Second Reading Committee

Tuesday 4th December 2012 Grand Committee

Tuesday, 4 December 2012.

Arrangement of Business

Tuesday 4th December 2012 Grand Committee

Announcement

15:30

[The Deputy Chairman of Committees (Lord Haskel)]

My Lords, before the Minister moves that the Bill be considered, I remind noble Lords that the Motion before the Committee will be that the Committee do consider the Bill. I should perhaps make it clear that the Motion to give the Bill a Second Reading will be moved in the Chamber in the normal way. I also remind noble Lords that if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Partnerships (Prosecution) (Scotland) Bill [HL]

Tuesday 4th December 2012 Grand Committee

Considered in Committee

15:31

Moved By

[Lord Wallace of Tankerness]

That the Committee do consider the Bill.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the Partnerships (Prosecution) (Scotland) Bill takes forward the proposals of the Scottish Law Commission to address the loophole that makes it impossible at present to prosecute partnerships that have dissolved. In 2004, a fire at the Rosepark Nursing Home in Uddingston led to the death of 14 elderly residents. The Lord Advocate brought serious criminal charges under health and safety legislation, but because of a legal technicality—the dissolution of the partnership that ran the home—nobody could be prosecuted. Rosepark was run by three individuals who had come together to form a business partnership. Following the fire, the partnership was dissolved. The Crown Office attempted three times to prosecute offences under the Health and Safety at Work etc. Act—offences that could be committed only by an employer.

The first attempt at prosecution, against the former partners of the nursing home, failed because they were charged as having been the employer at the time of the fire. The partners successfully argued that it was the partnership, by then no longer in existence, that had been the employer. A second charge was then brought against the dissolved partnership. The partners successfully argued that the partnership no longer had any legal existence and so could not be prosecuted. A third charge was then brought against the three individuals as whole surviving partners of the dissolved partnership. In turn, this was not successful because it had already been established, at the first attempt, that it had been the partnership that was the employer, and therefore responsible for the answering the charges, not any of the individual partners. In summary, prosecutors were unable to find the legal basis to pursue what were in anyone’s mind very serious charges.

The Rosepark fire created the impetus for a Scottish Law Commission project to investigate why the prosecutions had failed and how the anomaly in the law could be addressed. In May 2011, the commission published its discussion paper on the issue and, following consultation with the legal profession, reported with a draft Bill last December. The Scotland Office subsequently consulted on that draft and I am pleased to be here before this Committee a year later with a Bill that provides a very sound, yet simple, solution to ensure that partnerships and culpable partners cannot evade prosecution by dissolving.

I put on record thanks to the Scottish Law Commission for working with my office and the Scotland Office over the course of this year to ready the Bill for introduction. I particularly am grateful to Patrick Layden, the commissioner who led the project, for his untiring commitment to this work.

The Bill has the support of the Lord Advocate. In a letter to me following publication of the Bill, he said:

“I am pleased that the Bill provides a framework to ensure that it will be possible in future to prosecute a partnership that has been dissolved in Scotland and that the loophole in the law exposed by the Rosepark case will be closed”.

The Bill also has the support of Scottish Ministers and has been welcomed by the Law Society of Scotland. My hope is that we can fulfil expectations that the Bill will receive a positive response in this House and a smooth and quick passage eventually to Royal Assent. It is also worth noting that this will be the first Scottish Law Commission Bill to use the special Law Commission procedure in your Lordships’ House.

Turning to the content of the Bill, it responds to a feature of the general law of partnerships. In Scotland, a partnership is a legal person in its own right, distinct from its partners. The essential reason why the Rosepark prosecutions could not proceed was that the offence being prosecuted was one that could be committed only by an employer. As the employer in that case was a Scottish partnership, when it ceased to exist in law, there ceased to be a legal person to prosecute.

The aim of the Bill is to ensure that the dissolution of a partnership or a change in its membership will not prevent the prosecution, in Scotland, of a partnership or, where the conditions for individual criminal liability exist, the responsible partners. The Bill is deliberately limited to achieving this objective. It will create a limited exception to the current position that, in Scots law, dissolved partnerships cannot be prosecuted. It does not attempt to reform the law of partnerships more generally. In particular, it does not criminalise acts which are not presently criminalised. In other words, there is no expansion of criminal liability either on partnerships or individual partners. The Bill merely closes down a technical bar to prosecution. Nor does it attempt to clarify points of partnership law which do not relate directly to the competency of prosecution. The principle underpinning the Bill is to reflect, so far as is feasible, what would happen if a live partnership were prosecuted. In short, the principal effect of the Bill is that, if it would have been possible to prosecute a partnership had it been live, it will be possible to prosecute it if it dissolves, or has changed its legal personality by the assumption or resignation of partners.

In Clause 1, the Bill allows the prosecution of a dissolved partnership. I mention two aspects of this provision. First, there is a time limit. A prosecution will have to have commenced within five years of the partnership having dissolved for the new law to have effect. This limit is considered necessary to balance the public interest in permitting the prosecution of crime with the interest of certainty in winding up the affairs of a dissolved partnership and the estates of former partners. The five-year period was that most commonly suggested by the Scottish Law Commission’s consultees and reflects the period of negative prescription applying to most of the civil obligations to which the estate of a former partner might be subject following the dissolution of the partnership. Noble Lords may be reassured that the time limit applies only in the case of dissolved partnerships, and runs not from the date of the alleged offence but from the date of the dissolution of the partnership. I am satisfied that the time limit, as recommended by the Scottish Law Commission, strikes an appropriate balance.

Secondly, the Bill applies only to offences which are capable of being committed by the partnership in its own right. As these are the only offences where the mischief arises, where the dissolution or change of membership would prevent prosecution, the Bill is drafted so as to catch only them.

In Clause 1(6) the Bill provides that a fine for an offence committed by a dissolved partnership can be enforced in the same way as a fine for an offence committed by a live partnership. Under existing law, where a criminal fine is imposed on a live partnership, it is enforceable in the same way as a civil debt of the partnership. The liability to pay it arises at the time that it is imposed. If partnership assets are insufficient to meet such debts, individual partners are liable to pay the fine from their personal assets. In Scotland, partners are jointly and severally liable for such fines, therefore the net effect of the Bill is that persons who were partners immediately prior to dissolution are jointly and severally liable to pay the fine.

Clauses 2 and 5 deal with the issue that it is relatively common for statutory offences to provide that an individual partner is also liable for an offence committed by the partnership, where the offence is committed with that partner’s consent or connivance. Where the conditions for such individual liability exist, the Bill makes it clear that the prosecution of the individual will not be prevented by the dissolution of the partnership or a change in its membership.

Where a statute creates an offence which may be committed by a partnership, it sometimes goes on to provide that any fine must be paid from the partnership assets. In such a case, no fine could be enforced against a partnership which had dissolved, since by definition there would no longer be any partnership left to own assets. So, in order to allow such offences to be effectively prosecuted, Clause 3 provides that any such restriction will not apply where a partnership has been dissolved.

Taking together Clauses 1(6), 3 and 4, when a fine imposed upon a partnership is enforced against the assets of a partner, that partner will have, under the terms of the Partnership Act 1890, a right of relief against his or her fellow partners and may, depending on the terms of the contracts agreed between incoming and outgoing partners, have further claims against those former partners who were members of the firm at the time when the offence was committed.

The Bill also ensures that the prosecution of a partnership can proceed in the event of a change in membership. As the Law Commission and the Scottish Law Commission noted in their report on partnership law, in Scots law there is,

“uncertainty as to whether a change in membership terminates the personality of the ‘old’ partnership and brings into being a ‘new’ partnership entity”.

One cannot say with certainty whether a partnership is the same legal entity before and after a change in membership. Given that the present law may be that a change in membership establishes a new legal entity, distinct from the one that existed before the change in membership, the Bill has been drafted to ensure that the continuing partnership can still be prosecuted. There is otherwise a risk that the assumption of a new partner or the resignation of an existing one might make it legally impossible for the partnership to be prosecuted for offences that it had already committed. I am sure that your Lordships will agree that this would be an unacceptable outcome.

On this point, I note that the Law Society of Scotland has suggested that by including the assumption of new partners in the clause, a potential consequence is that a new partner could find him or herself criminally liable for an offence committed before he or she joined the partnership. However, that is not the effect of the Bill and is certainly not our intention. Clause 4 is purely about liability of the partnership entity to prosecution. It clearly would be wrong to confer criminal liability on any person who had not been involved in the commission of the offence.

The Bill extends to Scotland only, and it is worth remarking that it is one of only a handful of Westminster Bills to have done so since the establishment of the Scottish Parliament in 1999. It is sometimes forgotten that Scotland has two Governments and two Parliaments, both with their own contribution to make in improving the lives of people in Scotland. I have worked closely with not only the Lord Advocate but his predecessor on preparatory work for the Bill and taking it forward, as I do on many other issues. He and his ministerial colleagues in the Scottish Government accept that this is a matter that only Westminster can remedy. The Bill demonstrates the continuing interest and responsibility of the UK Government in taking forward Scottish legislation in the UK Parliament, and our commitment to doing so.

The families of those who lost their lives at Rosepark were rightly angry and frustrated by the failure of the prosecutors to find the legal basis to pursue those responsible. It is worth putting on the record with appreciation that some family members have taken an active part in responding to the consultations. Vulnerable people lost their lives and serious charges were brought, but a legal technicality meant that they could not be tried. For the sake of the victims and their families, it is right that we get the law changed to ensure that this can never happen again.

I am sure noble Lords will actively and constructively contribute to the debates on the Bill, and I look forward to listening to their comments. I commend the Bill to the Committee.

15:43

[The Duke of Montrose]

My Lords, when it comes to a topic such as this, I stand slightly in awe of venturing forth among those with such distinguished experience of both law and government. I hope that the Committee will forgive me if some of my questions are a little simplistic as a result. I understand that the provisions of this legislation will apply to anyone operating as a partnership in Scotland, whether it is described simply as a partnership or as a limited partnership. It is slightly daunting to realise that one is reviewing laws that may be affecting, among others, considerable numbers of the Scottish legal profession who perhaps still operate as partners or limited partnerships.

I speak as one whose forebears have had some considerable fall-outs with the legal profession, although there is nothing outstanding at the moment. I hope only that the attention of the Committee will ensure that this will be legislation at its best; whatever the outcome, I am sure that the legal profession will know how to look after itself.

I have a number of questions to put to the Minister, and from his answers I will know whether there is anything that requires being taken further. An issue raised with me by the Law Society of Scotland, which the Minister has already mentioned, arises from Clause 2(2), which states that a former partner of a dissolved partnership cannot be prosecuted where the partnership has already been prosecuted and acquitted. The question, if it is ever likely to occur, is whether it would be wise to introduce a balancing clause whereby a partnership cannot be tried where one of the partners has already been tried and acquitted on the same or related grounds.

The other question over Clause 1 arises because it says that no prosecution of a partnership can occur more than five years after its dissolution, but when we come to Clause 2 the same time limit on the prosecution of former partners is not quite as clear. Perhaps the noble and learned Lord can say whether it would be taken in law that the former condition could be read over into this clause. Would it not be better to have it clearly stated so that those reading the Bill know exactly where the limit lies?

For the sake of general clarity, for me and the Committee, it might be of use if the Minister can say what is likely to happen to the liability of a partner who dies while serving in a partnership within the five years preceding the dissolution. Is this liability likely to hang over and affect the settlement of the person’s estate? For that matter, is it really necessary that any such liability should continue against a partner who has already been dead for such a period of time? Would a shorter period of liability not be more appropriate?

15:46

[Baroness Liddell of Coatdyke]

My Lords, I will not delay the Committee long. This is rightly an opportunity for the legal profession to look at the terms of the Bill in some detail. The reason for my interest stems from the fact that I know Rosepark home. I was born and brought up in Lanarkshire and I have friends and family who knew people who were lost in the Rosepark fire. The sense of anger that the Minister referred to is palpable in the community. These people have not been well served by Scottish justice because of a quirk in the law.

It is never easy reading the evidence or the result of a fatal accident inquiry, but in Rosepark home it was made clear that the failure to have adequate fire safety provision was the reason for the loss of life. There was one particular protocol that required the fire brigade should not be called until the source of the fire was identified. As a consequence, nine minutes elapsed before the fire brigade was notified and a further four minutes were lost because it was called to the wrong gate. The fatal accident inquiry therefore concluded that four of the 14 could have been saved had proper action been taken.

The Minister has already set out the three attempts that were made to bring the Balmer partnership to answer for these matters in court. On all three occasions the loopholes in the law allowed them, to put it bluntly, to get off the hook.

15:48

Sitting suspended for a Division in the House.

15:58

[Baroness Liddell of Coatdyke]

Before I was interrupted—I will not say rudely—by your Lordships’ House, I was making the point that the Rosepark story is horrific. The loopholes in the law allowed a terrible injustice to happen to the families and friends of the 14 people who lost their lives.

In respect of the Bill, I regard my role to be to ask the daft questions. This is rightly a Bill on which the legal profession will predominate. Normally, I would call it a lawyer fest, but on this occasion it is entitled to be that because of the nature of the issues with which we are dealing. It is also important that the questions that family and friends are asking should be answered.

I have only one question, which may be daft but it probably will be the first of a number of such questions. The Minister referred to the fact that Clause 1 relates to a five-year period having elapsed, during which time the partnership could still be held in question. If that period was enlarged to 10 years, would it be possible for the Balmers to be brought before a court to answer for the breaches of the health and safety legislation that took place in Rosepark care home? That is the only point I wish to make but, undoubtedly, I will ask other daft questions during the passage of the Bill.

15:59

[Lord Stephen]

I, too, thank and congratulate the Scottish Law Commission on the excellent work that it has done on this issue. I also thank the Advocate-General and the Scotland Office for all their work over the past few months, since the Scottish Law Commission reported, to bring this Bill forward. It is very important to remember the evening of 31 January 2004 and the shock that there was right across Scotland at that time. We should remember that the 14 people who died were individuals who had a right to expect far better. They were Dorothy McWee, Tom Cook, Isabella MacLachlan, Julia McRoberts, Annie Thomson, Helen Crawford, Margaret Lappin, May Mullen, Helen Milne, Anna Stirrat, Mary McKenner, Robina Burns, Isabella MacLeod and Margaret Gow.

Although nothing could have been done to bring back those who died, the events subsequently have been most unfortunate. It is important that we now take action to remedy the wrong. All three prosecutions failed. Rosepark care home and its partners, Thomas, Anne and Alan Balmer, have never been successfully prosecuted. There is a sense that there has been a real miscarriage of justice here. It is important to remember that in the third and final prosecution, for example, more than 30 charges were on the indictment, including contraventions of Sections 2 and 3 of the Health and Safety at Work etc. Act, related contraventions of the Management of Health and Safety at Work Regulations 1992 and 1999, and the Fire Precautions (Workplace) Regulations 1997. These were extensive and very serious issues.

Subsequent to the final prosecution, it was decided to hold a fatal accident inquiry. As the noble Baroness, Lady Liddell, has explained, there were some very serious findings at the end of that inquiry which took place over 141 days. Sheriff Principal Brian Lockhart began the fatal accident inquiry in February 2010 and it reported in April 2011. He found that “some or all” of the deaths could have been prevented if the home had had a “suitable and sufficient” fire safety plan. He concluded:

“The management of fire safety at Rosepark was systematically and seriously defective. The deficiencies in the management of fire safety at Rosepark contributed to the deaths. Management did not have a proper appreciation of its role and responsibilities in relation to issues of fire safety”.

He said that the “critical failing” was not to identify residents at the home as being at risk in the event of a fire, as well as failing to consider the “worst-case scenario” of a fire breaking out at night. A further “serious deficiency” was found in the “limited attention” given to how residents would escape from the home in the event of a fire. The noble Baroness, Lady Liddell, has already gone into detail about how Brian Lockhart believes that the lives of Isabella MacLachlan, Margaret Gow, Isabella MacLeod and Robina Burns could have been saved, that there were shortcomings in dialling 999 and that a delay was caused by the fire brigade going to the wrong entrance. In other words, this was not a single fault. As is so often the case with a terrible tragedy, many errors accumulated to create a major disaster.

The gap in Scottish law on this issue has been well explained and the need for action is clear. The role of the Scottish Law Commission has been entirely positive in this. Usually it reports to the Scottish Government and Parliament. It is very encouraging that the matter has been tackled swiftly and positively by the UK Parliament and Government working alongside the Scottish Parliament and Government. There has been no constitutional wrangling on the issue—simply a desire to find a fair and effective solution. The benefit will not be to the deceased of Rosepark or to their relatives. I hope that the latter will take some comfort from the benefits that should come to others in future. It is important to emphasise that it is very unlikely that it will be elderly people killed in a fire in a care home who will benefit from this legislation. However, I believe that many others will benefit through its introduction.

I have a few technical questions and concerns. A number of us have detailed legal questions. Some of us are lawyers or former lawyers. I realise that a lot of hard work has already been done on this by many eminent lawyers, so I hope that all the answers will be easy, sound and solid. Evasion of criminal liability is the main issue that we want to tackle. Clearly it is being tackled as the central pillar of the legislation. I remain concerned about the potential for evasion of any fine imposed following a successful prosecution. I am also concerned that any new partner could become unwittingly liable. The Advocate-General went out of his way to emphasise that the intention was that any new partner should not be caught by prosecution. However, I still worry that liability for a fine could fall—and even fall disproportionately—on a new partner. Perhaps some comfort could be given on that.

Clause 4(1)(b) refers to a situation where,

“the partnership continues to carry on business after the change”.

Why was this felt to be required, and how will we define “carrying on business”? For example, could there be unintended consequences? Could a firm be defined as carrying on business when it was no longer able to trade: for example, if its licence had been withdrawn because of regulatory breaches or if its place of business had been destroyed by fire? Could there be unintended consequences from this wording?

I am interested also in confirming the powers that a sheriff or a judge might have against a partnership. The Bill envisages that the powers would relate only to imposing a fine. Could a judge impose other sanctions? For example, would they have the power to seize or confiscate assets, withdraw licences, and dissolve the partnership or prevent it carrying on trading? The range of sentences, and how they might be enforced against the partnership and against individual partners, is of real interest to me.

I will close with the following thoughts. At Rosepark we know that the partnership, and individual partners, should have been held accountable. We know that the partners were Thomas, Anne and Alan Balmer. It is a matter of huge regret, and a very deep failure of Scotland’s justice system, that there was no successful prosecution. That miscarriage of justice cannot be remedied or changed, but the law can be corrected and put right. That is what we must do.

