Competition Appeal Tribunal (Coronavirus) (Recording and Broadcasting) Order 2020

Lord Thomas of Gresford Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I thank the Minister for his clear exposition. The Competition Appeals Tribunal may well be more prominent in the near future, for two reasons. First, if we are facing the economic slump that is predicted due to the pandemic, we are likely to see a number of firms go to the wall unless merged with larger organisations. This may well lead to interventions by the Competition and Markets Authority on the issue of unfair competition or dominance of markets. As the noble and learned Lord said a moment ago, appeals from the rulings of the CMA go to the Competition Appeals Tribunal. Secondly, when we finally leave the European Union at the end of the transitional period, in January, the tribunal will lose jurisdiction over cases involving the two competition articles of the Treaty on the Functioning of the European Union: article 101, on anti-competitive agreements; and article 102, dealing with abuses of a dominant market position. The tribunal will lose the right to refer issues for a ruling by the European Court of Justice.

Nevertheless, British companies or individuals whose activities may affect trade within the EU will still remain subject to European competition law. This will include such sectors as agriculture, fisheries and transport. I assume that any conflicts or problems will be litigated in Europe. I fear this will lead to a loss of our leadership role in developing competition law, not only in Europe but in the world. The tribunal’s excellent president, Sir Peter Roth, has contributed much to spreading principles of competition law derived in this country at forums and seminars worldwide.

The nature of the issues litigated in the tribunal are broad. The tribunal is a specialist judicial body with cross-disciplinary expertise in law, economics, business and accountancy. That is reflected in the composition of the hearings, where two members with diverse backgrounds—in business and academia—sit with a High Court judge as chairman.

Its function is to hear and decide cases involving competition and economic regulatory issues. It deals with some 25 to 30 cases a year, some of which are multifaceted and complex, and others much simpler. The consequences for a firm can be drastic: fines of up to £44 million have been imposed. For the individual it can lead to director disqualification, claims for damages or even criminal proceedings. Many cases require quick decisions: when the viability of a business is at stake, delays may be disastrous. This is recognised by the fast-track procedures within the tribunal’s rules.

I have outlined its scope to indicate that it is obviously highly desirable, on the principle of open justice, that the tribunal sits in public. That is fully recognised. The circumstances in which it can sit without the presence of the public or press are even more limited than in the jurisdiction of the Upper Tribunal or First-tier Tribunal. Indeed, it is expressly against the rules of the CAT to sit in private, save in exceptional circumstances. However, the pandemic has meant that hearings have been restricted to parties who are specifically invited to attend a virtual hearing—we are used to that. This is obviously highly unsatisfactory and could lead to legal challenge.

This statutory instrument is limited in scope and in time. We welcome it as it will allow tribunal cases to be heard in the most open and transparent way possible and will facilitate public access and scrutiny. We give it our full support.

Northern Ireland Act 1998 (Section 75 —Designation of Public Authority) Order 2020

Lord Thomas of Gresford Excerpts

Wednesday 8th July 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, this is the first time that the Independent Monitoring Authority for the Citizens’ Rights Agreements has peeped over my particular parapet. The Minister may recall that it was in the course of debating a Northern Ireland order with him almost exactly a year ago that I sank back to the Bench and missed the next six months of rather exciting parliamentary activity. I have missed the House perhaps rather longer than the noble Lord, Lord Patten. I did not mark the statutory basis for the authority in January in the plethora of all the other issues. As the noble Baroness, Lady Bennett, said, this may be the first time that the House has looked at this authority.

I fully understand why this order is necessary under the Northern Ireland Act 1998. This statutory instrument highlights the necessity of expressing formally the principles of equality in Northern Ireland in the highly sensitive areas of religion, politics, gender rights, sexuality, disability and so on. What I am not clear about is the ambit of the Independent Monitoring Authority. It is a very substantial new body, set up to protect the rights of no fewer than 3.5 million EU citizens in the United Kingdom, as guaranteed by the agreement negotiated for withdrawal last year. The setting-up cost, according to the impact assessment report, is £145 million, with an annual running cost of £15 million, involving the salaries of the chief executive and others of perhaps over £200,000—approximately the remuneration of a High Court judge.

Naturally, I am glad to hear that it is proposed to open in Swansea—I cannot think of a better place—and that recruitment is going ahead. Recruitment should be going ahead since it will have to be operational by the end of the year. As I understand it, the duties of the IMA are not just to monitor the settled status programme run by the Home Office but to oversee the entire body of social welfare and employment rights across a number of government departments.

If that is its remit, it is absolutely necessary to be seen to be independent of government. It has fallen to the lot of the Department of Justice to oversee its operations. But is it a judicial body? In answer to a complaint from an EU national, does it do any more than make representations or recommendations to public bodies and produce the occasional report or comment on legislation? Does it have any power to enforce the rights of complainants if the authority finds that they have been breached?

I understand that it will be entitled to take proceedings for judicial review on behalf of any European national against any public body that does not accept its recommendations—but that is a discretionary remedy and, if pursued in large numbers, could be a very heavy burden on the courts. After all, the number of EU residents in the UK supported by the authority exceeds the entire population of Wales and is double that of Northern Ireland.

I note with some concern the reservations of the noble Lords, Lord Hain and Lord Empey, about the appetite of this Government to uphold the rights of existing citizens in Northern Ireland, never mind EU citizens. The noble Baroness, Lady Ritchie, referred to the problems arising under the victims’ pension fund and the delays that have occurred.

We hear that the Department of Justice has appointed its chief executive officer, but I share the concerns expressed by my noble friend Lord Bruce on the independence of its chairman and non-executive members and on the power of the Minister to abolish it altogether by secondary legislation, as the noble Lord, Lord Wood, pointed out.

Will the devolved Administrations and Gibraltar be represented, and how will the non-executive members be chosen? Reading the legislation, I thought that it was that body which would appoint the chief executive and the staff, subject only to the approval of the Department of Justice—but it seems to have gone ahead anyway.

Finally, the IMA is set to be operational on expiry of the transitional period. It seems increasingly likely that Great Britain, if not Northern Ireland, will leave the ambit of the European Union without a deal in less than six months’ time. Can the Minister tell us whether the rights of EU citizens, as negotiated, will be upheld in the event of no deal? If not, what will be the position of the Independent Monitoring Authority? Will it differ in Northern Ireland, which will effectively still be within the ambit of EU in fact, if not in form? Can the Minister confirm that subjects of the Crown from Northern Ireland who reside in Europe will lose the benefit of their rights as EU citizens and will have to rely on such rights as were negotiated in the withdrawal agreement? I look forward to the Minister’s response.

Prisoners (Disclosure of Information About Victims) Bill

Lord Thomas of Gresford Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

I hope very much that, when he comes to reply, the noble and learned Lord will set out as clearly as he can what guidance has been given to the Parole Board about how it should deal with these cases under the statute, and will answer the various questions the noble Baroness has put to him. I hope, too, that his mind is not entirely closed to the possibility of addressing this difficult issue by an amendment at Third Reading if it seems, on further reflection, that this would be a better way to proceed.

[Lord Thomas of Gresford (LD) [V]]

My Lords, first, I wish to associate myself with the expressions of support and sympathy of the noble Baroness, Lady Bull, for those who have campaigned so strongly and so well for the Bill to be brought before the House. It is a very important Bill.

Secondly, I support these amendments because the ability of a prisoner to recall what has happened is, of course, paramount and of considerable importance when the Parole Board is considering its decision. I hope your Lordships will forgive me if I keep my further observations for the second group of amendments, which I will be speaking to in a moment.

