Sentencing Bill

Lord Verdirame Excerpts

Committee stage
Wednesday 3rd December 2025 Lords Chamber

Moved by

[Lord Verdirame]

122A: Clause 32, page 59, line 30, at end insert—
“(1A) Subsection (1) of section 260 of the Criminal Justice Act 2003 does not apply when a fixed-term prisoner is sentenced to a term of imprisonment of more than three years.(1B) A fixed-term prisoner is not to be removed under section 260 of the Criminal Justice Act 2003 unless the Secretary of State has made arrangements for the prisoner to serve the remaining custodial period in the country to which the prisoner is to be removed.(1C) A fixed-term prisoner is not to be removed under section 260 of the Criminal Justice Act 2003 unless the Secretary of State is satisfied that the interests of justice are not defeated by the removal (having regard to the gravity of the offence and the impact of the offender’s criminal conduct on those affected by it).(1D) Subsection (1) of section 260 of the Criminal Justice Act 2003 does not apply in relation to a prisoner detained in accordance with subsection (4)(b) of that section after returning to the UK following a previous removal.”Member’s explanatory statement
This amendment is intended to add certain limits to early removals to ensure that the interests of justice and those of victims are taken into account, and that early removals do not result in impunity.

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[Lord Verdirame (Non-Afl)]

My Lords, I apologise for not speaking at Second Reading. If I had, I would have said that there are many positive things about the Bill. However, I have tabled this amendment, with the support of the noble and learned Lord, Lord Thomas of Cwmgiedd, because I consider Clause 32 to be an unsatisfactory aspect of the Bill.

Clause 32 amends the Criminal Justice Act 2003 to enable the removal of an offender from prison for the purpose of immediate deportation from the United Kingdom, so that removal can happen at any time after sentence. Any foreign offender on a fixed-term sentence would be eligible for deportation without serving any part of their custodial sentence.

The Government have chosen to go beyond the recommendation of the Independent Sentencing Review, chaired by the former Lord Chancellor David Gauke. The review had proposed reducing the removal point from 50% to 30% of the custodial sentence, and that recommendation has already been implemented by statutory instrument. The review also recommended that foreign offenders sentenced to three years or less could be removed more swiftly—even before they had served any part of their sentence. However, Clause 32 does not include the three-year limit.

Some of the practical and principle problems with this change in the law were spelled out in an article in the Spectator last August by Professor Ekins from Policy Exchange’s judicial power project and the University of Oxford. He argued that this change in the law risks creating “perverse incentives” for foreign offenders, who would be able to commit serious crimes in the United Kingdom with relative impunity. Serious crimes would not be treated consistently or as their moral gravity warrants.

The new policy is said to have public support. It is true that the public, if asked, “Do you want foreign offenders to be deported?” will likely say yes by an overwhelming majority. But, if the questions are, “Do you want foreign offenders to go unpunished?” or, “Do you think British offenders should be punished more severely than foreign offenders for the same crime?”, I suspect the response would be rather different. To be clear, I am not opposed to the principle that a foreign offender should be removed after serving time in prison. The question is whether we as a country should give up on punishing and rehabilitating foreign offenders and instead deport them without any punishment.

The review recommended three years as the limit because it considered that foreign national offenders sentenced to three years or less would serve the equivalent of a short prison sentence and, in those circumstances, deportation could be viewed as punishment—although I must admit that, for my part, I have some difficulty with the notion that deportation itself is a form of punishment. Where the individual is already liable to deportation, it cannot be said to constitute a new punishment. But, more fundamentally, being deported is simply not the same as going to prison, and how punitive deportation is will depend on the circumstances, including the gravity of the crime. As Professor Ekins argues, it is very obviously not true that deportation is a punishment comparable with a lengthy term of imprisonment for offences such as rape, robbery or drug or people trafficking.

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[Lord Jackson of Peterborough (Con)]

Very briefly, my Lords, I want to thank the Minister for his very helpful, illuminating and quite reassuring answer, which those of us who spoke to Amendment 146 are grateful for.

[Lord Verdirame (Non-Afl)]

My Lords, I thank the Minister for his answer. I too would like to hear more about prisoner transfer agreements. They are the best policy solution in this area, so I am glad to hear that the Government are still pursuing that route. On whether the three-year limit is more or less restrictive, it is true that it does not feature in the legislation currently, but the key element of the current regime is that foreign offenders have to serve 50% of the custodial part of their sentence. That 50% has been reduced to 30% following the statutory instrument a few weeks ago, but Clause 32 would reduce the 30% to zero. In that context, the three-year limit would not be more restrictive.