16:08

[Lord Cameron of Lochbroom]

My Lords, in its report on the criminal liability of partnerships, the Scottish Law Commission pointed out that the effect of Balmer was that once a partnership had been dissolved, and in the absence of evidence showing the guilt of one or more individual partners, there remained no person who could be held criminally accountable for offences committed by the partnership. The Bill seeks to provide a solution to this dilemma by amending the law with a targeted solution whereby a partnership may be prosecuted after dissolution for the limited purposes of establishing criminal liability for an offence committed by the partnership prior to dissolution. Clauses 2 and 5 also make clear that the competency of criminal proceedings against an individual partner is not affected by dissolution of the partnership. I offer it a general welcome and commend the clear terms of the Law Commission’s report which gave rise to the Bill.

I note the Law Commission’s recommendation that the amendment of the law presently proposed should only have effect pending the introduction of more comprehensive reform of the law of partnership. The joint report of the Scottish Law Commission and the Law Commission for England and Wales, issued in 2003, made a range of recommendations which, if implemented, would clarify and modernise the present law of partnership. To these should be added the point made in paragraph 2.7 of the present report that any such reform should make specific provision in relation to the criminal liability of Scottish partnerships. It would be helpful if the Advocate-General could say when such reform is likely to be embarked upon.

As regards the provision of Clauses 1 to 3, I have some reservations. The first relates to the period of five years for commencement of proceedings against a dissolved partnership in terms of Clause 1(3). This provision does not apply where there are time limits for commencement of a prosecution, as subsection (7) makes clear. Where an offence has been committed of a character that would give rise to criminal liability of a partnership, such as the fire in Balmer, or a work accident under health and safety legislation, the incident is likely to be investigated within a relatively short time of its happening. With that, there would be the knowledge that a partnership was a possible offender and, of course, the identity of the individuals who were partners at the time of any alleged offence.

Subsection (3) does not relate to the date of the alleged offence but to the date of dissolution of the partnership, a necessarily indeterminate length of time after the incident. I suggest that the period of five years from the date of dissolution is perhaps unduly long to enable a prosecution to be commenced, even if the dissolution were to occur very shortly after the incident giving rise to the alleged offence by the partnership. There has been reference to the five years as being the period of negative prescription, but that period applies only in relation to the question that would arise when a fine was imposed. Under those circumstances, one would imagine that it would take less than five years to operate the principle that is implicit in civil diligence once the fine has been imposed.

As I understand the provisions of Clause 1(5), (6) and (7), they operate to render a fine imposed on a dissolved partnership following a prosecution by virtue of subsection (2), enforceable against the former partners jointly and severally, with each partner having a right of relief against fellow partners. Each partner on conviction of the dissolved partnership would thus become subject to payment of any fine by way of recovery by civil diligence whether or not as individuals they bear any personal criminal liability with the incident. In fairness, they are entitled to have such a matter resolved as quickly as is reasonable. This comment is equally pertinent to the provision of Clause 4(3).

My second reservation concerns the principles to be applied in sentencing where the court is dealing with the prosecution of a dissolved partnership. It is the dissolved partnership which is to be named in the proceedings and not the individual partners. In the indictment in Balmer both the dissolved partners and the partners were named but the Crown specifically accepted that the partners were not parties to the proceedings. Hence, only the dissolved firm was indicted. Clause 3 provides that any enactment that restricts payment of a fine imposed upon a partnership to payment out of partnership assets does not apply. However, the provisions which enact that fines imposed upon organisations such as partnerships are recoverable by civil diligence can come into operation only after the fine has been imposed by the court. Upon what material is the sentencing judge to determine what can only be a fine? I think that the noble Baroness, Lady Liddell, suggested that perhaps we should look again at the issue of what a dissolved partnership, and indeed a partnership in the context of Clause 4, should be subject to by way of sentence.

In the ordinary case where a partnership is continuing, there will be information about partnership assets and the extent of the profitability of the business of the partnership that could be placed before the court. Information about the state of business up to and upon dissolution could be made available to the court as relevant material for sentence, even where there were restrictions of the kind imposed by present legislation. In chapter 3 of the report, the Law Commission noted that the Senators of the College of Justice considered that the case for disapplying the statutory limitations in relation to Scottish partnerships have not been made out. It expressed the view that it was appropriate to presume that Parliament was well aware of the separate personality of partnerships in Scotland and that, whatever the reasoning behind the provisions limiting the payment of fines to partnership assets, Parliament must have intended them to take effect. That is a strong expression of view.

The Law Commission said that it certainly recognised the possibility that the imposition of such limitations represented a conscious choice on the part of those responsible for preparing the legislation in which they appear, but, on the face of the report, the commission does not appear to have made any detailed examination of what was said at the time when the legislation was passed, which could bear on the matter. I ask the Minister to what extent the legislative background to such statutory limitations was examined by the Law Commission in advance of its recommendation giving rise to Clause 3.

In the case of summary proceedings against an organisation such as a partnership, Section 143(3)(a) of the Criminal Procedures (Scotland) Act 1995 provides that proceedings may be taken against an individual representative of a partnership, who may be dealt with as if he was the person offending and the offence should be deemed to be the offence of the partnership. Case law emphasises that the prosecution of such an individual is as a representative of the partnership and not in a personal capacity. It would appear that in the event of conviction, the personal circumstances of the partner would not then be relevant to sentence. While a similar provision does not apply to proceedings against a partnership by way of indictment in that Act, the principle that the personal circumstances of individual partners should not be relevant to sentence would seem to apply. This is even more the case if, in the circumstances specified in Clauses 2 or 5, an individual partner can be prosecuted for an offence alleged to have been committed by the partnership as well as by the partnership itself.

Before I turn to Clause 4, there is a matter that I wish to raise out of interest: in Balmer, the Crown argued that where criminal liability had been incurred prior to the dissolution of the partnership, that liability ought to continue so that, in terms of Section 38 of the Partnership Act 1890, the partners continued to be responsible for that criminal liability, notwithstanding that no indictment had been served or criminal liability established prior to dissolution. Against that background, it was explained by the Crown that the indictment in Balmer had been framed to avoid the transfer of criminal liability to the partners as individuals, and that an appropriate way to convene the former firm was to convene the former partners in the indictment. That seems to be at least a way in which, in a dissolved partnership, the individual partners who were partners at the time of the offence could be named. That would be important for two reasons: first, as a public notice to those who were controlling the partnership at the time and, secondly, it would have some relevance to the effect of the subsequent civil diligence that would follow upon the imposition of a fine.

Clause 4 makes it competent to prosecute a partnership in respect of an offence alleged to have been committed by the partnership prior to a change in membership of the partnership, notwithstanding the change in membership. Clause 4(4), in its reference to “the partnership”, appears to provide that, despite the change in membership, the partnership remains in existence as one and the same legal person before and after the change. I noted that in the Minister’s introduction he referred to this as a change of legal personality. The provision sets out to address the uncertainty in the present law as to whether the legal personality of a partnership necessarily comes to an end on a change in membership.

I have difficulty with the proposition that it is just to address this uncertainty by proceeding on the assumption that the partners involved at the time of the change intended that there was to be a continuing partnership when that was not in fact the intention. I consider that it is more consistent with justice to proceed on the assumption that for the purposes of fixing criminal liability, the change should be treated as though it were the dissolution of the partnership as constituted before the change, whether or not that was the intention of those who were partners before and after the change. The clause would then fix criminal liability on the partnership that was in existence at the time of the offence and its members at that time. It would also, upon conviction, fix liability arising from current partnership law for payment of any fine imposed on the partnership on those who were partners at the time of the offence.

Clause 5 would, in certain circumstances, permit prosecution of an individual partner who was a member of that partnership as being criminally liable for an offence alleged to have been committed by them, whether or not the partnership was prosecuted for the offence. If the assumption was that, in relation to criminal liability, a change in membership operated as a dissolution of the partnership at the date of the offence, partners in that partnership would become liable to have any fine imposed on the dissolved partnership enforced by civil diligence against any one or more of them. Any rights of indemnity and relief against the new partners would be governed by any agreements entered into at the time of the change of membership— a matter with which the Crown should not be concerned.

However, if the partnership is to be regarded as continuing whatever had been the intention of the partners at the time of the change of membership, under current partnership law each partner is liable jointly with the other partners, and also severally, for all debts and obligations of the firm while he is a partner. The Law Society of Scotland has expressed concern about the potential consequence of Clause 4(4)(c) to the situation of a new partner in such circumstances. Like other noble Lords, I would be very interested to hear the comments of the Advocate-General on this concern, even if he is not able to allay it completely.

Other references were made to the response of the Law Commission. I will simply say that I have read it and I, too, am concerned that we should have a response today from the Minister on the concerns that were expressed. I would also be interested to hear the Minister’s response to the points raised by noble Lords who spoke before me. In general, I give the Bill a fair wind and look forward to further discussion of it in Committee.

16:25

[Lord Kerr of Kinlochard]

My Lords, not having a brief and not being a brief, I can be brief. I should just like to say three things. I thank the Minister for bringing forward this Bill, which is clearly necessary to remedy a loophole that came to light following the tragedy. I also thank him for the meticulous way in which he briefed the unbriefed; I am very grateful for that.

For me, the most important thing that the Minister said today is something that I had deduced: there is no expansion of criminality in the Bill. The criminal law is not extended by the Bill. What happens here is that a technical bar—I think that was the Minister’s word—is removed. That seems very important and reassuring.

I have not heard from the Law Society of Scotland, but my only concern was with the question raised by the Minister himself in relation to Clause 4(4)(c). Suppose that a new partner is admitted—or a series of new partners, cumulatively—and that Clause 4(4)(a) applies as well as Clause 4(4)(c). The partnership still exists but the people are completely different. Could we have an explanation of what the situation would be? This may be a daft question. The noble Baroness, Lady Liddell, said that she might ask daft questions but she did not insist that she be the only one to do so, so I demand the right as well.

Having heard the noble Lord, Lord Stephen, I also look forward to hearing why one needs the words in Clause 4(1)(b),

“continues to carry on business”.

I, too, should like to be reassured that there could not be some unintended consequence.

16:27

[Lord Fraser of Carmyllie]

My Lords, I, too, warmly welcome the Bill and the undoubted amount of work that has gone into its preparation by the Scottish Law Commission.

I have discussed this matter with one of my distinguished predecessors as Lord Advocate, namely my noble and learned friend Lord Mackay of Clashfern. I am delighted to say that he agrees with me that on no occasion could either of us recall any circumstance in which we had declined to prosecute because of this loophole in the law. My other distinguished predecessor is the noble and learned Lord, Lord Cameron of Lochbroom, but I will leave it to him if he has anything to add. He can speak for himself and indeed has done so.

I cannot recall any such incident but I cannot make that assertion to a point of scientific certainty, because a member of the Crown counsel team might have decided not to prosecute but did not refer the case to a law officer. Frankly, I would be surprised if that had happened. If a point of this significance arose, I think it would have been referred to me as Lord Advocate or as Solicitor-General, or to the noble and learned Lord, Lord Cameron, or to my noble and learned friend Lord Mackay. None of us can recall this issue arising. Nevertheless, it is not a theoretical point. We know, because of the Balmer case, that it is not theoretical and there is a loophole, and I am glad that it has now been closed off. If I had had that arrow in my quiver when I was Lord Advocate, I would have been very pleased although, as I say, I do not recall any circumstance in which I would have used it. With those brief words, I give the Bill a warm welcome.

16:29

[Lord McAvoy]

My Lords, I will reply to as many points as I can. First, I place on record again my thanks to the Minister and his staff for keeping in touch. I am sorry that I did not make the meeting; I was called away on Whips’ business. However, I learnt a lot from people who were there, which will help me today.

To be on the safe side, I had better declare an interest. I am in a business partnership. The company I am in partnership with owns a public house in Scotland. That does not make anyone a millionaire these days. The other partners are my wife and son. Knowing them so well, I have no difficulty in envisaging that any of their liabilities would be mine.

Like many other colleagues here, I feel a certain amount of diffidence at being in a room with so many who are in the legal profession. The only thing that hints at that diffidence is my astonishment that there has been this loophole in the law. It is unbelievable that politicians and the legal profession allowed the loophole to be there—although, as the noble and learned Lord, Lord Fraser, said, there are doubts about why charges were not laid. Like others, I pay tribute to the Scottish Law Commission and to the Law Society of Scotland for their briefings and for the information that they have made available. We in Scotland are lucky to have them. I agree with the comment of the noble Lord, Lord Stephen, that the situation does not reflect well on Scottish justice.

The noble Duke, the Duke of Montrose, asked about the limits on liability when a partner dies. I, too, await the response of the Minister to that question. There is nothing like having a local view of how things are regarded on the ground. The account from my friend and colleague, my noble friend Lady Liddell, about the effect on relatives and the community in Lanarkshire, brought home even after a gap of years how much devastation the tragedy brought and still brings to the relatives of those who were there.

Like the noble Lord, Lord Kerr of Kinlochard, I would like to join my noble friend Lady Liddell’s daft questions club. I am sure that some have been answered—probably I did not understand either the question or the answer in the language that was used—so I, too, will ask a couple of questions. I was briefed on one question, which was also asked by the noble Lord, Lord Stephen. The Minister said that the incoming partner would not be criminally liable. Does that mean that the incoming partner will be liable for the fine? What is the share of liability if a fine is incurred? What is the intention of the Bill?

The noble and learned Lord, Lord Cameron of Lochbroom, made a forensic analysis of the Bill that I found helpful because I could understand the language that he used. The noble Lord, Lord Kerr of Kinlochard, talked about the extension of criminality. These questions are there to be asked. I will also ask about the dissolution of partnerships in Clause 2, which deals with proceedings against a former partner. The Minister mentioned the Law Society, but I was not quite sure of his answer, which is why I am repeating the question. A person may not be prosecuted for an offence when a partnership has been prosecuted for and acquitted of the same offence. There is no reciprocal clause that prevents the prosecution of a partnership where an individual former partner or partners have been prosecuted for and acquitted of the same offence. I cannot get my head around that. I have already mentioned the issue of liability in Clause 4. There must be safeguards on how that is dealt with. I look forward to the Minister’s response to the various questions from me and from other noble Lords who contributed so well.

16:34

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have contributed to this very helpful debate. I say immediately to those who said they were subscribing to the “daft questions” brigade that in my experience such questions are usually just as penetrating, and sometimes more difficult to answer, than those produced by the lawyers. It is important that the perspective of non-lawyers is brought to bear on this issue, because what lies behind the Bill is something that commands widespread public interest, and that transcends any narrow legal argument. I therefore welcome the contributions that have come from non-lawyers and lawyers alike, and I am particularly glad that the Committee has had the benefit of the experience of two former Lord Advocates, the noble and learned Lord, Lord Cameron of Lochbroom, and my noble and learned friend Lord Fraser of Carmyllie. My noble and learned friend Lord Fraser indicated that he could not recall such a situation arising and that, in his discussion with him, neither could the noble and learned Lord, Lord Mackay of Clashfern. Nevertheless, I think that he thought that it was a worthwhile weapon in the armoury. I think that that reflects the tenor of the debate, in which a welcome generally was given to these proceedings.

I will try as best I can to respond to the points that were made. Hopefully, I will pick up on most of the questions, but we will go through the transcript afterwards and if any questions have not been answered I will do so in writing and circulate the response. When we move into Committee there will also be an opportunity to take evidence, as well as having normal Committee debates on specific amendments.

A number of noble Lords—not least the noble Baroness, Lady Liddell, my noble friend Lord Stephen and the noble Lord, Lord McAvoy—mentioned in some detail the tragedy of the Rosepark care home fire. The noble Baroness talked about the fatal accident inquiry where, after considerable investigation, Sheriff Principal Brian Lockhart concluded that all or some of the deaths could have been prevented if the home had had a sufficiently suitable fire safety plan, and said that the management of fire safety at Rosepark was systematically and seriously defective. That gives us the context in which we are debating this legislation.

My noble friend the Duke of Montrose talked about partnerships and limited partnerships. I think it is fair to say that limited partnerships are quite rare these days, having been substantially superseded by limited liability companies. Limited partnerships are governed by separate legislation, the Limited Partnerships Act 1907. They are a type of partnership that includes limited partners—essentially, investors who play no part in the activities of the partnership. The limited partners have no liability beyond that directly connected to their investment. The Bill catches limited partnerships but, as I have indicated, they are very rare and no penalty would be enforced against limited partners.

Limited liability partnerships are not covered by the Bill as we believe that the same problems do not arise with limited liability partnerships as they do with partnerships. The essential difference is that partnerships may be dissolved instantly with no formality or any mechanism for restoring a dissolved partnership to existence. On the other hand, limited liability partnerships are registered at Companies House. Like companies, they are subject to a statutory process for being struck off the register and for dissolution, and may later be restored to the register by court order.

My noble friend the Duke of Montrose, the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Cameron, talked about the asymmetry that had been picked up by the Law Society of Scotland in its helpful briefing to colleagues. They pointed out that Clause 2(2) provides that an individual may not be prosecuted for an offence where a partnership has been prosecuted and acquitted, and asked whether the reverse should not also be the case—that a partnership should not be prosecuted where a partner has been acquitted. I do not accept that the situations are symmetrical. Typically, an offence will provide that an individual partner who in some way—I think that these are the words I used in my opening—consented or connived in the commission of an offence by the partnership will also have committed an offence. To establish the guilt of the individual, it is necessary, first, to establish that the partnership committed an offence. That condition cannot be fulfilled, obviously, if the partnership has been acquitted. However, there are numerous reasons why a prosecution against a particular partner might fail; for example, a lack of connivance or consent on the part of the individual. That does not mean that it should determine whether the partnership as an entity has committed an offence. That has to be determined by reference to the terms of the offence itself.

My noble friend the Duke of Montrose asked about the time limit of five years, which was also raised by the noble and learned Lord, Lord Cameron of Lochbroom. I think that I am right in saying that the Law Society of Scotland recommended 20 years. The faculty of Advocates recommended two years. There is no right answer to this. It is a judgment and, as I indicated in my opening remarks, the judgment was that five years relates to the period of prescription applying to most of the civil obligations to which the estate of a former partner might be subject following the dissolution of the partnership. The majority of consultees supported five years. Clearly, if this is a matter to which noble Lords wish to return in Committee, we can readily do so.

That picks up on another point made by my noble friend the Duke of Montrose about what happens when a partner dies after dissolution. The answer is that the estate of a partner will be liable on the same basis as other partners at the time of the dissolution. As I indicated, the situation is the same as for civil obligations under Section 9 of the Partnership Act. Indeed, the fact that someone may have died is one of the reasons why five years was chosen as a period that gives some finality but, at the same time, ensures that there is an opportunity for the Crown Office to mount a prosecution. Of course, there may be cases where a statutory time limit would—if I may use the non-legal expression—trump the five years if there is a statutory time limit from the time of the commission of the offence. My noble friend the Duke of Montrose also asked about the position with regard to individuals. He pointed out that Clause 2 does not have a similar five-year time limit. It is intended that no time limit should apply. It reflects the Scottish Law Commission’s view of existing law, which Clause 2 is intended to put beyond doubt—subject, as I said, to cases where there would be a statutory time limit.

