Private International Law (Implementation of Agreements) Bill [HL]
Lord Thomas of Gresford ExcerptsWednesday 13th May 2020
(4 years, 6 months ago)
Lords ChamberRead Full debate Private International Law (Implementation of Agreements) Act 2020 View all Private International Law (Implementation of Agreements) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-I Marshalled list for Virtual Committee - (7 May 2020)
Lord Mance
Yes, it is very helpful. Have I started addressing Amendment 3 by mistake? I certainly did not intend to. I want to address Amendment 11, which seeks to include the words “or arbitral award” in the definition of private international law.
As I said, I declare an interest as an arbitrator. Perhaps I might mention that, although I may not speak on this, I chair the Lord Chancellor’s Advisory Committee on Private International Law, which is referred to later, in proposed Amendment 20. I assure the Committee that that committee had nothing to do with that amendment.
To go back to arbitral awards, the recognition of arbitration clauses and the enforcement of arbitral awards are matters governed by special international agreements, most notably the highly successful 1958 New York convention and the 1966 International Centre for the Settlement of Investment Disputes convention, also known as the World Bank convention. The current Brussels regime, the Lugano convention, the Hague Convention on Choice of Court Agreements and the 2019 Hague Convention are all extremely careful to exclude arbitration expressly. But this definition for some reason includes it. One of the virtues of the 2012 recast of Brussels 1 was to reinforce that exclusion still further. London is a world centre of arbitration, and there would be concern about any suggested intervention by delegated legislation.
The inclusion of a reference to an “arbitral award” is therefore inappropriate and will arouse concern. It will also raise the further question: if arbitral awards are within private international law, what about international agreements on the jurisdiction of arbitrators? Is the word “jurisdiction” in Clause 2(7)(a) to be interpreted as enabling delegated legislation about arbitral jurisdiction?
The response at Second Reading from the noble and learned Lord, Lord Keen, was not comforting. He said:
“We do not intend to intrude wholesale on the New York convention or other aspects of arbitration, but it might be that there will be bilateral or multilateral … issues where a party wishes to refer to arbitration … we will want to have the power to proceed with such an agreement.”—[Official Report, 17/3/20; col. 1451.]
On the face of it, that suggests that, so far as the Government have any clear conception of why these words are there, they would cover jurisdictional issues—in other words, issues about where a party wishes to refer to arbitration and not just the recognition and enforcement of arbitral awards. That is an unwise and unnecessary indication of possible future interference by international agreement and delegated legislation in one of this country’s more successful export activities.
Surely the better approach is: if it ain’t broke, don’t fix it. If, at the international level, the New York or ICSID convention is supplemented, their domestic implementation should be by primary legislation, as it currently is under the Arbitration Act 1996 and the Arbitration (International Investment Disputes) Act 1966.
Finally, on Amendment 16, I endorse what has been said by my noble friend Lord Anderson and the noble and learned Lord, Lord Falconer. Admirable though they may be, model laws do not have the same status as international agreements and frequently need close attention before domestic implementation.
Lord Thomas of Gresford (LD)
My Lords, in his letter of 19 April in response to the report of the Delegated Powers Committee, the Minister said:
“The Committee’s Report implies that the power in clause 2 of the Bill would allow the Government to implement agreements on any aspect of private law with a foreign element, rather than merely agreements on the much narrower subject area of private international law, as defined by clause 2(7) of the Bill. … It will not be possible for matters outside of the areas indicated by the definition of ‘private international law’ in clause 2(7) to be implemented using the power.”
The Minister echoed what was set out in paragraph 7 of the Explanatory Notes, which state:
“PIL agreements cover a discrete area of law that is narrowly defined.”
One would therefore have expected that the interpretation of Clause 2(7) to be narrowly defined, but as the noble and learned Lord, Lord Falconer, pointed out, there is a width and uncertainty about these provisions that really do not follow the expressions being used.
For example, the definition clause for “international agreement”, which Amendment 9 deals with, includes,
“an agreement to which the UK is, or is expected to become, a party.”
What does that mean? Does that mean that legislation will be brought forward under these provisions and regulations brought forward in respect of an agreement to which we are not a party? As the noble and learned Lord, Lord Falconer, pointed out, what happens if the agreement is not ultimately made and the negotiations fall through? We would then, presumably, have regulations on the statute book dealing with an agreement to which we were not a party.