[Lord Garnier (Con) [V]]

My Lords, we have discussed the arguments behind these amendments in Committee and, to some extent, at Second Reading. I am not sure that much has changed since. For my part, while I entirely accept the motives and intentions of those behind the Bill itself, as well as the amendments in this first group, I remain sceptical about the utility of the Bill as an addition to the criminal law. That said, I have every sympathy—who would not?—for the living victims of the abhorrent criminals covered by the Bill, and know why they, and those who support the Bill so enthusiastically, want it enacted. I am sure it will be very soon.

Both the Minister and my noble and learned friend Lord Mackay of Clashfern were not favourably impressed with my suggestion of a discrete criminal offence. From memory, only the noble Lord, Lord Adonis, was prepared to agree with me about the value of the Bill in its current form. My suggestions have now sunk below the waves and can be forgotten. However, I urge the House, despite the experience and wisdom of those supporting these amendments relating to the offender’s state of mind—either through the greater emphasis demanded of the Parole Board in Amendment 1 of the noble Baroness, Lady Bull, or through a Newton hearing under Amendment 3 in the next group, proposed by the noble Lord, Lord Thomas of Gresford—not to curtail the Parole Board’s independence and discretion.

As I indicated in our earlier debates, I would like the Parole Board’s work to be more accessible to the public. Despite the powerful analysis of the noble Baroness, Lady Bull, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, I agree with the Minister’s argument in Committee—which he seems to have repeated in his meeting with the noble Lords—that the Bill in its unamended form enables the Parole Board to fully consider the offender’s state of mind and their reasons for not disclosing the requisite information.

As was pointed out in our earlier debates, when considering the public safety implications of permitting a long-sentenced offender to return to the community, the Parole Board is looking at information and coming to a decision many years after the offence and the trial. A finding made by the trial judge shortly after the verdict about the offender’s failure to disclose the site of the victim’s body or—as the noble and learned Lord, Lord Hope, properly reminded us—the identities of children in criminal images is valuable, and will surely be brought to the Parole Board’s attention, as will be the effect of that finding on the judge’s sentence. However, as the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out in Committee, we need to be careful not to confuse punishment for the original crime and the public safety implications of the prisoner’s much later release.

It must seem to many noble Lords that, not for the first time, I have got to the church by way of the moon. However, in short, let us leave the Bill as it is. It will be no more effective if amended.

--- Later in debate ---

Moved by

[Lord Thomas of Gresford]

3: Clause 1, page 1, line 20, at end insert—
“(c) where a Newton hearing took place before the trial judge prior to the prisoner’s sentencing, any findings of the judge as to the reasons for the non-disclosure, including the mental capacity of the prisoner.”Member’s explanatory statement
This amendment requires the Parole Board to take into account the findings of a Newton hearing (a short hearing held before a judge without a jury to resolve disputed facts before sentencing) regarding the prisoner’s reasons for non-disclosure, if one was held after a verdict or plea of guilty.

[Lord Thomas of Gresford [V]]

My Lords, the issue that my amendments seek to address is to determine how the withholding of information is to be judged a factor mitigating against the release of a prisoner on parole. The Parole Board makes a public protection order and, as the noble and learned Lord the Minister reminded us a moment ago, it must not give a direction for release unless it is satisfied that it is no longer necessary for the protection of the public that the person should be confined.

This Bill requires the Parole Board, in making a public protection decision, to take into account, first, the prisoner’s non-disclosure of the whereabouts of the remains of a victim in murder and manslaughter cases or the identity of victims in the case of indecent images and, secondly, the reasons, in the view of the Parole Board, for the prisoner’s non-disclosure. The Parole Board must take on the difficult task of investigating the reasons for non-disclosure many years after the event, after the tariff period has expired—which, typically in murder cases, is 15 to 20 years. This lapse of time makes it unsatisfactory from the board’s point of view and, I would suggest, from the public’s point of view. But it is also unsatisfactory from the prisoner’s point of view because, although the proceedings affect his liberty, the onus is on him to satisfy the board that he has a proper reason, no doubt on a balance of probabilities.

Secondly, he will probably not be represented. He is entitled to have representation by a solicitor, but legal aid is very limited. He is of course required to set out his case in writing in advance of a hearing on reading the dossier that is sent to him, with or without the help of a solicitor or a friend. Thirdly, if the issue is one of mental capacity, he will of course have great difficulty in representing himself and he has no appeal, save for the discretionary and difficult route of judicial review.

It is highly unsatisfactory also from the point of view of the victim or the victim’s family. First, the prosecution is not represented. Unless the board itself steps into the arena at a hearing, assertions made by the prisoner will not be subject to proper challenge. Secondly, the victim or the victim’s family have a very limited role—nothing save to supply either in writing or orally a victim statement of the impact of the crime on them. Thirdly, the proceedings are, for good policy reasons, held in private—but that means that the issues which are discussed do not receive the light of day.

These difficulties were highlighted by the noble and learned Lord, Lord Garnier, at Second Reading. I am sorry to see that he has now found his way to the moon. His proposed solution, of having a second jury to investigate the reasons for non-disclosure post trial, was impractical, as I think he himself has admitted. He was suggesting that a consecutive sentence should be imposed which would come into effect at some indeterminate future date, presumably after the Parole Board had made a decision to release the prisoner. A consecutive sentence after a mandatory life sentence would not by definition be appropriate. However, although he has resiled from his position, his suggestion that the reasons for non-disclosure of information should be investigated at the time of the trial is obviously very sensible. At that moment, the judge is apprised of the circumstances of the case, as are both the prosecution and the defence.

What is the appropriate mechanism? I have suggested a Newton hearing. My amendments do not make the holding of a Newton hearing mandatory, but they do encourage the holding of such a hearing if there is a dispute about the reasons for non-disclosure at the time of the trial. For example, it might be the mental capacity of the accused or, as I suggested in Committee, where the defence is, “Well, I was part of a group and I do not know what happened to the body; I was not party to its disposal.” They also deal with the situation where a prisoner might seek to argue a subsequent loss of mental capacity: “I cannot remember now why I could not remember at the time of the trial.” That is not a very persuasive argument for meriting release in any event. I suggest that, before sentencing, the judge should inform the defendant, if it be so, that he is sentencing on the basis that critical information is deliberately being withheld, unless the prisoner wishes to contest that assumption. If the prisoner does not, that is the end of the matter. Fifteen years later the prisoner can hardly with success raise reasons for his non-disclosure which he was not prepared to adduce before sentence. However, if he does contest the basis of his sentence that the judge has indicated, a Newton hearing is entirely appropriate.

The purpose, principles and procedure of such a hearing were thoroughly explored by the noble and learned Lord, Lord Judge, then Deputy Chief Justice, in 2003 in the case of Underwood and others. That case has been followed in a recent case in the Divisional Court last July. The noble and learned Lord, Lord Judge, said:

“The … principle is that the sentencing judge must do justice. So far as possible the offender should be sentenced on the basis which accurately reflects the facts of the individual case.”


He said of the 1983 Newton case, which gave rise to this procedure, that it was

“a classic example of an imperative need to establish the facts. To proceed to sentence without doing so, would have been productive of injustice.”

It may be said—the Minister may say it—that the issue could be resolved before a jury by charging an accused in addition to murder or manslaughter with the common law offence of preventing the lawful and decent burial of a body. There is no point in so doing. Any sentence for such a common law offence would be bound to be of a lesser magnitude and would run concurrently from the day it was imposed. It might very well prevent the judge increasing the tariff on the main charge by reason of the aggravating factor of concealing the body, for which he has just imposed a sentence of imprisonment.

