Shabana Mahmood.

Q1 The Chair: Welcome to the 17th session of the Joint Committee on Human Rights. As the name implies, we are a committee of both Houses: there are six Members of the House of Commons and six Members of the House of Lords. Human rights is what motivates all of us as members of the committee. We try to keep a careful eye on things such as the European Convention on Human Rights, but also on our own domestic laws and how human rights can be affected by legislation passing through Parliament.

At the moment, we are doing a legislative inquiry into the Mental Health Bill, which has completed its stages now in the House of Lords and is going down to the House of Commons. Among other things, we held a round table with some of the 10 representative organisations that deal with mental health issues and took a lot of written evidence from people affected by the legislation, which will be fed into the debate as it proceeds in the House of Commons.

In addition to that, we conduct a number of thematic inquiries, some of which will be of interest to our witness today, who is the Lord Chancellor and Justice Secretary, Shabana Mahmood. We are so glad to have you here as our guest. I will return in a moment to that, but first tell you a little about the thematic inquiries, because they touch on your own work.

One of them is close to report—the draft report will be circulated to our members in the next seven days—and is on the crimes committed by, including British nationals, members of Daesh and ISIS who went to northern Syria and particularly committed atrocities against minorities such as the Yezidis. This is very timely, because Baroness Kennedy, who is here, and I have worked on this issue together. Yesterday, she chaired a meeting here in Parliament where we heard from one of our witnesses to the inquiry, Alex Crawford, a very brave young journalist from Sky, who will be broadcasting a documentary about that very issue tomorrow night. As those issues evolve, there are questions for your department and I know you will engage with us on that.

The second inquiry involves the place of supply chain transparency and the use of slave labour. The first of our witnesses to that inquiry was Rahima Mahmut, who is a leading figure in the World Uyghur Congress and gave us devastating evidence about some of the exploitation that takes place. Of course, the House of Commons voted to say that there is a genocide under way in Xinjiang. We have had over 800 pages of written evidence for that report and we are moving towards a conclusion.

[The team] has been working on our other report, which is around transnational repression. We know that your department and the Home Office have also been looking at that. We have now had 1,400 pages of written evidence submitted. We have had extraordinary hearings, one involving a young woman of 19, now 20, from Leeds but originating from Hong Kong. Chloe Cheung has now had a 1 million Hong Kong dollar bounty placed on her head, with 10 others living in the UK. Clearly, there are issues here for you too, so we are so pleased that you are able to be with us today.

The purpose of this session is that the JCHR holds ministerial scrutiny sessions with relevant Ministers on a periodic basis. On this occasion we will hear from you, the right honourable Shabana Mahmood. As the Secretary of State, you have policy responsibility for human rights in government. We ask questions about the Ministry of Justice’s approach to the rule of law and human rights, and the committee will also seek to cover wider cross-cutting issues, including on topics relating to criminal justice reform and the committee’s thematic inquiries, which I have just referred to.

You are a distinguished Member of the House of Commons. You were first elected as a Labour Member of Parliament for Birmingham Ladywood in 2010. As a boy, I might say that the very first by-election I ever helped in was in a constituency called Birmingham Ladywood, so I know the kind of neighbourhood you represent. You previously served in the Labour shadow Cabinet, including as shadow Secretary of State for Justice and as shadow Chief Secretary to the Treasury. Ms Mahmood is a former barrister specialising in professional indemnity cases.

In your swearing-in speech as Lord Chancellor, you confirmed the Government’s commitment to defending the international rule of law. I would be grateful if you could tell the committee how you define the rule of law. Along with my colleagues Lord Murray and Baroness Kennedy, I took part in a debate just a few weeks ago on the Floor of the House of Lords, celebrating the role of British lawyers, everyone from Hartley Shawcross to Maxwell Fyfe—and it was at the instigation of Winston Churchill—to mark the 75th anniversary of the European Convention on Human Rights. We would be very interested to know where you see that fitting in and whether you think it is capable and needs to be reformed in any way. We will delve deeper, if we may, into some of those questions as the session proceeds.

Shabana Mahmood: Thank you for that warm introduction and welcome. I look forward to engaging with your current inquiries in this session but also once the reports are available. They touch on very important issues and I will be happy to look at them once you have reported as well.

I suppose I will start with the definition of the rule of law. I have been a politician for 15 years, so I take a pretty pragmatic view of these matters. It is largely a very interesting academic debate. If you knew me in my university years, when I was reading jurisprudence, you would have probably thought I was a bit more at the Dicey end of the spectrum rather than Dworkin. As a politician who recognises that these are important concepts and values that underpin how we work as a society, the thing that is most important is that we have the broadest possible support across society for something as fundamental to who we are and how we run our country as the rule of law.

That means, in my own view, that when you go too far into what could be described as contested political philosophy or political underpinnings, you might be in the realm of too much being contested. We should all be able to agree on the basics: procedural due process and laws properly made here in Parliament following the proper processes here. You are seeking to prevent the arbitrary use of power. We can all, I hope, agree on that. Then there are the broader things such as clarity, consistency and coherence. You should always aim to be looking forward, so prospective rather than retrospective. It is very clear where there is broad consensus on what the rule of law means procedurally.

Once you get into more substantive issues, that is where political debate perhaps takes over. For the workings of a Government, we are trying to uphold what we consider to be a really fundamental, perhaps quintessential, British value. It is central to how we work as a country. We also recognise that, underpinning the rule of law, apart from parliamentary sovereignty and the way that we have our democratic rules in this country, is the independence of the judiciary, which is absolutely fundamental. There is no really valuable rule of law without an independent judiciary. For me and my oath, I have responsibilities in the constitution for upholding the rule of law, but alongside that also, of course, my constitutional responsibility is to defend the independence of the judiciary. I see the two as intimately connected.

The Chair: Indeed, that was an issue that your colleague the Attorney-General, who gave evidence to the committee recently, emphasised as well: that the independence of the judiciary is crucial to this. Have you a word on the ECHR at this moment, or would you rather talk later in the proceedings?

Shabana Mahmood: We can pick it up later as well. I would be happy to. We have iterated many times in government, but also in opposition, that we support the convention. You asked about international law as well. Where we as a nation have signed up to a treaty or an agreement of any other kind, it is really important that we abide by our obligations.

It is a point beyond just the law. On the global stage, people need to be able to take you at your word. There is a political cost for us as a country when it looks like Britain is going to derogate from its own obligations willingly entered into. You pay a very heavy price. That is not something that this Government are prepared to do. “Our word is our bond”; that is our starting point. We have made promises. We will fulfil them.

On the ECHR, we are looking forward to the celebrations later this year. We have a programme of activity across government, but led by me at the MoJ, that will ensure that we reiterate our support. It is not to say that there is never going to be a debate about whether a 75-year-old legal instrument is still fit for purpose 75 years on.

Baroness Kennedy of the Shaws: Magna Carta is still doing pretty well and it is hundreds of years old.

Shabana Mahmood: Indeed, some concepts are much more universal, but some challenges change a bit over time as well. If you believe in and support the ECHR, as I do and we as a Government do, it is also right that you interrogate the arguments so that you do not allow those to be in the hands of those who would wish to take them away, which is very much the opposite of the position we want to be in.

Q2 The Chair: Keeping our word is important in politics, you say, and I agree with you. Before the general election, we, this committee, carried out a short inquiry into the Hillsborough law. We came out in favour of its main provisions: the duty of candour, having an independent advocate and parity between the players, the victims on one hand and the big vested interests on the other.

Many of us were delighted that you placed it in your manifesto at the general election and said that it would be implemented by the beginning of this month, April, before the anniversary of the terrible Hillsborough disaster. I should mention that, at the time, I was a Liverpool Member of Parliament, so it is quite close to home for me. We were disappointed, therefore, that it was not possible to keep that pledge, although I think you are still very committed to the objective. You said that it is going to be produced at pace. Can you unpack that for us and tell us what we and many of those who are campaigning for the Hillsborough law now might expect?

Shabana Mahmood: We are absolutely committed to passing what has come to be known as Hillsborough law. The duty of candour, with criminal sanctions for those who do not abide by that duty, is central to our legislative agenda. We took the view that we wanted to make sure that the provisions are fit for purpose. There is a tension, and we have to get it right in drafting, about what action is caught by criminal sanction and what is not. When you are placing a broad duty on thousands of civil servants and other officials all over the country, it is important to work out clearly what the conduct that might attract criminal sanction is versus the conduct that might attract other sanction, or in fact is dealt with by employers in other ways. Getting that balance right is important.