The definition of “private international law” is also contained in that same subsection, and Amendments 10, 12 and 13 demonstrate the loose wording that is used in case anything has been missed. That is rather typical of the drafting of the legislation. It is so drafted that anything can be bought in and the door is kept open. For example, it includes “rules and other provisions”, and there is to be co-operation in relation to the
“service of documents, taking of evidence and other procedures”
not defined. Paragraph (c)(ii) deals with
“anything within paragraphs (a) and (b).”
It is so loose and ill-defined.
So the purpose of the amendment moved by the noble and learned Lord, Lord Falconer, is to define the scope of regulation-making powers of the Bill so that the regulations should be confined exclusively to the field of private international law. Any provisions that trespass into any other territory could not be incorporated into domestic law by these regulations. I wholly support what he says about that.
I also support what was said by the noble and learned Lord, Lord Manse, on arbitral awards and model laws.
But I am interested in Amendment 6. Perhaps the Minister will share his thoughts about any proposed regulations concerning legal aid. What proceedings in the field of private international law does he envisage? To what is this directed? Would these be additional provisions to existing legal aid regulations? Would there be more hoops or fewer? Would there be more generous or less generous provision, and in what fields?
Lord Keen of Elie
My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.
Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.
The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.
Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.
In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.
Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.
Lord Thomas of Gresford
My Lords, I am of course speaking as a Welshman. We have a very limited interest in the provisions being discussed, but I have some questions. Since the time of Henry VIII, who has a great deal to answer for, the jurisdiction of England and Wales has been merged. Only in very recent years has there been a suggestion that Wales should have its separate jurisdiction. We are one of the three jurisdictions that will be subject to the Bill’s provisions; we go along with England. I would like to know whether there is any prospect of consultation with Welsh Ministers about what provisions are being brought into effect, because private international law covers such a wide range of things. It has particular relevance to family life in Wales as much as anywhere else. Will there be any consultation? If so, what will it be?
Lord Falconer of Thoroton
I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.
Lord Thomas of Gresford
My Lords, I have nothing to add to the points succinctly made by the noble Lord, Lord Foulkes.
Baroness Jones of Moulsecoomb (GP)
My Lords, like the noble Baroness, Lady Taylor, and the noble Lord, Lord Foulkes, I am not a lawyer, but I care about democracy and I care very much that if the Government make promises, they should actually deliver on them. Clause 2 is a case of the Government reneging on promises made only last year. I voice my concern about Clause 2, which would allow Ministers to subjugate our national law to international agreements and the jurisdiction of foreign courts, with minimal parliamentary scrutiny from people such as noble Lords, who actually know what they are talking about.
Last year, the Government promised us that we would take back control of our laws and our courts; there was no caveat that we would then delegate our laws to international organisations with nothing more than a tick-box exercise by Parliament. The clause gives far too much power to international trade organisations and allows model laws to be imposed on us at the whim of a trade Minister.
I am also concerned that this measure would be better addressed in the Trade Bill, so that we could develop a comprehensive and coherent system of scrutiny for agreements relating to international trade. Otherwise, we end up with different scrutiny arrangements for trade agreements and the private international law agreements that might go alongside them. Will the Minister please explain how this clause fits with the Government’s promise of Parliament taking back control of our laws and courts? I look forward to Report and the vote that I am positive will happen.
Lord Thomas of Gresford
Two questions arise when laws are made by secondary legislation: is there democratic legitimacy and has there been proper scrutiny? If private international law raised simply technical issues, that might be less important. But as has been said so often today, private international law raises a wide of range of matters; in particular, family law issues, where basic human rights are frequently involved.
On parliamentary scrutiny, the Minister referred to the ample opportunity for debate in the affirmative procedure. We all know about the affirmative procedure. It is a yes/no question, as the noble and learned Lord, Lord Goldsmith, pointed out a moment ago. The matters before the House cannot be amended and frequently, nothing happens as a result of any Motion that may be moved in opposition. If it is Her Majesty’s Opposition’s policy not to vote in favour of a fatal amendment, the whole process is completely nugatory. I have heard Labour Whips tell their members not to vote in the case of a fatal amendment simply for that reason alone. Their turn will come.