I recall the “mummy in the cupboard” murder case in Rhyl in 1960, which drew international attention. The defendant, a boarding house landlady, had stored the body of a tenant of hers in a cupboard. It was 20 years before it was discovered in a mummified condition. The issue at trial at Ruthin assizes was whether the stocking around the deceased’s neck had been used to strangle her. There is no evidence that the material was stretched. The ferociously intense cross-examination of Andrew Rankin QC is etched on my memory as one of the most dramatic court scenes I ever witnessed. Andrew was then a Liverpool junior—perhaps he was the Rumpole of the north—and the expert Crown pathologist he was questioning passed out completely and ended up in a crumpled heap on the floor of the witness box. The defendant was acquitted of murder but convicted, not of the common law offence of preventing a lawful burial—which had not been brought but of which she was clearly guilty—but of collecting the £2 a week that the deceased’s husband had posted to her in the belief that she was alive. That was just over £2,000 over 20 years. She received 15 months’ imprisonment.

As for failing to disclose the identity of children pictured in indecent images, there is no separate offence. No criminal offence is committed by such failure and the accused is not obliged to say anything unless he or she wishes to do so, so that is not an appropriate alternative route. However, in any event, such an argument of adding an additional count cannot be made where there is a plea of guilty: if there is no trial, there is no jury. Where there is serious disagreement between prosecution and defence as to the basis of a plea, a Newton hearing is essential and commonly held.

I have looked at the current sentencing guidelines. There are listed four statutory aggravating factors, such as offences against emergency workers or those committed because of homophobia. I have also looked at the list of 21 other aggravating factors in the sentencing guidelines, none of which includes the concealment of information of the nature with which the Bill deals. The list is said to be non-exhaustive, but it illustrates the importance of the Bill. The campaigns have found a chink, as the noble Baroness, Lady Bull, said, which deserves to be filled.

I therefore commend these amendments as providing a sensible, contemporary—at the time of trial—resolution of issues which would be difficult for the Parole Board to determine 15 or 20 years later. Of course, I pay tribute to the Parole Board’s experience and to the discretion which it frequently exercises. Nevertheless, it is difficult for it to determine something after such a lengthy time.

I propose to test the opinion of the House on these amendments but, whatever the result of the vote, I hope that the Government will reflect upon the issues which they raise and that they will introduce these or similar provisions in the other place, which will provide a sensible solution to the problems we are discussing and ensure a justice for all the parties in which the public will have great confidence. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

I thank all noble Lords for their contributions to this debate. The Government remain of the view that these amendments would place too much emphasis on findings of mental capacity at a Newton hearing, particularly the findings made for the purposes of sentence.

In sentencing an offender, it is for the court to consider the punitive element of an offender’s sentence and, in doing so, to take into account the failure to disclose information in setting the tariff. By reflecting this in the sentencing remarks, victims can be assured that due consideration has been given to the non-disclosure. Tariffs must be served in their entirety and irrespective of any disclosure of information after a trial, so the tariff cannot be reduced because of subsequent disclosures. This is an entirely sensible approach, as I believe the noble Lord, Lord Thomas of Gresford, acknowledged when we discussed this matter in Committee. The trial judge is more able to determine the appropriate weighting with regard to non-disclosure when setting the tariff.

On the other hand, the Parole Board’s role is in relation to the preventive element of the sentence. The consideration that the Parole Board must make is whether there should be a continuation of custody or a release on licence if the offender’s risk can be safely managed in the community. The Bill places a statutory duty on the board, when making that wider assessment, to consider the non-disclosure of information by an offender and the possible reasons for it. The board will take a subjective view of what those reasons might be, and what bearing this information may have on the subsequent assessment of suitability for release. When it comes to consider these matters, it must of course take account of the judge’s sentencing remarks. Those, in turn, will be informed by such issues as non-disclosure. I am obliged to the noble and learned Lord, Lord Thomas of Cwmgiedd, for his detailed analysis of how the court approaches these matters in practice and why, in the context of the Bill, it would not be appropriate to simply import the notion of the Newton hearing for the purposes of the Parole Board’s determination.

The noble Lord, Lord Thomas of Gresford, has correctly identified that a prisoner’s mental state may be a significant reason for non-disclosure—a point made earlier by the noble Baroness, Lady Bull, when she spoke to her own amendments. But to limit this to the specific context of a Newton hearing, and to place that in the Bill, appears to us to be too narrow an approach. The Parole Board should be free to consider all reasons, including those that may arise as a result of a Newton hearing—unusual though they may be—and we should therefore avoid any specific delineation in the Bill.

As new subsection (3) in Clause 1 makes clear, the breadth of matters which the board may take into account is, essentially, as wide as possible. In addition, the board is bound by public law principles to act reasonably in all decisions, so a decision where a relevant Newton hearing or an issue of mental capacity was not taken into account could be subject to judicial review. I venture that this is not the Bill in which to approach the whole issue of sentencing guidelines or findings of fact for the purposes of those guidelines. That is already accommodated, and it is in these circumstances that I invite the noble Lord to withdraw his amendment.

[Lord Thomas of Gresford [V]]

My Lords, it is clear that the noble and learned Lord, Lord Mackay, does not like the system of Newton hearings, but the fact that the defendant has refused to disclose is not necessarily part of the offence. The reasons for his refusal to disclose the whereabouts of a body, or the identity of a child involved in indecent images, may not emerge in the course of a trial and may not be discussed before the jury. A jury listening to a case may not investigate the mental capacity of the defendant before them. If that is not an issue in the trial, examined on both sides, then the judge would have difficulty in forming a view of his own without hearing evidence.

The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the basis of plea as being the more usual way in which these matters are sorted out. I am completely familiar with the formation of the basis of plea, and the arguments that go on as to whether an agreement can be reached between the defence and the prosecution. However, if a person pleads guilty to murder or manslaughter and there is no trial, and there is a disagreement between prosecution and defence, how is the judge to come to a conclusion as to the degree to which the refusal to identify where a body is buried is to be part of his sentencing process—that it is an aggravating factor which he is to take into account? He has not heard any witnesses. He has just heard that the counsel disagree on what the basis of a plea would be.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Gresford Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I enjoyed the speech of the noble and learned Lord, Lord Garnier, especially when, having made a couple of political points, he asked us to cast political points aside. It is nice to see that he is in his usual jolly form.

I am very pleased that the Government have decided to remove Clause 2 and Schedule 6 from the Bill. I agree with my noble and learned friend Lord Falconer. We would not want to give the Government carte blanche on any agreement, especially at a time when the Civil Service is being taken over by political ideologues—friends of Mr Cummings. But, like the noble and learned Lord, Lord Garnier, having made a couple of political points, I have two specific questions for the Minister. First, on the state of play in discussions with the Crown Dependencies and Overseas Territories, have any memoranda of understanding been agreed, and what does he expect the final outcome to be?

Secondly, as a delegate from this Parliament to the Parliamentary Assembly of the Council of Europe I noted that paragraph 5 of the Explanatory Note states that

“Agreements containing PIL rules may also be negotiated through the Council of Europe.”


