King’s Speech

Lord Thomas of Gresford Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I must express my sorrow at the loss of Igor Judge. We became friends 50 years ago, when I was trespassing from the Welsh circuit on to the Midlands circuit, in Shrewsbury and Birmingham. We had many a tussle at that time—and I hope to be able to say more about how I feel about Igor.

In his Statement to the House of Commons on 27 October, the Lord Chancellor, Alex Chalk, made some important concessions to common sense on the issue of short sentences. He said that prisons should not ruin the redeemable. A short stint in prison causes offenders to lose their homes, break contact with key support workers and, crucially, meet others inside prison who steer them in the wrong direction. This leads to more than 50% reoffending. The noble and learned Lord, Lord Bellamy, has confirmed these sentiments, and I wholeheartedly support their call for a presumption against short sentences.

However, Mr Chalk has had to balance this sensible reform by throwing red meat to the right wing of his party: he proposes mandatory life sentences for a wider spectrum of offences, removing the discretion of judges to do what they are paid to do—administer justice in a wide variety of circumstances. Further, he intends to abolish sentence remission in serious cases: no automatic reduction of sentence as a reward for good behaviour. I await the reaction of prison governors and the Prisoner Officers’ Association to the removal of the most powerful tool they have for maintaining safety and stability in our overcrowded prisons.

Mr Chalk is keen to build 20,000 new places in modern prisons. The current overcrowding of prisons is due, he says, to an increase in the remand population, amounting to 15,000 unconvicted prisoners locked up awaiting trial. I would welcome new prisons if the policy were joined to a commitment to pull down the 18th-century decaying and filthy jails we still employ. But the Lord Chancellor will burnish his reputation if he tackles the backlog with energy and commitment. Numbers of remand prisoners built up steadily following the austerity cuts of 2012 and reached a peak in mid-2022 of 89,000 cases awaiting trial, with 4,000 of these waiting for more than two years. The Government’s aim is to reduce the backlog from that peak to 53,000 cases by March 2025. That is a snail-like pace, and the reason for it is largely the lack of judges to preside and of barristers both to prosecute and defend. The pace has slowed. A freedom of information request in August 2022 indicated that, on average, fewer than 300 trials were completed per week between April and July 2022, compared with more than 350 per week in the previous year. Getting rid of the backlog is slowing down.

There is a dearth of Crown Court judges. In the last round of appointments, only two-thirds of the vacancies were filled, and as they are appointed, the pool of senior barristers diminishes. Mr Max Hill KC, the recently retired Director of Public Prosecutions, said that 500 trials in the current year could not go ahead on the scheduled date because no prosecuting barristers were available. He said that the CPS sometimes resorts to

“literally ringing round sets of barristers’ chambers, trying to place the brief”,

adding:

“These are difficult times. We do have an overloaded system, it’s not easy”.


The income of the criminal Bar diminished by some 40% in real terms after 2000, driving potential recruits away. My grandson at Cardiff University tells me that the majority of his fellow law students all want to be human rights lawyers. Well, you can starve doing that too. There is nothing more stimulating or exciting than the drama of a criminal trial, where the task on your shoulders is to persuade 12 persons of unknown backgrounds and experience to agree one way or the other to a verdict that will permanently affect the life of the individual and his family. That is a serious task, to be performed within a framework and discipline of strict principles of integrity and fairness, with the advocate’s duty to the court and to the law to the foremost. It calls for a multiplicity of talents.

The Lord Chancellor knows this from his own considerable experience. I urge him to do everything he can to refresh the profession and to recruit students of talent to the criminal Bar. He should encourage them, offer prizes for excellence and speak to them. That is better that than building prisons for people to rot in.

Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Thomas of Gresford Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, what a delight it is to see the noble Lord, Lord Hennessy, in his place. I have followed his wise counsel on many occasions, and it is great to see him back—not least because he was a very effective member of the Constitution Committee, even though he was at the other end of a television link.

As a member of the Constitution Committee, I first express my thanks to the noble Baroness, Lady Drake, for her calm, careful and considerate chairmanship of the committee, on this issue as on others. I am grateful to the clerk, John Turner, and his team for their invaluable work in putting the thoughts of the committee together in a compelling report.

I want to focus my remarks upon unfinished business: the dual role embodied in the one person of Lord Chancellor and Secretary of State for Justice. I am pleased to find myself again on the same side as the noble and learned Lord, Lord Garnier. This issue was very firmly kicked into the long grass by the Constitution Committee. In paragraph 186 of the report, we concluded that the advantages of separating the two roles were not clear and that we were not in favour of making changes at this point in time, having regard to the burdens inherent in any major machinery of government change. However, we recommended that a new Government, or a Prime Minister embarking on a reorganisation of government, might wish to consider or at least contemplate removing responsibility for prisons from the Lord Chancellor’s remit.

I do not think anyone on the committee wished to resurrect the Lord Chancellor of old as Speaker of this House or as head of the judiciary controlling the appointment of judges. His department had its problems in that regard in the old days. I met an old friend and colleague of mine a week ago. We took silk on the same day in 1979. Some years later, he discovered that, according to his personal but secret file in the department of the Lord Chancellor, he had fought eight general elections as a Liberal candidate, which was not really an advantage for judicial preferment. Unfortunately, his press cuttings had been mixed up with mine. It was not, in those pre-digital days, a perfect system.

Things changed in 2003 when the Lord Chancellor’s Department became the Department for Constitutional Affairs. In 2006, the appointment of judges became the responsibility of a new Judicial Appointments Commission. The Department for Constitutional Affairs morphed into the Ministry of Justice in 2007 and took over responsibility for prisons from the Home Office. Thus, the administration of courts, its staff and its estates merged with the administration of prisons.

In a speech on 24 May last, on the occasion of the swearing in of the latest Lord Chancellor—the excellent and able Alex Chalk—the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, who has been quoted already many times, said:

“The functions of Lord Chancellor in a modern age might be thought enough to keep a minister fully occupied. The original concept of a Department for Constitutional Affairs did just that. But then along came prisons, bringing with it an obvious potential conflict of interest and problems themselves enough to consume the energies of a superhuman. That marriage may not have been made in heaven. When political breathing space allows, the time may well have come for the role of Lord Chancellor to be looked at again”.


The reason given by a number of witnesses to the Constitution Committee in the course of this inquiry for maintaining the joint responsibilities for courts and prisons in the hands of one Minister was that, unless the Lord Chancellor were given a significant spending department, he or she would have no clout in the struggle for funds from the Treasury. I defer to the experience of the former Lord Chancellors who appeared before us, but the fact is that both the court system and the prison system, which do need money, are starved of resources. I can put it no better than the noble and learned Lord, Lord Clarke of Nottingham, who told us in his evidence: 

“The present Lord Chancellor has the misfortune of presiding over a department both the large chunks of which are in a pretty dire state—worse than I can recall for years ... In both these particular cases, you have a really dire problem of trying to get resources applied to tackling the problem against a background of economic crisis when the public finances are in a dire state”.