The affirmative procedure is not in any way proper parliamentary scrutiny. Scrutiny under the Constitutional Reform and Governance Act 2010 has proved to be a non-event. It has already been quoted, but I will do so again: the Constitution Committee referred to that procedure being “limited and flawed” and indeed never properly applied.
It could be said that you can have democratic legitimacy providing there is direct participation in the legislative process by means of consultation. It is very noticeable that in this Bill there is no provision for consultation. Schedule 6 is devoid of any mention of it. That gives an opportunity for those affected by legislation directly to influence its content. Consultation is not everything: it has its problems. There are issues, for example, about the quality of the consultation document. That document may not reach the hands of everybody who is affected. The choice of who gets the document will be with the Government. Organisations or individuals may not have the time or the skills to deal with it. Strong groups who are well organised may have a disproportionate influence in the consultation process. It is of course useless, unless the Government are prepared to take the views of the consultees into account.
Legal Services Act 2007 (Approved Regulator) Order 2020
Lord Thomas of Gresford Excerpts(4 years, 8 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I venture to suggest that this order is straightforward and uncontroversial. It designates the Institute of Chartered Accountants in England and Wales—for ease, I will refer to it the institute—as an approved regulator under the Legal Services Act 2007 for the reserved legal activity of the administration of oaths.
In summary, the order, if approved, will allow the institute to authorise and regulate individuals and firms administrating oaths within the scope of the Commissioners for Oaths Act 1889, the Commissioners for Oaths Act 1891 and the Stamp Duties Management Act 1891.
As the Committee is aware, the Legal Services 2007 Act defines six reserved legal activities, which only individuals and firms regulated by one of the 11 approved legal regulators can provide to the public. The administration of oaths is one of these activities.
The institute is already an approved regulator and licensing authority under the 2007 Act, but only in respect of probate activities, which is also a reserved legal activity. It regulates more than 300 firms providing probate services and wishes to expand the range of legal services its members can provide. As such, it made the required application to the Legal Services Board, seeking to expand its functions. Following a recommendation from the Legal Services Board, the then Lord Chancellor confirmed in May 2019 that he agreed to make an order to designate the institute as an approved regulator for the reserved legal activity of the administration of oaths. It is envisaged that expanding the institute’s remit will improve consumer choice, enhance competition and enable firms who are regulated by the institute to expand their practice.
This order fulfils the statutory objectives in the Legal Services Act 2007 and is supportive of better regulation in the consumer and public interest. I commend the draft order to the Committee.
Lord Thomas of Gresford (LD)
My Lords, as the noble and learned Lord, Lord Keen, has just pointed out, this is uncontroversial. I have no objection to it. It took me back to my years as an articled clerk in the late 1950s and early 1960s when the perk that one had was to take clients to another solicitor who would administer an oath on probate papers. This would cost the individual 10 guineas, and the shillings in those guineas were for me. There were only 10 shillings, but at a time when I was earning £4 a week, which was extended to £5 a week when I got married, that was quite a considerable sum.
Legal Services Act 2007 (Chartered Institute of Legal Executives) (Appeals from Licensing Authority Decisions) Order 2020
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I venture that this is also a straightforward and, I hope, uncontroversial measure. The order relates to the functions of the Chartered Institute of Legal Executives which, for ease, I will refer to as CILEx. In summary, the order—if approved—enables the First-tier Tribunal to hear and determine appeals against CILEx in its role as a licensing authority.
As the Committee is aware, the Legal Services Act 2007 defines six reserved legal activities that only individuals and firms regulated by one of the approved regulators can provide to the public. CILEx is an experienced regulator under the 2007 Act and authorises and regulates individuals and firms in respect of five of the six reserved legal activities: the conduct of litigation, rights of audience, reserved instrument activities, probate activities and the administration of oaths. In February last year, an order designated CILEx as a licensing authority as well as an approved regulator. This meant that, as well as regulating individuals and firms, it can now license alternative business structures. ABSs are legal firms that are partly or wholly owned or controlled by non-lawyers. They were introduced by the 2007 Act to encourage competition by allowing, for the first time, lawyers to join with non-lawyers, for example accountants, to raise external capital. Notable ABSs include Co-op Legal Services and the big four accountancy firms.
