord, Lord Ponsonby, which he has not addressed because no doubt he is going to wind up. I will not be winding up on behalf of these Benches as a result. His amendment concerns the possibility of declaring a major incident when only a small number of individuals are killed, injured or suffer major harm. To us, it is important that that amendment is permitted.

I take as an example—it is one that I simply thought of—the terrorist attack on Fishmongers’ Hall by Usman Khan in November 2019, when two people were killed and three more injured. In the words of the BBC a little while later, that incident

“touched the lives of so many”.

One knows that the incident must have touched the lives in a very serious way of those who intervened, those who witnessed the offences on London Bridge, and those who attended the Fishmongers’ Hall rehabilitation conference which led to such disastrous consequences. All were, in a sense, victims of the attack. All may have suffered, if not serious harm, at least some psychological harm. All may have needed some support. That need could be helped by the provision of advocacy services, advice or representation of some sort. The amendments in the name of the noble Lords, Lord Wills and Lord Ponsonby, taken together, would secure that that would be possible, even in the case of past events.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 13th February 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I support the amendment of the noble and learned Lord, Lord Hope. There can be no disputing that independence is key, and it would be very sensible if the Bill was slightly amended to refer to the independent standing advocate, or something of that kind. Independence not being in dispute, the issue is how to safeguard it. Normally, independence is achieved by three things: the first is a process of appointment, which we have already discussed; the second is the provision of resources—again, that has been raised but I am not sure whether it has been entirely dealt with; the third, and most critical, is removal. It seems to me that that is what this amendment is concerned with.

There are two ways of removing to ensure independence: one is to specify the grounds in the Bill, while the other is to derive an independent process. One or the other will work. There are all kinds of processes, such as an independent parliamentary process or an independent tribunal. But bearing in mind the uniqueness of this post, it may be best to look at specifying in the Bill the grounds for removal. That is a matter for discussion and debate.

I do not wish to add anything about Amendment 129, save to support it, but I would add one observation on Amendment 132. It is critical to show that everything is open, and that if the standing advocate is to issue guidance, such guidance is made public. We do not want, in this area, questions relating to what is going on without the victims having full confidence.

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

My Lords, I shall be relatively brief on this short group of amendments. I stated my support for the amendment of the noble and learned Lord, Lord Hope, in advance, in principle, during debate on the third group. I apologise for mentioning his amendment before he had had an opportunity to speak to it. However, his reasoning was a development of the reasoning that I then expressed. I reiterate his point: for an independent advocate system to work, the advocate must be independent. I take the point of the noble and learned Lord, Lord Thomas of Cwmgiedd, that if “independent” has only appeared, or might only appear, by virtue of the amendment of the noble Lord, Lord Ponsonby, that is wrong. We have all called it independent because the independent public advocacy scheme is a term that has been frequently used. The word “independent” ought to appear in the Bill specifically, and the independent standing advocate could be called exactly that to make the point clear.

That means that such an advocate must be able to advance the victims’ interests without a concern that they are liable to be removed by the Secretary of State without very good reason. For such reasons

“as the Secretary of State considers appropriate”,

which is the wording used in the Bill, is just not good enough. Nothing less than the formulation of the noble and learned Lord, Lord Hope, of them being

“unfit or unable to fulfil their functions”

will do as a justification for removal.

I take the point made by the noble and learned Lord, Lord Thomas. This could also be achieved by a process for termination, not simply by the grounds for termination. Those are not necessarily alternatives; we could have both approaches. I suggest that the Government ought to consider whether the process should not be strengthened. To make the point I have made before, the Bill is shot through with the difficulty that the interests of the victims may conflict with the interests of the Secretary of State. That important conflict of interest can be resolved only by removing power from the Secretary of State.