The noble and learned Lord, Lord Clarke, was nevertheless the advocate of no change, as was Mr David Gauke, on the basis of the “clout” reasoning, but having “clout” has not prevented the criminal Bar going on strike for lack of funds, the ceiling of the court in Hereford’s magnificent Shirehall collapsing or the general crumbling of our famous Assize Courts and indeed more modern courts. Nor has it prevented the shortcomings in staff, of which I have often spoken, in the large and modern Berwyn prison near Wrexham, my home town. Alex Chalk opened the new Fosse Way prison in Leicestershire two weeks ago as part of the Government’s £4 billion programme to create 20,000 new prison places. He had clout enough to lock people away—I mean, he is part of a Tory Government—but increasing room for prisoners must surely impact on sentencing policies and the courts: build it, and they will come.  

 Meanwhile, the Chief Inspector of Probation, Mr Justin Russell, wrote in his 2023 report on serious fraud offences:

“It is very concerning that assessments for the risk of harm a person on probation may pose remain inaccurate, incorrect, or incomplete. It is clear that reduced staffing levels within local services continue to have an impact on the quality of work we are seeing, both in these serious further offence reviews and the findings from our local inspections. Once again, I call on HMPPS to ensure services have the staff they need in order to manage every person on probation actively and effectively to monitor any risk of reoffending”.


Rehabilitation is not a priority compared with building prisons. On bread-and-butter issues, today we learned that the MoJ missed a statutory deadline by six months for dealing with intestate estates, in a time of inflation.

To my mind, certainly as to the mind of the noble and learned Lord, Lord Garnier, and others, the role of the Lord Chancellor is not to be a nuts-and-bolts mechanic but, as we have described in the report, to be the guardian of the rule of law: the one person of experience, judgment and standing who can say to a Prime Minister, “No, your policy is unlawful”.  What we have seen under this Government is unlawful Prorogation, the unlawful United Kingdom Internal Market Act and now the Illegal Migration Bill, described yesterday by the United Nations High Commissioner for Refugees, Volker Türk, as 

“contrary to prohibitions of refoulement and collective expulsions, rights to due process, to family and private life, and the principle of best interests of children”.

That is the current unlawful way in which this Government act.

 The Lord Chancellor is now a diminished figure. It is not surprising. The noble and learned Lord, Lord Burnett, pointed out that Alex Chalk is the seventh Lord Chancellor he has served alongside in his six years as Lord Chief Justice. There have been 13 Lord Chancellors in the 20 years since 2003. Before then, there had been 13 Lord Chancellors in 64 years. In former days, it was a final destination job to close a distinguished career. Now it is but a stepping stone, with its independent role of guardian of the rule of law marred by hopes of preferment to a more important Ministry.  

 So, there it is in the long grass. I hope a new Government will recognise, as the noble and learned Lord, Lord Burnett, said, that the administration of justice is one of the building blocks of society, and that courts and prisons each require the focused energies of a single Minister to tackle their separate problems.

Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023

Lord Thomas of Gresford Excerpts

Tuesday 16th May 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in moving this regret Motion, I remind the House that I am a sitting magistrate in London. I thank the Magistrates’ Association for the briefing that it has provided, as well as the Secondary Legislation Scrutiny Committee for its work in asking, the Minister, Mike Freer, to flesh out the reasons for this change to magistrates’ sentencing powers.

The instrument that is the subject of this regret Motion reduces the maximum custodial sentence that magistrates’ courts can impose for a single either way offence from 12 to six months, reversing a change put in place in May 2022. The higher sentencing powers had been in place for only 10 months when they were reversed. The May 2022 change did not alter the maximum sentence for any given offence; it simply changed which court might try cases expected to have a maximum sentence of between six and 12 months.

The justification given by the Lord Chief Justice was that, since magistrates’ courts work faster than Crown Courts, the increase sentencing powers had led to an increase in the prison population that needed to be addressed, and that going back to the previous sentencing powers would slow down the increase in the prison population. The Ministry of Justice is also running Operation Safeguard, which is designed to create a vacancy contingency in the male prison estate. Minister Freer has also said that that would be part of a raft of measures to decrease the prison population. We do not yet know what the other measures will be. I want to put on record that the Minister has said that there will be a six-month review on this change in policy.

In his response to the SLSC letter, Minister Freer spoke of downstream pressures on the prison population, namely the recruitment of extra police officers, tougher sentences, more recalls of prisoners on licence, working through the Covid backlog and the Criminal Bar Association’s strike. All these factors have contributed to the growth in the prison population—about 4,000 prisoners in the past year. We do not know how that figure is broken down between these various pressures. In my view, it is unlikely that the change in sentencing powers has played a significant part in the overall increase.

I shall go through the objections to and the questions raised by this change in sentencing powers, first made by the SLSC and then by the Magistrates’ Association. First, when considering the numbers in custody and on bail, those waiting for their trial in custody will have to wait longer because of the far longer backlog in the Crown Courts. When Mr Freer, the Minister, was asked about the increased risk of reoffending of those who are on bail to Crown Courts, he said there was no available data. The SLSC commented that this was indeed a relevant factor and should have been assessed as part of the policy-making process.

On the costs of the two systems, Mr Freer asserted that the change does not give rise to any direct financial pressure because it does not introduce any new demand into the system but simply transfers some cases to the Crown Court. The SLSC was unimpressed by that point and pointed out that Crown Courts take longer to hear cases, involve juries and are very likely to be more expensive.

An analysis of the May 2022 change was promised by the noble Lord, Lord Wolfson of Tredegar, on Report of the Judicial Review and Courts Bill. The SLSC pointed out that no data had been published and called on the Ministry of Justice to complete and publish its review so that a more informed decision could be taken when considering the effect of changing maximum sentencing powers in magistrates’ courts. It also inquired whether more research could be done to see whether sentence lengths vary between similar cases in magistrates’ courts and Crown Courts.

In conclusion, the SLSC said that using the maximum sentence available to magistrates’ courts as a sort of valve that could be opened and closed in response to wider developments that affected the prison population was not an optimum way of making policy, as it failed to consider other potentially important factors. The SLSC said that maximum sentences in magistrates’ courts should be determined by the overall outcomes for society and should be evidence-based, and it believed that this was not the case with the Government’s decision.

Turning to the Magistrates’ Association, I can do no better than refer to what Mark Beattie, the current chairman of the association, has said: “The reaction of magistrates has been very negative. Magistrates each spent three hours completing a mandatory training pack, totalling over 30,000 hours of our own time on our own equipment. Chairs of training committees personally chased up people who had not done the training so they could complete the training before they sat in court. These chairs are feeling particularly aggrieved, both because of the many extra hours they have spent at this task and because they fear that this sudden reversal will have damaged their ability to persuade people the next time they ask them to undertake extra training. They feel personally undermined, and as this is an essential statutory role, it is especially bad if they feel that their ability to perform their duties has been impacted. ‘Why do the training if the rules can be changed so easily?’ is a message that we are hearing. We know, because we have been told, that magistrates are resigning over this matter, although we don’t know the numbers or the locations.”