ABSs have been permitted by the Legal Services Act 2007 since October 2011, and there are now over 1,300 in England and Wales. Most of the other legal services regulators, including the Law Society and the Bar Council, are already licensing authorities. The 2007 Act stipulates that there must be an independent body to determine appeals against decisions of licensing authorities, and this order enables the General Regulatory Chamber of the First-tier Tribunal to fulfil this role.
Over the last 12 months, since CILEx became a licensing authority, there has been an interim appeals procedure—agreed by the Legal Services Board—in place. However, it is more appropriate that the First-tier Tribunal determines any appeals against CILEx in its role as a licensing authority. The First-tier Tribunal has judges with experience in considering regulatory appeals.
Furthermore, similar orders have been made in the past in respect of appeals against decisions of the Bar Standards Board, the Council for Licensed Conveyancers, the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys and the Institute of Chartered Accountants in England and Wales, when they are each designated as licensing authorities.
I assure the Committee that, although Her Majesty’s Courts & Tribunals Service will face additional costs associated with the potential increase in cases to be determined by the First-tier Tribunal, CILEx will meet the set-up and operating costs, so there will be no net financial impact on the public sector.
In conclusion, this statutory instrument is necessary to regulate better in the consumer and public interest. I commend the draft order to the Committee.
Lord Thomas of Gresford (LD)
My Lords, I support the order. I declare an interest in that a close family member is a judge in the First-tier Tribunal—but not, I believe, in the General Regulatory Chamber.
I have been a strong supporter of CILEx from its inception. Indeed, I addressed some of its early conferences due to, as I mentioned in relation to the previous order, my experience 50 years ago of the integrity and probity of legal executives who needed a body to represent their interests in the way that that has happened. I am delighted to see that it has been given this particular power. The strange thing is that there was a temporary appeals provision with a panel set up by CILEx itself; clearly that was unsatisfactory. Far better that it should go through the tribunals system. What are the fees of the tribunal likely to be? Will they be more expensive than the present appeals system, unsatisfactory as it is?
Baroness Chakrabarti (Lab)
My Lords, again I will be completely uncontroversial, and I can be very succinct: the First-tier Tribunal is undoubtedly more appropriate than the interim arrangement.
Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)
Lord Thomas of Gresford ExcerptsTuesday 11th February 2020
(4 years, 9 months ago)
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Lord Thomas of Gresford (LD)
My Lords, I am looking forward very much to the maiden speech of the noble and learned Baroness, Lady Hallett. Like myself, she is of a police family and a veteran of the criminal Bar, although she subsequently rose to dizzying heights that I never attained on the Bench. We need her contribution at this time, and no doubt in the future.
As the noble and learned Lord, Lord Judge, said, the Bill was pored over in the last Parliament. I have little to add generally, save to welcome it as a precursor to the sentencing Bill. The Leader of the House in another place has promised us that Bill in this Session. I assume that the sentencing Bill will introduce the excellent sentencing code, and I too congratulate the Law Commission and parliamentary counsel for the years of expert work that they have done in producing it.
I am grateful to the Minister for his letters of 23 October and 5 February. In his first letter, he informed me that work was continuing to include Armed Forces sentencing law in the code, and the new provisions in this Bill do indeed include tidying up pre-consolidation amendments. As chair of the Association of Military Court Advocates, I naturally have an interest in this area, and my comments will be directed to that.
The Law Commission, in paragraph 3.23 of its report, had decided that, by reason of pressure on resources, it was unable to draft the necessary amendments to the sentencing code to apply it to the service jurisdiction within the timeframe of this project. It also pointed out that the application of the code to the service jurisdiction could be achieved by way of the next Armed Forces Act, which must be passed before the end of 2021. It noted the ongoing review of military justice, the report of which will no doubt be published shortly. Is it now intended that the sentencing code will be brought to bear on courts martial in the sentencing Bill, or will the Government wait for the review report and for the Armed Forces Bill to be brought forward in 2021?
I thoroughly approve of the “clean sweep” principle, not least in connection with service criminal law. Service law and procedure have been built up piecemeal. I want to make some comments about an important procedural issue which in my view has gathered barnacles and needs to be challenged in the light of the Law Commission’s report. It is the current sentencing role of a court martial panel, against which I have argued on previous Armed Forces Bills. I take my text from the Law Commission’s report itself, paragraph 1.16 of which states that
“the law governing sentencing procedure is complex, difficult to locate, and difficult to understand, even for experienced judges and practitioners.”