I turn to Amendment 129 in the name of the noble Lord, Lord Ponsonby, which proposes that office facilities may be afforded by the Ministry of Justice, provided that they do not compromise the functional independence of the standing advocate. That is another point on independence. It is plainly administratively convenient and may be necessary that the Ministry of Justice provides the office facilities, but that does not mean that the bodies are not completely separate, and they must be.

Amendment 128A in the name of the noble Lord, Lord Wills, to which I have added my name, was moved into the second group, but Amendment 129 remained in this group although they are on similar subjects. The noble Earl, Lord Howe, said that the noble Lord, Lord Roborough, would answer on Amendment 128A. The point I made was that proper secretarial support and resources are crucial for the standing advocate if the system is to work. The noble and learned Lord, Lord Thomas, made the point about resourcing in general terms but made it very powerfully. Appropriate support is essential for the role to be properly done, as are statutory guarantees of adequate resourcing.

Amendment 132 in the name of the noble Lord, Lord Ponsonby, deals with guidance to other appointed advocates on what matters they should consider in relation to a major incident. It is not right that such guidance should come from the Secretary of State. The Secretary of State may have interests in diverting attention to some aspects of a major incident against the interests of considering others. Guidance should come from the standing advocate who has, as the noble Earl, Lord Howe, put it earlier, a leadership role. That is the proper source of such guidance and not the Secretary of State, who has a political interest that may be opposed to the interests of the victims. I suggest that the Bill’s formulation on this is simply quite wrong in principle.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

149: Clause 48, page 51, line 10, at end insert—
“(ba) after subsection (3), insert—“(3A) Where—(a) the prisoner has been released on licence under this Chapter,(b) the qualifying period has expired, and(c) if his case has been considered for termination previously by the Parole Board and a period of at least twelve months has expired since the disposal of that application,the prisoner may make an application to the Parole Board under this subsection.””Member’s explanatory statement
This amendment, along with two others in my name to Clause 48, would allow a prisoner whose licence has not been terminated by the Parole Board three years after their first release to make an application annually to the Parole Board for termination.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, the subject of IPPs is so well known to you all, and indeed to many outside this House, that it is unnecessary to speak at any length about it, save for one remark and one set of common grounds.

When the Minister said that this Bill was about victims, he was in every sense right. In some senses, those who received the sentence of IPP are in fact victims, as I will endeavour to explain by reference to what I think are four areas of common ground, which I think ought to guide what I wish to say.

The first area of common ground is that the 2003 Act which implemented these was a mistake and should never have been enacted. There is now no dispute about that. I pay tribute to the noble Lord, Lord Blunkett, for the candour, statesmanship and exemplary conduct he has shown—which so few do—in admitting error. He is to be warmly commended for that, and my only regret is that he is not here in person for him to hear what we all feel.

The second point of common ground is that the operation and the effect of the IPP system has been a stain on the administration of justice in England and Wales. Again, I do not think that is disputed.

Thirdly, the outcome of imposing sentences of IPP has been problematic in very many ways, and a particular problem has been the effect on the mental health of those who received this form of sentence, particularly those in the initial period from 2005 to 2008.

The fourth area of common ground is the old phrase, “Something must be done!” The real question is: what should be done? These problems have to be addressed; we cannot leave them unaddressed.

In the groups of amendments to be considered this afternoon, the real issue relates to that fourth point of common ground: what is to be done? One should begin by welcoming the leadership shown by the Lord Chancellor—this Lord Chancellor, I underline—in the Bill. He has accepted that there are problems and that they need to be addressed. We have to recognise that he is in some senses constrained by circumstances and by events which may happen later in the year. However, I very much hope that in the course of this debate we can achieve more under his leadership, which has been outstanding in this respect, and see what we can do to try either to solve the problems now or at least to make certain that the basis is there for their solution in the future.

Having said I would say very little by way of introduction, I may have spoken for too long; I now turn to the amendments in the first group. These are amendments to Clause 48 and there are four sets of them. I am extremely grateful to the noble Lords, Lord Moylan and Lord Blunkett, and the noble Baroness, Lady Burt of Solihull, for their support by co-signing these amendments, which all relate to the provisions for release on licence.