Of course magistrates will work conscientiously to deal with the cases put in front of them and fulfil the judicial oath they have all taken. However, it is incumbent on the Government, through the Ministry of Justice, to ensure that the decisions taken are properly evidenced-based and that court users can understand the rationale behind those decisions.

I would be grateful if the Minister could give any indication of a timetable for a review of the current sentencing arrangements, and whether that review will take into account the additional factors highlighted by the SLSC and the Magistrates’ Association. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I am sorry to hear that the magistrates were upset by the introduction of this change.

I was articled as a solicitor in the office of the clerk to the magistrates of the Ruabon Bench in north-east Wales. The chairman of the Bench was Lord Maelor, formerly TW Jones, the Labour MP for Merioneth. He had gone down the pit at the age of 14 for 12 shillings a week and later served time in Wormwood Scrubs and Dartmoor as a conscientious objector, which is an unusual beginning for the chairman of the Magistrate’s Bench. He is noted for being the first and perhaps the last noble Lord to burst into song in the middle of a speech in this Chamber. Once when Mormon missionaries called at his terrace house in Rhosllanerchrugog and asked, “Is the Lord within?”, his wife replied, “No, he’s just gone for his cigarettes.”

Economic Crime and Corporate Transparency Bill

Lord Thomas of Gresford Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

Moved by

[Lord Thomas of Gresford]

80: After Clause 176, insert the following new Clause—
“Strategic lawsuits against public participation
(1) It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime.(2) A person guilty of an offence under this section is liable— (a) on summary conviction in England and Wales, to a fine;(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;(c) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).”Member’s explanatory statement
This amendment introduces a new criminal offence to deal with groundless threats in pursuance of SLAPPS in order to suppress investigations into economic crimes.

[Lord Thomas of Gresford (LD)]

My Lords, I will speak to my Amendment 80, in my name and those of the noble Lords, Lord Cromwell and Lord Agnew, and the right reverend Prelate the Bishop of St Albans, for whose support I am most grateful.

I will give a little background to set the amendment in context. In the 2021-22 Session, I drafted and introduced a Private Member’s Bill on the issue of SLAPPs, based on the Ontario model, as endorsed by the Supreme Court of Canada. Obviously, I had modified that model to suit the procedures of the civil justice system in England and Wales. Through the noble Lord, Lord Wolfson of Tredegar, I met with the Under-Secretary of State in the MoJ, James Cartlidge MP, and his officials, and had a very positive meeting with them.

My draft Bill was basically acceptable in principle, but there was one matter, they told me, it did not deal with: the scourge of pre-action threatening letters, designed to inhibit and intimidate journalistic or academic investigation. However, I was told that the Government were proposing a consultation on the issue, and indeed there was a call for evidence on 17 March 2022. It was wide-ranging; there were 48 questions asked of respondents. As it happens, not one referred to the issue of threatening letters prior to proceedings. However, one respondent suggested that any pre-action letter should require a statement of truth, so that any false allegations in the letter could be treated as a contempt of court.

The consultation finished in May of last year, and the MoJ published a full response in July. Dominic Raab said in the foreword:

“Strategic Lawsuits Against Public Protection, or SLAPPs, are a growing threat to freedom of speech and a free press – fundamental liberties that are the lifeblood of our democracy. Typically used by the super-rich, SLAPPs stifle legitimate reporting and debate”.


This is the point that I want to draw to your Lordships’ attention—he continued:

“They are at their most pernicious before cases ever reach a courtroom, with seemingly endless legal letters that threaten our journalists, academics, and campaigners with sky-high costs and damages”.


At the Second Reading of this Bill, the noble Lord, Lord Sharpe of Epsom, said:

“The Government are committed to tackling SLAPPs”


—I am sure that is right—

“but as the first country to pursue national legislation on such a complex issue”

—he ignored all the states of the United States, Canada and Australia, where such legislation exists, but never mind about that—

“it is right that we take the necessary time to consider this carefully and make sure we get it right. We will introduce primary legislation to tackle SLAPPs—this is where I am going to upset all noble Lords—as soon as parliamentary time allows”.

Now, I have to admit, I was upset. He continued:

“We are in the process of ensuring that we have anti-SLAPPs legislation which properly and comprehensively addresses the problem”.—[Official Report, 8/2/23; col. 1317]


So when will parliamentary time allow? Certainly not in this Session: it is highly unlikely that it will feature in a programme running up to a general election. So we are looking at years before this legislation can come to pass, although I guarantee that a Liberal Democrat-led Administration would deal with the matter as a priority.

I come to the substance of my amendment. I take the view that the endless stream of threatening letters—the “most pernicious” element, as Mr Raab described it, and really he should know—can be dealt with in the context of this Bill by criminalising their use in the investigation of the crimes set out in Schedule 9. I appreciate that may not cover the whole gamut of strategic litigation, and that a wider Bill will be necessary in due course, but investigative journalism is very much involved in turning over the stones of fraud, money laundering, bribery and the rest, and it is certainly in that area that SLAPPs have most frequently been used.

So the new offence that I propose could not be simpler:

“It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime”.


I think that is fairly understandable. The prosecution would have to prove a threat; a solicitor’s letter will speak for itself, and it will be for the jury to decide and judge its contents. Evidence will be necessary, of course, to prove intent, but that raises no more problems than in any other case in which intent has to be proved. Again, it will be a matter for a jury. An evidential burden would be placed on the defendant to raise a reasonable excuse for the prosecution to disprove, and the ultimate burden of proof of guilt would, of course, rest with the prosecution.

I believe that an offence of this nature, simply stated, would immediately result in a change of culture among those reputation lawyers who profited from this type of litigation. Their collective response to the consultation to which I referred was, “Nothing happening here, guv. Threatening? Oh, it’s just the rough and tumble of ordinary litigation”. No longer would the young Turk in the office be able to dash out on his laptop ill-considered threats. He would know that he will have a responsibility to interrogate his client thoroughly before committing his firm to intimidating conduct which would land both him and his senior partners in the dock, with all the reputational consequences for themselves. Further, it would be a great relief to threatened investigative journalists if, instead of having to consult their lawyers at considerable expense, they could make a complaint to the police and allow the criminal law to take its course. We can make this change now and let the great stew of reform of the civil procedure system which is slowly cooking in the MoJ follow “when parliamentary time allows”.