Slightly tricky legal issues are at play. We wanted to make sure that what we come forward with really strikes the right balance and that it is a duty that the families can have confidence in, but that we can also give clarity to all the people who will be under that duty. Our manifesto commitment absolutely remains in place. The Prime Minister, at his conference speech last year, said that we wanted to get the Bill introduced by the anniversary, which was on 15 April, as you rightly say. We have missed that deadline. In conversation with the various groups on this that have been campaigning for many years, there was a view that, rather than holding ourselves to an arbitrary timeline and therefore getting things wrong, it is better to wait a bit and get it right. That is the view that we have taken.

Q3 Peter Swallow: I know that the Government will be considering carefully the implications of the Supreme Court’s judgment in the For Women Scotland case, in terms of what it means for both single-sex spaces and the definition of sex under the Equality Act, and of course the reiteration that trans people must be treated with dignity and respect, again under the Equality Act. I know that a lot of that lies outwith your brief, but I wanted to touch on what the Government’s view is on the implications particularly for prisons.

Shabana Mahmood: It is an important judgment and I welcome the clarification from the Supreme Court on what has become a vexed question of the interaction between what is termed legal sex or biological sex and what those terms mean in the Equality Act. We really welcome it. As you say, the Equalities and Human Rights Commission will now produce detailed guidance, which we will obviously look at carefully.

On the situation in relation to prisons, I inherited a policy that was already in a strong position, which is that no trans woman convicted of a rape or serious violence offence who retains birth genitalia would ever be considered for being placed in the women’s estate. I have not moved any trans prisoners into the women’s estate since I have been in office. The policy has been very strong already, but we will now go back and, with the clarity from the Supreme Court, consider whether that policy still stands to scrutiny or whether we need to make any changes. We will engage fully, but I think the start point had already shifted under the previous Government into a position that is not dissimilar to where things would be from the Supreme Court’s decision.

There are other issues in relation to searches, which, in other parts of the criminal justice system, have attracted much more controversy. For our part of the justice system, in most of those instances, either permission is required or the person being searched can express a preference. Even though the issues exist in theory in the same way that they do in the rest of the CJS about whether sex refers to legal sex or biological sex pre this ruling, in practice, because of the way the policy works, the issue does not arise in quite the same way. We will again go back and I will ensure that we are fully in compliance with the ruling of the Supreme Court.

Peter Swallow: Briefly, on the policy around searches, you mentioned a degree of requests being available for the individual being searched. Is it your view that that meets with the idea that, under the Equality Act, trans people should be treated with dignity and respect?

Shabana Mahmood: It is absolutely important that trans people are treated with dignity and respect. When I came into office, I asked for an overview of all of the policy, and I wanted us to look at it and review it anyway before the Supreme Court’s decision. The advice, rightly, was that we should wait, but policy problems and difficulties are not being engaged because of the way that these policies have ended up working in practice. I was content that there was not an immediate problem that needed resolution and that was requiring practice change. It is important that the policy encapsulated in documents that are used by officers every single day is up to date and legally accurate, so we will make sure that that is all changed.

As a broader thing, the Supreme Court provided the legal clarity in its legal decision, which is exactly its job, and sought to handle the communication of that very sensitively to make sure it could not be misused to suggest that discrimination is possible and all those things. That was very important. It is disappointing that, since then, some individuals have sought to question the validity of the Supreme Court or cast aspersions, which is absolutely unacceptable. It has done its job and sought to do it in a way that recognises that we are talking about a balance of rights, but sought to give confidence to a minority community that they still have the protections from discrimination that they have always enjoyed.

The Chair: Thank you so much for being so clear on that.

Baroness Kennedy of the Shaws: Lord Chancellor, I am sure you would agree that one of the real problems here is of a trans woman being placed in a male prison environment, a woman who has in no way had any suggestions made of her being a risk to women by way of violence or sexual offences and so on. To put her in a male prison would involve a risk assessment, and that is what the prison system generally does. It has a very careful risk assessment and decides where that person will be least at risk. Very often, putting a trans woman into a male prison is going to create an incredible risk to the safety and well-being of that person.

It is important to unpack for the general public who are watching what happens in those circumstances. What is going to happen when a woman is convicted of a financial offence but it is worthy of a prison sentence and she is being sent to prison? What happens about assessing where she should properly go?

Shabana Mahmood: The first thing to note is that the vast majority of trans women prisoners are within the male estate, so risk is of course assessed. That is important.

Baroness Kennedy of the Shaws: Has that always been so? You have said that, during your period, no trans woman has gone into a woman’s prison. That has come as a surprise and a shock to me. Are they are being put into male prisons and kept in isolation?

Shabana Mahmood: No. Generally speaking, they are housed in the normal male population where we do not have concerns about safety or they are not at any particular risk. The very vast majority are in the male estate.

Baroness Kennedy of the Shaws: That is even if they have a gender recognition certificate, which allows them to have a passport that carries their female name, and they go about their business at work and so on as a woman?

Shabana Mahmood: Policy and practice has been about biological sex. There is a separate wing that is used to house trans prisoners and only trans prisoners where you have concerns about risk or personal circumstances, such as mental health, risk of self-harm as well as risk of violence from other prisoners. We are already in a position in the prison estate that perhaps the EHRC guidance will suggest other government departments and public bodies should move to. Generally speaking, you have now the distinction around biological sex, but you have to potentially provide further facilities for trans people as well. That is already covered in the practice that we have in the prison estate.

There are a small number who are on the trans-only wing, if I might put it that way, and very low single digits who were housed within the female estate. Those are all people where the index offence is not rape or serious violence and they do not have their birth genitalia.

Baroness Kennedy of the Shaws: You would agree that the majority of the complaint that biological women are making relates to their fear of male violence and that, statistically, trans women are as at risk of male violence as biological women.

Shabana Mahmood: I do not know about the statistics here. I fully recognise that we have a responsibility to female prisoners in the female estate to make sure that we can keep them safe.

Baroness Kennedy of the Shaws: And to trans women.

Shabana Mahmood: I was just about to move on. We also have responsibilities to trans prisoners, trans men as well as trans women, to keep them safe too. Our current policy strikes the right balance. We always assess risk in relation to prisoners. The fact that the vast majority of trans women are held within the male estate suggests that there are many cases where we consider that risk not to require them to be moved elsewhere. Where it is necessary, we have the alternative provision, so we are able to cater for the needs and safety requirements of all the different groups that we find within the estate.

Baroness Kennedy of the Shaws: Trans men who were biologically born as a woman will go into a women’s prison. A trans man will go into a women’s prison.

The Chair: You have raised a very important and worrying question. The important thing for us to do as a committee is to reflect on the helpful answers you have been giving and maybe to pursue with Lord Timpson, the Prisons Minister, some of the detail that you have raised today.

Q4 Baroness Lawrence of Clarendon: As your Government’s report on responding to human rights judgments says, it is unusual for the European Court of Human Rights to find against the UK, with only one judgment against the UK in the whole of 2024. Does this show that the system of human rights protection is working as it should?

Shabana Mahmood: Yes, I think so. We do not have many outstanding judgments. I know that there are one or two that have been outstanding for a long time, but, generally speaking, we are not usually found to not be in compliance. When we are, we obviously take steps to put that right.

It is important in those circumstances that we take a proper look at all the best options to give effect to what the court has found. I know that sometimes we are asked to speed up the process, but it is important that the process takes as long as it should to make sure that the end answer that we alight upon is correct and that we are fulfilling our obligations.

Baroness Lawrence of Clarendon: Are you satisfied with the process for making remedial orders, when there are often significant delays before they come into force?

Shabana Mahmood: Broadly, yes. If there are further suggestions that people wish to make, I would absolutely take them away and have a look at them. I note the issues around timings, but we have a commitment to making sure that we are in compliance and we move as quickly as we can do. It is right that, when there is an important finding against, we take the time to make it right and that the mechanism by which we make it right is also fit for purpose.

Baroness Lawrence of Clarendon: Are there times that people are questioning the time it takes around remedial orders?

Shabana Mahmood: I think that it is a topic of discussion among members of this committee and others in both Houses. I am observing, from the other side of the argument, as it were, that a criticism sometimes made of government is length of time. I am satisfied that there is no attempt to delay that is not necessary or substantive in nature. We try to get things right as quickly as we can.