However, with that in mind, I very much look forward to the Minister’s letter dealing with the other questions that I raised. I hope that he will be able in due course to meet me and others who are interested in this amendment to discuss what to do on Report. I beg leave to withdraw my amendment.

Amendment 122A withdrawn.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Verdirame Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Verdirame (Non-Afl)]

My Lords, I too begin by paying tribute, briefly, to the noble and learned Lord, Lord Etherton. He was a mentor and, for 25 years, along with his husband, Andrew, a close friend. I benefited from his counsel and friendship for many years, and I will miss him dearly, as I am sure many will in this House.

My spirits were, however, raised by the speech of the noble Baroness, Lady Nichols of Selby. Her words were warm, moving, inspiring and thoughtful, so I am sure she will make a great contribution to this place.

Many of the points I wanted to make about the Bill have been made very eloquently by the noble and learned Lord, Lord Thomas, and now by the noble Lord, Lord Bach. I should say that, unlike the noble Lord, Lord Bach, criminal law and criminal procedure is not within my field of academic expertise or practice at the Bar; the concerns I have about the Bill are of a more general nature.

I understand and respect the political considerations behind the Bill, but as with other brief and seemingly straightforward pieces of legislation, it lacks the necessary clarity. The main problem is, as we heard before, the concept of personal characteristics. The prohibition is by reference to this concept. The Bill does not contain a definition of personal characteristics but provides a non-exhaustive list. It leaves open the question of what other characteristics might count as personal characteristics under the Bill.

At paragraph 14 of the Explanatory Notes, the effect of the two key subsections of the Bill is described as follows:

“Sentencing Guidelines cannot be issued to state that it should generally be necessary to obtain a pre-sentence report based on an offender’s membership of a particular demographic cohort, rather than the particular circumstances of that individual”.


The Explanatory Notes thus suggest that the concept of personal characteristics is related to membership of demographic cohorts. The Sentencing Council’s draft guidelines on the imposition of community and custodial sentences, which prompted the adoption of the Bill, said that a pre-sentence report would be necessary if the offender belonged to one or more cohorts. The guidelines did not describe the cohorts as demographic, because they included characteristics that would not generally be understood as being demographic.

It may be that the addition of the adjective “demographic” in the Explanatory Notes was designed to give more specificity, but, unfortunately, the categories of personal characteristics specified in Clause 1(3) seem only to add confusion. To begin with, we do not see the most obvious characteristic defining a demographic cohort—age. Moreover, the characteristics mentioned in the Bill, such as “belief” and “cultural background”, are not usually understood as characteristics defining membership of demographic cohorts. So I am not sure that the description in the Explanatory Notes of the cohorts as “demographic” really tells us very much about the meaning of personal characteristics.

Of the three personal characteristics that are expressly mentioned, two—“race” and “religion or belief”—are also protected characteristics under the Equality Act, while the third, “cultural background”, is not. By the way, cultural background is itself a rather vague notion. I was going to ask the Minister to provide some clarity on the relationship between personal characteristics in the Bill and protected characteristics under the Equality Act, but he addressed this issue in part in his introductory remarks. However, I am not sure that what he said makes the boundaries of the concept of “personal characteristics” any easier to identify. The Bill, as currently drafted, lends itself to both a broad and a narrow understanding of personal characteristics. Based on the Minister’s introductory remarks, it seems that the Government take the view that the broad interpretation is to be preferred. Can he tell us whether this means that personal characteristics include all protected characteristics under the Equality Act, as well as other unspecified characteristics? If so, how do we identify these other characteristics?

The Explanatory Notes also draw a distinction, on which others have commented, between “personal characteristics” and “personal circumstances”, but can the Minister help us understand the dividing line between them? What about, for example, education or socioeconomic status: is that a characteristic or a circumstance?

There are constructive avenues through which some of these issues can be addressed and the clarity of the Bill can be enhanced. It will be important for us to consider these thoroughly in Committee to ensure that the Sentencing Council receives a far clearer legislative instruction than the current draft of the Bill provides.