I conclude by strongly supporting the other amendments in this group for the same reasons. These are creating the means to tackle the SLAPPs problem of imbalance, as described in paragraph 15 of the Government’s response to the consultation. This is how the Government put it:

“the extreme power imbalance and inequality of arms between, on the one hand, media organisations, advocacy groups, academics, and journalists and, on the other, Claimant corporations or wealthy individuals who typically bring these cases”.

This group of amendments is designed to do something now—action, as the noble Lord, Lord Agnew, called for on an earlier amendment. I beg to move.

[Lord Garnier (Con)]

My Lords—

--- Later in debate ---

[Lord Garnier (Con)]

Before the next contribution, I apologise to the Committee but I must be in two places at once. I hope the Committee will forgive me for not being here when other speeches are made and the Minister winds up. If that is thought to be very rude, I shall sit here, and there we are, but if I may, would it be—

[Lord Thomas of Gresford (LD)]

It is unprecedented.

[Lord Garnier (Con)]

It is unprecedented and very rude of me, but there seems to be rather a lot going on at the moment.

--- Later in debate ---

[Lord Bellamy (Con)]

Absolutely. I will write to everybody after this debate and try to elaborate a little on what I have said. I hope noble Lords understand that in terms of my boss, I recently had a change of personnel, and it takes a little while to allow the dust to settle, if I may put it like that.

The only other thing I would respectfully draw noble Lords’ attention to, and I fully accept there is a certain amount of controversy as to how big this problem is, is that the Solicitors Regulation Authority issued a warning notice on 28 November 2022, which led to that authority undertaking investigations in relation to SLAPP complaints, so we are not without a regulatory instrument to at least hold the line until we are able to legislate. That, as far as one can tell, has had a salutary effect on the practical consequences of SLAPPs. It is not the case that nothing has been done.

[Lord Thomas of Gresford (LD)]

My Lords, the Minister said that the amendment which I have put forward criminalises access to justice. It does not do that; it criminalises a threat of litigation that is unwarranted and known to be unwarranted without reasonable excuse. It is perfectly simple, but I would be very unhappy to leave this Room today with the thought that the Minister has in mind that my amendment is criminalising access to justice.

[Lord Bellamy (Con)]

My Lords, perhaps I expressed myself a little loosely. Let me put it like this: in the Government’s view, this is not an area where we should introduce the criminal law, whether it is in relation to pre-litigation or in any other respect in terms of litigation. One is faced with a very basic question of when is something that is a robust and justifiable approach to litigation in a pre-action letter a threat. That is not straightforward, in the Government’s view. The Government’s view is that this is not a matter where the criminal law should intrude.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise to the Committee, I perhaps should have declared my position as co-chair of the All-Party Parliamentary Group on Hong Kong in my last intervention.

[Lord Thomas of Gresford (LD)]

My Lords, I am grateful to Minister for his response and look forward to discussing these issues with him. I am grateful to all noble Lords who have spoken, and in particular to the noble Baroness, Lady Stowell. I commend her and her committee for the work they have done in investigation and taking evidence on this issue. I admire the guts and determination of the noble Lord, Lord Cromwell, and the fury of the noble Lord, Lord Agnew, on this issue.

I do not want to speak for too long: we have had a very long debate. The only dissenting voice was that of the noble and learned Lord, Lord Garnier. Your Lordships may recall that I said that, when the results of the consultation were looked at, the claimants’ lawyers were saying, “There’s nothing to see here, guv. It’s all the ordinary rough and tumble of litigation in this country”. The noble and learned Lord, Lord Garnier, referred to his experiences in the bear garden. I remember the bear gardens—I remember appearing in a bear garden for the leader of the Opposition in the Singapore Parliament; it was not an easy position. He was suing the Straits Times for libel, and the application to strike out was made on the grounds that he had no reputation in this country. When he died, some years later, he had obituaries in the Times, the Telegraph and the Guardian.

I know the games that these media lawyers play. They do not face up to some of the realities that we in the criminal courts perhaps have to face from time to time. But I have the highest regard for the noble and learned Lord, Lord Garnier, in his professional capacity, so nothing that I say should be taken as derogatory to him—otherwise, subject to professional privilege, I might find myself in court.

--- Later in debate ---

[Lord Bellamy (Con)]

Just to clarify, as I said, the Government’s position is that it is not appropriate to introduce a criminal offence in relation to access to justice. It is not a question of just having another offence. Access to justice is a very important area, and we are on a slippery and possibly Orwellian slope if we start saying that it is criminal for someone to go to the law on some point. It is a very difficult area—that was all I said.

[Lord Thomas of Gresford (LD)]

So, according to the Minister, it is not criminal for a person to threaten litigation, with all the expense and worry that that involves and the way that it crimps the investigation of crime. He is saying that it is not unlawful and should not be criminal. There are criminal offences that cover conduct far less morally bankrupt than that, which is what I hope we shall discuss with the Minister before Report. For the moment, I beg leave to withdraw my amendment.

Amendment 80 withdrawn.

Nuptial Agreements

Lord Thomas of Gresford Excerpts

Tuesday 25th April 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I thank the noble Baroness for those birthday wishes. It is often said that life begins at 40 but experience shows that it is very much later than that. I very much hope that we will be able to legislate in her lifetime, if not my own. Prenups are undoubtedly an important issue. Since 2010, the law has been that there is a presumption in favour of enforcing prenuptial agreements unless it is unfair to do so. Secondly, although this is an important question, it affects a relatively small and privileged cohort, and it must take its place in the queue on that basis.

[Lord Thomas of Gresford (LD)]

The Minister refers to a small cohort. Has he any idea how many nuptial agreements exist as a percentage of those people who get married these days?

[Lord Bellamy (Con)]

My Lords, I do not have that information. I will see if I can find it and if I can, I will write to the noble Lord.

Offenders (Day of Release from Detention) Bill

Lord Thomas of Gresford Excerpts

2nd reading
Friday 21st April 2023 Lords Chamber

[Lord Thomas of Gresford (LD)]

Your Lordships will soon gather from my croaky voice that I returned from a northerly cruise on Wednesday with something of a cold. It was 10 days without responsibility. No money was used on board; at mealtimes, all I had to do was sway my way into the restaurant, and the food was there ready cooked. There was no lock on my cabin door—but, with the North Sea all around me, I was going nowhere. I could circulate on the top deck for as long as I liked; a lot of exercise went on there, but, fortunately, it was not compulsory.

Arriving back in Dover on Wednesday was a bit of a shock. I had to check my wallet to see if I had any money. I had to get myself to Dover railway station, pay for a ticket and find a platform and a train. I had to make decisions, get used to traffic again and rush to reach your Lordships’ House in time for a committee. I was away only 10 days. The problems for a prisoner being released after a lengthy period in prison are very serious. The shock of being propelled through the prison door into the community—into a world of decision-making—must be profound. I strongly support the Bill as a very sensible means of reducing that impact, and I congratulate the noble Lord, Lord Bird, and Mr Simon Fell on bringing it forward.