The noble Baroness, Lady Liddell, asked whether the Balmers could be prosecuted if there was a 10-year limit. The answer is no. Under Clause 8(3), the Bill is drafted in such a way that it comes into effect only with regard to partnerships that dissolve after the date of the Bill coming into effect. The reason for this is that it should apply only to dissolutions post-commencement. To do otherwise and to make retrospective provision could readily fall foul of Article 7 of the European Convention on Human Rights.

[The Duke of Montrose]

Earlier, when talking about individuals, my noble and learned friend said that it was intended that no time limit should apply. Does that mean, if the individual is charged after the partnership, that there is no five-year limit at all?

[Lord Wallace of Tankerness]

That is indeed what I said. It is subject to the fact that there may well be an offence for which there is already in law a statutory time limit. Indeed, a number of these offences will have provisions in law which set a statutory time limit.

If this Bill proceeds to Royal Assent it will come into force the day after and there will not be the usual lapse of two months or until some future date set by order. It will take almost immediate effect.

My noble friend Lord Stephen asked what other enforcement options might be available to the court, as we had talked very much in terms of fines. That will obviously depend on the particular offence, but most typically it will be a fine. The offence may include imprisonment but one cannot imprison legal persons such as a company or partnership. I asked officials if it could mean that individual partners might be subject to a community service order but the answer is the same; a partnership as a legal entity could not be the subject of a community service sentence and therefore that provision could not, by joint or several responsibility liability, apply to individual partners. It could be that an individual partner may be prosecuted if the Lord Advocate considered it important. Enforcement of a fine could lead to confiscation of assets under proceeds of crime legislation. There may be relevant regulatory bodies that would then take cognisance of the fact that a crime had been committed and an offence established. That could have possible licensing consequences, but not necessarily ones imposed by the court.

My noble friend also asked why we provide in Clause 4 that the partnership must continue trading. This is to distinguish a change of membership from dissolution because change of membership may be a technical dissolution. There is no intention that an interruption to trading should cause Clause 4 to be inoperable. He suggested that if there had been a change through the assumption or resignation of a partner, it was very unlikely that there would be an immediate cessation of trading as well. The Bill envisages trading going on beyond the change in the partnership.

I am very grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his very detailed analysis. He asked whether it would not have been possible to say that a change in the membership of a partnership constituted a dissolved partnership. I thought, “Why didn’t we think of that?”. It is something that I will consider, although I suspect there are reasons and possible implications which have led to the proposal we have here. However, I will reflect on that point and would hope to write before Committee not only to the noble and learned Lord but to others who have taken part in this debate.

The noble and learned Lord also asked what assessment the court would make in terms of a dissolved partnership in determining a fine. I certainly defer to his judicial mind and experience when it comes to sentencing but, as we all recognise, when it comes to considering the appropriate level of a fine the judge balances the interests of society with the effect of the fine on those who will have to pay. When the Bill is enacted the court will know what fine would be enforced against individuals, and I have no doubt that counsel or a solicitor acting on behalf of the dissolved partnership and its partners would make appropriate representations to the court to take account of the assets of the individuals on whom the fine will fall.

A number of contributors to the debate raised the issue of a crime being committed prior to a change of membership in a partnership and the subsequent enforcement of the fine falling on somebody who has been assumed as a partner after the crime. The reason that after consideration the provision was included in the Bill is that it reflects the current position. For example, if there were an action for damages for delict that occurred before a change in membership and the court case took place after the change, the court order would then be enforced against the existing members of the partnership. Likewise, assuming no change in membership, if a criminal offence had been committed, a partnership convicted and a fine imposed, the fine would then be enforced using a procedure that is akin to that used for civil recovery following a court order.

The answer to some of the concerns about this may well lie in the fact that if you join a partnership and you are aware that a crime has been committed, any person doing proper diligence might well say, “I want to be indemnified against this and against the other partners”. If a partner is leaving, his fellow partners might say, “You know we have a criminal case hanging over us”. Contractual arrangements can be made in a partnership agreement for resignation or assumption. That is why it is very important that this does not apply to partnerships that are dissolved, or in which there is a change, prior to the Bill becoming law. It will also be important that proper notice is given so that people are aware of what the new law will be. At the briefing meeting we had the benefit of the chair of the Scottish Law Commission, the noble and learned Baroness, Lady Clark of Calton. The issue arose and I anticipate that we will come back to it and give it proper consideration.

The noble and learned Lord, Lord Cameron, asked what examination had been made of the legislative background to statutes that were limited to imposing fines on partnership assets. I am advised that the Scottish Law Commission carried out an extensive search of the statute books. Its finding appears to be that statutes in which there were such limitations tended to be GB or UK statutes, where it was certainly thought that what was being dealt with were cases of English partnerships established under the law of England and Wales.

The noble Lord, Lord Kerr, also referred to changes in partnerships, and to situations where there has been such a change that the people who are currently the partners are by and large, with perhaps a very few exceptions, not the partners who were there when the crime was committed. At that point one has to remember the entirety of the Scottish criminal justice system. Prosecution would be competent but it would be a matter for prosecutorial discretion. We have the benefit of two former Lord Advocates here. If there was a situation where a partnership that had been prosecuted bore no relationship other than a tenuous link to the one that existed at the time of the crime, the Lord Advocate of the day would take into account whether in these circumstances it would be in the public interest to prosecute. Certainly the Bill makes provision for the possibility of that happening, but there may well be other factors that the Lord Advocate of the day would feel that he or she had to take into account in the public interest.

Finally, the noble and learned Lord, Lord Cameron, asked what had happened to the 2003 joint report on partnership law from the Law Commission and the Scottish Law Commission. The Government of the day received the report in 2003. In 2006 they indicated that they would not undertake the wholesale reform of partnership law. I do not think that anyone could view the present law of partnership as a model of clarity, but on a day-to-day basis it generally works. While we have indicated that our ears are not closed to representations about a more general review of changes to partnership law in Scotland, I have to be frank with the Committee and indicate that we do not foresee any immediate chance of legislation or legislative time. Also, it would be only fair to say that with the passage of almost 10 years since the original joint law commissions’ report, there would inevitably be a need for further consultation and discussion to take account of any developments that had taken place during that time.

Nevertheless, it is the case that, as the Scottish Law Commission report indicated, while there was a preference on its part for the implementation of the broader reform of the law on partnerships, if that reform was not going to happen immediately or in the very near future, there was still a pressing need to address this issue of dissolved partnerships. That has been reflected in our debate. It may be that at some future date there will be a change in partnership law generally, and this would undoubtedly be picked up in that context. For now, though, as has been reflected, people feel that the loophole that has existed ought to be closed, and the Bill is a simple but comprehensive way of doing that. I look forward to further engagement with noble Lords as we proceed with the Bill, and I commend it to the Committee.

Motion agreed.

Committee adjourned at 4.56 pm.

House of Lords

Tuesday 4th December 2012 Lords Chamber

Tuesday, 4 December 2012.

14:30

Prayers—read by the Lord Bishop of Guildford.

Abortion

Tuesday 4th December 2012 Lords Chamber

Question

14:37

Asked by

[Baroness Knight of Collingtree]

To ask Her Majesty’s Government what steps they will take to prevent illegal abortion operations.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, an abortion may take place only on grounds under the Abortion Act 1967, as amended. Allegations of illegal abortions are taken very seriously by the Government and anyone suspected of acting outside the law will be referred to the police for investigation. It is for the Crown Prosecution Service to decide whether to prosecute individuals and for the courts to determine whether there has been a breach of the law on abortion.

[Baroness Knight of Collingtree]

My Lords, is my noble friend aware that Parliament passed the Abortion Act 1967 on very firm assurances that clear medical reasons would have to be agreed by two doctors, who examined the patient before an abortion could take place, and that abortion on demand would not happen? Is he aware that if Parliament had known that abortions would occur because the coming child was a girl when the mother wanted a boy, the Act would not have gone through? Did he note the Government’s Care Quality Commission’s findings that some doctors who have never even seen the patient are signing blank forms and leaving them in a handy place for use by colleagues, while others are aborting girl babies unwanted by the mother for no medical reason at all? What is being done to stop these illegal acts?

[Earl Howe]

My Lords, my noble friend raises some extremely important questions. The House will remember that reports came to light in February of pre-signing of the HSA1 forms—the approval forms that have to be signed by two doctors—and the CQC carried out a serious of unannounced inspections of all abortion providers in the light of that story to uncover any evidence of pre-signing. As a result, 14 NHS trusts were found to be non-compliant and clear evidence of pre-signing was identified. We await the outcome of investigations by the Metropolitan Police on that issue. Of course, as a department, we take it very seriously indeed.

On the issue of sex selection, my noble friend is absolutely right. The Act stipulates specific circumstances in which termination of pregnancy is permitted. Gender selection is not one of those circumstances. It is illegal for a practitioner to carry out an abortion for that reason alone, unless the certifying practitioners consider that an abortion is justified in relation to at least one of the Section 1(1) grounds in the 1967 Act. My noble friend will also be pleased to know that the Chief Medical Officer for England has written to all clinics and hospitals undertaking abortions to remind them of the provisions of the Abortion Act.

[Lord Alton of Liverpool]

My Lords, is the Minister familiar with a report that recently appeared in the Economist, which said that around 100 million abortions have taken place throughout the world on the basis of gender, which it calls “gendercide”? Does he not agree that in a country where routinely, every working day, there are some 600 legal abortions there is a real danger that, culturally, people imagine that it is simply a right to choose to take a life on whatever basis they believe it reasonable to do so? Can he therefore spell out again the illegality of taking the life of a child on the basis of its gender? Can he tell the House what penalties there will be when such actions occur and how long it will be before the police inquiries complete their course?

[Earl Howe]

In answer to the last question I have no firm information about when the police inquiries will complete their course. They have been ongoing for some months. The noble Lord, Lord Alton of Liverpool, is right to raise his concern, but I can again state emphatically that under the law of this country it is illegal to perform an abortion on grounds of sex selection alone. If evidence of such practices comes to light, the penalties are that the doctor or doctors concerned may be referred to the GMC. The Care Quality Commission will be called in and there will be the possibility of police investigation and prosecution resulting. This is not something that any provider of NHS-funded abortions should ever consider doing.

[Lord Steel of Aikwood]

Does my noble friend agree that the real scourge of illegal abortion occurred before the 1967 reforms, when every hospital in the land had patients admitted for septic and incomplete abortion, and up to 50 women a year died as a result of criminal abortion? Does he accept that, in addition to the gender selection question, another worrying feature is the number of women reporting for repeat abortions, who appear to be using abortion as a form of contraception? Does that concern his department?

[Earl Howe]

My Lords, I pay tribute to my noble friend for the role that he played in bringing the 1967 Act to the statute book. We have no particular evidence that repeat abortion is a rising issue. Contraception prevents the establishment of a pregnancy and the number of women visiting contraception clinics has, I am pleased to say, gone up, particularly among the young. We are seeing a fall in the number of abortions in the teenage age group. Unfortunately we are also seeing a rise in abortions in the 20 to 29 age group. While I agree with my noble friend’s initial comments, the focus of the public health effort has to be to bear down on the figures as we see them today and make sure that all women have access to contraceptive advice.

[Baroness Gould of Potternewton]

My Lords, the Minister has answered part of my question, but I shall question him a little further. First, I make the point that of course the law must be maintained at all time. Some of the arguments demonstrate attempts not to keep to the 1967 Act. Is it not therefore important that we stress what it says and maintain in absolute the Act as it stands? Any attempt to water down that Act would return us to the days of backstreet abortions and the deaths that followed them. Does the Minister agree—he mentioned this in his last point—that we should maintain proper, available contraceptive services for all ages? A lot of PCTs are not giving contraceptive services to the over-24s, which is why the abortion rate has gone up in that age group. Does he agree that there should be open access to contraceptive services for all ages and by all methods?

[Earl Howe]

My Lords, I agree with the thrust of the noble Baroness’s two points. In particular, I agree that there should be no departure from the terms of the 1967 Act, which is why the CMO took the trouble to write to all clinics and hospitals, as I mentioned earlier, to remind them of the provisions of the Abortion Act and in so doing to remind them that sex-selective abortions are illegal.

I must correct what I said earlier. I hope I did not give the wrong impression about repeat abortions. My briefing states that in 2011, 36% of women undergoing abortions had had one or more previous abortion. That proportion has in fact risen from 31% since 2001. Twenty-six per cent of abortions to women aged under 25 were repeat abortions, which is quite a high percentage.

Banks: Funding for Lending Scheme

Tuesday 4th December 2012 Lords Chamber

Question

14:47

Asked by

[Lord Sharkey]

To ask Her Majesty’s Government what is their assessment of the performance to date of the Funding for Lending scheme.

[Lord Newby]

My Lords, we are still in the very early days of the scheme. However, initial indications have been positive. Bank funding costs have declined, mortgage availability has improved and quoted rates on fixed-rate mortgages have decreased since the scheme was announced. Participating banks have also introduced discounted loans for small and medium-sized companies.

[Lord Sharkey]

My Lords, there is a lot riding on the Funding for Lending scheme, but its current performance is far from clear. For example, in quarter 3, Barclays increased net lending by nearly £4 billion and the taxpayer banks—RBS and Lloyds—decreased lending by over £3 billion the same period. Overall, net lending to businesses continues to decline. Does the Minister agree that the Funding for Lending scheme can be judged a success only if it helps to produce an increase in lending to business, especially small businesses? Will he persuade the Bank to disaggregate the figures it publishes so that we can see exactly how much lending is going on to small businesses when we see the quarterly Funding for Lending scheme report?

[Lord Newby]

My Lords, one of the core principles and purposes behind the scheme is to increase lending to small and medium-sized businesses. We are confident that as the scheme gathers pace, it will be clearer that it has been effective. On figures on lending to small and medium-sized businesses, the Bank already publishes the quarterly Trends in Lending report, which covers SME lending. The most recent report was published in October. This report gives a very good time series about what is happening to lending to SMEs, and we are not convinced that having a second, broadly equivalent, series produced on a slightly different date would help to explain what is happening any more clearly than is already the case.

[Lord Barnett]

My Lords, the press to some extent has supported the Minister. The Financial Times said:

“The government’s flagship scheme to encourage banks to lend more to businesses and consumers is showing some signs of working—for banks, at least, if not yet for their customers”.

That is what most of the press have been saying: the banks have been taking the money and not lending it. If, in the process, the Bank of England loses money on the swaps it is doing on mortgages, will those losses be transferred to the Treasury in the same way as its profits were?

[Lord Newby]

My Lords, I think that the noble Lord is missing the fact that, over the period, the banks that are signed up to this scheme have made an additional £500,000 of loans to businesses and individuals. This is exactly what the scheme was intended to do. All the evidence is that the participating banks intend to use it to a greater extent in the future than they have up to now—it is very early days—and therefore I am sure that the question that the noble Lord has in his mind will not arise.

[Lord Haskel]

Did the Minister notice in today’s paper that some of the banks have not yet prepared their offer under this scheme? What are the Government doing to chivvy them up?

[Lord Newby]

The important thing is that the big banks have got a very clear offer. RBS, for example, has launched a £2.5 billion fund for SMEs specifically under this scheme, with the rate of interest charged being 1% less than would otherwise be the case. Lloyds TSB has also reduced its rate by 1% and noble Lords will no doubt have seen the double-page ads that it has taken out in the papers to persuade small businesses to take out a loan. Barclays has introduced a 2% “Cashback for Business”. So the big banks are already absolutely on the case; the smaller banks, which have signed up over a period, are, indeed, developing their offers.

[Lord Davies of Oldham]

My Lords, the Minister is surely guilty of great complacency. Is this scheme not going the same way as Merlin and various other efforts under this Government? Will he not acknowledge that £500,000 is a flea bite in terms of investment in our society and in business at the present time? Will he accept the fact, which he did not mention in his figures, that lending for business over the past quarter as a whole decreased by £3.3 billion? What on earth the Minister is doing producing complacent responses to these questions, I do not know. Do we not quite clearly need a British investment bank, backed by the Treasury, that can ensure that funds are made available to industry and business in order to guarantee recovery?

[Lord Newby]

My Lords, only a Labour Party Front-Bench spokesman could say that £500,000 is a flea bite. The figures show clearly that there is a realignment of activity in the lending market towards new entrants, which is exactly what the Government and, I think, the Opposition have been seeking to bring about. If we look at a bank such as Aldermore, it is just about the best performer in terms of increasing its size of offer. I am sure that noble Lords will be particularly pleased to see that the building society sector, with Nationwide very much in the lead, has significantly increased its lending specifically because we have the Funding for Lending scheme in place.

Police and Crime Commissioners: Elections

Tuesday 4th December 2012 Lords Chamber

Question

14:52

Asked by

[Lord Roberts of Llandudno]

To ask Her Majesty’s Government what is their assessment of the operation and turnout of the elections for Police and Crime Commissioners.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, more than 5 million people turned up to vote in last month’s first ever election of police and crime commissioners, giving them an infinitely bigger mandate than the unelected and largely invisible police authorities they replaced. That number will only grow in the future as people see the real impact of PCCs and the changes that they will make in their areas, delivering on public priorities for dealing with crime.

[Lord Roberts of Llandudno]

I do not know whether to thank the Minister for that reply or not. The turnout nationally was 15%, the lowest being in Staffordshire at 11.6%. Does that really give a valid mandate to these new commissioners? We were told that the turnout would increase in the London mayoral elections, but there was a 34% turnout in 2000, the first election, while this last year it was 38%. It has gone up by only 3% or 4% in 12 years, so the facts do not bear that out. Nationally, in the police and crime commissioner elections, each vote cost £14, but in north Wales, it cost almost double that—£25 a vote. The election cost a conservative estimate of £75 million. It could be more—that is a conservative estimate. The sum would have paid for 3,225 new police constables.

[Noble Lords]

Question!

[Lord Roberts of Llandudno]

I am asking a question. My second question, which I am allowed, is: which is the better way of spending £75 million of public money—is it on 3,225 new police constables or on police commissioner elections with a 15% turnout?

[Lord Taylor of Holbeach]

My noble friend has worked very hard at producing figures which I am afraid I do not recognise. The total recoverable cost of the election in north Wales, as set out in the Police and Crime Commissioner Elections (Local Returning Officers’ and Police Area Returning Officers’ Charges) Order 2012 is £1,063,000. The north Wales police area returning officer believes that the cost of contingencies for Welsh language ballot papers comes to around £62,000. Therefore, with 80,000 votes cast in north Wales, it comes to significantly less than the figure quoted by my noble friend.

[Lord Mackenzie of Framwellgate]

My Lords—

[Lord Howarth of Newport]

My Lords, is not one of the lessons of this fiasco that people do not want gratuitous constitutional changes shoved down their throats?