I am not sure how well appreciated it is that the licence period after release from an IPP is one of the most draconian aspects of the sentence. After release, the offender is on licence and subject to licence conditions—and, most importantly, subject to recall if they breach them—for an indefinite period presently, unless the Parole Board decides to release or reduce the licence period. At present, it cannot do so until 10 years have elapsed. It is that 10-year period which this clause seeks to address. At the moment, all cases are referred to the Parole Board for consideration—but 10 years is a very long time.

One of the things that is clear on the evidence—and it is always important to proceed on the evidence—is that the indeterminate nature of IPP sentences has created many very serious mental health issues and these are exacerbated by the licence period. It is very difficult for someone who has been in custody for such an indeterminate period, not knowing when they are going to released, to maintain his or her mental stability—and then being subject to 10 years on licence is almost impossible.

So we must warmly welcome the basis of this recall in reducing that period from 10 years to three years, because then the Parole Board can look at the licence period and decide whether it should be terminated then and there. If it is not terminated and if the person is successful and remains on licence, out of custody, for two years, there is a sunset or automatic termination. So, before I turn to the amendments, I think it is right to say that this is a huge achievement and, on almost everyone’s behalf, I thank the Lord Chancellor and the Secretary of State for doing this.

My amendments make changes to this new regime which are minor but important. I hope they are of a kind about which there will be little dispute—because, if there are disputes about these, I dread to think where we shall get to when we go down the list. Four areas are covered by these amendments. The first of these sets of amendments are Amendments 149, 150 and 151, which try to set out a more flexible and just way of terminating the licence period if it is not terminated at the three-year point.

I do not want to go into the technicalities of this too much, because this is typically awful sentencing legislation—most sentencing legislation is awful, as is shown by the fact that the Sentencing Code is about this thick—and I do not think a debate on the language is a good way for us to spend our time. But, in essence, this provides that, if the Parole Board does not at the three-year period terminate the licence, we have to address whether it is right that the person has to wait to have their licence terminated by spending two years without the risk of having their licence revoked and returning to prison.

The essence of this amendment is accepting the mental health problems that this form of imprisonment has caused and for which ultimately the state is responsible, as a result of the enactment of this legislation. This amendment seeks to restore a right of annual review. This would give the Parole Board the opportunity each year to look at the position of the individual and see whether, in all the circumstances, we can terminate.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank everyone who has participated in this debate. It has proved useful: first, it is very important to set the scene, and I deliberately did not say a great deal. However, it is right to say that we owe a huge debt of gratitude to the Prison Reform Trust, to the noble Lord, Lord Moylan, to the late Lord Brown and the late Lord Judge, who campaigned fiercely on this, and to Lord Lloyd of Berwick, who fortunately is still alive and who has campaigned tirelessly. I just find a sense of deep disappointment—a matter to which I will return at a later stage—at the reluctance to be bold.

We have focused on four little points, and even on reducing the answer was not very strong. It is absurd—and I use that word advisedly—to think any Government would want to take the licence period back up. I very much hope that that amendment can in due course be agreed.

The problem really relates to the way in which the licence period operates. We need to discuss that further to see what the conditions are, and we shall come to that in due course, and to ensure that we bring the licence period to as satisfactory a termination as possible, bearing in mind—as the Minister fails to recognise—that the state has a very substantial degree of responsibility for the mental health problems that have been caused. When you talk of one year or two years, making someone stick to conditions which may not be entirely appropriate for a period of two years is a substantial burden, which can be mitigated by going to one year. But I am glad that the Government have an open mind. We shall see how open it is when we discuss the matter further.

Amendment 149 withdrawn.

--- Later in debate ---

[Lord Bellamy (Con)]

I see the force of the points being made by the noble Lord, Lord Clarke. I respectfully suggest that the fear of the media is not the driving force in the case of this Lord Chancellor or, if I may say so, his Parliamentary Under-Secretary of State currently at the Dispatch Box. We are looking at the real question of public safety.