I am keen to know what agreements would come into that category. I would be grateful if the Minister could respond today, but if he cannot, I would appreciate his response in writing.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I too am glad to see that Clause 2 and the schedule will go and I fully support the amendments brought forward by the noble and learned Lord, Lord Falconer. Is it the Government’s intention to replace Clause 2 and in particular Schedule 6 when the matter goes to the other place? If so, is it their intention to have criminal offences, which are punishable by imprisonment, by secondary legislation? I made that point at an earlier stage of the Bill. In principle, it is quite wrong for imprisonment to be imposed as a result of secondary legislation. In this particular instance it is even worse, because the scope of private international law is so wide that anything could be the subject of it within the principles of private international law. There is no clarity at all about where a criminal sanction involving imprisonment would be imposed. I would be grateful if the Minister could deal with that point.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, these are sensible amendments and I support the Bill as it now stands. There was an interesting exchange on Report in relation to devolution issues, particularly in relation to Wales following the amendment moved by my noble friend Lord Hain. It was an informative debate. During that discussion, I raised the issue of the arrangements in place to involve the devolved Governments in the discussion of international treaties. There is a commitment in the concordat between the UK Government and the devolved Governments to ensure that there is prior consultation in relation to appropriate international treaties.

In that debate on my noble friend’s amendment, I asked specifically if it might be appropriate at some stage for us to move towards an institutional framework for the involvement of the devolved Governments in the agreement of negotiating mandates for international treaties, rather than simply a preference from Government to Government on consultation. I heard the response of the noble and learned Lord, Lord Keen, on that day and I read it again afterwards. The Government’s wording is carefully chosen. He said:

“We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.”—[Official Report, 17/6/20; col. 2251.]


That is of course very sensible. But will the Minister reflect on the opportunity for this and other Bills that will come before us as a result of our departure from the European Union and other factors to prompt us along the road of a better institutional framework for the engagement of the devolved Governments in negotiating mandates for international treaties? Perhaps, outwith a piece of legislation that might just polarise us in debate, there might be scope for a debate on this in your Lordships’ House in the future.

Sentencing Bill [HL]

Lord Thomas of Gresford Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I congratulate David Ormerod, parliamentary counsel and the Law Commission for the production of this outstanding work. The heart of it is Part 4, which deals with the exercise of judicial discretion. The noble Lord, Lord Balfe, has reminded me of a particular judge I remember from the good old days, who almost as a matter of principle used to pass sentences beyond the maximum. He did so because he had been a miner in his youth—a Bevin boy—before he went to Oxford. He regarded anybody who attacked or preyed upon their community as someone who deserved condign punishment, so he would sentence them to whatever sentence of imprisonment he thought appropriate. It was quite admirable, really, but the Court of Appeal had to spend a whole day dealing with the sentences that he had inflicted.

The issues that, to my mind, are very important are contained in Clause 57, which deals with the discretion of the judge. The tramlines have been laid down for some years by the sentencing guidelines and, of course, the method of sentencing—the formula—which is that you take the sentencing guidelines and add to it if there are aggravating features and reduce it if there are mitigating features. That is well known, but it can be rather formulaic. The Bill states that those tramlines must be followed unless it is in the interests of justice that it should be otherwise.

Many years ago, I prosecuted a lady who had put a hammer through the skull of her husband and dragged his body into the back room of the basement flat in which they lived. There the body lay for some 20 years until a neighbour from upstairs was taking up his floor and discovered the skeleton. The case went to court and I remember that the lady concerned pleaded guilty to manslaughter on the grounds of provocation. The learned judge said to her that he could not imagine the agony that she must have gone through in living with that body behind the curtain, and bringing up her children, over so many years. He said, “I am not sending you to prison. I am not going to impose probation; that would be ridiculous. I am not going to give you a conditional sentence just in case you were inclined to commit a similar offence within the next two years. That would be absurd. I am going to give you an absolute discharge.” That is exactly what he did. That very experienced High Court judge was reacting as a human being to the situation as he saw it—the circumstances in which this lady had lived. Consequently, he passed that sentence with great humanity and I applaud him for it.

It is good that the power of giving an absolute discharge has been maintained in Clause 79. It states that an absolute discharge should be given only if the judge finds it wrong to pass a sentence of imprisonment upon a defendant. The wording used suggests that the power should be used only where a person is terminally ill, or something of that sort. That is not entirely the right approach. That sentence should be available to the judge in the exercise of their proper discretion, as the judge to whom I referred exercised his—as a human being, as much as a judge.

As the noble Lord, Lord Blunkett, pointed out, there has been a proliferation of sentence disposals since 2000. There have been all sorts of orders: withdrawal orders, reparation orders, financial punishments and so on. They have become a morass in the past 20 years and it is good that it is about to be disposed of. A judge today will have before him a code, through the Bill, that he can exercise with discretion and justice. I am sure that all will profit as a result. I fully commend the Bill and hope that it passes all its stages without problems.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Gresford Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Holmes of Richmond (Non-Afl) [V]]

My Lords, I want first to say how privileged I am to be sandwiched in the list between two noble and learned Lord Thomases, emanating as I do from the junior branch of the legal profession. I ask my noble and learned friend the Minister, as I did in Committee, to affirm, in the light of the impending Brexit deal or no deal, his full support for the power of English law internationally and, indeed, for the jurisdiction of the courts of England and Wales. We have a unique gem here, which can not only speak to our international role but, as he knows, can be of such benefit to so many private international deals; this can only be built upon. I urge him to take every opportunity to push the positivity around English law and the jurisdiction of the courts of England and Wales.

Secondly, I ask the Minister, in the most delicate and humble way: if Brexit was all about repatriating powers to Parliament, how does the current Clause 2 sit with that aim?

[Lord Thomas of Gresford (LD) [V]]

The Government’s position appears to be that the incorporation into domestic law of the terms of a treaty, or of an international agreement involving private international law, should not require any detailed scrutiny by Parliament. The Government’s reasoning is that the time for stakeholders to make representations is before the international agreement is made. Once the rules have been agreed, they say, a Minister has little or no discretion to exercise in framing the requisite statutory instrument. It is all over and there is no need for any shouting.

This would be all very well if we could have the slightest confidence that the negotiations of that agreement were transparent; but we have seen in the Brexit negotiations a complete lack of transparency. Many times, pleas were made to Ministers to outline our negotiating position. “Oh, we couldn’t do that,” the Minister would reply, “because that would undermine our bargaining position.”

The noble and learned Lord, Lord Keen, in his response of 17 April to the report of the Delegated Powers Committee, said:

“As the UK develops its wider trading policy with the EU and rest of the world, agreements on private international law will be key to supporting cross-border commerce by providing businesses, investors and consumers with greater confidence that disputes across borders can be resolved in a clear and efficient way.”


This surely underlines the importance of the issues that we are discussing today. The question of jurisdiction and the enforcement of judgments is crucial. Just because the word “private” is attached in the title to “international law”, it should not be thought that we are concerned merely with family disputes and the enforcement of access to children or maintenance orders in different jurisdictions. Important as those issues undoubtedly are, the significance of these provisions goes very much to the heart of rebuilding our economy and regaining our leading trading position in the world, not least in the provision of financial and legal services. For example, in the current negotiations concerning our leaving the European Union, with or without a trade deal, one stumbling block appears to be the jurisdiction of the European Court of Justice. For 40 years, we have accepted its jurisdiction and an analysis of its judgments demonstrates the overwhelming success of British lawyers before that court. We have lost very few contested cases and settled others very satisfactorily on agreed terms.

Jurisdiction is important. I cannot see why the Prime Minister thinks that the European Union is likely in these current negotiations to accept the British rejection of the European Court of Justice as a tribunal for resolving disputes, but that it will accept our Supreme Court as the ultimate arbiter. Such an approach seems to me to be in cloud-cuckoo-land.

Where there are critical issues such as jurisdiction to be resolved, obviously it is wholly inadequate to tell business and other stakeholders that they may make their case only before the details of a treaty or agreement emerge into the light of day. As for Parliament, do we have the slightest idea of the detailed negotiating position in these current talks? What possible contribution can parliamentarians make to the rules of our future trade with Europe, which may emerge by the end of October or by Christmas Day?