[Lord Taylor of Holbeach]

Two questions were being asked at the same time, but I shall take that of the noble Lord, Lord Howarth of Newport. I do not accept that for one moment. By-elections were held the same day and, in one case, the retiring Member of Parliament received very much the same turnout as the winning candidate in the seat that he had vacated. That does not affect the legitimacy of the outcome, nor will it affect the authority with which police and crime commissioners will tackle their task, with a mandate on behalf of the people to make sure that we have effective crime policies in this country.

[Lord Elystan-Morgan]

My Lords, does the Minister recollect that when taxed with the question of the low turnout both the Prime Minister and the Home Secretary said that it was easily foreseeable that in a situation as novel as this the turnout would be low. Why, then, was no free mail shot considered? I ask him to answer this question with the sweet benefit of hindsight, but is it the case that perhaps the wrong question was asked? Rather than ask whether we could possibly afford it, perhaps we should have asked whether we could possibly afford not to do it.

[Lord Taylor of Holbeach]

As the noble Lord will know, because I know that he has been interested in this subject and I have talked to him in Questions before about informing voters on this issue, more than 2 million people took advantage of access to the website to inform themselves about their candidates, and more than 200,000 people asked for a printed version of the candidates’ election address on the website and took advantage of that opportunity. There is no free post, and I do not think that the £30 million that postage would have cost would have been justified.

[Lord Waddington]

Would it not have been a lot better if the polls had taken place at the time of the local elections? Would the poll not have been very much higher then—and was it not the wish of the Liberals in the coalition who insisted on the vote not being taken at the right time?

[Lord Taylor of Holbeach]

I note what my noble friend has to say on that matter, but I am a great believer in the coalition. We will be taking his advice, because the next election will be three and a half years from now, in May.

[Lord Mackenzie of Framwellgate]

Are safeguards in place for the appointment of deputy commissioners? Is he aware of articles in the press suggesting that a number of deputy commissioners have been appointed by commissioners who were relatives and friends? Is this not the nepotism that was predicted?

[Lord Taylor of Holbeach]

I cannot speak to those particular allegations. All I can say is that the appointment of a deputy police and crime commissioner is not obligatory, but is something that police and crime commissioners can do. Further, they are required to appoint a head of paid staff and a finance officer. The latter two posts are the only ones that the law requires.

[Lord Grocott]

My Lords, however the Minister might interpret the turnout at the elections, could we agree that there was no evidence of any wild enthusiasm for these new commissioners? Would he further accept that this is in keeping with a pattern? On the same day, the people of Hartlepool decided that they did not want a directly elected mayor; just as nine out of 10 cities earlier this year decided that they did not want a directly elected mayor; just as the overwhelming majority of the British people in a referendum last year decided that they did not want a new electoral system. Could the Minister advise those constitutional experts in the Government who keep wanting to fiddle about with the constitution, that before they do so they might at least think about listening to the views of the British people?

[Lord Taylor of Holbeach]

I am really sorry, because I have great respect for the noble Lord, that he appears to speak against the extension of democracy to this important area of government. I am prepared to wager with him that the next police and crime commissioner elections will attract increased participation that is a great deal more than these elections.

Schools: Performance

Tuesday 4th December 2012 Lords Chamber

Question

15:01

Asked by

[Lord Bates]

To ask Her Majesty’s Government what assessment they have made of variations in school performance across England, in the light of the Annual Report of HM Chief Inspector of Education, Children’s Services and Skills 2011–12.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, overall the Ofsted annual report showed that the performance of schools has improved, with 70% of schools rated good or better compared with 64% five years ago. However, it also showed marked variations in performance between different local authorities with similar levels of deprivation. The department undertakes its own analysis of individual school performance alongside that of Ofsted. It uses this to identify schools which could benefit from academy status.

[Lord Bates]

I am grateful to my noble friend for that Answer and I share his concern about variations. Can he confirm that the report highlighted that in Barnsley, 20% of children attend good or outstanding schools, whereas in Wigan the figure is 95%? In the leafy borough of Merton in London, 45% attend good or outstanding schools, whereas in Tower Hamlets the figure is 78%. Does this not nail the myth that performance in schools has anything to do with levels of social deprivation? Will he move with all pace to do all he can to exercise the powers he already has to take schools that are failing our children from local authority control and give them academy status?

[Lord Hill of Oareford]

My noble friend is right to highlight some of the variations that the Ofsted report illustrates. We should all look at that. The conclusions he draws are the same that the chief inspector draws: that it is possible for outstanding schools in areas of deprivation to perform extremely well for their children. So far as the second point is concerned, if we can find an agreed way forward for a sponsored solution with local authorities in the cases of under-performance, that is the route we would prefer to go down. However, I can reassure him that in cases where that is not possible, we will use our powers of intervention.

[Baroness Sharp of Guildford]

Does the Minister not agree that the variations in school performance reflect the quality of school leadership, as much as anything else? Does he think that the Government are doing enough to encourage talented young teachers to go forward as school leaders at the moment?

[Lord Hill of Oareford]

I agree with my noble friend about the importance of school leadership, obviously. It is always the case that it is people who make the greatest difference. I would contend that the academy freedoms provide more space for those great leaders to exercise their professional judgment. So far as her important point about the provision of new leaders is concerned, I agree with her. We have extended the national leaders of education programme and the Teach First programme. We are extending the number of teaching schools. These are all important initiatives that should lead to an increase in the number of excellent school leaders to whom she rightly refers.

[Baroness Farrington of Ribbleton]

My Lords, will the Minister confirm publicly that the oft-used mantra of local authority control is no longer the case, and that local authorities have powers and duties but control is not among them? Given the full range of skills that young people need in their lives, is it not a disgrace to watch additional primary school places being provided in areas such as Pimlico, where they are not needed, and being built on sports areas which were used extensively by children and young people who cannot afford private sports clubs?

[Lord Hill of Oareford]

I have discussed the specific case that the noble Baroness raises before. I am not sure that the facts around primary school places and sports provision in London are quite as straightforward as she portrays. To take the general point, I feel very strongly that it is right that there should be more choice locally for parents who want outstanding primary school places. Whether or not there is a basic need problem, it is right that they should have that choice. So far as the free schools generally are concerned, most of that new primary provision is in areas of basic need. As regards the role of local authorities, they are discharging their responsibilities in different ways across the country. Clearly, the trend over a long period has been towards greater autonomy for schools, and that is something on which this Government are trying to build.

[Lord Quirk]

My Lords, should we be concerned not just with the variation between schools but between schools and young offender institutions and within young offender institutions, where this report shows that the skills and learning provision is both thin and patchy?

[Lord Hill of Oareford]

I agree with the noble Lord’s point. It is an area where more work needs to be done. I accept that the provision is patchy. As regards the variation between different kinds of provision, the more we can publish data which illustrate what the facts are, so that people can then draw their own conclusions on the action needed, it is a good and healthy development.

[Baroness Sharples]

Can my noble friend tell me what proportion of children going to school now have English as their second language?

[Lord Hill of Oareford]

I am afraid that I do not have those figures in my head but I will write to my noble friend and make sure that she has them.

[Lord Davies of Oldham]

My Lords, why does the Secretary of State constantly refer to Sweden as a model of good schools when the Economist Intelligence Unit in its recent survey of world performance ranked our schools in sixth place and Swedish schools in 21st?

[Lord Hill of Oareford]

My right honourable friend refers to a number of international examples of different kinds of system from which we can learn. However, the noble Lord will probably also know that alongside the Economist report to which he refers, which did, indeed, say what he says, there are a number of reports, including the PISA reports, which, sadly, do not yet show us in quite such a good light. The encouraging thing about the Ofsted report which I am keen to emphasise is that it points to a number of improvements over recent years, including under the previous Government, towards a more self-supporting system, the development of good new heads and stronger teachers, and that is something on which we are building.

Syria: Chemical Weapons

Tuesday 4th December 2012 Lords Chamber

Private Notice Question

15:08

Asked by

[Baroness Symons of Vernham Dean]

To ask Her Majesty’s Government what is their response to the briefing from the United States Department of Defense that their intelligence sources have detected the movement of Syrian chemical weapons components in recent days; and President Obama’s statement yesterday that Syria would be held accountable for any use of such weapons.

[Baroness Symons of Vernham Dean]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)]

My Lords, we share President Obama’s deep concerns about Syria’s chemical weapons. Any use of chemical or biological weapons would be abhorrent and universally condemned. Any use of chemical or biological weapons would make us reconsider our calculations and revisit our approach to Syria. We continue to work closely with our international partners, including the United States, to monitor closely developments relating to Syrian chemical weapons. We continue to urge the Syrian regime not to use these weapons and to ensure that they are secured.

[Baroness Symons of Vernham Dean]

My Lords, I thank the Minister for that Answer. Today the Secretary-General of NATO has echoed President Obama’s view that any use by Syria of chemical weapons would be completely unacceptable. Can the Minister tell us what discussions Her Majesty’s Government are having on this issue with the United States of America and within NATO, and will she confirm media reports that Foreign Ministers meeting today in Brussels are discussing the deployment of Patriot missiles into Turkey?

[Baroness Warsi]

My Lords, a number of discussions are ongoing in relation to both the NATO formats and other bilateral and multilateral formats as well. As I reported to the House about a month ago, we are discussing a number of options in relation to Syria. We have always made it clear that we need to do more. The noble Baroness is aware of the challenges that we have had at the United Nations Security Council in this matter. However, in light of this recent information which has come to light, we are keeping our discussions under constant review.

[Lord Wright of Richmond]

My Lords, whatever the origins of the present problems in Syria, does the Minister agree that that country is now involved in a very dangerous civil war between Sunnis and Shias and that it would be disastrous for the British Government to become militarily involved in any way?

[Baroness Warsi]

My Lords, we have always indicated that we must do all that we can to bring the fighting and bloodshed to an end. The noble Lord will be aware from my previous Answers that we have worked closely with the opposition, who have now formed a formal opposition, the National Coalition of Syrian Revolutionary and Opposition Forces, whom we have now formally recognised. We continue to support the opposition in trying to bring this bloodshed to an end.

[Lord Anderson of Swansea]

My Lords, Russia is the main supplier of weapons to Syria and the main protector of Syria in international fora. What evidence is there, if any, that Russia takes this matter seriously? Do the Government accept that evidence, and is there any evidence that Russia is seeking to restrain the Assad regime from the use of chemical weapons?

[Baroness Warsi]

We know that Russia shares our concerns about the use of chemical and biological weapons. We use all opportunities that we have in discussions with our Russian counterparts and, indeed, this matter was again raised in discussions that I had with the Russian ambassador only a few weeks ago. As for our concerns about where Russia has failed to act, specifically at the United Nations Security Council, the views of my right honourable friend the Prime Minister were very clear when he spoke at the United Nations.

[Lord King of Bridgwater]

My Lords, the Minister will recognise that if Patriot missiles are to be deployed, it must be solely for the purpose of ensuring the protection of Turkish citizens and the military situation in Turkey, and as the noble Lord, Lord Wright, has said, it must in no way become the thin end of the wedge, with our becoming militarily involved in that area. Does my noble friend welcome the fact that, as I understand it, President Putin is currently with Prime Minister Erdogan in order to discuss their relationship, and so that President Erdogan can give him a better understanding of Turkey’s position? We will see what Turkey can do to persuade the Russians of the importance of recognising the seriousness of the situation in Syria. It would be very welcome if Russia could be discouraged from giving too much support to the present regime.

[Baroness Warsi]

I agree with much of what the noble Lord has said; he comes to this issue with great expertise. Turkey is an important ally, and in relation to the humanitarian effort and support for the refugees it has been on the front line of this conflict.

[Lord Triesman]

My Lords, Jihad Makdissi, the Syrian Foreign Ministry’s senior spokesman, said in July 2012 that chemical weapons would not be used against the civilian population. That statement is wholly unconvincing: Syria is one of six states that have not signed the chemical weapons convention; its biological weapons research is proceeding; and, of course, it was another Baathist regime which thought nothing of using chemical weapons against its own people. Indeed, some remains are being exhumed this week in a forensic effort at Halabja. Is NATO’s Secretary-General Rasmussen perfectly reasonable to argue that the use of chemical weapons is completely unacceptable and that it is right, if necessary, to seek the protection of Patriot missiles for Turkey? Is it not right to seek peace in the region, of course, but also to be prepared realistically for further atrocities by President Assad?

[Baroness Warsi]

The noble Lord is right: it was earlier this year that the Syrian regime first accepted that it had these weapons. However, we treat with caution what has been said by spokespeople on behalf of the regime. The noble Lord may also be aware of reports this morning that Jihad Makdissi may have left the country. Of course, if it is true, we welcome that. There is some suggestion that he has defected from the regime, but it also raises concerns about assurances that he may have given in the past and about the current intentions of the Syrian regime.

[Lord Alderdice]

My Lords, at the start of this difficulty I urged Her Majesty’s Government to focus less on identifying another side to give military support to and more on giving support to our allies in Turkey who are on the front line of this problem and are very familiar with it. One of the difficulties particularly about giving weapons to the opposition is that it deepens division and exacerbates the conflict. Many people from Syria have been fleeing into Turkey and there are many tens of thousands of refugees. Even the talk about chemical weapons will ensure that those numbers increase to a flood. I do not suggest that Turkey cannot economically cope with these refugees, but it has been made clear to me by the Turkish Government that they would welcome an input from Her Majesty’s Government in the form of political support in the difficulties Turkey faces in dealing with massive numbers of refugees. Is it possible that Her Majesty’s Government have already been discussing this; or if not, is it something that they will take up urgently?

[Baroness Warsi]

I can assure my noble friend that we are in discussions with Turkey not only on these matters but, indeed, about the financial support that DfID has been giving on the border and the expertise and political support that we have given to Turkey in this matter. Although I hear the points that my noble friend makes about supporting our allies in the region, it is also important that a solution for Syria is brought about by the people of Syria. It is right that when the people of Syria come together in the form of an opposition we recognise it. I can, however, assure my noble friend that we are not supplying any weapons to the opposition.

[Lord Elton]

My Lords, this information comes to us as a result of surveillance by the American intelligence services. Can my noble friend tell us whether that surveillance has also confirmed that Syria is already using cluster munitions in this war? As cluster munitions continue to claim casualties for decades after their use, the casualties inflicted are far larger in number among the civilian population than among the forces engaged in combat, and the largest proportion of those casualties are children. Although chemical weapons are also horrid, they exact their price, move on and evaporate. In view of that, can we not also take as much notice of that horrible event as well?

[Baroness Warsi]

My noble friend makes an important point. Weapons of any kind—conventional, chemical or biological—can cause the destruction to which my noble friend refers. Chemical and biological weapons, as the noble Lord said earlier, are to be deplored.

Prisons (Interference with Wireless Telegraphy) Bill

Tuesday 4th December 2012 Lords Chamber

Third Reading

15:19

Bill passed and sent to the Commons.

Crime and Courts Bill [HL]

Tuesday 4th December 2012 Lords Chamber

Report (2nd Day)

15:19

Amendment 79

Moved by

[Lord Ahmad of Wimbledon]

79: After Clause 17, insert the following new Clause—
“Youth courts to have jurisdiction to grant gang-related injunctions
(1) Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.
(2) In section 49(1) (interpretation of Part 4) for the definition of “court” substitute—
““court” (except in Schedule 5A)—
(a) in the case of a respondent aged under 18, means a youth court, and(b) in any other case, means the High Court or the county court,but this is subject to any provision in rules of court that is or could be made under section 48(4);”.
(3) In section 43(7) (judge before whom person arrested on suspicion of breaching injunction under Part 4 is to be brought) for the words from “means” to the end substitute “means a judge of the court that granted the injunction, except that where—
(a) the respondent is aged 18 or over, but(b) the injunction was granted by a youth court,it means a judge of the county court.”(4) In section 48 (rules of court in relation to injunctions under Part 4) after subsection (3) insert—
“(4) In relation to a respondent attaining the age of 18 after the commencement of proceedings under this Part, rules of court may—
(a) provide for the transfer of the proceedings from a youth court to the High Court or the county court; (b) prescribe circumstances in which the proceedings may or must remain in a youth court.” (5) Schedule (Gang-related injunctions: further amendments) (which makes consequential and related amendments in the Policing and Crime Act 2009) has effect.
(6) Nothing in any provision of this section or of that Schedule affects proceedings in relation to applications made before the coming into force of that provision.”

[Lord Ahmad of Wimbledon]

My Lords, the amendments in this group will make a change to how the court system deals with gang injunction applications for those under 18 years of age. It will transfer the jurisdiction of gang injunction applications from the county court or High Court to the youth courts, sitting in their civil capacity.

As noble Lords may be aware, gang injunctions are a civil injunction introduced in the Policing and Crime Act 2009. They were subsequently extended to 14 to 17 year-olds in the Crime and Security Act 2010. Gang injunctions allow the police or local authority to apply for an injunction to prevent gang members engaging in, or to protect them from, gang-related violence. Injunctions can both prohibit and require certain activities or actions.

When gang injunctions were originally established, it was felt that the civil courts were best placed to hear the applications due to their expertise in handling civil injunctions, and this remains the case for adults. However, following discussions with practitioners, we have come to the conclusion that the youth courts are best placed to deal with gang injunctions for 14 to 17 year-olds. It is our belief that youth courts have the appropriate facilities and expertise to deal with young people and that they will thus be able to handle these cases more efficiently and effectively for all those involved.

To facilitate this jurisdictional transfer, Amendments 79 and 82 also make a change to what can be done by the rules of court governing the injunction process, as well as making a small amendment which applies to all injunctions. I beg to move.

[Lord Beecham]

My Lords, we certainly commend the Government for this very sensible amendment. It is clearly right that defendants under the age of 18 who are members of gangs should be dealt with by the juvenile court in the normal way. It is some reassurance that 18 is the limit, so that, for example, the activities of the Bullingdon Club, should they get out of hand, would not be dealt with in a juvenile court but properly in the adult court. This is an amendment that we support.

Amendment 79 agreed.

Amendment 79A had been withdrawn from the Marshalled List.

Amendment 79AA, in substitution for Amendment 79A

Moved by

[Lord Beecham]

79AA: After Clause 17, insert the following new Clause—
“Review into the Courts and Tribunal Service
The Lord Chancellor shall conduct a periodic review into the courts and tribunal service, including the public guardianship office, and the impact of section 17 and Schedules 9 to 11, including reports on its efficiency, cost, ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice, and shall publish a report on the review to both Houses of Parliament.”

[Lord Beecham]

My Lords, this amendment echoes an amendment which I moved and which was debated in Committee requiring a review into the Courts and Tribunals Service. At that time, the amendment suggested that an annual review should take place. In supporting the thrust of the amendment, the noble and learned Baroness, Lady Butler-Sloss, queried whether an annual review was sensible, given the scope of the proposed review, and this amendment recognises that she indeed made a very good point. It now merely suggests a periodic review rather than an annual review into the Courts and Tribunals Service in its widest sense.