The Chair: That is very reassuring. I assure you that the committee will continue to keep an eagle eye on the delays that sometimes occur.

Shabana Mahmood: I am sure that you will.

Q5 Afzal Khan: We are living in a very difficult time in this world. So many terrible things are happening in the world. Are you satisfied that the Government have sufficiently robust processes to ensure we comply with all our obligations under the various international human rights instruments that bind the UK?

Shabana Mahmood: Following on from the answer I have just given to Baroness Lawrence, yes. The position of the Government is that we will fulfil our obligations in international law. We wish to uphold international law. As I said, we support the European Convention on Human Rights and we will do everything always to make sure we are in compliance. That is our start point.

Given what is happening in other parts of the world, some of those issues have been very live and the subject of huge debate in both Houses of Parliament. That is an opportunity to stress test whether things are working as they should. Where we have obligations or when, as Baroness Lawrence was saying, we have a finding made against us, we will try to bring ourselves into compliance. I know that that is the position of the Government, and I am confident that we move at pace to make sure that we do so.

The Chair: You mentioned ECHR earlier and Article 8 was mentioned in parenthesis. We have seen some media stories, which I know Sir Desmond wants to ask you about.

Q6 Sir Desmond Swayne: General Sir William Slim was quite accurate when he observed that nothing is ever as bad as first reported. Nevertheless, there have been a series of bizarre judgments, principally from tribunals, largely on Article 8 rights, but not exclusively so, so much so that the Prime Minister even commented at Prime Minister’s Questions a week before last, or perhaps a week before that, that the judgment was wrong. Last week, we had a spat at justice questions about intrusion into judicial independence. I want to be clear about exactly where you stand in a distinction that certainly I see between criticism and intrusion into judicial independence.

I will put it this way. In a common law jurisdiction, where judges make law, nevertheless, Parliament is supreme and can change the law if it does not like the law that has been defined by the courts, as indeed those Members of Parliament who were aghast at last week’s judgment by the Supreme Court can seek to change it in Parliament by amending the 2007 Act. Clearly, for that process to take place, there will have to be a debate in which robust criticism is made of the law that the judges have defined and that is a normal, natural part of the process. Parliament must be free to criticise judicial decisions, must it not?

Shabana Mahmood: Judges do not make law. They apply the law. It is Parliament, legislators, and the Government, the executive branch, that make the laws of this country. Judges have to take those laws and then apply them, sometimes to novel situations where they apply the principles laid out in the law and sometimes to clarify the law, as we saw with the Supreme Court decision recently. They are doing their job in applying the laws of the land to the situations that present before them in the courts.

If the Lady Chief Justice was here, she would give you the same answer as me on this, which is that of course in a parliamentary democracy you expect robust debate. Nobody is trying to shut down robust debate on the substance of the law. If people think that the law is not working as it should or needs to be strengthened, the people whose doors you should bang down are not those of judges, but those of politicians, i.e. people in the Government who have the principal levers at their disposal in order to make law. Absolutely, robust debate is acceptable and, in fact, to be welcomed in a country such as ours, but we should place the responsibility for rectification of the law, if that is what people think needs to happen, or clarification, whatever it might be, at the feet of the politicians involved.

It is absolutely wrong in every circumstance to personalise criticism and go after individual judges. We are seeing a trend where people are trying to play off sentencing decisions in different types of cases against each other and using that as a way to go after individual judges. You have already mentioned the position in relation to immigration judges. It is completely unacceptable to go after individual judges who are simply doing their job. Parliamentarians have to be very careful about our rhetoric in this area.

You referenced the spat, as you described it, at justice orals last week. I want to be absolutely clear. We are very lucky in this country to have an independent judiciary. That means that you respect the independence of their decision-making once they have made decisions. That applies to individual sentencing decisions in the Crown Court, which people often want to talk about or criticise. It also applies to Supreme Court decisions. If you did not like the so-called enemies of the people judgment or the judgment last week, the Supreme Court is just doing its job. You should not have the Supreme Court in your sights. If you do not like the law, you have other avenues to take the argument forward. It is absolutely unacceptable to go after individual judges, so that is where the line is very clearly drawn.

Sir Desmond Swayne: That is, after all, why we put judges in a uniform and a wig, and call them Mr Justice instead of their Christian name. They are the law rather than an individual and should not be pursued, I agree, in that way. Nevertheless, it remains legitimate for Members of Parliament to raise questions in the most robust way about the decisions that have been reached and to seek to change those decisions or the way that they have been made.

Shabana Mahmood: The first way to challenge decisions that people think are wrong is appeals. In fact, quite a few of the immigration cases that have made the news were overturned very swiftly on appeal. That is other judges saying, “Hang on a minute; you’ve got that wrong”, or, “That didn’t go the way it should have done on the facts of the case”. The first avenue is appeal. Again, defending the independence of the judiciary and our constitutional settlement, that is an important avenue that we should all support first and foremost. That is why I would caution people against jumping to comment before all of the legal process has been exhausted, because things might change based on the views of higher courts.

Secondly, if the debate remains just on the substance—i.e. “Does this law work as it should?”—that is within the normal purview of Parliament. If, as parliamentarians around this table, we are all being honest with ourselves, it never really stays in that place. It very quickly goes into individual attacks about activist judges or very personalised assumptions about what might be the private leanings of an individual. That is where the line is absolutely crossed. Once you start crossing it in cases where you think it is a little bit justifiable, you end up also crossing it for everyone in all other circumstances, which is why it is an important line that should never be breached.

Q7 Baroness Kennedy of the Shaws: The Home Secretary has confirmed that the Government are carrying out a review that will cover the application of Article 8 in the immigration context. I wondered whether you might be able to provide us with more detail of what this review is going to entail.

Shabana Mahmood: The Government’s position, and we are working with the Home Office on this, is to look at how Article 8 cases are handled in immigration decisions, for example, to prevent repeated or spurious claims stopping the removal of a foreign offender, someone who has not got any right to be here, from this country. Looking at those arrangements, it would be wrong for me to get ahead of the review, but I will note that it is a live bit of work that the Government are undertaking. We have an immigration White Paper, I believe, due out later this year, which will set out more of our position.

Given some of those cases and the debate in Parliament, as the Prime Minister himself said, he is not attacking the judges. He was saying that he thinks, in substance, the law might not be working as it should. Therefore, he is doing what parliamentarians, the Prime Minister and politicians should do in this circumstance, which is go back and have a look at whether our arrangements are working as intended.

Baroness Kennedy of the Shaws: We know that a lot of the complaints about Article 8 have been spurious. The idea is that people want to see men who commit crimes, who have spent most of their childhood and been brought up in Britain, and who have family here and relationships here, being sent back from whence they came at the age of three, five or seven. Is this not the Government basically responding to rather ugly positions about human relations and the importance of us taking responsibility for the way in which people might develop within our society?

Shabana Mahmood: I do not think that it is a responsible attitude of the Government, and certainly not a Government that support the convention, the Human Rights Act and our human rights-related arrangements in this country, to simply adopt a position that “There is nothing to see here” and look the other way. If we do that, we empower the populists in the country who would rather do away with all of these rights. That would be damaging for everybody.

The complaints about cases are, sadly, not all completely spurious. The judgments do not always stand up to scrutiny when you get into the full facts and they raise questions of whether the law is working as it should. The judges are just doing their job. They are applying the laws that we have, so then the politicians have to ask the questions. If we test the operational workings of the law, and we come back and say, “Actually, it’s fine”, that is a good, defensible and strong position. I do not think that the start point should be that we are never going to look at it, because we just take as read that there is nothing to see here. That would be wrong.

Baroness Kennedy of the Shaws: Who is going to conduct the review?

Shabana Mahmood: In relation to Article 8 and immigration decisions, immigration law in government is owned by the Home Office, so it is Home Office-led, but overall we have responsibility for human rights. You can rest assured that we are not siloed and are working closely with the Home Office.

The Chair: Lord Burnett made the point, rather building on something you said yourself a few moments ago, that sometimes the problems have been a misapplication of law at the lower tier and they have been overturned in the UK. It is nothing to do with the ECHR or the Strasbourg court. They have been overturned here in this country by judges. Maybe the training issue and the understanding of how the law actually works is something the review might care to look at as well, but I do not want to keep you longer on that issue.