The Bill gives us the opportunity to talk about the critical step of release. I have spoken about Berwyn prison near my home in Wrexham many times in this House in very negative terms—its shortages of staff, the level of violence and the all-pervasive problem of drugs—but it is largely successful on the issue of release. The unannounced report of the prison inspectorate last year found that an average of 140 prisoners were released each month and that work to support resettlement was good. A workshop area—a resettlement hub—had been set up in a large open space with separate interview booths, bringing together all resettlement staff. The inspectors found that this was an excellent initiative,

“the best of its kind that we have seen recently”.

It was yielding promising early outcomes for prisoners nearing release, including job offers and improved outcomes for accommodation on release. In the hub, there are a range of resettlement services: a job centre, work coaches and housing support. Prisoners are supported in obtaining ID and in opening bank accounts. Job fairs are a regular feature, attended by local employers. The number of prisoners who gain employment on release has risen from 6% to 20%, and employers including Greene King, the Murphy construction group and Iceland are involved. An employment adviser helps connect prisoners to job opportunities, and a firm called Novus Cambria helps the men with their CVs, so opportunities to secure a job are there before offenders even set foot back into the community.

On accommodation, the prison is also successful. Currently, on the day of release, 85% of men are getting into prepared accommodation—the 15% who do not are referred to the local authority. The prison joined a construction industry training board pilot scheme, where offenders are trained in prison in trades such as bricklaying, plastering, joinery and welding. Components are manufactured in the workshops for affordable, environmentally friendly houses being built for more than 130 families in Ruthin and Llangefni on behalf of Williams Homes, and jobs are available with that firm on release. Next month, DesignLSM, in collaboration with the actor Fred Sirieix, will transform the food hall in the prison into a high-street business run by prisoners to provide them with the opportunity to gain qualifications and experience in hospitality.

Berwyn prison is the second-largest prison in Europe and the largest in the UK. It started off with good intentions of promoting rehabilitation. Cells were called “rooms” and wings “communities”, and internet was provided. There have been some appalling teething troubles, but the prison, its governor, Nick Leader, and his staff must be given full credit for the initiatives they have taken. I am sure that the Bill will be welcomed in that community.

Prison Officers: Retirement

Lord Thomas of Gresford Excerpts

Thursday 30th March 2023 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I strongly support the noble Lord, Lord Balfe, in his suggestion that there should be fresh talks about this issue. That is a sensible suggestion and I hope the Minister will take it up.

My father was a policeman. He retired in his mid-50s with the rank of chief superintendent, after 30 years’ service, on full pension. He told me that throughout his police career he had drawn his baton only once: in 1933, when called upon to charge a crowd of miners on strike at Bersham Colliery, near Wrexham. The only person hurt was a reporter from the Wrexham Leader, who had foolishly stuck his head over the hedge to see what was going on and was clacked, as we say, as the PCs passed. Apropos of nothing, the pit was later the film set for “The Corn is Green”, starring Katharine Hepburn in 1979.

I mention this because in the prison inspectorate’s May 2022 report on Berwyn Prison, only two or three miles away from Bersham, it is recorded in paragraph 3.20 that

“During the previous 12 months, batons had been drawn seven times”


to control prisoners, that an

“incapacitant spray … had been drawn and used once”,

and that this was an improvement on the position in 2019, when batons had been drawn 26 times.

I have referred to Berwyn Prison on a number of occasions in this House because it is close to my home. Opened in 2017, it remains the largest prison in the UK, and is the second largest in Europe, with a capacity of over 2,000 places—although I have to say that it has always been underoccupied and understaffed. It suffers from a drug problem, to the despair of the Crown Court judges in north Wales.

Last May’s report says that, at the prison,

“The rate of violence was falling, although it remained comparatively high when set against comparator prisons.”


It continues:

“Among the key challenges facing the prison was the need to recruit and retain staff … There was some evidence … that staffing pressures were undermining local morale, but crucially, the shortage was impacting the quality of staff-prisoner relationships and the pace of regime recovery.”


There was some improvement on figures dating from 2019, which I have previously referred to in the House. At that time, 90% of the staff were less than two years in post. In this report, it is noted that there was

“a severe shortage of band 3 officers, probation and health care staff”,

which

“affected the delivery of some services.”

I have discussed this situation with a very experienced prison officer from Parkhurst prison on the Isle of Wight. He told me that a lack of experienced prison officers at Berwyn prison was to be expected. He told me, “We watch each other’s backs as prison officers, and you will not get experienced officers into a prison staffed by rookies.”

There you have the background to this debate. Violence, or the threat of violence, is always there, yet the Ministry of Justice requires a prison officer to serve into his late 60s in a job which is probably beyond his physical capabilities. Of course, if he fails his annual physical test, the prison officer is allowed to retire but does not get his full pension. That saves the MoJ money—the noble Earl, Lord Attlee, has already covered that point—but it leads to poor recruitment and retention. It is said that the pool of labour to man Berwyn prison in north Wales has been exhausted, and the Prison Service has to look elsewhere, outside of Wales. I should include women, since there have been 18 instances of improper sexual conduct between female staff and prisoners, some of which have attracted heavy prison sentences on the women.

The Ministry of Justice refuses to equate prison officers with policemen or firefighters. It says that officers in those uniformed services make a higher contribution to pensions—again, the noble Earl, Lord Attlee, has referred to this; it is 15% as opposed to 5%—but of course they are paid significantly more than prison officers. I am sure that prison officers would welcome the same pay and conditions for the risks to personal safety which they constantly run. They are in the same position as police officers and are not allowed to withdraw their labour. Consequently, their bargaining position is open to exploitation by the Lord Chancellor, and that is what has happened.

Why was the Ministry of Justice the first to accept cuts to its funding and why does it remain incapable of persuading the Treasury to fund services for which it is responsible? As I recall, it was a grand gesture by the noble Lord, Lord Clarke, who wanted to be the first in Cameron’s Government to clutch austerity to his bosom. The consequence is that we have a justice system which is starved of funds, collapsing courts and barristers on strike. The backlog of cases is a disgrace which denies victims justice. On the other side of the coin are its responsibilities. The Prison Service is failing in safety, in combatting drugs and, most importantly, in providing adequate rehabilitation, all through the lack of trained and competent staff. It is easy for Dominic Raab to say that he will not address the question of the pension age when prison officers cannot strike. His legacy, I am afraid, will be failure.

Human Rights Act 1998

Lord Thomas of Gresford Excerpts

Thursday 14th July 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the noble Baroness, Lady Whitaker, not just on introducing this debate but on her lifelong attention to human rights. I am very pleased to have heard her speech today.