UK-US Co-operation on Using Atomic Energy for Mutual Defence

Lord Verdirame Excerpts

Wednesday 23rd October 2024 Grand Committee

[Lord Verdirame (Non-Afl)]

My Lords, I welcome this debate. I support the ratification of these treaties, which I too consider to be in our national interest, as previous speakers have remarked. I am grateful to the noble and learned Lord, Lord Goldsmith, and the International Agreements Committee for their informative analysis of these treaties in their second and third reports.

As has been pointed out, the main amendment to the UK-US MDA is to Article III bis, a key provision in the treaty which was added in 1959. It regulates the transfer of non-nuclear components and nuclear materials from the US to the UK and from the UK to the US. This provision historically had a sunset clause, which effectively meant that a new agreement had to be concluded before the expiration of the deadline. Article 5 of the amendment agreement will remove the sunset clause.

In the debate on the strategic defence review, the noble Lord, Lord Coaker, said that he would explain the reasons for making this arrangement indefinite. I very much look forward to his explanation, with which I suspect to find myself in agreement because it seems to me that an indefinite agreement is appropriate in this context given the strategic importance of our alliance with the United States and in light of the commitments under the AUKUS agreement on naval nuclear propulsion. Moreover, making the arrangement indefinite is consistent with the nature of the co-operation that the MDA, in particular Article III bis, provided for.

In some ways, the sunset clause seemed rather out of place in this kind of treaty because, in reality, terminating the envisaged nuclear co-operation would always have required an agreement between the parties and a staged process. This is reflected in the terms of Article XII, which deals with duration. It provides that the treaty

“shall remain in force until terminated by agreement of both Parties”.

It does not provide for unilateral termination except in the case of one provision—Article II. I also note that Article 13 of the amendment agreement adds some important changes to Article XII on duration that provide precisely for the kind of staged process that termination would inevitably require. Removal of the sunset clause is the right decision and is also consistent with the legal architecture of this treaty. I commend the Government on securing this change.

That said, as the noble and learned Lord, Lord Goldsmith, so clearly explained, a consequence of this change is that the MDA will not come to Parliament every 10 years or so. In light of that, I strongly support the committee’s critical conclusion that the Government should provide a report to Parliament on the progress and operation of the MDA every 10 years or so. I hope the Minister can reassure us in that regard.

I also endorse the comments of the noble and learned Lord, Lord Goldsmith, and the noble Lords, Lord Hannay and Lord Udny-Lister, on the inadequacy of our ratification process, which these treaties have brought into sharp relief.

The other point that I wish to make that relates to both treaties concerns our obligations under the nuclear non-proliferation treaty. I agree with the Government that neither the MDA nor AUKUS would put us in breach of our obligations under the NPT. This is a very important subject and I am grateful to the Government for the attention they have given to it, including in the evidence that they submitted to the committee.

I was counsel for the UK 10 years ago in the case that the Marshall Islands brought against the UK concerning our obligations to negotiate towards nuclear disarmament. That case was brought before the International Court of Justice against all nuclear weapon states. Most nuclear weapon states had an easy way out of that litigation, but we did not take it, because we accepted the compulsory jurisdiction of the court. We had to defend the UK’s position, which we did successfully.

Since then, it is fair to say that the international landscape of nuclear proliferation has become far more challenging. The risks of nuclear proliferation are greater, as illustrated by North Korea and Iran. Moreover, crucially, the impatience of non-nuclear weapon states towards nuclear weapon states has grown, as reflected in the conclusion of the Treaty on the Prohibition of Nuclear Weapons—the TPNW—which was adopted in 2017 and has already secured 94 signatures and 73 accessions or ratifications. For obvious reasons, the United Kingdom and the United States are not going to become parties to that treaty. The NPT is the only treaty that brings together nuclear weapon states and non-nuclear weapon states, and offers us the best chance of managing the risk of nuclear proliferation. However, the NPT will not survive unless nuclear weapon states continue to engage with it. That is a position that I am sure still enjoys support across the political divide. I note that a former senior adviser in arms control in the Trump Administration, Dr Tom Grant, has recently made the case for the NPT in a book entitled Nuclear Arms Control in Peril: Why the Nuclear Non-Proliferation Treaty Matters and How to Save It.

Whether we are progressive realists or realists, we need the NPT and we need to keep it relevant. For that reason, I welcome the engagement of the Government with the case made in relation to these treaties concerning our obligations under the NPT.