Q8 Alex Sobel: It is good to see you, Lord Chancellor. The committee has previously recommended that the UK should ratify Protocol 12 to the ECHR, which includes a general prohibition of discrimination. The Government at the time said that they agreed in principle, but wanted to wait and see how the court interpreted it. Now we have a significant body of case law, including a case from the Balkans, which has confirmed that Article 1 of Protocol 12 applies in the same way as Article 14, and differences in treatment are discriminatory only if they have no objective justification. Is it now the time to revisit the question of ratification of Protocol 12?

Shabana Mahmood: I do not wish to disappoint the committee by saying no straight away, but our position is not different from that of previous Governments. We remain—how shall I put it?—unconvinced of the necessity for Protocol 12, given the rest of the arrangements that we have, which I believe are very robust.

I know that the case law has developed a bit since this was last discussed with my predecessors, but, I would observe, probably not in a way that would give you absolute clarity of how that would work in practice. It still reads like a very broad right. It would still be good to wait for further developments. If I felt we were an outlier in some way, that might change the way of looking at the decision. Given that we are not and this is very broad, in this early phase of being in a new Government, I have not seen the case made for changing the previous position.

Alex Sobel: The mark would be that we were an outlier.

Shabana Mahmood: No, not just an outlier. We need more clarity before we open up potentially a big new area. More clarity is needed on application. It is important to see what others are doing and how they are viewing further decisions from the court on application before we consider changing our current position.

The Chair: More than a decade ago, when sitting in your seat, a Parliamentary Under-Secretary, now the Foreign Secretary, David Lammy, came and gave evidence on Protocol 12. He said at that time that he feared that the system might become swamped as a result of complaints. We have recently met with a Leeds academic, Professor Paul Johnson, who is doing some work for us to demonstrate whether that has indeed been the case. It would be wonderful if we could share that with you as and when we get it.

Shabana Mahmood: I am very happy to keep the discussion going and for you to share any further findings.

The Chair: One of the leading advocates on the JCHR about AI—artificial intelligence—and its human rights dimensions has been our next questioner, Mr Afzal Khan. I do not think that I am breaking great secrets in saying the committee is looking seriously at undertaking a thematic inquiry around this in the next session. It has not decided yet, but it is certainly something that the committee feels strongly about.

Q9 Afzal Khan: Given that the AI framework convention is intended to enhance existing human rights safeguards against the risk of AI, how will existing UK law be amended to fully align with the standards set out in the framework convention?

Shabana Mahmood: I was very pleased to sign that framework convention a few months ago. The thing to note is that it is a framework and it sets broad parameters of the wider legal considerations in this area. It does not introduce anything new in terms of human rights. It is open to us to interpret how we implement the convention. The work in this area is being led by my colleagues over in the Department for Science, Innovation and Technology. They will consider the domestic issues before we move towards, for example, ratification and so on.

You will know that, in the King’s Speech, we already said that we were going to do an AI Bill. Some of the broader human rights and ethical considerations around AI, I guess, find their genesis in the data that underpins any AI model or AI system. That has been very much the approach of the Secretary of State over at DSIT, where we have to be really clear about data and access to data to make sure that it is correct and, therefore, that any AI built on top of it works as intended and does not create the problems that others have noted.

The work is under way in government and we are very alive to the concerns that I am sure you and others have raised, which I raised when I was in opposition, frankly, on making sure that AI does not inadvertently have discriminatory effects or impact on other human rights. We know that those are things we want to avoid, but we have to be careful about how we draft any future legislation in this area to cover that.

Afzal Khan: On that last part, as AI systems can disproportionately affect vulnerable groups and the framework convention requires countries to protect against the risk of discrimination, what specific mechanism will the Government put in place to monitor and assess the impact of AI systems on such groups? How will the findings of these assessments inform the ongoing implementation and enforcement of the convention?

Shabana Mahmood: This is work that is under way at the moment. We are obviously working closely with our colleagues in DSIT and other government departments. It highlights the tension between new technology and the desire to move at pace to make sure that we get all the economic benefits of this new technology. It has vast possibilities for the delivery of public services, and so it is important that we are able to move quickly and that we are early adopters.

Others will talk about the importance of first-mover advantage when it comes to developing regulations in this area. It is important that the regulations are in line with our values as a country and our policy aims as a Government, and that the tension between moving at pace and getting the regulatory framework right is in the right place—i.e. we strike the right balance between those two things—which is absolutely the aim of the Government.

The Chair: It is a hugely important, cutting-edge issue.

Q10 Peter Swallow: Is it the Government’s view that the Aarhus convention needs to be reformed?

Shabana Mahmood: Regardless of questions around reform or further discussions about the extent of the convention, we are signatories to the convention. The Government’s position is that we are signatories to it. We have obligations and we have to fulfil our obligations.-

The Chair: Perhaps for the benefit of people watching the proceedings, and even for some of us, could you explain what the convention is?

Shabana Mahmood: It is an international treaty and it relates to access to environmental rights. The issues that are engaged in relation to the UK and non-compliance relate to our environmental cost protection regime. This is whether it is cost prohibitive to judicially review decisions based on environmental impact and climate change concerns. It is very much in the space of protecting rights to a clean and safe environment, and dealing with the effects of climate change.

Its technical application on the environmental cost protection regime is a thing where we have been found not to be in compliance and that is where my colleagues in Defra are taking forward the work. We expect to make progress on that in the next few months to try to bring us back into compliance. There is a debate out there in the country about whether this is the right thing for the country to be signed up to, but we signed up to this in the 2000s. We have obligations and it is the position of the Government that we will fulfil our international obligations.

Lord Murray of Blidworth: I was going to ask a question on the Aarhus convention, if I may. The Aarhus convention is perceived, one understands, by the Government as a bit of a blocker to infrastructure building, because of course it entitles there to be judicial review challenges of infrastructure planning decisions and the claimants can bring those challenges without any hazard of costs being ordered against them. This has made life more difficult for Governments of all complexions in terms of putting through infrastructure building. Is the department looking at reviewing either our approach in the Civil Procedure Rules, in terms of how we deal with costs in judicial review claims, or possibly our approach towards the Aarhus convention more broadly?

Shabana Mahmood: We are absolutely considering ways in which we could bring ourselves into compliance. This touches on the question with AI. There will be tensions, given the need for Governments to move forward with AI and the need to get things done and built in this country. There is that necessary tension somewhere in the middle between that and wanting to fulfil our obligations, not just our international obligations, but the approach we take to the rights that our citizens have as well.

I would not want to get ahead of the work that my colleagues in Defra are doing. We will come back and I am very happy to share with the committee or discuss in future hearings the position we have taken on the compliance issues. I would observe more broadly that we are not looking to do anything at this stage that is not about bringing us into compliance. We have taken the steer from the Banner review, which was started under the last Government and made findings in relation to judicial review and costs. That also looked at the application of Aarhus but did not make any further recommendations here or dismissed the other options that were on the table for costs. We have agreed with that position. That is the work that we have taken forward.

Q11 Baroness Lawrence of Clarendon: What steps are you taking to ensure that the Leveson review does not delay the urgent need for bold reform to address the courts backlog and the impact the backlog is having on victims?

Shabana Mahmood: I am very aware of not just the size of the backlog, but also the issues that that causes for victims. That was the thinking behind asking Sir Brian Leveson to conduct his independent review of criminal courts. We have asked him to look at once-in-a-generation reform. We want to bring forward a package of reform to our criminal courts that provides swifter justice for victims.

The fundamental thing that we are trying to achieve here is to get cases through the courts more quickly, so that victims are not waiting years and years just to have the first day of a trial in front of a judge. That is not acceptable to us. Cases are currently being listed for 2028, which is not something we are prepared to tolerate. It is very true that justice delayed is justice denied. That is why we absolutely want to see once‑in‑a‑generation reform and have said that we will legislate to achieve that.

One thing—this might slightly underpin your question as well, Baroness Lawrence—is that there has been a suggestion that we can move ahead with reform, that we do not need the review or that we do not need to wait. I have heard a few times certain august Members of both Houses, including one or two of my predecessors, say, “Get on with it”. I am not taking that as a criticism from a bunch of people who did not get on with it for 14 years—sorry to be party-political for a minute there.