Government negotiators should have to bear in mind that any agreement or treaty they may enter into will require full analysis and debate in Parliament before being given the full endorsement of incorporation into domestic law. I was disappointed, as was the noble Lord, Lord Blunkett, by the gloomy comments of the noble and learned Lord, Lord Garnier, in Committee. In effect, he said that we all agree in principle to parliamentary accountability, but in government, the reality is that the only consideration is time—getting the business over and done with. It was interesting that the noble and learned Lord, Lord Keen, in his letter to the Committee, used the expression “in a timely manner” no fewer than five times, and with something of a Homeric ring. Come to think of it, the Prime Minister might pin on his wall in No. 10 the Greek motto of the Roman emperor Augustus: “speude bradeos”, or “hasten slowly”.

Suetonius wrote of Augustus:

“Nihil autem minus perfecto duci quam festinationem temeritatemque convenire arbitrabatur”,


meaning, “He thought nothing less becoming in a well-trained leader than haste and rashness.” Well, Augustus was a pretty successful politician. He really did rule the whole of the known world.

[Lord Mance (CB) [V]]

My Lords, I declare my interest in the field of private international law and arbitration. I am also chair of the Lord Chancellor’s Advisory Committee on Private International Law, which was not involved in the Bill generally but has, since Second Reading, been asked to advise on the subject of the government amendments to Schedule 5, which we will come to later and which the committee blessed. I have nothing to add on Clause 1, which is admirable and conventional. On Clause 2, I am grateful personally to the noble and learned Lord the Advocate-General for Scotland for engaging with me, but I regret that his response strikes me as a little like that of the Black Knight in the Monty Python sketch; having lost the arms and legs of his argument, he still comes forward with the Bill—particularly Clause 2—between his teeth.

Opinion is almost universally against Clause 2. The two committees that have reported have categorically condemned it. The argument based on the existence of CRaG 2010 has been described by the Constitution Committee as limited and flawed, and I will come back to that. The speeches at Second Reading and in Committee were almost unanimously against Clause 2. One wonders, as the noble Lords, Lord Thomas of Gresford and Lord Holmes of Richmond, have hinted, why this House exists as a revising Chamber at all if such universal adverse opinion is ignored.

It is true that Parliament generally has not had a major role in private international law since we became an EU state but, as noble Lords have pointed out, one thought that the purpose of recent events was to restore UK institutions to a fuller role. There is no real explanation or justification for Clause 2, an indefinite provision without a sunset clause, as my noble and learned friend Lord Hope has just pointed out.

Private international law is important, both to individuals personally, in areas such as divorce and family, and to businesses. It merits direct parliamentary scrutiny. The Government’s justification for Clause 2 is simply that it would be very convenient and might speed things up. The same reasoning would justify removing any role for Parliament at all, just leaving it to bless by affirmative order on a yes/no basis any subordinate legislation devised by the Executive.

As my noble friend Lord Pannick pointed out, the prior Acts relied on do not justify this large extension. The 1920 and 1933 Acts were confined in scope to recognise jurisdictions, starting with Her Majesty’s overseas jurisdictions and then other comparable foreign jurisdictions, and were limited to recognition and enforcement of judgments only. We are concerned in this Bill with wide-ranging schemes such as those we will lose the benefit of at the end of the implementation period for allocation of jurisdiction, dealing with things such as concurrent proceedings in two states. These are very controversial issues.

Although by itself the Lugano convention may well be the best we can go for in the present state, it merits parliamentary debate. There are defects in the Lugano convention compared with our present state of affairs as a member of the EU. There are very considerable questions whether one might not be better off with other arrangements. Still, while one might have accepted Lugano alone, the wide-ranging nature of Clause 2 means that it applies to anything indefinitely in the future.

The only things actually suggested are Lugano and passing references to the Singapore mediation convention, which is an extremely minor area of the law—it is important when mediation occurs, but there is probably no difficulty in any event enforcing mediation results under present domestic law. There is also the 2019 Hague Convention, which has many merits but is in complete infancy. It has only two signatories: Uruguay and Ukraine. That is a long way down the road. There is no urgency. There are no model laws pointed to, even if it were desirable to give the Government this power in respect of model laws. As my noble and learned friend Lord Thomas of Cwmgiedd said a moment ago, private international law measures proceed at glacial pace.

I revert to the position on CRaG: quite apart from the inadequacy of its procedures, reliance on CRaG is fallacious for two reasons. The Explanatory Notes say that everything will already have been scrutinised by CRaG before domestic legislation takes place; Parliament will already, through CRaG, have agreed that the UK should join. That is not right; it is the wrong way round. Normally—this was practice until today—domestic legislation is enacted before ratification, and CRaG comes into operation only at ratification. There are a number of examples of that; in the case of the Civil Jurisdiction and Judgments Act, the convention was 1978, the domestic Act was 1982 and ratification was one or two years later. There is the same pattern with the Warsaw convention and the CMR convention on the carriage of goods by road. The domestic legislation preceded ratification by six years for the Warsaw convention and two years for the CMR convention, I think. CRaG does not help for that reason.

CRaG also does not help for a different reason: ratification may be subject, like signature, to reservations or declarations which are permitted by the relevant international agreement or are not inconsistent with its object and purpose. That is Article 19 of the Vienna convention of 1969. It is not therefore merely a question of whether to implement or the manner in which to implement domestically, as my noble friend Lord Pannick suggested. There are huge questions at the level of international law about what declarations or reservations to make, or there can be.

--- Later in debate ---

[Lord Pannick [V]]

As the noble and learned Lord, Lord Falconer, said, Amendment 10 is now academic, but it provides an opportunity to mention that one of the concerns of your Lordships’ Constitution Committee is that Bills regularly seek to confer on Ministers the power to create criminal offences.

Paragraph 21 of the committee’s report on this Bill— HL Paper 55—said that the conferral of delegated powers to create criminal offences, particularly those that are subject to imprisonment, is “constitutionally unacceptable”. We made the same point in paragraph 30 of our report of 9 June—HL Paper 71—on the constitutional issues raised by Brexit legislation. There needs to be a strong justification for departing from that general principle. I hope, as I know do the other members of your Lordships’ Constitution Committee, that Ministers will take account of these important principles. If they do not and they bring forward similar clauses in other Bills, we will report on them accordingly to the House.

[Lord Thomas of Gresford [V]]

My Lords, as I said in Committee, it is a matter of important principle that criminal offences must be clearly defined. I pointed to the criminal offences created, without consultation or debate, by way of regulations, in connection with the current lockdown. I pointed to the fact that they had caused confusion between the Prime Minister and his cohorts and virtually the rest of the country. Since I spoke on that matter, these offences are being amended, or new offences are being created, on, it seems, almost a weekly basis.

As my noble friend Lord Marks pointed out in the previous debate, there can be no clarity as to even the topic of a future international agreement, so there is no clear context within which this House can consider the power to create criminal offences in the field of private international law.

Last week, when we came to debate the Agriculture Bill, I was interested to note that precisely this point had been made by the Delegated Powers Committee: that it was against principle for sentences of imprisonment to be imposed by way of regulation. That was part of the original agriculture Bill, which fell at the time of the general election. In the new Agriculture Bill, Defra has withdrawn its position and is no longer asking for the provision of power, by regulation, to create criminal offences punishable by imprisonment. To my mind, this is a very good way of proceeding, and I hope that it spreads to other government departments.