The noble Lord, Lord McNally, who replied to that debate, indicated that there was already a duty on the Lord Chancellor to ensure the efficiency of the courts service and to report annually thereon, and indeed that the Courts and Tribunals Service and the Office of the Public Guardian also issued annual reports. That of course is true, but that answer really ignores the fact that the whole system is undergoing seismic change as a result of legislation already passed and currently under discussion in this House and, shortly, in the other place.

In my view and that of the Opposition, what is required is a systematic and regular, although periodic rather than annual, review of the whole system, not a series of separate, unconnected reports dealing with different parts of the system. The amendment clearly envisages not merely a report on the efficiency of the system but matters that are coming to the fore in the light of the Government’s policy, as enacted and as are being enacted in relation to,

“ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice”.

Those matters affect various parts of the system and, in my submission, it is essential, particularly in the light of changes to the legal aid system, to measure the impact, to review the possible difficulties, some of which are already beginning to emerge, and, if necessary, to correct them.

Various parts of the system have slightly different track records. In Committee, I mentioned concerns about the Office of the Public Guardianship and the Court of Protection. The noble Lord, Lord McNally, will recall that when we were discussing the matter—he and the Bill team were good enough to afford me some time to do that—he said that he had only recently been approached by someone else with a concern about the Court of Protection. In Committee, I referred to some publicity about the court: a patient at the court complained that it had cost him £50,000 due to poor investment control.

Perhaps I should renew my declaration of interest: I am now an unpaid consultant with my former firm of solicitors, where I was senior partner. I had there the conduct of a long-running case in the Court of Protection—long-running in the sense that the case arose out of clinical negligence and birth defects. The young patient is now 18 years of age. From time to time, I have had difficulty in obtaining responses from the Court of Protection; difficulty over the regularity and utility of supervision of the case in relation to financial and other matters; and a general feeling that many practitioners with wider experience of the Court of Protection felt that the move of staff to centres in Nottingham and Birmingham has not assisted the efficiency of the court.

Here, by definition, we are dealing with the problems of vulnerable children and adults and those who are appointed to look after them as deputies under the general supervision of the court. That is one important example where, in my view, there needs to be a periodic review linked to other issues. As I have already mentioned, there has been a change to the legal aid system. The noble and learned Baroness, Lady Butler-Sloss, referred in Committee to the problems that she envisaged in the family court with unrepresented litigants having to appear on their own behalf. There is widespread concern among the judiciary at all levels that that may well result in a clogging up of the court system as people struggle with presenting their own cases and having to be assisted by the court in the absence of proper advice.

In addition, a wide-ranging closure programme of magistrates’ courts in various parts of the country has led to difficulties with witnesses and parties attending a more distant court. It seems to me that it would be proper to measure the impact of that in terms of access to justice.

Another area of concern relates to some of the processes involved under the single court that now exists. We have county court buildings and we have a single county court. In principle, there is nothing wrong with that but, as I pointed out in Committee, the Government have not really followed the recommendations of Lord Justice Jackson, whose report, as we have noted on previous occasions, has been cherry picked in a variety of instances. In this case, the concern arises out of the problems of litigants and their legal representatives issuing proceedings. Lord Justice Jackson proposed that there should be regional court centres but, as he said clearly, it would,

“be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so”.

That does not happen, which has serious consequences.

15:30

I referred in Committee to the problems at the Salford Centre in particular, which is where money claims are issued. The Minister replied, no doubt on the basis of advice tended to him, that things had started slowly but were getting better. Yet the Law Society Gazette on 25 October reported:

“Almost two-thirds of users of the Salford civil claims centre rate the service as poor”,

and one-third considered that it got worse rather than better over the past few months. One contributor in a comment to the Law Society Gazette said:

“Salford is a good example of the Government trying to deal with things in a very proficient and one stop shop way. In reality its a total disaster which needs overhauling urgently and made to be more accountable and efficient. Starting with the right staffing levels would help, as well as more dedicated phone staff and someone who even answers in a reasonable time”.

Solicitors frequently complain about having to wait for two or three weeks or perhaps more for their claims to be processed. That cannot be satisfactory.

We have a situation in which in its various component parts the system is under great pressure. That is exacerbated by some of the changes that the Government, for their own no doubt worthy reasons, have sought to bring into effect. I cannot agree with the answer given by the Minister on the last occasion that there was a system of reporting that in its component parts meets the requirements of a thoroughgoing review. That is particularly in relation to what is happening to access to justice for litigants of all types and the efficient processing of their claims, and in relation to the Court of Protection for the long-term arrangements for effective supervision of its substantial case load of vulnerable people.

I hope that the Minister can give some clear assurances about this. It is not asking a great deal to invite the Government periodically to keep matters under review and assess how their own legislation is working on a regular basis rather than simply in respect of those matters that have recently been enacted. It could be simply on the basis of post-legislative review. Some of these matters might ultimately fall within that five-year period but others would not because the legislation in some instances is long-standing. To treat the whole system as one that requires review seems an efficient way of dealing with the concerns of the profession and the public about this aspect of our judicial system. I beg to move.

[Lord Pannick]

My Lords, I support the amendment. One of the great defects in legal reform is the piecemeal nature of the exercise. As holes appear they are filled in. No doubt we do not need an autumn and spring statement on the legal state of the nation, but a periodic review would, in my opinion, be very helpful in focusing attention on the system as a whole. I very much hope that the Minister will accede to that proposal.

[Baroness Butler-Sloss]

My Lords, I also support the amendment. I remain very concerned about the impact of changes to legal aid on the family courts. It is absolutely necessary to have a review from time to time to see how the courts are coping with the endless litigants in person who will find themselves trying to cope at a very traumatic time of their lives when their relationships have broken down and there is no legal help at all. I very much support the amendment.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the noble Lord, Lord Beecham, gave a useful review of the remit and responsibilities of Her Majesty’s Courts and Tribunals Service. I note that both the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, voiced support for his idea of an annual review. I have to say that the Government are not persuaded of the case for that.

[Baroness Butler-Sloss]

I understood it not to be annual but to be periodic. Annual would be too frequent.

[Lord McNally]

Then, the Government are not persuaded of the case for a periodic review. That is in part because the Government continually review these areas. Part of the approach that we have taken is to try to avoid some of the piecemeal approaches that the noble Lord, Lord Pannick, criticised in his brief intervention.

We are bringing forward a comprehensive set of reforms in this area. We will see how they bed in and we will be constantly interested in any comments or any feedback on them. As I indicated in Committee, and in line with the commitments made in the published impact assessment, we will review the effectiveness of the single county court and single family court within five years of Royal Assent so that the new arrangements have time to become established and for the benefits to be realised.

As for any other review of the whole of Her Majesty’s Courts and Tribunals Service, the Lord Chancellor is already under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business in the courts and to report annually to Parliament on the discharge of this duty under Section 1 of the Courts Act 2003. To this end the Lord Chancellor lays the annual report of Her Majesty’s Courts and Tribunals Service before Parliament.

Furthermore, Her Majesty’s Courts and Tribunals Service takes its obligations under the Government’s transparency agenda seriously. It routinely publishes performance data including providing clear and local information about how long it takes to decide cases in the civil, family and criminal courts. I was in talks recently with the senior judiciary overseeing the family courts and they made the point to me that this new transparency and the collecting of comparative data between courts was of considerable help in assessing which courts were not performing well and which courts were performing very well. This again is part of a general policy of check and balance in carrying forward these reforms. However, we do believe that imposing a further requirement for an additional annual review would be excessive, expensive and unnecessary.

The noble Lord, Lord Beecham, referred in particular to the Court of Protection and the Office of the Public Guardian—and indeed we had talks on this. The noble Lord raised his concerns in relation to the operation of the Court of Protection and the Office of the Public Guardian. He will recall that I wrote to him about this in July this year. Let me be clear. I recognise that there were concerns. The Court of Protection and the Office of the Public Guardian deal with some of the country’s most sensitive cases and it is important that they operate effectively and efficiently. When the Mental Capacity Act 2005 was implemented, both the Court of Protection and the Office of the Public Guardian faced a significant increase in the number of applications for court orders and applications to register enduring powers of attorney and lasting powers of attorney, with which the then IT system struggled to cope. In addition, the court was hampered by a shortage of judges. This resulted in a build-up of cases waiting for judicial decision.

However, things have improved considerably since then. The Court of Protection rules were changed to enable applications to be dealt with by authorised court officers in non-contentious cases. To date, this has resulted in fewer than 100 cases having a waiting time of 10 days or more, meaning that the majority of cases are resolved in a timely fashion. Furthermore, Clause 19 of and Schedule 13 to the Bill will increase flexibility in the deployment of judicial resources, thus increasing the number of judges who have the ability to sit in the court. The Court of Protection has also embarked on a programme of continuous improvement to remove waste and inefficiency from the administrative process.

In April last year, the Office of the Public Guardian commenced a major change programme as part of the Ministry of Justice’s wider Transforming Justice agenda. A key element of this is the development of a new, more robust and flexible IT system that will enable the agency consistently to meet the increasing demand on its services while also radically improving the quality of those services. The Public Guardian has initiated a fundamental review of the supervision regime to ensure that the Office of the Public Guardian is supervising court-appointed deputies in the most appropriate way. This review is considering how to focus efforts on supporting those deputies who may need more assistance and, where there are no concerns, enabling deputies to fulfil their duties with minimal intervention. Where issues are brought to the attention of the Office of the Public Guardian, the intention is to deal with these swiftly and thoroughly. Currently, 98% of complaints are resolved and responded to within 10 working days. Furthermore, the court is now issuing applications within five days instead of four weeks and it processes complete and uncontested cases from start to finish on average within 16 weeks instead of 21 weeks. The Court of Protection is also the only court in London to have achieved Beacon status.

In summary, I believe that the direction of travel is positive for both the Court of Protection and the Office of the Public Guardian. However, we remain committed to providing the best service possible and protecting the interests of the vulnerable.

The noble Lord, Lord Beecham, also mentioned the County Court Money Claims Service based at the Salford Business Centre. Again, I recognise the concerns raised. The introduction of the County Court Money Claims Centre seeks to enable the Courts and Tribunals Service to make the very best use of its administrative resources and provides court users with a more efficient and consistent service across England and Wales. Our ultimate goal is to move to electronic processing in all but a minority of cases. Centralising the money claims centre in Salford, which deals with paper based claims, is a stage in that evolution, one that is long overdue and which follows long-established private and public sector practice.

Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.

The noble and learned Baroness, Lady Butler-Sloss, mentioned the single family court. We consider this court to be essential so that individuals can easily access the family court system when they need to. The new single family court will make it clearer and simpler for those who need to use the courts to resolve family matters. However, we are aware of the problems of self-represented parties and we are working urgently to take immediate action to assess self-represented parties affected by our legal aid changes, as well as developing a long-term strategy for the future. To date, this work has included taking forward the recommendations made by the Civil Justice Council, including making £350,000 of funding available to advice sector organisations to support self-represented litigants.

Her Majesty’s Courts and Tribunals Service also takes its responsibility to provide information very seriously and knows that courts operate more efficiently when customers are better informed. It is important that information provided to court users is accurate, up-to-date and straightforward and can guide court users down the correct path, thereby reducing the number of errors in the system.

I hope that, given my response to the review suggested by the noble Lord, Lord Beecham, and, in particular, my response to the comment of the noble Lord, Lord Pannick, the House will recognise that, yes, we are carrying out quite radical reforms but that they are joined up and we are taking action to improve and remedy defects where we have found them. As I said in my opening remarks, the idea that this process will not be kept under the very closest review and that Parliament will not have access to the outcomes of that review is mistaken. I therefore hope that the noble Lord will not press his amendment.

15:45

[Lord Beecham]

My Lords, I am grateful to the Minister for a very full reply. In particular, I am pleased to hear his assurances in respect of the most recent performance of the Court of Protection. We will have to see whether that trend continues in the future.

However, the Minister said that it is all part of a single approach—and that, of course, is the thrust basically of the amendment. The whole system should be reviewed periodically—I repeat, periodically, not annually, as the noble Lord twice said in his reply—so that we can see exactly the balance across the system of changes that have been made both under and apart from legislation. Court closures and magistrates’ court closures do not require legislation and other issues, such as the performance of the Court of Protection, are not affected by current legislation. An holistic approach is necessary so that Parliament, on behalf of those who seek access to justice, can determine the efficacy of the system, its openness and whether it is working properly in a way which is not designed—because it would not be an annual review—to be costly and elaborate.

Most other departments look at policies across the piece and it seems sensible for the Ministry of Justice to do so. Under those circumstances, I beg leave to test the opinion of the House.

15:48

Division 1

Ayes: 177

---

Labour: 133
Crossbench: 30
Independent: 4
Democratic Unionist Party: 1
Bishops: 1
Plaid Cymru: 1

Noes: 218

---

Conservative: 120
Liberal Democrat: 64
Crossbench: 28
Independent: 1
Ulster Unionist Party: 1

16:04

Amendment 79B

Moved by

[Lord Beecham]

79B: After Clause 17, insert the following new Clause—
“Requirement for consultation
The Secretary of State shall publish and consult on a strategy for the delivery of legal information, support and dispute resolution services to the public by Her Majesty’s Courts and Tribunals Service.”

[Lord Beecham]

My Lords, this amendment deals with the provision of information at the courts. In the previous debate the Minister referred to a grant of £350,000, which was to assist advice agencies in providing advice and support for litigants; modest as that amount certainly is, it is no doubt welcome. There is a significant problem in the courts, as outlined by Citizens Advice nationally, to which I referred in Committee. There are a significant number of courts where the reception staff are only now available for two hours a day and many in which they are not available at all. There is a significant potential problem with helping people who arrive at court not knowing what to do or in need of advice. In Committee, the Minister referred to the availability of online and telephone advice, and that is certainly the case, but, as we have said in this context and other contexts, not everybody finds online facilities or, indeed, the telephone all that familiar and useful.

In any event, in the earlier debate, the Minister said that he would be willing to talk with the voluntary sector to see whether and to what extent it could help and, as he put it, “short of committing money”, he was very willing to talk to it and hoped that he would be able to report back on Report—perhaps not with an amendment from me. He said that his good will was certainly there, and I have no doubt about that. I understand that there have been discussions. The Minister wrote to me about these matters but, at the moment, it does not seem that a conclusion has been reached. Will the Minister say whether he has met the voluntary sector and to what extent progress has been made in providing additional resources from that sector for this purpose? I recall that the noble and learned Lord, Lord Woolf, was very supportive of the original amendment in Committee, and from that most respected source I hope that the Minister would derive impetus for securing a resolution of a potential problem. It is now five months since we debated this in Committee, and I hope that the Minister has found it possible to advance discussions with the voluntary sector and will give an indication of the position now, and of where the Government hope to take this issue. I beg to move.

[Lord McNally]

My Lords, it is a given that we all have an interest in the smooth and efficient running of the courts. Clear, relevant and accessible information is critical for members of the public who will not always have the benefit of dedicated legal advice. I understand that the noble Lord, Lord Beecham, is attempting to ensure that there is support for the public in navigating the legal system and that where alternatives to resolving disputes through the courts are available, they are sufficiently visible.

While I support the notion behind the amendment, it is unnecessary to place an obligation on the Secretary of State for Justice to act as the custodian for this type of information. The Government’s digital strategy, published last month, set out how the Government will ensure that the GOV.UK website becomes the primary portal for information and guidance on all government services. Later this month, the Ministry of Justice will publish its own digital strategy which outlines how we will make our information available through GOV.UK.

As part of this, the Ministry of Justice and its agencies will ensure that appropriate information and support is provided to assist the public to navigate its systems. A new online signposting service, currently being developed in conjunction with key partners, including those from the not-for-profit sector, will be a primary access point for any client or organisation looking for assistance to resolve a problem.

The new service will lead clients through eligibility tests for legal aid and direct people to the appropriate sources of assistance, including contracted legal aid providers where relevant. Where clients are not eligible for legal aid, they will be signposted to alternative sources of assistance and information. This online service is scheduled to go live on 1 April 2013.

We recognise that not everyone who uses government services is online, and that not everyone will be able to use digital services independently. The Government have to ensure fair access to services for those who are entitled to them. People who are offline will be supported to access digital services; for example, through intermediaries. As set out in the Government’s digital strategy, how this “assisted digital” will work in practice will depend on the services delivered and be developed by individual departments.

I also understand that there is concern that there will be an increase in self-represented parties—those navigating the legal system without representation—particularly following implementation next April of the legal aid reforms. The longer-term sustainability of the advice sector is a matter that goes beyond the Ministry of Justice and work in this area has consequently been led by the Cabinet Office. Its recently published review on advice services acknowledged that the Government have a role to play in supporting the advice sector in adapting to the new funding realities, but it also makes clear that advice providers will need to take the initiative and change the way they work in order to ensure a long-term sustainability of supply.

I spoke last Friday at the launch event for the implementation of the Civil Justice Council’s recommendations regarding self-represented parties. I was greatly encouraged by the positive attitude of the not-for-profit sector in seeking ways to work in partnership with Government to support greater numbers of self-represented parties in the future. At that meeting there were representatives of the not-for-profit sector, the judiciary, my own department and various parts of the legal profession. I was very encouraged by the positive attitude taken as to how we make the new system work.

For our part, the Government are providing additional funding for these organisations. The Ministry of Justice has already funded a number of actions recommended by the Civil Justice Council and the new Advice Services Transition Fund of £65 million launched this October will be key to supporting advice providers to adapt and transform over the next two years. This funding will allow them to establish strong collaborative networks, more effective relationships with public agencies and a more cost-effective approach to providing their help to clients in need.

Given the existing commitment to create a single portal for advice and support from the Government, through GOV.UK and the support we are putting into advice services, an obligation to create a parallel service would be administratively burdensome and unnecessary. I therefore urge the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I find myself rather disappointed with the noble Lord’s reply. He said in June that he was very willing to talk to the sector about this particular issue, look at it and report back on Report. That does not seem to have happened. I have no doubt that the noble Lord spoke at this meeting in the sense that he has described. It is certainly true that some funds—

[Lord McNally]

If I have not made it clear, I have now had the opportunity, as I said in my letter to the noble Lord of 25 October, to meet the National Association of Citizens Advice Bureaux and representatives from the Advice Services Alliance and the Personal Support Unit. I also referred to the meeting I went to last Friday. I have had widespread discussions, money has gone into this sector and I am hopeful that CAB and others will move now from campaigning against LASPO, which is now an Act, and work constructively with us to see how we can work on this new settlement. Certainly, the idea that I have not reported back to the House is one that I deny.

[Lord Beecham]

I am grateful that the Minister has amplified on what he said in his initial reply. Of course, I accept that he has had those discussions, as he now says, although they did not, perhaps, quite take the course that he foreshadowed earlier in the year. However, I make the point that the advice sector is struggling at the moment in a very considerable way to deal with significant cuts. I referred to the experience in the north-east, but it is true over many parts of the country. I hope that it will be possible for the advice sector to respond in the way that the noble Lord has indicated that he wishes to see it go. But again, it will surely be necessary to keep that situation under review, because there will be a substantial increase in demand for that advice and it is far from clear that the sector on its own will be able to sustain it.