Also, it is important to get the reform right. If we are going to move more cases into, for example, an intermediate court or the magistrates’ court, that will mean some cases that get jury trials today might not get them in the future. That is a big deal and it is important that you do not do this kind of reform, which could be very broad ranging, in a piecemeal way. You should do a proper package that looks at all the issues in the round, because there are interactions between changes you might make in magistrates’ courts, a possible new division of the Crown Court, and Crown Court procedures as well.

We are very much getting on with it. We have moved incredibly quickly to get the Brian Leveson review under way. It will report very soon and then we will bring forward a Bill in order to enact the reforms that we want to take forward. It is important, if you are going to do once-in-a-generation reform, to make sure you get it right, and that is what we are doing.

Baroness Lawrence of Clarendon: Can I follow up on something around the victims? At the end of the day, it is the victims waiting years and sometimes they pull out and say, “I can’t wait any longer”. That way, as you say, justice does not happen. What do the Government do in order to support the victims while they are waiting for their trial to come to court?

Shabana Mahmood: We have a set of arrangements at the moment that are designed to give victims support through the process of a criminal trial. We are committed, in the King’s Speech, to bringing forward a victims Bill. I hope to bring that in very soon. That will set out more of our proposals in order to improve victims’ experience of the justice system, strengthen their rights and look at strengthening the powers of the Victims’ Commissioner.

Reform will take some time to bed in and to start having an impact on the ground. We want to make sure that, in the meantime, we are doing everything we can to support victims through what can often be a very difficult and traumatic process. The reality is that you will not get the sort of change that victims are looking for unless and until you do big reform of how the courts currently work, because the fundamental question is about delay. While we can improve things on victim experience, notifying victims and support for witnesses, and we can have a package, the package still works in a process that, ultimately, is failing because the backlog is growing and cases are taking too long to get through the system. That is why my absolute priority for victims is to deliver Crown Court reform, so that we can get cases moving, bring that backlog down and, ultimately, deliver swifter justice.

On every trajectory at the moment, the backlog is going up, because the sheer number of cases coming into the system is fast outstripping the ability to meet them. Even if we had all the money in the world and we could sit to absolute maximum capacity for the whole of the rest of this Parliament, you still would not get the backlog down, which is a pretty damning indictment of the mess we have inherited and the problems we are trying to fix. You will not do that without reform and that is what we are committed to.

The Chair: The committee was very interested to hear what you had to say about the new victims Bill. Of course, that would be a Bill that would come to us for scrutiny. If there is the opportunity for pre-legislative scrutiny, I know that Baroness Lawrence and others around the table would be very interested to take part at least in discussion with your officials about what might be in it.

One issue that is raised often in the north of England, where I live, is about delay. You quote Gladstone’s old adage about justice delayed being justice denied, but the number of court sitting days is a point I know that Lord Murray wants to come on to now. That certainly has an impact on the delays.

Q12 Lord Murray of Blidworth: Yes, certainly. As you said, even if the courts were sitting at capacity, they would struggle with the backlog. The problem is that we know that the courts are not sitting to capacity. The Lady Chief Justice gave evidence to the Justice Select Committee and said that, “The decision to limit us to the 106,500 sitting days in the financial year 2024-25”—out of a capacity of 113,000 available sitting days—“has frankly had a drastic effect across the board”. Following that, Lord Chancellor, your department announced funding for a further, I think, 2,500 extra sitting days for the year 2024-25, but that still leaves a considerable shortfall.

What assessment have you made of the impact of that shortfall on victims and justice? We are both members of the Bar. There is concern that yours is often the target, being the largest unprotected spending department in a time of fiscal constraint. What impact do you think the current sitting days decision is having and any future cuts might have on victims?

Shabana Mahmood: We were already into the financial year 2024-25 when the election occurred and I took office. The position I inherited was for 106,000 Crown Court sitting days. I immediately uplifted that by 500 because there was enough give within the 2024-25 Budget for me to do so. At that point, in the early weeks of being in office, that was the only affordable option on the table, given that the Budget had already been settled before the election and was not then increased immediately upon us taking office. As I hope the committee will recognise, we have to live within our means and the fiscal inheritance is extremely challenging.

I then made clear to my officials and everybody else that, if there was the possibility later in the year, because sometimes there are underspends, I would want to prioritise Crown Court sitting days, which I was then able to do. As I have explained in detail before to the Justice Select Committee, the thing that you have to think about in my shoes, not those of the Lady Chief Justice, is not just about whether you have the judges available and can pay the judges. The department also has to make available the funding for legal aid that underpins the ability to hear those cases on those allocated sitting days, so I have a broader consideration in terms of the money that I make available.

I was able to make significant progress and add another couple of thousand Crown Court sitting days into the 2024-25 allocation. The allocation for this financial year, for 2025-26, is 110,000. That is a record allocation, which is 4,000 sitting days higher than the last one made by the previous Conservative Government. We have made very significant progress in terms of Crown Court sitting days.

I think that what the Lady Chief Justice has said relates to maximum judicial capacity of 113,000 sitting days, but she will accept, as I hope the committee will, that, for the Lord Chancellor, it is not just the maximum judicial capacity that I have to consider in making allocations. I also have to consider maximum system capacity. There is absolutely the judicial capacity on one side. Do we have the judges we need, fee paid or salaried, in order to sit these days and get the work done? How many of them do we have and what can we get out of them in terms of sitting days?

I then also have to think about all the other things that are needed to make a trial happen. Are there the lawyers available? Is there the prosecution capacity? Is there capacity across the rest of the criminal justice system to underpin the allocation that I am making? My judgment was that, at 110,000 Crown Court sitting days, I am at system capacity, which is what I have therefore prioritised and what I was able to get the funding for.

Baroness Kennedy of the Shaws: Lord Justice Leveson has told me that one of the great problems is a shortage of lawyers practising in criminal law because they are so poorly paid, but that is not what I was going to raise. I was going to raise with you whether you have thought of deferring prosecutions for low-level, non‑violent crime. I am going to mention deferred prosecutions because they were an initiative that was introduced to deal with corporate criminality. An arrangement could be made that you will not be prosecuted if you put your house in order and are able to show that you have done that. It is used widely within the commercial crime area.

Why could it not be used for low-level crime? You would defer the prosecution, so you do not take up court time, but it is flagged that that person is on a deferred prosecution thing. If they come up anywhere, the computer system will say, “This person has offended within a two-year period”. It is not deferred sentence but deferred prosecution, and it therefore takes you out of the system. That is my suggestion that might solve some of your problems.

The Chair: If you do not feel able to answer it now, but you would like to write to the committee, we would be very interested to hear and reflect on it.

Shabana Mahmood: I was going to say that I am not going to get ahead of my reviewers’ work in this area. The first phase of that review looks at reform of the criminal courts in terms of case allocations, what types of cases go where and whether the case has been made for an intermediate court between magistrates and the Crown. The second phase of Sir Brian Leveson’s work will look at efficiency across the system. I suspect that some of your suggestions might sit in that second area. If he has not already, he will be considering all the options for looking at demand in, as well as the speed at which they move through the system.

Baroness Kennedy of the Shaws: I am going to have to put it in writing.

Shabana Mahmood: I am sure, Baroness Kennedy, that you are a good operator. You will know how to make your views known and put them in writing as a submission to the review perhaps.

The Chair: Perhaps your officials will help in that process.

Baroness Kennedy of the Shaws: It is about saying, “If you do not commit another offence for the next two years, we won’t proceed with this particular thing”. It could pull out a whole set of these numbers and find you a way of reducing the burden on the courts.

Shabana Mahmood: The only thing I would observe is that I do not know what sort of policy design and numbers it might lead to. I will not, as I say, get ahead of what the independent review’s findings might be. A very large part of that backlog is exactly the sorts of cases that should be going to court and should be heard, and the question is where. There might be the possibility to make smaller changes that relate to a very small number of cases, but the big work is still about how we deal with cases that need to be heard. Can we get them heard more quickly than they currently are?

The Chair: It is an interesting question, though, to reflect on, perhaps.

Shabana Mahmood: Absolutely, yes.

Lord Murray of Blidworth: Returning to the question of sitting days, to summarise, I think your evidence was that the 110,000 sitting days in the next financial year still will not help to address the court backlog. You said that, even at max capacity, it will not make a difference.

Shabana Mahmood: The sad truth is that neither 110,000 nor 113,000 would be able to make the sort of meaningful impact on the backlog that we want to see. That is because the sheer scale of demand coming into the system far exceeds the sittings capacity. Even if judicial maximum represented system maximum and we were at that level, we would still see the backlog rising.