If I may ask it rhetorically, who speaks for Pauline Quinn? Admittedly, that was not an IPP case. Pauline Quinn was aged 73, was disabled and could not protect herself. She was brutally murdered by a convicted killer released on licence. I respectfully suggest that these risks are very difficult for any responsible Government to take, irrespective of what the media might say.

This raises another point. At the moment the Government are not convinced that this would make a significant difference, because the Parole Board, even under the revised test suggested by my noble friend Lord Moylan, would still have to be satisfied on the issue of the protection of the public. It is perfectly likely that one is simply raising false hopes. It does not change the process that the Parole Board has to go through to look at these very difficult individuals, who are very much at risk of harm and very difficult to manage in the community.

If you read the 2023 report from the Chief Inspector of Probation, you see how difficult it is to manage these individuals—those who have already been released, not the unreleased cohort. This is a very difficult area. At the moment the Government are not persuaded rightly or wrongly that it is a correct approach to make it easier to release dangerous people. That is the Government’s position, and I have explained it as best I can.

[Lord Thomas of Cwmgiedd (CB)]

I want to ask the noble and learned Lord about the word “proportionate”. Is there an objection to that word? It is key, because it enables you, in judging safety, to take into account the responsibility of the state for what we have done to these people.

Victims and Prisoners Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 30th April 2024 Lords Chamber

[Lord Wills (Lab)]

My Lords, I shall combine my remarks on Amendment 102 with those on Amendments 103, 105 and 106.

Amendments 102, 103 and 105 seek to remove an unfair and irrational restriction on the role of the independent public advocate. I spoke in Committee at some length about how my original conception of this position in my Private Member’s Bill was driven by the pressing need for greater support and agency for those have been failed by the state and by public authorities in major incidents. Those who can avail themselves of the services of the advocate must include those for whom harm continues after a major incident, even though the major incident occurred before the passage of the Act.

Can there really be any serious justification for excluding, for example, the victims of contaminated blood transfusions and the postmasters whose lives were wrecked and continue to be wrecked by the Horizon scandal—people still struggling with the consequences of those failures by the state and by public authorities, even though the failures occurred before now?

I would be grateful if, in his response, the Minister would address this question directly: what justification is there to restrict the role of the advocate to exclude those such as the victims of contaminated blood transfusions? These amendments would rectify this specific problem in the current draft of the Bill.

In asking the Minister to respond to that question, I should perhaps have preceded my remarks by thanking him for the great generosity of time that he has given me, with his officials—to whom I am also extremely grateful—in discussing all the elements of this part of the Bill. He has gone over and above the call of duty. That I am one of many speakers thanking him for that shows the extent of this House’s debt to him and his officials in the progress of the Bill.

Amendment 106 is a relatively minor amendment but, after two Private Member’s Bills, it occurred to me that we perhaps should be more careful about how we define those who might benefit from the services of the of an independent public advocate. What constitutes a “close family member” in the modern world? Fifty or 100 years ago, the answer would have been common sense, but it is not any more. Living arrangements and relationships are much more various than they ever used to be. “Close” and “family” are, in effects, often disputable terms, and the current draft of the Bill is perhaps purposefully vague. For example, who will decide whether a parent estranged from their partner and who is no longer responsible for the upbringing of a child victim counts as a close family member? What happens if the person in question disputes any exclusion from the services of the advocate? If we at all can, we should try to head off such arguments beforehand, because they would only compound the grief and trauma suffered by many in the aftermath of a major incident.

This amendment seeks to avoid that, although it is, in essence, probing. If the Government have a better formulation, I would be happy to consider it, but it seeks to do so by introducing the specific definitions that have been derived from the intestacy provisions.