I do not propose to press the amendment. We will see how matters develop, and possibly interrogate the noble Lord in future as to what is happening on the ground. I beg leave to withdraw the amendment.

16:14

Schedule 9 : Single county court in England and Wales

Amendments 80 and 81

Moved by

[Lord McNally]

80: Schedule 9, page 116, line 20, leave out sub-paragraph (2)

81: Schedule 9, page 119, leave out lines 5 and 6

Amendments 80 and 81 agreed.

Schedule 10 : The family court

Amendment 81A

Moved by

[Lord Beecham]

81A: Schedule 10, page 138, line 26, at end insert “provided the functions are deemed to be essentially administrative in nature, for example: case management decisions”

[Lord Beecham]

My Lords, this amendment deals with the proposal in the Bill to delegate some decisions in the family court to legal advisers. The amendment seeks to define those duties in a way that would avoid legal advisers assuming the role of the court itself in making effectively legal decisions. It is quite a different matter if they were to make effectively administrative or case management decisions on matters of that kind. There is a concern, among the magistracy as well as more generally, that powers to adjudicate should be conferred on legal advisers.

The Minister wrote to me in some detail about this, and I am grateful for that letter, but I understand that discussions are going ahead and have not yet reached a conclusion about the precise form of regulations that are to come to both Houses. It is unfortunate that once again we are in a position of enacting legislation without a clear view of how it is to be implemented. Your Lordships may think that that is happening rather too regularly. Clearly, however, the Government are taking this matter seriously, and I look forward to seeing the draft regulations and ultimately the statutory instruments, which I understand will be subject to affirmative procedure. That being the case, I do not know whether the noble Lord is in a position to give an indication of the scope of the proposed delegation, without going into too much detail, because the regulations have not yet been drafted and consultations are still taking place. It might be helpful if he were able to give an indication that there will be some kind of limitation perhaps not precisely along the lines of the amendment but avoiding too much of a judicial role being assumed by legal assistants as opposed to judges—and, for the purposes of the family court, magistrates become judges.

It would be helpful to have that information, although if it is not available we will simply have to wait. But while waiting to hear what the Minister says, I make it clear that I do not propose to press the amendment. We will have a parliamentary opportunity at some point, although not one that would allow us to amend anything. Even so, in those circumstances I will not be pressing the amendment, but it would be interesting to hear whether the noble Lord can update us to any degree.

[Baroness Hamwee]

My Lords, could I ask my noble friend a question? He may not be able to answer at this point, but I am afraid that it has only just occurred to me—it is with regard to assistant legal advisers. I can well understand that a person should be able to act as a legal adviser only if that person is a justices’ clerk, but why should a justices’ clerk, as distinct from an assistant to a justice’s clerk, not be able to act as an assistant legal adviser? It may be that the requirements on any given day, or because of the complexity of the matter or whatever, would make it more convenient for a justices’ clerk to act as an assistant legal adviser. It may be that I do not understand enough about how the magistracy works with its clerks at the moment. However, the points raised by the noble Lord, Lord Beecham, caused me to look back to see who these individuals might be, because I share his concern about what they would be expected to do. It is an odd little restriction.

[Lord McNally]

My heart always sinks when my noble friend says that she does not understand some particular point of law, because I think then that the odds of my being able to understand it are infinitely less. On that particular point, I will have to write to her on the nuances between magistrates’ clerks and assistant magistrates’ clerks. However, may I say to the noble Lord, Lord Beecham, that I understand and, to a certain extent—as much as I am allowed to as a Minister—share his irritation that sometimes the legislation and the various Explanatory Notes and schedules do not come in the right order? As he says, however, there will be a chance for Parliament to look at these matters in due course. I also pray in aid the fact that, as my noble friend Lady Hamwee indicated, the aim of these changes is to try to get greater efficiency in justice into our courts. I will take up the invitation of the noble Lord, Lord Beecham, to update the House on where we are.

We are all keen to ensure the smooth running and efficient nature of our courts. Indeed, the single family court will ensure a more efficient, user-friendly system that enables cases to be processed quickly and with minimum distress to any children involved. In order to achieve this it is essential that our courts operate to maximum effectiveness. One of the ways that the Government will be able to encourage this is to allow legal advisers and assistant legal advisers to carry out procedural and administrative functions. By doing so they will ensure that the wheels of justice continue to turn, while freeing up judicial time to make the difficult decisions and determine rights.

The amendment proposed by the noble Lord, Lord Beecham, seeks to restrict the delegation of powers to legal advisers. The noble Lord has pointed to the report of the Joint Committee on Human Rights, which observed that the power awarded to legal advisers could be used quite widely. It also expressed concerns that there may be an appearance of lack of independence or impartiality if legal advisers are allowed to make decisions other than administrative decisions, such as case management. However, the provisions in the Bill for the delegation of powers to legal advisers largely mirror the provisions made in the Courts Act 2003—legislation passed by the previous Administration. I always find it a comfort when I am able to draw the attention of the Opposition to the fact that we are using one of their Acts to do something. I am sure that it is also a great comfort to the Opposition.

These amendments would mean that legal advisers and assistant legal advisers in the family court would be able to exercise fewer functions than they can potentially already exercise in magistrates’ courts. The Justices’ Clerks Rules 2005, made under the powers in the Courts Act 2003, already delegate a number of functions in family proceedings to justices’ clerks and assistant justices’ clerks. Only those who are currently justices’ clerks and assistants to justices’ clerks in the magistrates’ court will be able to be legal advisers and assistant legal advisers in the family court. I should also stress that justices’ clerks and their assistants are all legally trained, and so we are not proposing to delegate functions to those who are not legally trained. While I understand noble Lords’ reservations about the delegation of powers to legal advisers, I am not persuaded that the delegation of powers should be restricted as the amendment proposes. If legal advisers were restricted to working solely in administrative functions, as the noble Lord suggests, it would be a step backwards, removing powers that they already have, and would lead to increased delay and less efficient family court procedures. In particular, Amendment 81B seems to suggest that legal advisers should not be able to perform the function of giving legal advice to lay magistrates in the family court, even though this is a key part of their role now in the magistrates’ court.

[Lord Beecham]

If it would be helpful to the noble Lord, I have already indicated—I am sorry that this information does not seem to have reached him—that I was not proposing to speak to or move Amendments 81B or 81C.

[Lord McNally]

That is why I glanced up at the annunciator. I was hoping to get guidance. I had received that message, for which I thank the noble Lord.

This Bill provides the Lord Chancellor with the power to make rules enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser, and to delegate the functions that a legal adviser may perform to an assistant legal adviser. The Government wish to emphasise that the intention is that legal advisers and assistant legal advisers to the family court will not make decisions which are final or conclusive to the parties’ rights save for one proposed exception on which I will touch in a moment.

Ministry of Justice officials are still in discussion with the judiciary and with Her Majesty’s Courts and Tribunals Service over which powers should be delegated to legal advisers and assistant legal advisers. They are working closely with the Family Procedure Rule Committee to finalise details of the powers that will be contained in the secondary legislation which will be put before Parliament. I should remind the House that the first exercise of this rule-making power will be subject to the affirmative procedure, as the noble Lord said.

As a starting point, we are intending to replicate for the family court the existing functions which a justices’ clerk can perform in place of a single justice of the peace in family proceedings in the magistrates’ court. There are also a number of other functions which we envisage could be carried out by a legal adviser or assistant legal adviser in the new family court. Examples of the type of functions which we are considering delegating include allocation decisions, review hearings in private law applications and case management hearings in public law cases. We also envisage that legal advisers and assistant legal advisers to the family court will play an important role in the gatekeeping teams who will determine the allocation of cases to different levels of the judiciary in the new family court. Clearly, in the world of the family court there will be an extension of current powers as currently only functions which can be done by a single justice of the peace are to be delegated to legal advisers, whereas in the family court the legal adviser may be exercising functions of any level of judge. However, I note that such an extension is perhaps inevitable given the nature of the family court, and the Family Justice Review recommended that there should be flexibility for a legal adviser to conduct work to support judges across the family court.

I also want to reassure noble Lords that this rule-making power can be exercised only with the consent of the Lord Chief Justice and after consulting with the Family Procedure Rule Committee. The proposed exception to the rule that legal advisers will not make decisions which are final or conclusive to the parties’ rights was developed from the Government’s response to the Family Justice Review. The Government responded to that review, accepting the recommendation to allow uncontested divorce applications to be dealt with administratively. The proposal to delegate functions in uncontested divorce cases to legal advisers will ensure that the case is considered by someone who is legally qualified and trained.

I stress that I understand that this proposal in relation to uncontested divorces has the general support of the judiciary, subject to working through points of detail and ensuring that there is access to district judges to discuss any concerns. We are working with the judiciary to ensure that they are content with the system. The implementation of this proposal will be facilitated by further changes to primary legislation, which will be taken forward in the children and families Bill. There will therefore be further opportunities for the House to debate this issue.

We want legal advisers and assistant legal advisers to be able to carry out these functions in order to free up the judiciary to deal with more complex cases. This should achieve increased judicial continuity, reduce the time taken to deal with non-complex cases, and will, we hope, cause less distress for children involved.

I hope that that brings the House up to date with where we are. Some of it is work in progress, but the ultimate aim, as I have indicated to the noble Lord, Lord Beecham, my noble friend Lady Hamwee and the House is to get a more efficient system which uses judicial time more effectively. I am grateful for the noble Lord’s assurance that he will not divide the House on this matter.

16:30

[Lord Beecham]

I am grateful to the Minister for that very full reply, which is to a large extent reassuring. I hope that consultations with practitioners, particularly, for example, with the Family Law Practitioners’ Association, will be part of the exercise that he has just described. I look forward very much, as I am sure others do, to seeing the proposals in more detail in the manner that the Minister has described. In the circumstances, I beg leave to withdraw the amendment.

Amendment 81A withdrawn.

Amendments 81B and 81C not moved.

Amendment 82

Moved by

[Lord McNally]

82: After Schedule 11, insert the following new Schedule—
“Gang-related injunctions: further amendments1 Part 4 of the Policing and Crime Act 2009 (injunctions to prevent gang-related violence) is amended as follows.
2 After section 46A insert—
“Appeals46B Appeals against decisions of youth courts
(1) An appeal lies to the Crown Court against a decision of a youth court made under this Part.
(2) On an appeal under this section the Crown Court may make—
(a) whatever orders are necessary to give effect to its determination of the appeal;(b) whatever incidental or consequential orders appear to it to be just.(3) An order of the Crown Court made on an appeal under this section (other than one directing that an application be re-heard by a youth court) is to be treated for the purposes of section 42 as an order of a youth court.”
3 In section 48 (rules of court in relation to injunctions under Part 4)—
(a) in subsection (2) (rules of court may provide for appeal without notice) omit “of the High Court or county court”, and(b) in subsection (3) (decisions to which subsection (2) applies) for “applies to a decision” substitute “applies—(a) to a decision under section 39(4)(a) that an application without notice be dismissed, and(b) to a decision”.4 In section 49(1) (interpretation of Part 4) after the definition of “court” insert—
““judge”, in relation to a youth court, means a person qualified to sit as a member of that court;”.5 In paragraph 1(2) of Schedule 5 (courts’ powers to remand person suspected of breaching injunction: meaning of “the court”)—
(a) for “High Court or” substitute “High Court,”,(b) before “and includes” insert “or a youth court”,(c) omit the “and” following paragraph (a), and(d) at the end of paragraph (b) insert “, and (c) in relation to a youth court, a judge of that court.”6 Schedule 5A (breach of injunction: powers of court in respect of under-18s) is amended as follows.
7 (1) Paragraph 1 (power to make supervision order or detention order) is amended as follows.
(2) In sub-paragraph (1) (pre-conditions for making of supervision order or detention order)—
(a) in paragraph (a) for “is” substitute “has been”,(b) before the “and” after paragraph (a) insert—“(aa) the person is still under the age of 18,”,(c) in paragraph (b) for “the court” substitute “a youth court”, and(d) in the words following paragraph (b) for “the court” substitute “that court”. (3) Omit sub-paragraph (3) (power to grant supervision order or detention order is in addition to any other power of the court in relation to breach of injunction).
(4) In sub-paragraph (9) (interpretation of Schedule 5A) omit the definition of “appropriate court”.
8 In paragraph 4(11) (appropriate court may amend activity requirement in supervision order) for “the appropriate” substitute “a youth”.
9 In paragraph 5(5) (appropriate court may amend curfew requirement in supervision order) for “the appropriate” substitute “a youth”.
10 In paragraph 6(7) (appropriate court may amend electronic monitoring requirement in supervision order) for “the appropriate” substitute “a youth”.
11 In paragraph 8 (amendment of operative period of supervision order)—
(a) in sub-paragraph (1) (appropriate court may amend operative period) for “The appropriate” substitute “A youth”, and(b) in sub-paragraph (2) (court may make other amendments when amending operative period) for “The court may,” substitute “A youth court may,”.12 In paragraph 9(1) (change of area of residence of person subject to supervision order) for “the appropriate” substitute “a youth”.
13 In paragraph 10(1) and (4) (application for revocation of supervision order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.
14 In paragraph 12 (non-compliance with supervision order)—
(a) in sub-paragraph (2) (injunction applicant may apply to appropriate court on being informed of non-compliance) for “the appropriate” substitute “a youth”,(b) omit sub-paragraph (5) (no power to make further order if defaulter is aged 18 or over), and(c) omit sub-paragraph (6) (powers to revoke supervision order etc are in addition to any other powers of court in relation to breach of supervision order).15 In paragraph 15(1) and (4) (application for revocation of detention order to be made to appropriate court, and any further such application requires that court’s consent) for “the appropriate” substitute “a youth”.”

Amendment 82 agreed.

Clause 18 : Judicial appointments

Amendment 82A

Moved by

[Lord Lloyd of Berwick]

82A: Clause 18, page 17, leave out lines 3 to 5

[Lord Lloyd of Berwick]

My Lords, this amendment relates to the Supreme Court. It would leave out part of Clause 18 which would make way for the appointment of part-time judges in the Supreme Court.

I will start with some things on which I hope we are all agreed. First, that all judicial appointments should always be decided on the basis of merit, solely on merit and on nothing but merit. The Constitution Committee was quite right to reaffirm that fundamental principle, so I need say no more about it.

Secondly, we are all in agreement that we need greater diversity at all levels; that is to say, we need more women judges and ethnic minority judges, whether men or women. Happily, things are a good deal better in this regard today than they were 15 years ago. I will come back to the figures a little later. However, we all agree that still more diversity is desirable.

Thirdly, we need greater flexibility in our working arrangements; again, at all levels. There is already more flexibility than many people imagine. The noble Baroness, Lady Jay, in Committee quoted the words of the Lord Chief Justice, which I shall quote also. He said that,

“we should be able to organise the sitting patterns for female High Court judges or male High Court judges who have caring responsibilities, so that during, for example, half term they can be at home ... I think those sorts of very small changes ... will help”.

Those sorts of small changes are already, in fact, happening.

Almost every noble Lord who spoke in Committee said that what we needed was more flexibility. Again, I agree. The point of disagreement is on whether, in order to get more women and ethnic minority judges in the Supreme Court and the Court of Appeal, we should, for the first time, be appointing part-time judges at those levels.

I am aware that the Constitution Committee recommended the appointment of part-time judges in the High Court and the Court of Appeal, although not—I think I am right in saying—in the Supreme Court. However, that view was not at all widely supported in our debate in Committee. The noble Baroness, Lady Kennedy of The Shaws, for example, said that she agreed with the noble Baroness, Lady Jay, and the noble Lord, Lord Pannick, that this is, as she put it, “about flexibility”. She regretted that the words “part-time” had been used in the Bill. She asked whether we should not be able to reformulate the wording of the Bill so that it is about flexibility. I wholeheartedly agree with the noble Baroness, Lady Kennedy, that that is, indeed, what we ought to be doing. The noble Baroness, Lady Falkner, who I am sorry not to see in her place today, made exactly the same point in Committee. She said:

“The meaning of part-time or flexible working is that people … say openly to their employer that they will be occasionally needing flexibility in terms of their personal arrangements and will be taking that flexibility from time to time … That is the basis on which this clause should be debated”.—[Official Report, 25/6/12; col. 94.]

I could not agree more.

The noble and learned Lord, Lord Falconer, who I am sorry not to see in his place—

[Noble Lords]

Order!

[Lord Lloyd of Berwick]

He is here—hooray!—but not in his usual place. The noble and learned Lord also made the same point on that occasion. He said that he agreed with the noble Baroness, Lady Kennedy, when she said that this was about flexibility. He added:

“Part time, as a piece of language, may be a slightly misleading suggestion”.—[Official Report, 25/6/12; col. 99.]

I agree, except that I would not use the word “slightly”. The noble Lord, Lord McNally, was even more emphatic. At col. 102, he said that he agreed that “flexible” was the right word, not “part-time”. You could not put the purpose of my amendment more clearly than that.

However, the trouble for the Government is that that is not what the Bill states. Paragraph 2 of Schedule 12 says that instead of 12 full-time judges in the Supreme Court, there are to be an unspecified number of part-time judges. The Bill would therefore indeed provide for part-time judges, and that is what the Bill is about. Paragraph 2 of Schedule 12 is simply incapable of any other construction. If, as the noble Lord, Lord McNally, stressed, the right word is “flexible”, not “part-time”, I respectfully suggest that he agrees to the amendment and comes back at Third Reading with a new provision, reformulated, as the noble Baroness, Lady Kennedy, suggested, on the basis of flexibility.

Towards the end of his speech, the noble and learned Lord, Lord Falconer, said that the Bill would send out a message that flexible working was,

“available from the top to the bottom of our judicial system”.—[Official Report, 25/6/12; col. 101.]

He added:

“I cannot think of a better message”.

However, if the message is to be about flexibility, for goodness sake let us say so in clear and simple language—something that we do not have in paragraph 2 of Schedule 12.

There is apparently to be no limit to the number of part-time judges in the Supreme Court; nor is there any minimum for the number of full-time equivalent judges, as they are to be called. When I was a Law Lord, I never thought that I was a full-time equivalent Law Lord, but that is how I should have described myself. There is a maximum of 12 members in the Supreme Court but no minimum, so we could have four part-time judges in the Supreme Court, all of whom would be men if they were the best candidates, and eight full-time judges, making 10—but only 10—full-time equivalent judges, all of whom would be male. Is that really the sort of message that we should be sending out with this Bill?

I said that I would come back to the figures, and in particular the number of ethnic minority judges currently serving in the High Court and above. In 1998, only 10% of all judges were women, but by the end of 2011 the figure was 22%—more than double. In 1998, there were no women in the House of Lords, only one in the Court of Appeal and only nine in the High Court. By the end of 2011, there was one woman in the Supreme Court, five in the Court of Appeal and 18 in the High Court—again, more than double. In Committee, the noble Lord described these figures as being a mere trickle. I think that that is somewhat disparaging of the efforts of successive Lord Chancellors to get more women to the top—something they are succeeding in doing.