Lord Murray of Blidworth: Sir Brian needs to come up with some good ideas.

Shabana Mahmood: We need once-in-a-generation court reform.

Q13 Lord Murray of Blidworth: I am going to move now to a different topic, which is the regulation of legal services. We know that the growth agenda and deregulation is part of the Government’s programme. In the legal sector, as a barrister yourself, you will be aware that we have a large number of regulators: the SRA, the Bar Standards Board, the Legal Services Board and the Legal Ombudsman.

To what extent do you think there is room to examine whether it is necessary to have this number of regulators? The Legal Services Board could conceivably be abolished and its functions transferred to the other three regulators. Indeed, is it worth ensuring that those regulators are confined to their specific core roles, so as not to increase the regulatory burden on practitioners, which has grown and grown, as has the cost of regulation?

Shabana Mahmood: Across the whole of government, there is a desire to look at all regulators. That is work that we are also doing at the MoJ, just as every government department is doing, to make sure. It is not just to offer up things to get rid of, as it were, but it is more to satisfy ourselves that we have asked the question, have stress-tested the arrangements that we inherited and are sure that they are fit for purpose. In some departments, they have been able to move forward to abolition of some regulators. That will not be the case for every government department, but we are engaging in that work and will do a full response to Cabinet Office and others who are leading in this area.

I observed that at the outset, because your broader question was whether there is a case for abolition. We are asking those questions not from the perspective of whether there is a case for abolition, but more about whether these arrangements are working properly, whether we can defend how they are working and whether they strike the right balance, setting the absolute necessity for good regulation of those who work in the legal profession against not getting in the way of economic growth.

We, as a department, want to make sure that every bit of our system is contributing properly to the Government’s growth mission as well. A large part of our work on the rule of law is also growth‑oriented, because it is such an important part of how we sell ourselves as a jurisdiction. It is why so many businesses want to invest here, because they can trust that we are a rule-of-law jurisdiction and that our judges are independent. We see ourselves as making a contribution on the growth side.

The slight difference between the Solicitors Regulation Authority, the Bar Standards Board and other regulators is that these are independent of government in a way that does not necessarily work the same in every other government department. It is important to make sure that you are able to retain that element of independence. Also, when things go horribly wrong, as we have seen in the SSB cases, in Axiom and so on, where ordinary people have lost a lot of money and there are criticisms to be made, the Legal Services Board can jump in and try to sort things out.

I have not seen an obvious problem here that is not being resolved. I would be concerned about the impact on ordinary members of the public, particularly in light of those cases where things have gone horribly wrong. The LSB is working on it and I am confident that the process, at least, should get us to a better answer. I would be happy to write to you or discuss in future with the committee what the outcome of our ultimate review of all our regulators, arm’s-length bodies and so on has been.

Lord Murray of Blidworth: Is the review also going to cover the issue of mission creep by the regulators and increasing regulation costs on practitioners?

Shabana Mahmood: All government departments are looking to make sure that regulators are operating as intended and that that can be justified and defended, and is not unnecessarily getting in the way of other government priorities. We will do that in the same way that every other bit of government is doing that bit of work.

The Chair: That was very constructive. Thank you very much, Lord Chancellor. I look forward to engaging with you further on that.

Q14 Lord Dholakia: Thank you, Lord Chancellor, for your presence here. There is a matter I wanted to find out from you. The Sentencing Council was established in 2010 and I think the Bill is being discussed at this precise moment over there.

Shabana Mahmood: Yes, in the Commons now.

Lord Dholakia: What access do you have to research that actually identifies the position you seem to have taken in this particular matter? In the early 1990s, Professor Roger Hood carried out major research into sentencing of over 4,000 cases, going back to the police files, because there were no ethnic statistics kept at that particular stage. Over 1,000 control elements were established at that particular stage. It came out with the firm conclusion that there were sentencing discrepancies in the way that black, Asian, Irish and Roma people were sentenced.

One of the biggest problems is that, even now, if you look at the prison population, the probation orders, et cetera, black people fare very badly compared to what is happening generally. What grounds do you have to establish that such discrepancies could be removed in future legislation?

Shabana Mahmood: Thank you very much for the question. The first thing to observe is that I acknowledge the disparity exists, so I am not suggesting that there is not a disparity in the numbers. What nobody knows for certain is exactly why, and that was the position that the Sentencing Council also took in its letter to me, where it was clear: “We don’t really know why this disparity exists”.

If you are going to pull a lever to fix that disparity, I would say two things. First, I consider that a matter of policy, and it is my view that that therefore is in the purview for discussion, debate and, ultimately, decision in Parliament, because we do the politics and the policy. I do not think it is for the Sentencing Council, on this issue of policy, to make arrangements to deal with what is a societal policy issue. Well intentioned though its imposition guideline was, it has strayed very clearly into what I consider to be the realm of policy.

Secondly, for policymakers, if you are going to pull a lever or create a change to deal with a disparity, you have to know that it is going to fix that disparity. You have to know that it is going to have the outcome that you are looking for. Having come into office, the work in this area has been very much about increasing the diversity of the judiciary, which I absolutely support. We have seen incremental increases in diversity of the judiciary. It is not clear that that is the thing that you need to do in order to deal with the disparity. When levers are pulled, we have to go in knowing that this is the right lever to pull to fix this problem.

A part of the disparity is accounted for by different approaches taken by different types of defendant to early guilty pleas. You would want a mechanism that makes clear to people, “If you plead guilty early, you get a discount on sentence. If you wait right until the end because you are going to take your chances, you won’t get the benefit of that early guilty plea”. We know that black and ethnic minority defendants are less likely to take an early guilty plea, which means that, once found guilty, they will get none of the discount that they would have got if they had pleaded guilty early on.

That is just one issue. It does not account for the whole of the disparity. I absolutely accept that. If there is work to do in that area, it seems to me that that is the lever you should seek to pull, not a broader cohort type lever, which might risk equality before the law. The reason why I was not willing to tolerate the imposition guideline is that, given how the Sentencing Council explained to me what it was seeking to do in our exchange of letters and in our discussions, I felt that the principle of equality before the law for every individual was being sacrificed in order to try to potentially achieve equality of outcome for a cohort. I do not consider that acceptable, and it is not something I am willing to risk.

I absolutely agree that there is a problem here. It needs to be fixed. It should be fixed by politicians. It is actually my job to come up with the ideas and solutions that might fix this problem, and then to be scrutinised and tested by people such as you in this committee and others in both Houses of Parliament. It is not for the Sentencing Council. That is the fundamental element of our disagreement, which is why I am now legislating, having asked it to reconsider.

Lord Dholakia: You think it should be the politicians. Should it be judges themselves who are responsible? Hood looked at over 80 sentencing variables that affected the imprisonment of people from the black and Asian community.

Shabana Mahmood: The Sentencing Council does important work. The aim is to bring more consistency to judicial decision-making, but I do not believe that that allows it to go as far as it did in this imposition guideline of trying to get equality of cohort outcome at the individual level. It has gone too far.

Let me be clear: I absolutely support every judge in the land using a pre‑sentence report where it is necessary. They should follow the Sentencing Code, which remains unchanged and which we fully support, which states that a pre-sentence report is required unless the judge considers it unnecessary. It might be unnecessary because they have all the facts they need about the offender’s personal circumstances already in front of them. Perhaps they have been live matters that were discussed in the trial itself. The decision is still down to the judges, but they should follow the Sentencing Code, which is very clear on the need for pre‑sentence reports for offenders before passing sentence.

As a policymaker and as the Lord Chancellor in this area, I have freed up capacity within the probation service to allow the probation service to carry out more pre-sentencing reports. This is exactly the kind of activity where the probation service can add real value. I have tried to pivot some of its work in a direction where it does more of this work and makes the difference that only it can. As a policymaker, I am making the arrangements that are designed to get more PSRs done and enable judges to make the right decision in each of the cases that are in front of them.

Where I think the Sentencing Council has strayed is that it has sought to resolve a cohort problem, which is a policy matter. It affects individual outcomes but, more importantly than that, calls into question equality before the law. If it becomes the case in this country that a black man or a Muslim man might get a PSR and then potentially not a custodial sentence, because the PSR is designed to help decide whether you go into custody or serve your sentence in the community, but a white Christian male does not, as a matter of practice, generally speaking get a PSR, that would call into question the very fundamental principle of equality before the law. That is not something I am willing to tolerate.