The ECHR, passed in 1950, set out a series of articles for the protection of human rights and fundamental freedoms. In the last 70 years, there have been just 16 protocols that have added to or amended those original articles. Unlike Parliament, which creates or amends statutes at will, it is clearly an impossible task to keep up with all the changes in the communities and societies of the disparate 45 countries represented in the Council of Europe. That this would be so was realised by the original drafters of the covenant, a team led by British lawyers. Their answer was to use the European Court of Human Rights not just to resolve human rights claims but, by its decisions, to keep the convention up to date.

From the very beginning, therefore, the European Court of Human Rights has frequently delivered decisions that were outside the original 1950 language of the articles. The technique that the judges of the court employ is called the teleological interpretation of the texts. That methodology has always been the predominant mode of interpretation in civil law jurisdictions and in public international law. No other approach is practicable if the law is to be kept up to date.

A former English judge, Sir Humphrey Waldock, who served as the president of the court for eight years, said in 1981:

“The meaning and content of the provisions of the Convention will be understood as intended to evolve in response to changes in legal or social concepts”.


That is the living instrument to which the noble Baroness, Lady Kennedy of The Shaws, referred. For example, the court in recent years—by reference to Article 2, the right to life, and Article 8, the right to family life—has developed the concept of a human right to clean air. That is the context in which the noble Baroness, Lady Jones of Moulsecoomb, presented her Bill last Friday, seeking to embed such a right as a human right expressly into the domestic legislation of the UK. The court’s judges continuously and conscientiously research the developing principles worldwide, whether from United Nations human rights committees, conventions or elsewhere, in order to establish a European consensus. There is nothing arbitrary about their method; they do not pluck things out of the air.

The purpose of the Bill that the Government have introduced is to turn the clock back. While not resiling formally from the convention, Section 3 (2) of the Bill says:

“A court determining a question which has arisen in connection with a Convention right … must have particular regard to the text of the Convention right, and in interpreting the text may have regard to the preparatory work of the Convention”.


That work was done in 1949 and 1950. That is, as the noble Baroness, Lady Chakrabarti, termed it, the originalist approach par excellence—and I suspect that the noble Lord, Lord Cashman, would not find reference to LGBTQ+ rights in the preparatory work done in 1949. Similarly, under Clause 3(3), the UK court:

“may adopt an interpretation of the right that diverges from Strasbourg jurisprudence”,

while under Section 5:

“A court may not adopt a post-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation.”


Post-commencement? It commenced in 1953.

Last October, the Lord Chancellor Mr Raab told the Telegraph on his appointment:

“I don't think it’s the job of the European Court in Strasburg to be dictating things … whether it's the NHS, whether it’s our welfare provision, or whether it’s our police forces … We want the Supreme Court to have a last word on interpreting the laws of the land, not the Strasbourg court”.


As he must know, UK courts are under no obligation to do more than take into account judgments of the European Court of Human Rights. They are not binding; the court does not dictate. What it does is set the standard of human rights for the 45 members of the Council of Europe.

It is the empty and useless rhetoric of the Tory party which lies behind this proposed British Bill of Rights, a false and dangerous belief in British exceptionalism. The Attorney-General Suella Braverman—I will not be as cruel as the noble Lord, Lord Carlile, with regard to her recent deposition—displayed her narrowness of vision and total lack of understanding when she demanded in the course of her approach to becoming premier that the UK withdraw from the European convention altogether. What understanding of the law is that in our Attorney-General?

A much nobler cause is surely to promote and support a common standard of human rights—the universal rights to which the right reverend Prelate the Bishop of St Albans referred. That is the reason why Russia has been expelled from the Council of Europe, as my noble friend Lady Ludford mentioned. It is the cause which Winston Churchill, a Conservative premier who—perhaps the noble Lord, Lord Morgan, will agree—never lost his Liberal roots, took up in the aftermath of the Second World War. This Government are turning their back on history.

--- Later in debate ---

[Lord Bellamy (Con)]

My understanding is that, in these circumstances, any necessary change to the legislation will be brought back to Parliament through the machinery of a statutory instrument, and required to be laid before the House by affirmative resolution. There is every ability for Parliament to determine what should then be done, so it is a balance between the legislature and the judiciary, and not, in the Government’s view, between the judiciary and the Executive, but let us explore that point further in due course.

Secondly, public authorities remain bound by the convention, as is set out in Clause 12. The main change here is in relation to this question of “positive obligations”; that is a conceptual issue which is being addressed in Clauses 5 and 7. Essentially, the underlying issue is: should human rights law under the convention develop a kind of de facto legislative or quasi-legislative content, with potentially serious implications for public expenditure or giving one policy objective priority over another, or are those kinds of decisions for the elected Members of the legislature? Where does the balance lie between the electorate, the whole process of elections, and democracy, on the one hand, and, as it were, judicial interventions on the other hand? That is, in my submission, a conceptual issue, which we should in due course grapple with. That is going to be, and is, the issue of the separation of powers.

Finally, in this brief response I draw attention to a third theme, hardly mentioned today, which is the reinforcement in the Bill of the Government’s commitment to freedom and human rights in the widest sense: freedom of speech under Clause 4, jury trial under Clause 9, the protection of journalists’ sources under Clause 21. There are many points that could be made, but I hope that that brief and admittedly high-level summary at least helps convey why the Government argue for the constructive balance that the Bill aims to achieve. It is not, in the Government’s view, weakening human rights; it is enhancing public confidence in the whole structure. One has to realise that not everybody is as convinced of the value of the Act as it now stands as are some of the noble Lords who have spoken today. This will, in the Government’s view, enable greater public confidence to be maintained in the human rights structure. This is not a new issue—

[Lord Thomas of Gresford (LD)]

To what would the Minister ascribe this lack of public confidence? Is it the sayings of the Lord Chancellor, or of Suella Braverman? Why is there a lack of public confidence in human rights in this country?

Parole System: Public Protection

Lord Thomas of Gresford Excerpts

Tuesday 5th April 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am commenting on the Statement in the House of Commons on the parole system and public protection. The Government have said that they will legislate for a new precautionary approach to the release of a top tier of the most serious offenders. They have said that there will be a more proscriptive release test. In the Labour Party, we support this approach in a broad sense but we have some questions.

First, who did the Government consult and what evidence are their proposals based on? Having looked at it, there seems to be very little, if any, citation in this report, which calls itself a root-and-branch review of the parole system. The Parole Board will be required to apply a precautionary approach in the top-tier cases, meaning that if it cannot conclude that the release test is met, it must either refuse release or refer the case to the Secretary of State. What is the estimate of the number of extra cases which the Secretary of State is likely to receive? What are the cost implications for legal aid, the cost of the new Upper Tribunal appeal model and the cost of internal civil servant resourcing to review the top-tier offender cases?

Another resource question is around the likely increase in time served by this group of prisoners. What modelling has been done on this increased cost? These proposed reforms may well increase prisoner discontent due to the increased difficulties in obtaining parole in a timely manner and the perceived unfairness in the way in which different prisoner categories are treated. Has this potential problem been modelled?