The services, as represented in Parliament, have always been proud and protective of the military justice system. In history, there is not much to be proud of. In the 18th century, general courts martial, before a panel of 13, followed the rudiments of a trial as in a civilian court. Regimental courts martial, on the other hand, before five or three officers, were much easier to summon and consequently more popular with authority. They were, however, much more informal. Witnesses did not give evidence on oath, and severe and unusual punishments were meted out. An example was the wooden horse. This instrument, invented by the Inquisition, resembled a carpenter’s sawhorse standing on four legs, save that the crossbar was not flat but a triangle, the upper point of which was suitably shaved to a sharp edge. The convicted soldier had to sit astride the horse on this edge for the prescribed period, elevated in the air, often with weights tied to his legs to increase the pain and add to the injury.
Records were generally not kept, but a fragment has survived from 1722. Within a five-week period, seven prisoners were sentenced to the wooden horse, some for insolence to an officer, others for going out of camp. Another punishment popular with these regimental courts martial, also recorded in this 1722 fragment, was running the gauntlet. The prisoner would be lashed by a company of soldiers drawn up in two files through which he would be slowly marched, an officer in front of him with his sword pointed backwards and another behind with his sword pointed forward. It could be lethal. Another case is recorded in that fragment where the prisoner was found to have absented himself from guard duty, his punishment being to have his neck and heels tied together.
In the army, flogging was standard. One sentence recorded in 1750 was 600 lashes for being absent without leave. In 1777, one Elijah Reeves received 500 lashes for visiting a whorehouse that had been declared off limits. Military justice very slowly improved, but there was always resistance to change. Flogging was not abolished until 1881, despite campaigns against it throughout the earlier part of the century, led by parliamentarians such as John Bright and Joseph Hume. The military always argued that it was essential for officers to have the power to flog,
“to curb the natural passions of men”,—[Official Report, Commons, 16/2/1880; col. 1167.]
as the Tory MP Colonel John North put it.
As for the informality of these proceedings, a Bill was introduced in 1805 to require that the evidence given in a regimental court martial should be on oath. In the debate on that Bill, Lord de Blaquiere, a supporter, told the Commons that he had
“seen a man sentenced by a regimental Court-martial to receive one thousand strokes, for an offence, which, on board a ship, would not have been punished with more than a dozen lashes”.—[Official Report, Commons, 12/3/1805; col. 860.]
Sir John Wrottesley, on the other hand, a major in the militia as well as an MP, opposed the Bill, arguing that “petty fogging attorneys” would always be lying in wait to interfere with military justice.
As a pettifogging attorney myself, I recall moving amendments to the 2006 Armed Forces Bill, one of which proposed that members a court martial panel should, as in the United States, be drawn from other ranks as well as officers. Another proposed amendment was that members of a court martial panel should be mixed, drawn from all three services instead of solely from the prisoner’s service. These amendments were opposed by the Minister, Lord Drayson, strongly supported by a noble and gallant Lord who later, in a touch of banter outside the Chamber, told me that my amendments were outrageous and asserted, with the approval of two other noble and gallant Lords from different services, that I should be shot.
There have been significant improvements over the years, despite such resistance. However, both the services and the Ministry of Defence have insisted up to now that sentencing should be the responsibility of the court martial panel—its decision being, of course, by a simple majority. Under the current law, the role of the judge advocate at the sentencing stage is merely to advise panel members of the extent of their sentencing powers, rather like a clerk to the justices. Under Section 160(4) of the 2006 Act, the judge advocate has a casting vote only in the event that the panel is equally divided on sentencing. He has no vote, of course, on the issue of the finding of guilt or innocence. I remind your Lordships of the comment of the Law Commission that the law is incredibly complex and difficult to understand, even for experienced judges and lawyers. One wonders at the faith placed in a court martial panel to get a sentence right, particularly when it may be dealing, under Section 42 of the Act, with a most serious crime, all the way up to rape, manslaughter and murder.
In the civilian courts, where a person has been convicted of manslaughter, I have known sentences of life imprisonment, but also sentences of lesser severity, all the way down to an absolute discharge. How can a court martial panel deal with that? Remember that, unlike a much more experienced bench of magistrates, whose powers of sentencing are limited to two years’ imprisonment, the officers on the panel, save for the president, may well be new to the job. For many, perhaps the majority, this will be the first and last time they are called upon to sit in judgment. Surely it would be more sensible to leave sentencing as the responsibility of the judge advocate, assisted by the panel on any service issues that may arise.