The Chair: Thank you very much for that exhaustive and very helpful reply to the committee. I know that we will want to go away and think more about that issue, so thank you to Lord Dholakia for raising it as well.

Q15 Baroness Lawrence of Clarendon: As you were speaking just now, Lord Chancellor, one thing that came to mind is that the disparity starts much earlier, from arrests going all the way through. I was in a meeting about this individual who was probably standing near the incident that happened and he was charged under joint enterprise. In his mind, he is not guilty. “I can’t say I’m guilty for something I didn’t do”. Because of the IPP, he spent much longer in prison. Unless you admit to something, you are not going to be released.

This starts way back from the beginning. I was also in another meeting yesterday. It was the same thing. This young man knew the individuals and so he spent, I think, 16 years in prison because of this joint enterprise. This has been going on for years. It is not just something recent. When can further progress be expected on the release of those remaining people still serving IPP sentences?

Shabana Mahmood: With the permission of the Chair, can I complete the point on joint enterprise as well and recognise what you are saying, Baroness Lawrence? To the extent that a disparity exists, and we know it does, it is not contained in one part of the criminal justice system. It will present itself across the wider criminal justice system, but these are problems in society more broadly as well. It is important that we stress test whether the levers that we are seeking to pull are the correct ones.

A lot of the debate around joint enterprise has suggested that these arrangements are completely wrong and we should not have joint enterprise. I think that it is actually an important part of our legal system. There are clearly cases where it is right and proper that you have a joint enterprise type of case taken forward. The Director of Public Prosecutions has already said that he is looking at the application and the use of joint enterprise in cases following Court of Appeal decisions. It is right that you look at these individual situations as they arise, but you have to take—you are right—a system-wide approach as well. That is something I am discussing with the Home Secretary, the Attorney‑General, the Director of Public Prosecutions and everybody.

As I say, the red lines and non-negotiables are the fundamental underpinnings of the criminal justice system. Equality before the law of the land is not something we would ever be willing to sacrifice. Where there are issues of training, knowledge and making sure that defendant lawyers do their jobs properly, absolutely we should be looking to make sure those arrangements are correct.

On IPP sentences, we supported the previous Conservative Government’s changes that were made in the Victims and Prisoners Act, which passed just before the general election. That changed some of the rules around licence periods, enabling more people to progress out of the licence period and be free in the community. We have implemented those measures. They are operating now. We have supported them and will continue to do so.

We have also, I think it is fair to say, put a lot more energy behind the IPP action plan. The Minister responsible, Lord Timpson, is very personally seized of the need to make more progress with people who are serving an IPP. We are now in a position where we will be able to see people progress and access, within the prison estate, the services they need to show progress so they can keep moving through the stages of their sentence. We have already seen the numbers for people who have never been released start to come down a bit. They are not huge amounts—I am not going to overstate the case—but we have started to make progress in a very difficult area.

It is a tough nut to crack and we have shown a lot of energy behind the action plan. That is our policy position. We will make progress through the action plan. We do not believe that the case has been made out for a resentencing exercise, because the effect of that would mean that everybody is released immediately. There are public protection considerations there that mean that that is not possible. I would not be willing to take that risk of loading further risk into the public in that way.

The Chair: Perhaps, as you come to answer Baroness Kennedy, who wants to talk a little bit about the other parts of the UK jurisdiction and IPP in them, could you remind the committee of the numbers of people we are talking about who are currently on IPP sentences?

Baroness Kennedy of the Shaws: I was looking at this from the perspective of the devolved nations. The IPP legislation that we have here was also passed in relation to Northern Ireland. It has been repealed in Northern Ireland too, but there are still prisoners, I think, serving those sentences in Northern Ireland. I wondered whether you had had conversations with the senior officials in Northern Ireland about that and what is happening there.

The other thing is that Scotland, of course, has its distinct legal system, but it has an order for lifelong restriction. It was passed in 2006 and has not been repealed. It has to be said that it is imposed for serious violence, sexual offences and so on at the very serious end, and is passed on people who are deemed to be a high risk of serious harm to members of society. I wondered what was happening in relation to that, because it is similar. It is not exactly the same because its system is different. I wondered whether you had had discussions with officials there about any of these things.

Shabana Mahmood: I think at official level there have been those discussions, and at ministerial level, but it is not something that has crossed my desk directly in terms of what is going on in Northern Ireland or Scotland. I will happily take that away and look into it. Obviously their arrangements are for them, really. Usually, on justice issues our discussions tend to be, “What are you doing? What are we doing? Can we learn anything from one another?” We are very supportive. Of course, when the MoJ here brings forward legislation we always talk to the devolved Administrations to see, if it does not apply, whether it is something they would wish to apply. We do things properly in that way.

They have their distinct systems, so the conversation is usually about whether lessons can be learned, and I know that those discussions take place on a regular basis.

Baroness Kennedy of the Shaws: It is really, more particularly, thinking about Northern Ireland and whether it is having the same sorts of problems that we are facing here, with people who are locked into the system despite the repealing of that legislation, which was poorly conceived.

The Chair: Perhaps in due course it would be possible for your officials to correspond with the committee and give us some numbers.

Shabana Mahmood: Yes, it would. We will be able to tell you the exact number of people who have had their licence terminated, for example, and those who are progressing through the action plan. I would not wish to give you an inaccurate number, so I will make sure I write to the committee with the figures.

The Chair: We are grateful. Earlier on, I mentioned to you that one of our thematic inquiries is into transnational repression. I am happy now to turn to one of us who has been very active during the course of that inquiry, Mr Alex Sobel.

Q16 Alex Sobel: As Lord Alton said, we have had a lot of evidence in the inquiry about the use of our legal system, particularly libel tourism and vexatious lawsuits. There is a lot of evidence, particularly from Russia and Russians, of use of our legal system to try to repress people in the opposition and people who are living in the United Kingdom. What steps are you taking to ensure the legal system cannot be misused for transnational repression?

Shabana Mahmood: Our policy priority here has been to focus on the implementation of the so-called SLAPPs provisions in the Economic Crime and Corporate Transparency Act. That does not slip off the tongue. That is the 2023 Act. That is one that required the introduction of new corporate procedural rules to tackle economic crime. That is our first priority. We expect that those procedural rules will be in place later this year.

I accept and totally recognise that the issue around SLAPPs goes beyond economic crime, but we want to have implemented these reforms first, take a proper look at how they operate and then consider the next phase of changes that might be needed in future legislation. We are very cognisant of issues in relation to journalists, which the Prime Minister has spoken about since the election. Our priority is on the economic crime stuff first before we then consider some of the other issues.

Q17 Alex Sobel: Taking into account that the priority is the Economic Crime and Corporate Transparency Act, what performance indicators will you be using to monitor the effectiveness of anti-SLAPP measures in that legislation?

Shabana Mahmood: As we are moving to implementation and getting them ready for later this year, that is when I will be setting out the test by which we will see whether it is fit for purpose. I fully expect that it will have a huge amount of interest across Parliament. I know that the Justice Select Committee and others will also want to discuss those arrangements and whether they are working once they are in effect. I do not want to get too ahead of the procedural work that we are doing, but I can assure you that we will be setting a measure by which we want to test whether these arrangements are fit for purpose.

The Chair: The other thematic inquiry that I mentioned is into forced labour and supply chain transparency. My colleague Mr Tom Gordon MP is going to ask you some questions around that. Last week we had evidence from the National Crime Agency and Border Force. They both raised the little-used, in the context of forced labour, 2002 legislation around the proceeds of crime. I know that that is something that Mr Gordon wants to ask you about as well.

Q18 Tom Gordon: We have heard plenty of evidence and it is still widely accepted that there are products made using forced labour available on the market in the UK. I wondered whether you would be able to outline what the implications for the justice system are when it is required to hear cases relating to forced labour that has occurred abroad, particularly when judges must interpret and apply those laws, and how they might impact on the UK system.

Shabana Mahmood: The arrangements we have are those that we inherited. I have not seen any reason to particularly change what we have at the moment. There are necessary tensions and difficulties when judges hear those cases. That was what I think came up in the High Court’s recent decision on the use of the Proceeds of Crime Act.

My understanding is that the National Crime Agency is not going to be appealing, so it will now respond to that decision and whether it is going to open a case in that matter. We will work with it and keep a watching brief on whether our court and process arrangements can fit what the need might be, given the decision of the High Court. We will want to ensure our arrangements work and can be made to work. Given the new ruling and the fact that proceeds of crime is now being brought into this picture, let us await the NCA decision. We are talking to the NCA and we will see whether there is further work for us to do as a result of that decision.