[Lord Hope of Craighead [V]]

My Lords, it is all too easy to think that a sentence of imprisonment for a term of not more than two years, which is what paragraph 1(1)(b) of Schedule 6 by implication permits, is a relatively light matter. It certainly is not. Any conviction for a criminal offence, whatever the sentence that results from it, can have the most serious consequences for the individual; for example, opportunities for travel, employment and obtaining insurance can all be affected. The issue, therefore, is one of principle. It should not be for Ministers to create criminal offences by statutory instrument.

--- Later in debate ---

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I too am grateful to my noble friend Lord Hain for the opportunity to raise some issues on Report, not least because it gives an opportunity to emphasise the different situations in Scotland, Northern Ireland and Wales and, very specifically, the different situation between Scotland and Northern Ireland and Wales, given the legislative competencies that exist in Scotland and Northern Ireland. That was perhaps highlighted earlier today in the amendment tabled by the noble and learned Lord, Lord Wallace of Tankerness, on the Hague convention. He reminded us that the Hague convention was carried into Scots law in 2003, when he was Deputy First Minister and I was First Minister, and it is still outstanding in UK law for England and the rest of the country.

I want to ask where we have reached with the legislative consent Motion for the Bill in the Scottish Parliament. I would be grateful if the Advocate-General would update us on that. I would also be grateful for his consideration of this issue of consultation and engagement with the devolved Governments and Parliaments on international treaties. It is accepted in the Scotland Act and the other Acts of 1998 that there is a reserved responsibility on international treaties, but it has been accepted ever since, most recently perhaps in the concordat on international relations between the UK Government and the devolved Governments, that there are joint interests here in relation to devolved legislative competencies and reserved legislative competencies. We can surely do better, as the Law Society of Scotland and others have argued now for many years, in finding systems for the engagement of devolved Governments and Parliaments in advance of treaties being negotiated and signed, rather than afterwards. It seems to me that we are long overdue a formal structure for the engagement of devolved Ministers and Governments in the agreement of negotiating mandates for treaties, rather than simply information, consultation and then approval afterwards. I would be interested to hear the views of the Advocate-General on that as a way forward.

[Lord Thomas of Gresford [V]]

My Lords, I support this amendment and I, too, was shocked by the lack of response to the very detailed speech by the noble Lord, Lord Hain, in Committee. It seemed to me that the Minister did not give a proper response to what had been said. I think it underlines the Conservative Party’s problem with devolution: either it does not understand it or, if it does, it does not accept it. To give one example, a Conservative Member of Parliament called for the end of devolution to Wales altogether and the scrapping of the Senedd, because his constituents could not, as they normally do at this time of year, go to the Welsh beaches to swim in the sea. That was sufficient to call for the end of devolution in Wales. With that sort of attitude, and with the noble and learned Lord’s attitude to the speech by the noble Lord, Lord Hain, it really makes the case that the Conservative Party is at odds with devolution and what it means.

Throughout the legislation going through Parliament at the moment, there is a gap in recognising the need for consultation and if possible agreement with the devolved Administrations. This is so on the Agriculture Bill, as I pointed out last week. The Joint Ministerial Committee is a joke; it has never worked properly and is ignored by English Ministers. These are great gaps that have to be filled if the devolution settlements are to be properly appreciated.

[Lord Bhatia (Non-Afl) [V]]

My Lords, under Amendment 11

“the Secretary of State must consult … Scottish Ministers … Welsh Ministers, and … the Northern Ireland department.”

Can the Minister confirm that this has been done and that the three departments are fully satisfied?

My main concern is about family law. There are family litigations in progress in the courts. A light has been shone on what happens if one of the spouses is resident in the UK and the other is in another EU country and has a different nationality. The question of the children’s custody will have to be resolved. As the UK will be out of the EU by the end of 2020, there are bound to be pending cases that will have to be resolved. Ratifying the Hague conventions will also have to be done.

There are other problems when one spouse is British and the other is in the subcontinent with the children. In such cases the children suffer the most, as the questions of their upkeep and final custody remain unresolved. This will be a very complex issue, and solutions will have to be found with diplomacy and patience. It would be useful if the Minister could explain how the above issues of children’s maintenance, cost and custody will be dealt with.

Crown Court (Recording and Broadcasting) Order 2020

Lord Thomas of Gresford Excerpts

Monday 8th June 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, this significant development is being introduced by statutory instrument without any up-to-date consultation. As the Explanatory Memorandum shows, the Government rely on a consultation from 2005—15 years ago—to justify its introduction in 2020. That is not proper consultation. Broadcasting has changed since 2005, as have the courts. At a practical level what control will be exercised over the broadcast of sentencing remarks on the internet, and on social media, which was not at all obvious in 2005? Article 10 imposes restrictions on use, but are they enforceable in the current age?

The Explanatory Memorandum makes it clear, as the Minister did a moment ago, that the policy behind this provision is

“to increase transparency in the justice system and public engagement with, and understanding of, what happens in courts.”

To confine the broadcasting proceedings to the judge’s sentencing remarks seems to do little to achieve those objectives. In a straightforward case, the sentencing remarks may be only very brief. Even in a serious case, they may reflect little of the issues played out in the trial process. In R v Chin-Charles last year, the Lord Chief Justice made it clear that sentencing remarks should be merely a brief explanation of the reasons for sentencing; the issues in the trial should not be rehearsed. The noble and learned Baroness, Lady Hallett, was a party to that judgment. I cannot imagine the public waiting anxiously to be educated at their television sets, or at their laptops and iPads, at the precise moment the judge comes into court to deliver his sentence. Surely providing clips for news programmes must be low on the priorities of a court service desperately requiring money for repairs and refurbishing.

On the issue of cost, in the Court of Appeal project the broadcasters agreed to bear the cost of installing and operating the cameras. Have they agreed to bear the cost of these provisions, both for now and stretching into the future? If not, what is the projected cost? In any event, the time and money spent even in the training of court staff cannot be justified for the limited purpose of “educating the public” or upholding the dignity of the court. There is a lengthy waiting list for trials in the Crown Court and the focus should be on speeding up the trial process.

It used to be said that the pace of a trial was linked to the judge’s pen. Today it is more likely to be dictated by his or her ability on the keyboard, but it remains the judge’s responsibility to take a full note of the proceedings to assist him in his rulings and to remind the jury in his summing up of the evidence that has been given. If courts are to be fitted up with cameras, why should they not be used for wider purposes—let us get into this century—to record the evidence and demeanour of witnesses, should the jury wish to refresh their memories; to assist counsel in the preparation of argument before the jury; or to take the pressure of note-taking away from the judge? Their use will always be regulated by the judge in the interests of justice.

We have seen in this House, with the detailed and indexed recordings of proceedings on parliamentlive.tv, how quickly the record can be accessed. Like some elderly Members of this House, jurors can be trained to use the system. The coming generations, I fear, will of course require no such training. I remember a time when some jurors were illiterate and could not read the oath. I have to say that the defence rarely objected to their serving on the jury. A Daily Telegraph in a prospective juror’s pocket was enough to have him off. But today’s jurors are frequently faced with documents and photographs online and they deal with them. They are capable of dealing with them. They could deal equally with a filmed record of the proceedings.

My remarks apply equally to the inclusion of family proceedings in the current Court of Appeal arrangements. I suggest that the Minister withdraws these SIs and has a proper consultation in today’s terms to consider where they should go, and to encourage broader use of recordings in Crown Court proceedings.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Gresford Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Falconer of Thoroton]

This is, in effect, a probing group of amendments, repeating many of the arguments that we discussed on day one in Committee, and the amendments do two things. Amendment 19 would delete the power of the regulation-making authority to create, amend or extend a criminal offence. Amendments 20 and 21 say that the regulation-making power should be subject to the super-affirmative resolution procedure in the UK Parliament; and, in particular, that before any such instrument was made final a consultation would have to be undertaken with the Lord Chancellor’s advisory committee on private international law and the European Union Select Committee of the House of Lords.