I have no doubt that I shall return to this point when we consider the sentencing Bill in this Session, or the armed forces Bill in the next. As we await anxiously the findings of the current review, I wish this Bill a fair passage.
Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019
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Lord Judge (CB)
My Lords, I shall be very brief; following the remarks of the noble and learned Lord, Lord Garnier, there is not much more to be said. However, I wish to underline, first, that I very much hope that we will have a commitment today from the Minister that the Government do not intend to hold back on the enactment of a sentencing code. We have been through the whole of that process. It was cut short by the general election but it is an absolute imperative, as the Minister well knows and as anybody who has ever listened to the discussions on these issues fully understands. If we are to have changes to prison regimes, let them be done by amendments to an existing code rather than being introduced piecemeal and added on so that we are still looking through 17 volumes of laws to find out what the appropriate level of sentence might be.
My second point is much more general. The Minister’s introduction suggested—and it is perfectly obvious that it is right—that this is just the beginning. The Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, and so on and so forth; this is a mere first step.
Speaking for myself, I find it alarming that we have started this process by secondary legislation. The issues raised, as the eloquent speech of the noble and learned Lord, Lord Garnier, made clear, are immensely significant to the entire way we run our punitive system in this country. Yet we are to have secondary legislation for this and, I suspect, a piecemeal series of secondary legislation as the Government’s thinking develops. A very good example—for once I am not looking at the Conservative side; this was Labour legislation—is the Criminal Justice Act 2003, which gave the Minister amazing powers to come to Parliament by way of a statutory instrument and effect enormous changes in our arrangements for prisons. Please, can we be more cautious about dishing out these powers?
Lord Thomas of Gresford (LD)
My Lords, the policy change to increase the release date of prisoners sentenced to more than seven years to two-thirds of the sentence has been brought forward far too quickly and without proper consideration. It is not evidenced-based. Before the election, the Lord Chancellor wound up the rhetoric and gave the reason for ensuring that the most serious violent and sexual offenders would face longer behind bars, as he put it, as restoring “public faith in sentencing”—sentiments that the noble and learned Lord, Lord Keen repeated. By contrast, the impact assessment attached to this statutory instrument says:
“Research into victims’ views on sentencing and time spent in custody is limited. However, a 2012 study found that victims of sexual offences (who will be more likely to be affected by this policy) were unclear on what the sentences handed down by the court meant in practice.”
There is no other study on which this change of policy is based and, as the noble Lord, Lord Ramsbotham, pointed out, there has been no public consultation. There have been only newspaper headlines in the popular press.
Before spending £440 million in construction costs and £70 million a year for 10,000 new prison places, as envisaged by the impact assessment, it would have been far better for the Government to take their time to form a proper evaluation of experience to date. In 2014 permission was granted for the Berwyn training prison to be built on the industrial estate of my home town, Wrexham. I know the area well; in my youth I worked on that very site as a member of a railway gang replacing wooden wartime sleepers with concrete ones. I learned how to use a pick and shovel, drink very sweet tea and place a bet—matters of great importance.
As I watched the buildings go up, to open in February 2017 at a cost of £250 million, I noted that it was the largest operational prison in the UK and the second largest in Europe. Here, I thought, was the opportunity, with modern design and facilities, really to do something to tackle attitudes, change people’s lives and turn prisoners away from crime. All rooms, as the cells are called, have integral sanitation, a shower cubicle, a PIN phone and a UniLink laptop terminal. It is designed to hold up to 2,106 prisoners serving four years or more. There have been criticisms. In particular Frances Crook, the chief executive of the Howard League, told the Welsh Affairs Committee, which reported on prison provision in Wales in April 2019, that it was built in a way that even Victorians would not build. She said:
“It is going to be the most disgusting prison in Europe within 10 years.”
She was concerned in particular that only 30% of the accommodation is single-cell, to save money, in flagrant disregard of the recommendations of the Mubarek inquiry into the murder of a young man by his racist cellmate.