Amendment 106A tries to ensure that the post is implemented with proper timeliness. In Committee, I pointed out that it has been nearly seven years since the creation of an independent public advocate featured in the 2017 Queen’s Speech. The amendment seeks to remove any further possibility that the Government will unnecessarily delay the implementation of this post. In his response in Committee, the Minister, the noble Earl, Lord Howe, rightly pointed out the need to observe due process in public appointments, so the amendment has been tweaked to take better account of that than my previous one.

In doing so, I had regard to the Governance Code on Public Appointments. Among other things, the code says that appointments should be completed

“within three months of a competition closing”.

In 2019, the Commissioner for Public Appointments found that the Ministry of Justice, where ministerial responsibility for the independent public advocate will reside, completed only 18% of appointments within that three-month target. Only the Home Office and BEIS had worse figures. To show that these figures are achievable, that compares to 100% of appointments by His Majesty’s Treasury and 76.7% by NHSI. Of course, the Ministry of Justice’s performance might have been transformed in the last five years but, in any event, the six-month period stipulated in this amendment should be ample time for the department to appoint the first independent public advocate, if it fulfils its duties in the way that the Commissioner for Public Appointments expects. If the Minister disagrees, I would be grateful if he could explain in detail why. This amendment is simply a lever to ensure compliance with the code of governance.

I now turn briefly to Amendment 110ZA. I spoke to this in Committee; I have tabled it again because, as it stands, the Bill still appears to permit the Secretary of State to appoint the independent public advocate but deprive them of the means to exercise their functions. I cannot believe that that is what the Government intend, but in any event this amendment will prevent any such travestying of the position.

Finally in this group, I come to Amendment 119AA; this amendment is intended to replace Amendment 108 in the Marshalled List. I spoke at some length in Committee, again, about the need to provide for some version of the Hillsborough Independent Panel to be accommodated in this Bill. This amendment attempts to do just that. I do not intend to rehearse again all of the arguments I made in Committee, but I remind the Minister of the advantages of such a provision, in terms of saving the taxpayer potentially hundreds of millions of pounds over the lifetime of a Parliament, and helping victims and the bereaved towards a more timely closure of their grief and trauma. The prolonged processes embedded, for example, in public inquiries only increase their suffering. I should be grateful if the Minister could indicate in his response whether the Government truly understand the crucial imperative of timeliness in fact-finding after a major incident, and how important that is for victims and the bereaved. How can it be acceptable to make them wait year after year, sometimes decade after decade, to find out what happened to their loved ones, and to understand why they have suffered such loss? Such delays only compound grief and trauma. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I return to speak very briefly to Amendment 109B, to deal with the position of Wales. In Committee, I introduced an amendment to require the Secretary of State and Lord Chancellor, when appointing an independent advocate, to secure the consent of the Welsh Ministers. This is an area where it is common ground that there is devolution. I am grateful to say that the Government have agreed that there should be consultation, but they refuse to agree consent.

I put this down initially because one of the ways to make a union strong is to have a proper dialogue. Now, there are some areas where consultation has to be required by statute. Normally, one would expect that in areas where there is an overlap in competence, there would be consultation, but it is right we put a statutory duty in to that effect. However, it seems to me wholly extraordinary—and I am pretty certain it has nothing to do with the Ministry of Justice— that they refuse to agree to the consent of the Welsh Ministers.

Now, noble Lords will all know that, when looking for a lawyer, there is normally quite a good choice. In my experience, having been involved on a number of occasions, you can normally have a discussion about A or B, and you agree on C. It seems to me totally extraordinary, if we are to live in a union that works, that the Government in Westminster have to say, “No, those people in Cardiff just have to be consulted; we don’t have to get their consent”. Is this any way to run a union? The answer is obviously not, and I am sure that this does not come from the Ministry of Justice—in this Bill, the Lord Chancellor and the Minister have been most sensible in what they have put forward. But I deplore that bit of the Government that simply cannot understand that going through the courtesy of discussing things and obtaining consent is the better way to run a union.