The noble Lord seems to want to speed things up by, as I understand it, making direct part-time appointments to the Supreme Court and the Court of Appeal. But where are these part-time women to come from? They will not come from the Court of Appeal or the High Court because there are no part-time women in those courts. What makes him think that, if we were to create new part-time vacancies in the Supreme Court, the best candidates would always be women and not men? In any event, would it be fair and just to promote part-time to the Supreme Court a woman who had not already served in the High Court and the Court of Appeal, once described as the only form of slavery not abolished in the 19th century?

The truth is that, if we open the Supreme Court and the Court of Appeal to part-time judges, it will not make the slightest difference for years to come, if ever. The best way to get more women at those levels—and we all agree that there should be more—is to go on as we have been and to increase flexibility as far as we can so that women are not put off applying. We should let the best candidates come to the top in the ordinary way, as they always have done. That is how it has worked in Canada, where four out of nine Supreme Court judges are women, and in the United States, where there are no part-time judges. The same thing will happen here only if we let it happen in the ordinary way. That is the message that we need to send out to the women who are currently on the verge of a judicial career, and that is why I am asking the Government and the Opposition to think again about this and to come back at Third Reading with something that better meets the needs. I beg to move.

16:44

[Lord Woolf]

My Lords, I am most grateful for the manner in which the noble and learned Lord, Lord Lloyd, has addressed the House. I strongly endorse every word that he has said. I support the amendment, to which I have added my name. I want to reaffirm what he said about the desire of the senior judiciary and successive Lord Chancellors to achieve greater diversity. As I see it, any objection to anything that would improve diversity has to be approached with caution. However, I say, without hesitation, that I do not believe that what is proposed at the moment with regard to part-time judges in the Court of Appeal and in the Supreme Court will achieve what we want. All it will do is give false expectations that cannot possibly be fulfilled.

The difficulty of accommodating part-time judges is very real but it can be done, and has been done, in the lower courts. However, the Court of Appeal and the Supreme Court are conducted in an entirely different way from what happens in the lower courts. What is more, their diet is different. Before I addressed the House today, I took care to speak to Sir Anthony May because for seven years, part of which time I was the Lord Chief Justice, he was the judge who had the heavy responsibility of determining how the courts would be staffed. His conclusion was that to try to adopt the proposal of part-time judges in appellate courts would create a nightmare—that is his word. Already it has been accepted that the High Court should be able to make progress, if possible, in that respect. I have reservations about whether that could be achieved in the High Court and Sir Anthony shared my reservations in that regard.

If that were to be implemented in respect of the Court of Appeal and the Supreme Court, would the position with regard to diversity be improved or would this be nothing more than a gesture, and one wholly without substance? If so, I do not believe that anyone who really wants to see diversity would welcome this provision. I know of no supreme court where part-time judges take part; likewise, I do not know of any court of appeal where part-time judges are appointed. In essence, their work is not appropriate for what could truly be called part-time judges.

However, while I entirely agree about the possibilities of flexibility, we are already extremely flexible in our approach to the use of our judges. It is only because of flexibility that, for example, we can enable judges to conduct inquiries more and more frequently, as has happened of late. If we were not flexible, that would not be possible. Likewise, in the current conditions of international co-operation between judiciaries of different countries, it is necessary for judges to meet in different countries and for there to be a constant programme of change and discussion between judiciaries of different jurisdictions. Diversity is a matter that they are concerned about but they, as far as I know, have no proposals of this nature.

I observe that later amendments propose to place a duty on certain senior judges to promote diversity. If it is thought that that duty is necessary, I am all in favour of it. I personally have doubts as to whether that duty will add to what they are already trying to do but I see no problem with it appearing in the statute. But I certainly urge the Minister to consider whether this suggestion is realistic.

Part-time working could even have an adverse effect on diversity. When I have discussed diversity with former colleagues, I have noticed that senior judges, who are finding the work very hard for the reasons indicated by the noble and learned Lord, Lord Lloyd, feel that it might be rather nice to have a couple of months off from time to time. In fact, it would be much better for judges who are finding the work overburdensome to retire rather than work part time. If they retire, they allow other judges to come forward and be promoted to courts such as the Court of Appeal and the Supreme Court. If they remain, that is not the case.

Once a judge retires, as long as he is under the age of 75, when you become statutorily senile, it is possible to be used from time to time—as much as the former judge wishes—when there is a need for an additional judge to help the administration of justice. Many judges sit in that way in the Court of Appeal and in the Supreme Court. That is just one more example of the flexibility that can be achieved without the need for legislation. I urge the Minister to take advantage of this opportunity to look again and, at least, decide not to keep in the statute a provision of this sort relating to part-time employment of judges in senior courts.

[Lord Carswell]

My Lords, Plato said:

“Wise men talk when they have something to say; fools because they have to say something”.

I hope that what I have to say will fall into the former category, but having heard what the very experienced and authoritative noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, said, I will make my point short, simple and direct in support of the amendment.

I had quite a long time—a good number of years—in appellate courts, and for seven years as Lord Chief Justice of Northern Ireland I was closely concerned with appointments. I am wholly and unequivocally in favour of promoting women to the posts that they should occupy. It follows that I am equally in favour of any flexible means of working that will effectively promote that objective. The intention behind the clause is admirable, but I am afraid that it simply will not work. The reason is simple. It was suggested by one or two noble Lords in Committee that most of the cases in the Supreme Court are of two days or fewer so there is really not a problem. I regret that it is not as simple as that.

The figures given to me by the Supreme Court are that in the first three years of its existence—which have just elapsed now—there were 168 cases heard. Of those, some 33 occupied more than two days. That is almost 20%. In itself that is not an insignificant proportion, but the really important thing is that virtually all of those longer cases were the most significant, important, demanding and difficult cases that the justices had to try. They are the ones which everybody should be available to take part in when required. If a judge is part-time and would not be available to take part in the longer and harder cases because of the length of time they occupy, it is damaging to collegiality—the team spirit of the court, if you like.

From experience, I can assure your Lordships that that is an important factor. If a judge cannot play, let us say, in the Premier League matches, there would be a feeling that he or she—and we are really talking of “she”—cannot pull their weight and that they are in some way second-string judges, though they may be very able people. They will feel that they are not really there at the party; the other judges may feel that too if they are carrying the burden. That is undermining to the spirit and effectiveness of the court and of the part-time judges.

I entirely agree that it is important to recognise and tackle this problem and to find ways of improving the promotion of women to the highest positions, which they should be occupying. I will not weary your Lordships with the ways that have been suggested. My noble and learned friend Lady Butler-Sloss spoke in Committee about this. There are ways, if they are properly, fairly and conscientiously followed by the appointing authorities. While the intention behind the present provision is excellent, the way adopted by the Bill of putting it forward with part-time judges is a mistake. It will not work and I support the amendment.

[Baroness Butler-Sloss]

My Lords, I am an early example of judicial diversity. I became at one time the senior woman judge in the country until the noble and learned Baroness, Lady Hale, became a member of the Supreme Court. It is inevitable, therefore, that I would support flexibility, but I do not support the term “part time”.

I combined being a judge at four different levels, including the Court of Appeal but not the Supreme Court, with trying to manage childcare. I did not seek time off, but I can see the advantages of having it from time to time. I certainly do not see the need to have it on a weekly basis. For the reasons that the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, have already set out, I question how far it is sensible to try to go along the path that the Government wish to pursue. There are real problems about it, certainly in relation to the senior judges. There will inevitably be an adverse impact on full-time judges if they have genuine part-time judges sitting in the Court of Appeal with them. It may be that the Supreme Court, where I do not have experience, does not sit very much more than two or three days, but it is not at all unusual to sit in the Court of Appeal for more than a week. Which judge who is genuinely part time—say, doing three days a week—would be able to take on a case of any length? It would mean that a full-time judge would have to take those cases. Inevitably, there would be a degree of resentment and, indeed, as the noble and learned Lord, Lord Carswell, said, a part-time judge might not feel part of the party.

I sat in the Court of Appeal on a number of long cases. If, when I was President of the Family Division, I had been asked whether some of my 19 judges could work part time or on flexible working for two or three days a week, with High Court judges being sent out on circuit sometimes for as long as six weeks at a time as Family High Court judges, it would have been, as Sir Anthony May said to the noble and learned Lord, Lord Woolf, a nightmare. I would not like the next President of the Family Division even to have to contemplate such a thing among the duties that he or she might have to take on. In suitable cases, there is no doubt that there can be flexibility. If people are in difficulties, they should be accommodated, and they are accommodated. Many years ago I recall a High Court judge whose wife had died unexpectedly and he was left with young children. Very considerable accommodation was made so that he was able to deal with his rather traumatic family life as well as continuing to sit as a High Court judge.

I would also say that the concept that the top court in the country is going to be part time is rather odd. What would be the message going out to the public—that the judges who matter most in the country are actually part time? I find that very odd indeed. Following on from what other noble Lords have said, I think that diversity can be achieved for women and for ethnic minority men and women who have not yet been referred to, although I hope that a number of them will come through to the Supreme Court—some of them certainly deserve to do so in due course. The flexibility that noble Lords have been talking about can and ought to be achieved without using the term “part time” as it sends out entirely the wrong message to everyone within the judiciary and those without.

I am particularly concerned that the Judicial Appointments Commission may feel obliged to appoint part-time judges because that is what it says in the legislation. If the commission appoints judges and then allows the Lord Chief Justice, the heads of other divisions or the President of the Supreme Court to be understanding when a particular judge wants to take some time off, that is infinitely preferable. I will not say any more about the fact that in any event this is not going to happen, probably for a generation.

17:02

[The Earl of Listowel]

My Lords, as treasurer of the All-Party Parliamentary Group for Children, I hope that I can say a brief word in support of the consensus across the House in favour of allowing parents flexibility. That is very heartening to me. At the early years conference hosted by the Daycare Trust earlier today, a practitioner complained that many children are now put into school at eight o’clock in the morning and are not collected until five or six in the evening. In my experience of caring for children, when some young people have to stay on past the end of the school day, they are very tired and unhappy because they have been left behind. It is encouraging to hear the whole House agree that, whatever the detail may be, we need to allow parents flexibility in their employment for the benefit of their children. I hope that the Government will continue to make more opportunities for flexible employment available to parents and increase parental leave.

[Lord Pannick]

My Lords, I am in the position which is often that of dissenting judges in the Court of Appeal who say that they have the misfortune to disagree with their judicial colleagues. Eminent though the previous speakers are, I cannot support these amendments. Your Lordships’ Constitution Committee, of which I am a member, reported on judicial appointments in March this year. We set out the scale of the problem. The problem is that about 16% of High Court judges and only 11% of Court of Appeal judges are women. Only one member of the Supreme Court’s 12 justices is female. We found that one of the reasons why there are so few women on the Bench at High Court level and above is the inflexibility of the working arrangements. We observed that there are increasing proportions of women at senior levels in all other professions and that this has occurred in recent years, in part, because of the increasing use of flexible working hours. We concluded that, for the number of women within the judiciary at the highest levels to increase significantly, there needs to be a firm commitment to flexible working and a recognition that many women will want to work part time for family care reasons.

The noble and learned Lord, Lord Lloyd of Berwick, was concerned to emphasise in his remarks at the beginning of this debate that he is in favour, of course, of flexible working: it is part-time working to which he objects. However, I say to the noble and learned Lord that a part-time worker is simply one who needs to work flexibly on a regular basis because of continuing family care commitments that arise every week of the year.

[Lord Howard of Lympne]

Can the noble Lord tell the House to what extent the commendable progress, to which he referred, that has taken place in other professions has been a result of a statutory provision requiring part-time appointment?

[Lord Pannick]

I am not suggesting that it has. The problem, as the noble Lord will recognise, is that the judiciary is way behind other professions in securing that women are represented in high proportions at the senior level. Of course, there is the utmost commitment of those in senior positions to do all they can. This is a fiendishly difficult problem but part-time working has been recognised as one of the central means by which women are able to combine family care commitments with progressing in a profession.

[Lord Woolf]

Perhaps my noble friend, who regularly appears in the Supreme Court and is familiar with many of its judges, can help us as to how many of them have family commitments.

[Lord Pannick]

I am sure it is true that all Supreme Court justices—particularly the 11 men, if it is those to whom the noble and learned Lord is referring—have family care commitments. However, the same point can be made about all senior men in all other professions. We all have family care commitments. The difficulty, as the noble and learned Lord knows, is that the family care commitments that address the needs of children and, perhaps more relevantly at the senior levels of the judiciary, aged parents, tend in our society to fall on women rather than men. That is a social fact.

I say to those who support the amendment that I entirely understand the points they make about practical difficulties but it is important not to exaggerate the problems. Judges regularly take time off from judging to do other things. The noble and learned Lord, Lord Woolf, mentioned that judges are regularly appointed to head inquiries. Supreme Court justices sometimes take four to six weeks off to sit on the Court of Final Appeal in Hong Kong. One could give many other examples. The idea that the system cannot—

[Lord Lloyd of Berwick]

Is that not the perfect example of what one means by flexible working as opposed to part-time working? They are not currently appointed part-time, but that is possible because of flexibility. That is what we should be aiming for.

[Lord Pannick]

My answer to the noble and learned Lord is that if the legal system is able to accommodate this type of problem—that judges regularly take time off to carry out other activities—then, like all other professions, it ought to be able to accommodate a female judge taking time off on a regular basis for domestic reasons. It remains to be seen whether allowing part-time judges to sit will result in more women judges at high levels. These powers are permissive, not obligatory, and no woman or man—although one anticipates that it is likely to be women who are so appointed—will be appointed unless it is practical.

My primary objection to these amendments is based on the factor to which the noble and learned Baroness, Lady Butler-Sloss, referred—which is the message that is sent out—although I arrive at a different conclusion. I suggest that it would be a very unfortunate message indeed for the law to confer an exemption for the senior judiciary from one of the most important means of enabling talented women to rise to senior positions in all professions. Watering down the part-time provisions in this Bill would wrongly suggest, wrongly, that the senior judiciary is not serious about doing all that it reasonably can to assist talented women to be appointed at senior levels. I hope that the noble and learned Lord will withdraw his amendment.

[Baroness Warnock]

My Lords, I had no intention whatever of entering this debate but it seems to me that there is quite a serious analogy here between the teaching profession at the top level and the legal profession. There is no doubt that in a school, particularly a boarding school, part-time members of the staff, although they are respected and have authority, are not regarded as the most senior, reliable and ready to sacrifice their time. They are not, in fact, of the same level of authority as the full-time members of staff. Nothing would be more destructive of the trust which the general public have in the senior judiciary than if the Supreme Court were divided among the “real” members and the “unreal” members—the part-timers who could not take on the really difficult and complicated cases.

I rely on this analogy strongly to support the amendment of the noble and learned Lord, Lord Lloyd, because I believe that, for one thing, it is quite uncertain that this provision would have the apparently desired effect of encouraging more women to come forward; and quite apart from that, it would have the disastrous consequence of dividing the Supreme Court between the top and the lower levels.

[Baroness Neuberger]

My Lords, not being a lawyer, I enter this debate with a certain amount of nervousness. However, I did chair the Advisory Panel on Judicial Diversity, and I support everything that my noble friend Lord Pannick said. I disagree with the amendment for one very important reason. I want to add to what my noble friend said one important fact which comes from the evidence that the panel took from individuals and various bodies when compiling our report.

You could not put a sheet of paper between the six members of the panel, one of whom was a Court of Appeal judge, in our clear belief that flexible working ought to be available to the most senior levels. We did not necessarily use the word “part-time” because we thought that there were other ways of doing it rather than the conventional two days on, three days off. When we spoke to women who were thinking about whether they should apply to the Judicial Appointments Commission to go to the High Court, we were told time and again that unless some form of flexible working was available, they would find it very difficult.

17:15

I very rarely disagree with the noble and learned Baroness, Lady Butler-Sloss. However, most of these women were at a level where it was not about children but aged parents, and they said that they might well need to work nine or 10 months of the year rather than 12 months; that they shared care of aged parents with siblings but there was a time when they would need to be fully responsible and therefore would not be able to be fully committed to the work. I cannot believe that in this society we cannot recognise that people—women, men, whoever they are—should be able to perform their family responsibilities and work at the most senior levels in our judiciary. That should be a message that our senior judiciary sends out.

[Lord Clinton-Davis]

I speak as a mere solicitor, but I very much support everything that the former members of the Supreme Court and other members of the judiciary have said. It is absolutely essential that we should retain flexibility. I am usually on the same side as the noble Lord, Lord Pannick, but not on this occasion. Flexibility is a better word than the one that the Government are using.

Attracting part-time judges in the higher courts will not happen. If it does happen, it will not be to the credit of the higher courts. I support women in every area of work. Women have been an invaluable resource as far as the solicitors’ profession is concerned. Why should they not inhabit the Supreme Court and other higher courts in the land? It would do us a great favour if that were to happen.

[Baroness Hamwee]

My Lords, I very much agree with the noble Baroness, Lady Neuberger. I, too, feel a great sense of trepidation, also being a “mere” solicitor, non-practising.

It is very rare that I agree with those who have spoken on the other side of this argument but I want to respond to the point that has been made about the perception of women who wish to work flexibly. My own experience has been that those who work to a slightly different pattern almost invariably turn themselves inside-out to work harder than is humanly possible in order to make it quite clear that they are not taking advantage of the arrangements that have been made for them.

In this walk of life, as in any, if we deny that cohort of people the opportunity, we are not only denying them, we are denying the whole of society the opportunity to use their life experience as well as their professional experience.

[Lord Beecham]

My Lords, I join my two fellow members of the junior branch of the profession with equal trepidation. We have heard from four most distinguished noble and learned Lords, all of whom support the amendment.

Last night I was lobbied, perfectly properly, by the noble and learned Lord, Lord Lloyd, who drew my attention to the constant use of the word “flexibility” in the debate which took place some five months ago. It is true that the word was used but I am not sure that it was used in the sense that the noble and learned Lord perhaps implies, contrasting with the word “part-time”. When we discussed the matter I said that I was not quite sure what the difference meant in practice. I am still not sure what difference the noble and learned Lord would construct between the two.

The noble and learned Lord quoted two or three Members of your Lordships’ House as using the term “flexibility”. He mentioned, for example, my noble friend Lady Kennedy. She did use that word. At one point in the debate, at col. 92, he asked my noble friend a question. He said:

“Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility … The real question is whether flexibility demands part-time judges. The view of some of us is that it does not”.

We have heard this today most eloquently from the noble and learned Lord and from other noble and learned Lords. My noble friend replied:

“If I may respond to the noble and learned Lord, it seems to me that it has to be one of the possibilities in the whole panoply open to those making appointments”.