As the prison was going up, a local rugby player, an experienced prison officer from a Merseyside prison, told me that, despite attractive offers, no regular trained officers would be attracted to work there. “It’ll be full of newbies,” he said. “You need to know who you’re dealing with, who’s standing next to you.” He was right: the report of the Welsh Affairs Committee revealed that 89% of the prison staff were in their first two years of training. The Prison Officers’ Association says that the recruitment pool in north Wales is exhausted and that
“we see very young inexperienced officers joining … with very few experienced staff to guide them.”
An inmate released last May told the Daily Post that
“it’s being run like a youth club.”
Queen’s Speech
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Lord Thomas of Gresford (LD)
My Lords, in 1978 I was the guest of a senior lawyer in Philadelphia, Pennsylvania. That evening at home, he answered a phone call and came back wreathed in smiles: “The Republicans are struggling to get their legislation through the State Senate”, he told me. “The Democrats have told them they have to pay a price, and I’m the price: they’re making me a judge.”
On Monday of this week, a senior lecturer in the Cardiff Law School, Mr Bharat Malkani, was randomly selected by the research organisation Kantar to take part, as a member of the public, in a survey concerned with the independence of the judiciary. There were two questions. The first was, did he think the judiciary sufficiently independent from government? The second was, why is the judiciary independent? Was it lack of political interference, costs, or lack of interference from the media? When Mr Malkani asked on whose behalf the survey was being conducted, he was told that he could not be given that information until he had answered the questions. When he had finished answering, he was told it was on behalf of the Government. He phoned Kantar back later to check and was then informed that it was simply an in-house survey and had no connection to the Government at all. What is this all about? What is going on?
In recent months, as the noble and learned Lord, Lord Judge, observed, we have seen tensions. The Executive, without majority support in Parliament, unlawfully attempted to frustrate Parliament’s deliberations by way of Prorogation, relying upon prerogative powers of the Crown not deployed since the days of Charles I. Parliament reacted with unprecedented procedures, which were open to it only because the Government did not have the votes. Boundaries which were thought to be understood were crossed and the Supreme Court had to sort out the mess. Who else could have done it? The judges were portrayed by the Government, however, as unelected, unaccountable and anti-democratic: an echo perhaps, of the Mail’s “Enemies of the People” tag. The Government obviously find it difficult to get over losing a case. Anti-democratic? As Lord Bingham pointed out in a leading case:
“The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”
In Emlyn Hooson’s Chester chambers, in the elections of the 1960s, 1970s and 1980s, five of us stood as Liberal candidates—
Lord Thomas of Gresford
We have one over there. Another fought Lord Roberts of Conwy for Plaid Cymru and there was even a Conservative contender, for a valleys seat in south Wales. I welcome the noble Lord, Lord Davies of Gower, and particularly welcome his support for the A55—a north Wales road, I note—which runs into the Irish Sea, and the new Irish border, somewhere to the west of South Stack, Holyhead.
The well-worn track, however, between the Temple and Westminster was becoming rocky. For a young barrister, political involvement risked a black mark. None of the current Supreme Court justices appears to have had a juvenile fling at politics, although I note that one of them once owned a racehorse called, provocatively, “Young Radical”—something we all thought we were. Now there are these vague proposals, in the Conservative manifesto and in the Queen’s Speech, to establish a constitution, democracy and rights commission. Protecting the Constitution, the paper published by the right-wing think tank Policy Exchange on 28 December, expresses alarm at the entry of the Supreme Court into the political arena. The authors appear to see the Supreme Court justices, hitherto political virgins, coming together as a collective body with a determination to seize political control and promulgate new laws. We heard an echo of that in the speech of the noble Lord, Lord Strathclyde, who referred to “imaginative” new laws.
It is a highly regressive document, even calling for the removal of the title of “Supreme Court” and reverting to the wording of the Victorian Act of 1876 when Lords of Appeal in Ordinary were created to man the Judicial Committee. The authors of the paper write:
“If appeals against judgments were reviewed, in the words of section 4 of the Appellate Jurisdiction Act 1876, before Her Majesty the Queen in her Court of Parliament, it might be much less likely that the UK’s apex appellate court would mistake its position in relation to the Houses of Parliament.”
Accordingly, this paper—the basis of Tory policy—calls for the renaming of the Supreme Court as the “Upper Appeals Court” to emphasise its inferiority to the political sovereignty of Parliament and the Executive. That may not be quite compatible with the concept of independence of the judiciary as the third pillar of our democracy. Are we on the way to Philadelphia?