I make it clear, as I did on the previous occasion, that I am not in favour of this order-making power at all. I refer to Amendment 19 simply to indicate the width of this power, which includes the making or changing of criminal offences. In relation to the super-affirmative procedure, again, I am against it. There should not be that power at all. It gives me an opportunity, though, to make the point that the Lord Chancellor’s advisory committee on private international law has been an important source of advice over a long period to the Lord Chancellor and the Ministry of Justice on private international law agreements. It was not referred to at all in the suite of maybe a dozen statutory instruments introduced under the withdrawal Act, in the wake of us changing our private international law arrangements with the European Union. That led to a great loss in the preparation of those statutory instruments. I very much hope that the Minister will give an under- taking that in any subsequent changes in private international law, the Government will consult unquestionably the Lord Chancellor’s advisory committee and, as much as possible, the European Union Select Committee of this House. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, first, I draw attention to paragraph 41 of the memorandum concerning the delegated powers, which says:

“We do not anticipate using the power to create, extend or increase the penalty for, a criminal offence very often, however it may be needed, in very limited circumstances, in order to implement effective enforcement provisions for some potential future PIL agreements.”


I stress: some potential future PIL agreements.

I want to speak mainly to Amendment 19, although I support what the noble and learned Lord, Lord Falconer, said in relation to Amendments 20 and 21 and his criticisms of the super-affirmative procedure. The Committee may recall that in its first sitting, I made comments about the necessity for democratic legitimacy and scrutiny when it comes to the making of legislation in this form. I do not consider that the form of approach of an affirmative resolution on its own is enough. I certainly do not think that the super-affirmative procedure adds very much to that. As for scrutiny, the noble and learned Lord has already referred to the fact that the Lord Chancellor’s committee was not given an opportunity to consider the Bill.

Criminal offences are set against the background that everybody is presumed to know what the law is. To put it another way, familiarly, ignorance of the law is no excuse. Any criminal offence created requires clarity, certainty and proportionality. I illustrate this by referring to what is very much in the public eye at the moment, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020. No draft was laid or approved by Parliament by reason of urgency, and one understands entirely that reason, but the instrument has been amended twice since it was passed in March and the latest version came into force on Monday. It had 12 regulations and two schedules in its original form and Regulation 6(1) provides that everyone must stay overnight at

“the place where they are living”.

There are certain exceptions, including, at Regulation 6(2)(d),

“to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person”.

At that point I gave up further research, but I do not think that particular exception can possibly refer to ordinary childcare. Yet there has been controversy. The Prime Minister and four of the Cabinet have taken one view or interpretation of these regulations and almost everybody else has taken a completely different view on whether what happened was legal or not. An unlimited fine is payable on summary conviction, which can be avoided by complying with a fixed penalty notice. Noble Lords will appreciate that that is typical of the sort of offence that can be created by secondary legislation that nobody understands—I say “nobody understands”; many people understand the drift of it, but the particular detail can be the subject of controversy.

Coming back to the Bill, it is obviously undesirable that there should be a lack of clarity in drafting criminal offences when it is possible for those criminal offences to result in a penalty of up to two years’ imprisonment. An unlimited fine is quite a burden, but imprisonment through regulations that refer to other Acts of Parliament—subsection this and sub-subsection that—is entirely undesirable and never gets, whether by the ordinary affirmative procedure or the super-affirmative procedure, adequate scrutiny and understanding by the authorities that have to put it into effect and, most relevantly, by the people who are affected by it and who have to obey the law.

Public international law covers, as we discussed, a wide variety of issues. It is not at all satisfactory for the wide power that I referred to—for some potential future PIL agreements to create criminal offences—to be put in the hands of Ministers. For that reason, this is an aspect of the Bill, never mind the whole of Schedule 2, that I find offensive.

[Lord Mackay of Clashfern]

My Lords, the Act referred to in the Bill is dated 1982, which shows that we are concerned with the time when I was Lord Advocate and before devolution. I remember it lucidly. It fell to the Lord Advocate to deal, inter alia, with the Scottish position and what the detail involved. I strongly oppose the group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton. My understanding of the principle that rules in this area is that when the United Kingdom undertakes an international obligation, that does not become part of the law of the United Kingdom until it becomes part of the domestic law of the United Kingdom and, since devolution, that may apply differently in devolved jurisdictions. A suggestion has been made that the principle goes further and requires that the result can be achieved only by primary legislation doing so directly, without the intervention of subordinate legislation. I do not agree with that. I can see no logical requirement to restrict the power of Parliament in that way.

My noble and learned friend the Minister has already given examples. Since we joined the EU, this has been achieved by a statutory instrument naming the treaty involved, without any further detail. The year 1982 yields another striking example. Section 60 of the Civil Aviation Act 1982 confers power by Order in Council to make provision for carrying out the Chicago convention. If the principle were as claimed, surely the Act could not confer this power. I regard the provisions of the Bill as entirely adequate. Once we undertake an international obligation, it seems right to implement it in our law as soon as possible. The ordinary affirmative procedure seems entirely adequate, particularly since the other place now has power in relation to international obligations.

The noble Lord preceding me, an expert in many of these matters, particularly in the criminal law, requires that the criminal law should not be specified except very clearly and very occasionally in statutory instruments. In my respectful submission to your Lordships, this is a space in which the international agreement must have in it the criminal offence in question, because it is only a reflection of what is in the international obligation that will become part of the law under Clause 2. This seems to me to adequately secure the definition of the offence in question. I will add only that I would like to see the Lord Chancellor’s advisory committee consulted as much as possible: it is a very well informed, very good source of solid advice. I also add that if the Government’s ambitions are fulfilled for many international agreements in the future, it would be a great pity to saddle the procedure to implement them into our law with unnecessary delays.

Royal Commission on Criminal Justice

Lord Thomas of Gresford Excerpts

Wednesday 3rd June 2020 Lords Chamber

[Lord Keen of Elie]

Along with the judiciary, we seek to utilise all the court capacity currently available to us by developing the use of remote hearings. We are also addressing how we can best accommodate jury trials within court accommodation. We will continue to monitor that to see where it can be improved and developed.

[Lord Thomas of Gresford (LD)]

Will the Minister consider recommending to the commission a consideration of the escalating length of sentences, which have probably doubled during my career, and of the impact upon rehabilitation and reoffending?

[Lord Keen of Elie]

The manifesto commitment was that the royal commission would address prosecution, trial, sentence and parole, and I have no doubt that within that it will give consideration to the length of sentences and the need for rehabilitation.

Prisoners (Disclosure of Information About Victims) Bill

Lord Thomas of Gresford Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Baroness Barker]

My Lords, I will address the same amendments in this group as were listed by the noble Baroness, Lady Bull. Amendments 5, 6, 9, 12 and 15 will be addressed by my noble friends Lord Thomas of Gresford and Lord German. I declare an interest as a member of an advisory board at the charity Rethink Mental Illness.

Like the noble Baroness, Lady Bull, I want to draw attention to the decisions being taken about a prisoner’s state of mind and their mental capacity to answer questions relating to the release of information about bodies. I was a member of the scrutiny committee in your Lordships’ House that did the pre-legislative scrutiny on the Mental Capacity Bill. Like the noble and learned Lord, Lord Mackay of Clashfern, I took part in the passage of that Bill through Parliament. I was part of the body that reviewed it and have subsequently been one of the Peers who participated in the Mental Capacity (Amendment) Bill.