Tom Gordon: I will come back more to the NCA side of things. On that, at one point we were seen to be world leading in this area. Since, we have lagged behind and are dropping down those tables. What are your views on whether creating civil liabilities for companies in the UK, a duty to prevent in addition to due diligence, would have an impact on enabling greater justice and a more consistent application of rule of law? Is that something that the Government might be looking at and considering?

Shabana Mahmood: We do not have an in-principle objection. We have commitments around modern slavery, tackling slavery overall and forced labour. These are abhorrent practices. Given that you are moving not just into factors that are within your domestic purview and control but maybe broader, getting the balance right is not just about what your in-principle inclination would be. It is also whether practically you can give effect to those decisions properly and weigh against that the burdens you potentially place on private companies, including the test by which they then have to satisfy themselves about what is happening in the rest of their supply chain.

There is no political or in-principle objection; it is more practical. It is right that we allow our current arrangements to operate and then incrementally move forward if that is the view across government. Others of my colleagues in government will be leads in parts of this area, including business and trade colleagues, but we work very closely with them.

The Chair: We will be taking evidence from them. Before we go on to 2002 and the Proceeds of Crime Act, Mr Gordon, I know that Lady Kennedy wants to chip in very briefly on this point.

Baroness Kennedy of the Shaws: It is with regard to this business of supply chains and so on. One thing that I want to plant with you, Lord Chancellor, is that the United States has introduced a presumption that items that come from the Uyghur community from Xinjiang province in China are the product of forced labour. It seems to me that that presumption is very helpful, because it then becomes a duty for evidence to be produced that items are not being produced by forced labour. That could be very important in relation to solar panels, et cetera. I just wonder whether you have considered that possibility.

Shabana Mahmood: Consider that lodged for me to take away to DBT, Foreign Office and Home Office colleagues.

The Chair: We have taken a lot of evidence on rebuttable presumption and I can say that we are pretty enthusiastic around this horseshoe. We will share that with you willingly. We will go back to Mr Gordon.

Q19 Tom Gordon: On the proceeds of crime side of things, could the UK’s current legal framework be used to address criminal profits? Could it be used to secure accountability for individuals and companies selling goods that have been produced using forced labour? Is there scope to do that under the current legal framework?

Shabana Mahmood: Because of the recent decision, we are awaiting the view from the NCA about how it wants to proceed. Our officials are in discussion with the NCA, so I do not want to get ahead of a decision that I am not directly responsible for, but, depending on that, if there is further progress in this area in terms of criminal cases being brought and heard, it would be our responsibility to make sure the procedural arrangements are there to make those work properly. That comes after a fundamental decision is made on whether to pursue the case, given the High Court’s findings.

Tom Gordon: You mentioned procedural arrangements. Might you be able to elaborate on those? What would those be? What would need to change to enable effective delivery of that?

Shabana Mahmood: It is a little bit early because I do not want to get ahead of the more private discussions that are taking place with the NCA. Again, as I say, I would be very happy either to write or deal with that at a future appearance. We will be further on in progress by then, so I will be able to give you a bit more detail.

The Chair: That is very helpful indeed. Thank you, Lord Chancellor. You will be relieved to know we have come to the 20th of our questions to you, which Lady Kennedy is going to raise. It is about universal jurisdiction, something that is close to her heart and mine. It arises out of the other thematic inquiry that the committee has been conducting into Daesh and the genocide that it has committed against the Yazidis and others.

Q20 Baroness Kennedy of the Shaws: Lord Chancellor, universal jurisdiction is one of those issues that we visited quite a long time ago. The International Criminal Court Act 2001 made it possible for us here in Britain to prosecute for grievous crimes. Individuals can be prosecuted for genocide, crimes against humanity and war crimes, but only if those who are to be prosecuted are UK nationals or residents of the United Kingdom.

Now, we know—I can point to cases—that many of these people come through this country. They like shopping at Harrods. They like looking at universities for their children. They are genocidaires. They have been involved in grievous crimes. We could easily arrest them, except that our law does not allow it. What about an amendment to the International Criminal Court Act so that individuals can be prosecuted for those crimes, irrespective of their nationality or residency? It would be a simple amendment. It would have the support of the majority of people in this country and certainly in Parliament.

Shabana Mahmood: You are an assiduous campaigner and you are making the case for your amendment very strongly. What I would observe, though, is that we have no plans to change our current arrangements on the broader question of universal jurisdiction.

Baroness Kennedy of the Shaws: Why not?

Shabana Mahmood: What you describe as a potentially small change does have very big consequences. It would change the underpinning of what have been general principles about proceeding with prosecutions in the territory where the offence is committed and the general view that that is where you are best placed to prosecute the crime. Those are long-term arrangements that underpin the way that we have approached these issues.

I have not yet seen the case fully made out, with all the other consequences and further changes in this area that it would entail, but, if I may say, it will be a broader discussion. I am sure we will return to potential future amendments and others as and when they are made.

Baroness Kennedy of the Shaws: Lord Chancellor, other jurisdictions, including the United States, previously had the same limitation of confining it to nationals and residents. I am not talking about the current Administration. Years ago, a change in the law was made in the United States because it was recognised that this limited application does not reach serious criminality. It is not going to provide justice, for example, for the Yazidi women who were enslaved, the many of the Yazidis who were slaughtered, men and boys, and the terrible genocide they have faced.

There are people who come to this country, and indeed may be seeking sanctuary in it, who really should be brought to justice. This is not some wayward notion. It may be that the advice you are getting is not keeping you up to date with what is happening in other jurisdictions.

Shabana Mahmood: I look very much forward to the report specifically on accountability for Daesh crimes. I very strongly hear the case you have made in relation to victims from the Yazidi community. We want to do our bit to ensure that justice is served.

The question is how to strike the right balance between the long-standing arrangements and principles that underpin the system and what the impact of any further changes would be. I would be very happy to continue the dialogue and take away the discussion.

The Chair: Thank you very much, Lord Chancellor. Lady Kennedy wrote the foreword to a book that I co-authored a couple of years ago on the subject of genocide. We began the session today quoting Winston Churchill. In the aftermath of the Holocaust, he said there was not a word in the English language capable of adequately describing what the Nazis had done in the Holocaust. It took a Jewish lawyer, Raphael Lemkin, who had seen more than 40 of his own family murdered by the Nazis, to come up with the word “genocide”, the cutting of the human family. Lemkin hoped that we would predict, prevent, protect and then punish, but we have seen evidence—it is documented in the book and in the report—that none of those things has happened.

We have seen this again and again. From Bosnia to Rwanda, the Yazidis and now the Uyghurs, all over the world these things have happened again and again. I am grateful to you for saying that you are happy to continue in dialogue with us around this hugely important issue. It is the crime above all crimes.

Shabana Mahmood: I am absolutely very happy to engage with the report and to continue the dialogue with the committee. I will just offer a more general observation. We all know what we are talking about when we are talking about genocide, particularly in the context of the Holocaust. You will also know that sometimes the word is applied in cases where the legal test is not made out. It is sometimes used to make a political attack rather than in a legal context. You have to make sure that any legal changes do not just work in practice but also cannot be misused by people acting in bad faith. Getting that right can sometimes be difficult in what is a vexed area. If there are amendments for us to consider, I will come back to you.

The Chair: I will send you a copy of our book, if I may.

Shabana Mahmood: I will be happy to read it.

The Chair: I do not want to give you sleepless nights.

Baroness Kennedy of the Shaws: It is not confined to genocide. It is about crimes against humanity, war crimes and so on.

Shabana Mahmood: I understand. I was referring to genocide because that was the subject of our conversation.

The Chair: You are right. We make that very point. It is not a word to be used outside the legal context of what it actually defines. People must not use it like a slogan.

Lord Chancellor, you have been extraordinarily generous. We have covered a great deal of ground this afternoon. It has been a pleasure to be able to chair these proceedings and to hear my colleagues and their comments and questions to you. As you say, this is the way to make policy, not on the street, not through rabble rousing and not by misinformation. This is a wonderful example of the proper way to address serious issues. We are fortunate to have you as our Lord Chancellor and our Justice Secretary. Thank you for joining us today. With that, I close the proceedings.