Proposed changes in legislation will increase the number of Parole Board members from a law enforcement background and ensure that such members sit on panels in top-tier cases. Can the Minister confirm that these new members could be serving or retired police officers? Does the Ministry of Justice anticipate any recruitment or retention problems with this new model?

The proposed new Parole Board rules will make it possible for public parole hearings in some cases and, for the first time, will allow victims to apply to attend hearings in full, if they wish. In general, we support this too, but it needs to be very carefully handled.

What about special measures for victims and/or prisoners, or remote attendance via a video link? In my experience of remote and hybrid hearings, they can be effective but need to be managed very carefully. A possible unintended consequence is that the Parole Board may not have a full and frank discussion with the prisoner at the hearing about their likelihood of release if the victim is present. Is this something the Ministry of Justice has factored into its thinking?

There are proposed new processes for the transfer of life and other indeterminate sentence prisoners to open prison conditions. This would deliver greater ministerial scrutiny of cases where prisoners have committed the most serious offences. As the noble Lord will know, there are recent examples where serious offenders have absconded from their open prison, which has been of great concern to the local community. Nevertheless, open prisons can be an important part of an offender’s rehabilitation, especially at the end of a long sentence. Does the Minister agree that transfer to an open prison should be seen as a privilege and not a right? Does he have an estimate for the number of extra prisoner transfers which would be considered by the Lord Chancellor?

Finally, I question whether the Ministry of Justice has sufficiently thought through the implications of a system that has the Secretary of State as the public face of parole and the ultimate arbiter in decisions. One could argue that there is a significant reputational risk to the Government, the Secretary of State and the Ministry of Justice from being put in this position. Does the Minister agree that this is a risk?

[Lord Thomas of Gresford (LD)]

My Lords, the Statement says that

“there is no such thing as a risk-free society; we cannot guarantee that no one released from prison will go on to commit a serious crime. Let us be very clear about that as we have a more honest debate about the assessment of risk”.—[Official Report, Commons, 30/3/22: col. 831.]

Well, let us have an honest debate. In 2020-21, the Parole Board conducted over 6,000 oral hearings and considered over 20,000 paper applications. A record 16,443 cases were concluded, and 4,289 prisoners were released, while 11,437 remained in prison for the protection of the public.

Who made these decisions? The Parole Board consists of over 300 members: 169 independent members from all backgrounds, all jobs and all parts of the country; 61 judicial members such as Crown Court judges or retired judges with a lifetime experience of the criminal justice system; and 68 psychologist members and 35 psychiatrist members with active careers in the prison system. It is, you may think, an experienced pool of people to assess risk.

What percentage of prisoners released by the Parole Board have committed further serious crime? The Parole Board itself said in an earlier report that the percentage of offenders who committed serious further offences in 2018-19 following a release decision or a move to open conditions was 1.1%. Can the Minister give a more up-to-date figure? If that is correct, it suggests that the professional and experienced Parole Board gets it as right as you would expect in its assessment of risk. As the Statement says,

“there is no such thing as a risk-free society”

and it cannot be guaranteed that no one will reoffend.

But the Parole Board, unlike a court or tribunal, is quasi-judicial. That means that politicians can interfere and get their hands on its decisions. That is what is happening here. The Government promise to provide

“further detailed criteria for … the statutory test.”

The statutory test is that the Parole Board

“must not give a direction”—

for release—

“unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

So my second question is: what “further detailed criteria”? Why are we not told today if this is necessary? This Statement, I suggest, is all bluster with nothing thought through.

The Statement goes on:

“In cases involving those who have committed the most serious crimes, we will introduce a ministerial check on release decisions, exercised by the Justice Secretary.”


Well, there have been nine Justice Secretaries since 2005, with an average tenure of 21 months and two of them for less than a year. Five of the nine were non-lawyers. When justice was in the hands of the Lord Chancellor in this House, it was the pinnacle of his career; he did not need to look for further ministerial office. Today, Justice Secretaries move on from their comparatively small departments: consider Liz Truss or Michael Gove, for example, whose political ambitions may not even now have been fulfilled.

The current Justice Secretary is a lawyer. His page on the government website says:

“Dominic started his career as a business lawyer at City law firm Linklaters, working on project finance, international litigation and competition law.”


He later worked in Brussels. You might think that that was not the best training for the assessment of the risk of reoffending by an offender. Let us contrast that experience with that of the Parole Board members, which I have outlined. Has Mr Raab ever been in a criminal court—except to close it down or, if it is new, perhaps to cut the tape—or a prison? Is he the man to second-guess the decisions on risk taken by the highly experienced Parole Board? That is what is being thrust upon us.

The Statement declares that only 5% of the Parole Board come from “a law enforcement background”. Well, they do include a number of retired chief constables and prison governors. What is the Government’s intention? They say it is that members will

“have greater first-hand operational experience of protecting the public from serious offenders.”

The Statement also suggests that one such law enforcement person should sit with two other members on each hearing to form a tribunal. Does that mean that we can now expect a flood of police and prison officers to be appointed? Is the whole purpose of this alleged reform to skew the Parole Board towards negative decisions?

An alternative apparently being considered is that the Justice Secretary should sit as a judge with two assessors when he makes his decision. Is he serious? Personally, I think it would be an excellent use of his time to have direct experience of all the things that he is responsible for: the delays, the listing, the adjournments, the frustrations and the raw emotions of victims and the families of defendants. He would then discover that he is dealing with real people, mostly from disturbed backgrounds—people with problems and illnesses. I think he would then turn for help to psychologists and psychiatrists, and perhaps even to experienced judges. Perhaps he would create his own personal parole board to advise him. “Sit, sit”—I invite him to do so.

So the truth is that this Statement is not oven-ready. It aspires to be half-baked, but the central filling has not been decided on. Still, we are coming up to the end of the Session, and a few headlines for the Justice Secretary are very acceptable when his career has not finished.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

Well, my Lords, I do not know whether my career has even begun, but I will respond to the points that were made, dealing first with the questions from the noble Lord, Lord Ponsonby of Shulbrede. I should say first that I am grateful for his broad support for the thrust of what we are seeking to do. As to consultation, the department has consulted extensively throughout the review. We had a public consultation on opening some parole hearings to the public, including discussions with a wide range of practitioners and experts. Round tables and individual discussions with stakeholders with in-depth knowledge and understanding of the parole process were held, and these informed some of the outcomes of the review.

Some of the consultation regarding the victims Bill was also relevant here because it went to the issue of victim participation. Regarding the number of officials who would be working on this, the cost thereof, and the resource points that the noble Lord made, I say that modelling and costs are to be worked through in detail as the legislation is developed. A full impact assessment will be published when the legislation is introduced.

So far as potential unfairness is concerned, a point which I will come back to when I respond to the noble Lord, Lord Thomas of Gresford, one of the issues here is that whichever of the two models to which he referred we end up putting in place, there is always court review. That is built in, to ensure that there is no substantive unfairness and that the system is compliant with our convention obligations, particularly Article 5.4.