When the post-legislative scrutiny of the Mental Capacity Act took place, it became very apparent that while it is widely regarded as being a very necessary and very innovative law, it is a law which is largely misunderstood and often ignored in practice. Some professionals, particularly in the world of health and social care, are very adept at understanding the concepts behind the Mental Capacity Act and are deploying them in their everyday work, but they are few and far between. Noble Lords who have listened to the noble Baroness, Lady Finlay, may have picked up on the fact that even within the medical profession, many practitioners simply do not understand what mental capacity and the tests of it are under this legislation.

During the review of the Mental Capacity Act, we spent virtually no time looking at the questions of how the Act is used within the criminal justice system, and I suspect that that was because it is not widely understood. As the noble Baroness, Lady Bull, made clear, the Mental Capacity Act rests upon the capacity of a person to make a particular decision at a particular time. It is not lawful to make a read-across from a person’s incapacity to make one decision to an assumption that they cannot make another. Therefore, in every case, it is for the Parole Board to decide at that point whether the prisoner has the capacity to withhold information, and that may vary over time.

It is right that we should discuss this, and we should look at putting these provisions in the Bill for three reasons. First, there are some conditions under which mental capacity can fluctuate. As mentioned by the noble Baroness, Lady Bull, some mental health conditions—the effects of drug and alcohol or degenerative diseases, the onset of dementia—may mean that over time the capacity of a prisoner to release this information diminishes.

The second is that there needs to be training and good practice for all practitioners throughout the criminal justice system in determining mental capacity. That includes members of the Parole Board. I wonder whether, in his summing up on this amendment, the Minister might say what training members of the Parole Board have and what guidance is available to them in making determinations under the Mental Capacity Act. Do they call on Mental Capacity Act practitioners, as people in social services do when they come to determine the capacity of an individual to make any decision?

In saying all this, I am acutely aware that, in some of these cases, the crimes happened a very long time ago. I understand that Helen McCourt’s case was one of the first in which DNA evidence was used. Some prisoners who have been in prison for a very long time could be victims of a miscarriage of justice. It is extremely important when we look at their refusal to impart information about the whereabouts of a body that we do so with great care and make sure that we are not misjudging a lack of mental capacity.

[Lord Thomas of Gresford (LD)]

My Lords, I am addressing Amendment 5 and the subsequent amendments to the same effect in relation to similar subsections in the Bill. I did not have the opportunity of speaking at Second Reading, so perhaps I can make one or two observations before I come to my amendments.

First, it is my experience that prosecutions where there is no body are comparatively rare. They do happen, but I recall only three or four cases in my own career where such things took place. If the Minister has information on this, I would be interested to know how many people subject to the provisions of the Bill are currently incarcerated in prison.

The noble Lords, Lord Blunkett and Lord Mann, referred to the Moors murders case. I was present in court at the Chester Assizes during that case as a pupil in support of the late Lord Hooson, who appeared on behalf of Brady. I can testify to the distress and huge impact that that case had on the families of victims— but not only them. It had an impact on the counsel who appeared in the case and indeed, I believe, on the judge.

Brady subsequently attempted, many years later, to take the police to places where he said he had buried bodies—to no effect. We cannot know whether this was a genuine attempt on his behalf to uncover the remains or whether he was simply, as has been put earlier in this debate, grinding the knife into the victims’ families. It is a terrible indication of what can happen to families in these circumstances.

My other point relates to the amendment from the noble Lord, Lord Blencathra. He relied on medical evidence, almost putting it in the place of the Parole Board. I prosecuted a double murder from mid-Wales which gave me a particular view. It was not a case where the bodies of the two victims were not available, but the defence was diminished responsibility. On the side of the defence in the original trial were no fewer than five psychologists and psychiatrists, giving evidence about the mental capacity of the defendant. On the prosecution side, there were four such expert views. After the conviction of the defendant, having observed their cross-examination in the witness box, one of the witnesses on behalf of the prosecution decided that the defendant really did suffer from mental incapacity. An appeal was launched on that basis. It was successful and there was a retrial in which there were then six experts for the defence and three for the prosecution. The defendant was still convicted of murder at the second trial by a majority of 11 to one.

What impacted on me was that members of the medical profession are accustomed to taking a history from patients, which they accept. There is no questioning of what they are told to any great degree. Therefore, to put the decision on the release of a prisoner undergoing life imprisonment in the hands of medical people is, to my mind, wrong. There should be a proper judicial process. I do not agree for a moment with the noble Lord, Lord Blencathra, that the Parole Board will swallow any guff put before it—that is simply not what experience tells us.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Hope of Craighead, have indicated that they wish to speak after the Minister. I call the noble Lord, Lord Thomas of Gresford.

[Lord Thomas of Gresford]

My Lords, I am very grateful to the Minister for his reply, but I think it is necessary to distinguish where there has been a plea of guilty and where there has been a plea of not guilty in a trial. Very often, when a person pleads guilty, he will, with the assistance of his legal team, put together a basis of plea, which is handed to the prosecution for consideration. If it accepts the basis of plea, there is no problem but, if there is an issue, a Newton hearing will be held to determine whether the prosecution which refuses to accept the basis of plea is correct or whether the defendant who is pleading guilty is correct. The judge will sentence accordingly.

That is one situation. Another is after a trial, when there has been a finding of guilt. Let us take a circumstance where a group of people have attacked an individual and one of the group says, “I didn’t take part”—indeed, I remember a case where precisely that happened; the defence was, “I was trying to discourage them so they’d go away”—but, at the end of the trial, the defendant is found guilty. At that point, the judge says, “I will sentence you on the basis that you are withholding information as to where the body was buried.” The defendant could then say, “I’ve been found guilty, but the others took the body away and I want to be heard on that, because I don’t know where they went and where the body was ultimately buried. You cannot sentence me on the basis of the facts the jury has found—that I was a party to a killing—when I don’t know where the body went.” That situation does not involve mental incapacity at all and such a situation should be investigated at the time and not 15 or 20 years later by the Parole Board doing its best, unassisted by medical evidence because it would not arise. It seems to me that issues of that nature should be determined prior to sentencing for the actual offence, whether there is a plea of guilty or a finding of guilt. That should involve a hearing of the sort that I have proposed.

Obviously, my amendment does not require the Parole Board to order a hearing. As the Minister anticipated, my purpose is to encourage the holding of Newton hearings where necessary. I do not believe that they are quite as rare or unusual as he suggests. In this particular instance, with proper directions being given generally to judges to hold Newton hearings where appropriate, they would be useful and helpful to the board’s ultimate determination. They would be of great significance concerning culpability.

[Lord Keen of Elie]

My Lords, I accept what the noble Lord, Lord Thomas, has observed. In cases of this kind, the judge will wish to take into account the disclosure or non-disclosure of the whereabouts of a victim and the circumstances in which the offender can or cannot make that disclosure. There may be circumstances in which that might necessitate a Newton hearing, and so be it. That would be done contemporaneously with the determination of the tariff in the sentence. When later on we get to the preventive element after the tariff has been served, the Parole Board will be able to call for all that material, whether it be a Newton hearing or otherwise.

I hear what the noble Lord, Lord Thomas, has to say about the importance of determining these issues at the time of trial and sentence; I do not disagree with him at all. It may be that some element of encouragement will be given if it is required, although I take from the observations of the former Lord Chief Justice—the noble and learned Lord, Lord Thomas—that there may be little requirement to encourage in a matter that is dealt with in this way day in and day out.