Remote hearings were raised by the noble Lord, Lord Ponsonby, and in particular the involvement of victims. During the pandemic, the Parole Board made extensive use of virtual hearings and has indicated that it will continue the practice. It has also resumed traditional oral hearings and it will be for the Parole Board to ensure that all representations can properly be made. For example, if there were representations, or the victim wanted to say something either with or without the offender there, it would be up to the Parole Board to ensure that the proceedings were substantively fair to all parties.

I respectfully agree with the noble Lord that being moved to an open prison is indeed a privilege and not a right. They are a valuable resource supporting successful and safe resettlement into the community of prisoners who have been suitably risk-assessed, but only those prisoners identified as being appropriate to hold in lower security conditions should be moved to an open prison. Although in this context the Parole Board makes a recommendation, the final decision is for Ministers. In December, the Lord Chancellor took the decision to require greater scrutiny of Parole Board recommendations on open prison moves and will now oversee the decisions in the most high-risk cases personally, those being offenders who have committed murder, other homicide, rape, and serious sexual offences or cruelty against a child, and in cases where officials do not reject a recommendation from the Parole Board, Ministers will consider the recommendation of the Parole Board.

The final point that the noble Lord made was of the Secretary of State being the final arbiter and whether that meant that there was a reputational risk for the Secretary of State. There are two points. First, as to the ultimate arbiter, this brings into play the fact that there is a court oversight to ensure that the system is procedurally fair, so to that extent the Secretary of State is not the ultimate arbiter as there is court involvement as well. However, I respectfully take the noble Lord’s point about reputational risk. The flipside is that ultimately, it is Ministers’ responsibility to ensure that dangerous offenders are not released on to the streets and so, if I may put it this way, it is quite right that the buck stops with elected Ministers.

I turn now to the points made by the noble Lord, Lord Thomas of Gresford. I accept, as the Lord Chancellor made clear in the other place, that the Parole Board has a great deal of experience and generally does a good job. The majority of parole decisions are unproblematic. That is why these reforms apply only to offenders who have committed the most serious offences. However, there have been cases involving the release of the most serious offenders which have given rise to significant public concern and undermined confidence in the system: Pitchfork, Worboys and others. Therefore, this is not a case of politicians interfering, which I think was the verb used by the noble Lord. As I said a moment ago, politicians have a duty to protect the public and it is quite right that they step up, so to speak, and ultimately take responsibility for the system and those very risky or higher-risk decisions.

So far as a test is concerned, the test in legislation was set out in the substantive Statement but is worth bearing in mind. It says:

“The Parole Board must not give a direction”


for release

“unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

However, the courts have interpreted that and, to be fair, one can see why. In particular, in the case of Bradley in 1991, a court judgment stated that the role of the board is to

“carry out a balancing exercise between the legitimate conflicting interests of both prisoner and public”.

Therefore, the statutory test has changed to become a balancing exercise between the rights of the prisoner to be considered for release and the responsibility of the state to protect the public. I suggest that that was not the original intention of Parliament.

We propose to set out release test criteria. The noble Lord asked what they were. I could read them out, but, if he will forgive me, I will drop him a note setting them out, which will then be available, rather than read them all into Hansard, so to speak. I hope that is satisfactory.

Some Justice Secretaries may have political ambitions —I am responding as somebody with no political ambition and very little of a political career—but, as I said, the ultimate decision does not rest only with the Justice Secretary; there is court involvement. There are two models being looked at. The first would be for Ministers personally to take the decisions. In that case, there would be a route of appeal to the Upper Tribunal. The second would be to create a new review panel to take the decision, which would comprise the Secretary of State and two independent panel members. Decisions by this panel could be challenged through judicial review. Either option introduces ministerial oversight into the release decisions of the highest-risk offenders to keep people safe and to give public confidence in the system. Also, either alternative would be lawful under the convention, in particular Article 5(4), which says:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”


We are confident that either model would be consistent with those obligations.

I hope that I have responded to all the substantive points made, but I will check the Official Report and when I write with the criteria, if there is anything I have not picked up, I will add it to that letter.

Judicial Review and Courts Bill

Lord Thomas of Gresford Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

What matters—I am sure that the Minister will agree—is that we find mechanisms to produce good-quality data on the factors driving suicides so that we can try to devise strategies to reduce the number of suicides. This amendment contributes to that goal. I look forward to hearing what the Minister has to say.

[Lord Thomas of Gresford (LD)]

My Lords, I want to say how much I support the right reverend Prelate the Bishop of Albans in his campaign against gambling. He is energetic in that cause, and I very much respect him for it. He comes up against the nature of inquests, hallowed over many years, which are restricted to inquiring who, where and when. They do not even include the question that is emblazoned upon my family crest: ar bwy mae’r bai—“Who can we blame?”

When we leave this building, we should look at Westminster Abbey and realise that it was not built at the time that the procedures of inquests were begun. The coroner remains in charge of his inquest. He may discontinue, he may decide the inquest on the papers, or he may utilise audio or visual means to do so—all he has to do is notify interested parties that the coroner is satisfied; those are the statutory words. He does not have to give reasons. In particular, he does not have to have the consent of the family members—those who are bereaved and for whom an inquest is a most important matter in their lives. I support the amendments in the name of the noble Baroness, Lady Chapman, which, very sensibly, require the consent of interested persons to the coroner making his decisions in the areas that I referred to, and require him to give reasons for those decisions. I leave it to others to expand.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments is about legal aid provision for bereaved people in inquests. The new clause introduced by Amendment 25 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation in inquests, where public bodies such as the police or a hospital trust are legally represented. The new clause introduced by Amendment 26 would remove the means test for legal aid applications for legal help for bereaved people at inquests. The new clause introduced by Amendment 27 would bring the Legal Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of “family” used in the Coroners and Justice Act 2009.

This is a very important group of amendments and it is my intention to test the opinion of the House on Amendment 25. As Inquest and others have warned, the new coroners’ provisions contained in this Bill could exacerbate the difficulties already faced by bereaved families who are not eligible for legal aid during the inquest process. It is therefore more imperative than ever that an amendment be accepted to finally introduce equality of arms to inquests and provide automatic, non-means-tested public funding for bereaved families and people where the state is an interested person.

The current funding scheme allows state bodies unlimited access to public funds for the best legal teams and experts, while families often face a complex and demanding funding application process. Many are forced to pay large sums of money towards legal costs or represent themselves during this process; others use crowdfunding. The Bill represents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authority interested persons. It is no longer conscionable to continue to deny bereaved families publicly funded legal representation where public bodies are legally represented. It is a very simple point, which has been made in numerous previous Bills. We have an opportunity here. I beg to move Amendment 25.

[Lord Thomas of Gresford (LD)]

My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.