That “it”, of course, is the question of part-time service. She continued:

“I do not imagine that it would happen very often but it might be that someone exceptional could be appointed who would say, ‘I will sit during these parts of the year and will be available to you then’”.

This was precisely the point made by the noble Baroness, Lady Neuberger. My noble friend went on:

“I do not believe that that would bring about resentment from other colleagues once they saw the quality of the work done by people of real ability”.—[Official Report, 25/6/12; col. 92.]

That is perhaps an answer to my noble friend Lord Clinton-Davis.

The noble and learned Lord also referred to my noble and learned friend Lord Falconer—who made but a fleeting appearance, unfortunately, in the Chamber this afternoon. I would have been delighted to give way to him for the purposes of this debate and, indeed, possibly to some others. My noble and learned friend Lord Falconer spoke in some detail and also rather deprecated the use of the term “part-time”. In the conclusion to his remarks, he said:

“So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court … there would be two benefits. First, it would increase the pool of people who would be able to apply. Secondly, it would lead to a sense that we thought that flexible working was available from the top to the bottom of our judicial system”.

My noble and learned friend treated “part-time” and “flexible” working as much the same thing. In the real world, surely that must be right. He concluded:

“I cannot think of a better message for us to send—and it would be one that was not just a gesture but would have an effect on increasing merit”.—[Official Report, 25/6/12; col. 101.]

My noble and learned friend said that the Opposition endorsed the proposals in the Bill, and we do again tonight.

Having never appeared before a tribunal higher than the county court I speak with some trepidation. However, I take some comfort from the experience of my noble and learned friend Lord Falconer, my noble friend Lady Kennedy and, in particular, the noble Lord, Lord Pannick, who has again eloquently made the case.

We are looking at flexible working that would necessarily involve—to avoid the use of the dreaded phrase “part-time”—less than full-time working. It seems to me that that is consistent with the objectives that have been outlined by noble and learned Lords who have supported the Government’s position. If it is of any comfort to the Minister, that will be the position should a Division be called: we would support the Government. We think that this is an imaginative forward step in the judicial system. We have every confidence that the people who are appointed to that very senior position will discharge it to the best of their obviously very considerable ability and with the utmost conscientiousness. I have no fears about that or about the capacity of the system to cope with what would inevitably be a relatively modest number of people occupying senior positions of that kind in the Court of Appeal and the Supreme Court.

On this occasion, the Minister and I are at one —which is perhaps, subsequently, a matter for some modest celebration.

[Lord McNally]

My Lords, it is perhaps a matter for a more than modest celebration. There was a time at the beginning of this debate when a former Law Lord, a former Lord Chief Justice, a former Lord Chief Justice of Northern Ireland and a former President of the Family Division had all spoken in quick succession to oppose this, and I thought, “My goodness, I’m in trouble here”. But then, over the hill like the 7th Cavalry, came the noble Lord, Lord Pannick, which is not a position he always occupies when viewed from these Benches.

This has been an interesting debate. Of course we have to listen carefully to the experience of those who have occupied senior judicial positions when we discuss a matter such as this. I shall make one or two points on the points made. The noble Baroness, Lady Warnock, called in evidence the teaching profession. I do not have experience of the teaching profession, so she can make her point, but over the past two and a half years I have had experience of the senior Civil Service, and I can compare it to when I had direct experience of the senior Civil Service in the mid-1970s. I have made the point before at this Dispatch Box: the thing that I notice most about the senior Civil Service now is its diversity, in both ethnicity and gender. Quite honestly, I do not know whether the senior adviser who is giving me advice is working flexibly or part time, and I do not really care. It is the quality of what they give. I do know, because they tell me, that because of the flexibility that has been introduced into the senior Civil Service many more women have been able to remain and to climb the ladder within the senior Civil Service. That has to be weighed in evidence in any comparison with other professions.

I also point out that, as the noble Lord, Lord Pannick, said, the powers we are seeking are permissive, not mandatory. That is an important point. I am very grateful to the noble Lord, Lord Beecham, for his intervention. He explained very carefully the interplay between flexible and part-time. I was also pleased by the intervention of the noble Baroness, Lady Neuberger. In weighing the serious evidence that was produced by the experienced former members of the judiciary, it is worth remembering that both the inquiry chaired by the noble Baroness, Lady Neuberger, and the Constitution Committee, of which the noble Lord, Lord Pannick, was a member, came down in favour of what we are trying to do.

As the noble Earl, Lord Listowel, indicated, there is general acceptance of the importance of part-time and flexible working to promote greater diversity in our modern society. The Government firmly believe that this is as true of the senior judiciary as it is of other areas of employment. These amendments would prevent us extending the benefits of flexible working to the Supreme Court and the Court of Appeal. The Government believe that the introduction of part-time working—

17:29

[Lord Lloyd of Berwick]

I hope that the noble Lord will be able to answer the key point. I agree with all that, but flexible working does not require part-time working.

[Lord McNally]

I thought that the noble Lord, Lord Beecham, had covered that point. We have gone through this in two fairly extensive debates. I say with a degree of confidence, given what the noble Lord, Lord Beecham, has just said to me, that if the noble and learned Lord insists on testing the opinion of the House again, he is, of course, entitled to. However, I understand the interchangeability of flexibility and part-time, which the noble Lord, Lord Beecham, very clearly explained.

[Baroness Butler-Sloss]

I thank the Minister and I shall be brief. Does the Minister see the distinction between a judge who will sit, say, three days a week and the situation that I vividly recall in the old Lord Chancellor’s department, with two absolutely admirable women who shared the week? That was great, they did it extremely well, but it would be very difficult for two judges to share the week, particularly if they had three months off to do inquiries. I did several inquiries and had to take months off. It is the three days a week that would be the difficulty, I suggest to the Minister, and that is what part-time really sounds like.

[Lord McNally]

No: it is not prescriptive and we would test and think very carefully about how it would be approached. Some of the points that have been made this afternoon will be taken into account in seeing how this will apply. I reject the idea that this is a gesture without substance, as the noble and learned Lord, Lord Woolf, suggested. The noble Lord, Lord Pannick, quoted the Constitution Committee’s findings which bear repeating,

“as the minimum change necessary. For the number of women within the judiciary to increase significantly, there needs to be a commitment to flexible working and the taking of career breaks which we believe is currently lacking”.

Salaried part-time working has been in place in the courts below the High Court and tribunals for a number of years and it is important that we do not allow a known glass ceiling to remain in place preventing part-time judicial office holders from progressing further up the judicial career ladder. These provisions do not mandate that there must be an office holder who works part-time in either the Supreme Court or Court of Appeal; instead they remove any impediment that would prevent eligible candidates who work flexibly in the lower courts from applying for appointments to those courts.

There would be something problematic in a situation whereby the most meritorious candidate for the Court of Appeal or the Supreme Court was not able to accept an offer of appointment simply because we could not accommodate part-time working. In the 21st century that would be hugely embarrassing and, quite frankly, wholly at odds with the change in culture we are all seeking as the key driver towards a more diverse judiciary.

Some have argued that the work of these higher courts naturally precludes the ability of judges to work flexibly. It has been suggested that flexible working would disrupt the processes of the court and make life difficult for listing officers. The Lord Chancellor is not persuaded by this argument. The Lord Chief Justice was questioned on this very issue when he gave evidence before the Constitution Committee. He did not see any problems with organising sitting patterns in order to accommodate judges with caring responsibilities.

The Government’s consultation on judicial appointments and diversity focused on flexible working in the High Court and the Court of Appeal. The proposals received near unanimous support. However, a number of key stakeholders also highlighted in their responses that extending the principle of flexible working to the Supreme Court would demonstrate our commitment to improving diversity to those considering applying and we have therefore extended our proposals accordingly to include the Supreme Court.

Given the strong support for the provisions within the House and beyond I invite the noble and learned Lord, Lord Lloyd, to withdraw his amendment. However, if he is minded to test the opinion of the House, I urge noble Lords not to support the amendment.

[Lord Mackay of Clashfern]

For clarification, who would decide the nature of the appointment when a vacancy arises in, say, the Supreme Court? Would it be for the president of the Supreme Court to say, “I will take two part-time judges who will each sit half-time”, or would it be somebody else who would decide? It is a practical matter. I can see the arguments about it all and I see the general view in this House, but I would like to know how it would work in that sense; who would have the responsibility, ultimately, of saying what would be the pattern in a particular court. Is it the president of that court or somebody else?

[Lord McNally]

My Lords, as far as I understand, the process of appointment would be exactly as it is now. If, in the process of discussing a candidate for the Supreme Court, it became obvious that there was a candidate who would require flexibility in order to take up the appointment, that would be taken into account. But there is no question of the president of the Supreme Court, or anybody else, being ordered to take a part-time member because of this provision. It is there to give what it is hoped will be encouragement to those who have responsibilities outside their judicial responsibilities, so that they do not find that a bar to progress, but there is no special process of selection envisaged in this.

[Lord Lloyd of Berwick]

My Lords, I found the Minister’s reply very unsatisfactory because it seemed to me—I hope I am not saying what I should not—that much of his brief was written before he realised what point I was going to make.

[Lord McNally]

Half my remarks were made on notes that were there. The noble and learned Lord has now pressed for two full debates on whether “flexible” and “part-time” are interchangeable or whether one over-rides the other. I and the noble Lord, Lord Beecham, in an act of unity, having tried to explain—there is nothing in the brief on it—I continue to puzzle about why the noble and learned Lord cannot see the interchangeability of the two. I have also got his note, the billet-doux he left me last night, which further pressed the case, but a large number of people, whose opinions I express, do not find the confusion that he does about the two terms.

[Lord Lloyd of Berwick]

All I can say by way of reply is that nobody except the Minister and the noble Lord, Lord Beecham, regards flexible and part-time work as being interchangeable. They clearly are not. One is one thing and one is another. If the Bill were to take effect, one would have to calculate at some point how many part-time members, as it were, occupy the time of the Supreme Court, and how many full-time members. The thing is simply impractical on the basis of salaried part-time members who would be paid less than full-time members. Those are simply the financial impracticabilities, but there are also all the other impracticabilities that have been pointed out by other Members who have spoken. It would simply be, as has been said more than once, a nightmare to work out in practice. It would raise expectations which I suspect that we all know would never be fulfilled.

It would be so easy for the Minister, consequent on all the things that were said in Committee as well as by other speakers today, to substitute “flexibility” for “part-time” working. Then we would all agree. The suggestion made that these are two ways of looking at the same thing, in my respectful submission, simply makes no sense. But obviously I am not going to persuade the Minister, and I suspect that the Opposition will take the view that they have indicated that they will take. I regret it very much. However, for the reasons that I have tried to give, I seek the opinion of the House.

Amendment 82A negatived.

Amendment 82B

Moved by

[Lord Ahmad of Wimbledon]

82B: Clause 18, page 17, line 15, after “offices,” insert—
“Part 4A makes provision for the exercise of certain functions where the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division or the Chancellor of the High Court is incapable of exercising the functions or one of those offices is vacant,”

[Lord Ahmad of Wimbledon]

My Lords, this group of amendments makes a number of technical amendments to the judicial appointment and diversity provisions. I will touch only on those amendments which make a substantial change.

In Committee, the noble and learned Lord, Lord Falconer, highlighted that the drafting of the Bill would allow for the number of judicial appointments commissioners who are appointed by virtue of holding a judicial office to be equal to the number of other commissioners. Our intention was to retain the current position whereby the judicial members are in the minority on the commission, and Amendment 87 ensures that is the case. This will guard against any perception of judicial office holders appointing in their own image; it will not affect the current position, whereby commissioners appointed other than as a judicial member—for example, legal professional members—may also hold judicial office without counting towards the number of judicial members.

Amendment 89 transfers the power to appoint persons as magistrates from the Lord Chancellor to the Lord Chief Justice, although as with the current position the appointment will be made in the name of Her Majesty The Queen. This is entirely in line with other provisions in the Bill which transfer responsibility for approving Judicial Appointments Commission selections, and in some cases making appointments from the Lord Chancellor to the Lord Chief Justice for certain judicial offices below the level of the High Court. This proposal was not included in the Bill on introduction, as consultation with magistrates’ representatives was still taking place at that time.

Amendments 86 and 94 allow the regulations setting out the appointment process for Supreme Court and other judicial offices to set aside, for limited purposes, the usual arrangements for when the office of Lord Chief Justice is vacant or the post holder is incapacitated. Section 16 of the Constitutional Reform Act provides for the senior head of division to carry out the functions of the Lord Chief Justice in these circumstances. However, in relation to the functions of the Lord Chief Justice as a member of a selection commission and selection panel, or his functions in nominating other members of such commissions or panels, it may not always be appropriate for the senior head of division to assume such functions. For example if the appointment in question is to fill a vacancy in one of the offices of head of division, it may not be appropriate for a head of division to be given a role on the selection panel. The Constitutional Reform Act currently recognises this by allowing for a Supreme Court judge to deputise for the Lord Chief Justice in these circumstances. These amendments ensure that the regulations will be able to make similar provisions in future.

Amendment 95 requires the Lord Chancellor to secure the concurrence of the Lord Chief Justice before issuing any guidance to the Judicial Appointments Commission under Section 65 of the Constitutional Reform Act 2005. This reflects the increased partnership role that the Lord Chief Justice and Lord Chancellor have in the appointment process. It is also consistent with the approach that we have taken in relation to requiring the Lord Chief Justice’s agreement to our new regulations on the appointment process.

Amendments 82B and 103A provide a new power enabling the Lord Chief Justice, with the concurrence of the Lord Chancellor, to temporarily appoint a judge of the senior courts to carry out the statutory functions of a head of division when that head of division is either incapacitated or the office is vacant. The heads of division—namely, the Master of the Rolls, the president of the Queen’s Bench Division, the president of the Family Division and the Chancellor of the High Court—have a range of statutory powers and functions, but there is no corresponding power enabling the exercise of such functions when the relevant head of division is incapacitated or the office is vacant. This has proved problematic operationally, as it has meant that important decisions cannot be taken if the incumbent is unwell or the office is vacant and a new head of division has yet to be appointed.

These amendments will ensure that we can maintain business continuity and that courts can operate effectively in such circumstances. In addition to these amendments, a number of drafting and technical amendments have also been made. Noble Lords will also be aware that the Bill provides for various detailed elements of the appointment process to be removed from primary legislation and provides for new regulation-making powers in these areas. I should use this opportunity to draw noble Lords’ attention to the three sets of draft regulations that I have recently shared with Parliament. These have been produced in order to inform our debates. However, I would like to stress that these drafts are indicative and will be subject to change, but I hope that they are helpful in providing greater information to the House about our intentions in this area. I beg to move.

17:45

[Lord Beecham]

My Lords, I very much welcome the Government’s changes to their original plans, in particular in relation to the role of the Lord Chancellor, dealing with points that have been raised in Committee and by the Constitution Committee. I am glad that the Government have seen sense on those matters, if I may say so, and adopted the recommendations, and equally that they have responded to the points made by my noble and learned friend Lord Falconer in relation to the composition of the Judicial Appointments Commission. In all fairness to the Government, I think that it was a slip rather than a deliberate drafting decision that gave rise to that issue.

In relation to the judicial appointments magistrates, I am very happy that the Government have delegated this responsibility to the Lord Chief Justice, thereby removing any shadow of political or executive responsibility for that appointment. At a later point this evening, we will discuss further the issue of magistrates’ courts, although not in that context of the question of appointments. But to foreshadow some elements of that debate, there is a concern about the composition of the magistracy to which the later amendment refers, and I hope that the Lord Chief Justice will be in a position to respond to those concerns. The Opposition certainly welcome the delegation of that responsibility to him.

Equally, we support the minor amendments to which the Minister referred. On this occasion, having complained earlier about the lack of sight of draft regulations, I ought to thank and congratulate the Government on producing such documents, although it has to be noted that they are pretty anodyne, and perhaps the more difficult things are not as likely to appear in as timely a fashion. Nevertheless, it is a precedent that we welcome and very much hope to see followed, as we come on to perhaps rather more difficult matters. Having said that, we support these amendments and thank the Government for proposing them.

Amendment 82B agreed.

Schedule 12 : Judicial appointments

Amendment 82C not moved.

Amendments 83 to 86

Moved by

[Lord Taylor of Holbeach]

83: Schedule 12, page 194, leave out line 12 and insert “and”

84: Schedule 12, page 194, leave out lines 14 and 15

85: Schedule 12, page 195, line 7, leave out from “entitled” to “to” in line 9

86: Schedule 12, page 195, line 14, at end insert—
“( ) provide for section 16(2)(a) or (b) not to apply in relation to functions of the Lord Chief Justice—(i) as a member of a selection commission (including functions of chairing a selection commission), or(ii) in relation to the nomination or appointment of members of a selection commission;”

Amendments 83 to 86 agreed.

Amendment 86A

Moved by

[Lord Marks of Henley-on-Thames]

86A: Schedule 12, page 198, line 3, at end insert—
“Encouragement of diversity in appointments to the Supreme Court(1) Part 3 of the Constitutional Reform Act 2005 is amended as follows.
(2) After section 31, insert—
“31A Diversity
The Lord Chancellor and any selection commission convened under section 26 must, in performing their functions under sections 27 to 31, have regard to the need to encourage diversity in the range of persons available for selection for appointments.””

[Lord Marks of Henley-on-Thames]

My Lords, as everyone in this House recognises, our judges are widely respected nationally and internationally, for their fairness and impartiality, their integrity, honesty and incorruptibility, their intellectual rigour and their willingness to innovate in the development of our law. But we should not let our pride in the strengths of our judiciary beguile us into complacency about its weaknesses, because the reality is that for all its strengths, the judiciary is overwhelmingly too white, too male and too middle class to be representative of the society it serves. That leads to our judges being perceived as out of sympathy with contemporary Britain and overwhelmingly old-fashioned and out of touch, however far that may be from the truth in respect of individual judges.

It is nearly three years since the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger—whom I am delighted to see in her place today—reported in February 2010. We have just had the second report of the Judicial Diversity Taskforce, which records the practical steps taken since the publication of her report. There is no lack of expressed commitment to achieving more diversity, but there is still little sense of real progress being made. Both my noble friend the Minister and my right honourable and learned friend Ken Clarke, when Lord Chancellor, have publicly accepted as much in the recent past. As we heard in a previous debate, your Lordships’ Constitution Committee produced a report on this subject in March this year. The Committee pointed out then that:

“Only one in 20 judges is non-white and fewer than one in four is female”,

and expressed the strong view that,

“this disparity is undermining the public's confidence in the courts”.

We have made some progress. In 1998, only 10.3% of judges across the board were women and 1.6 % were black, Asian or from ethnic minorities. By 2011, those figures had risen to 22.3% and 5.1% respectively. But they are still a mile away from being representative of the nation as a whole. We still have only one woman Supreme Court judge out of 12; four women out of 37 judges in the Court of Appeal; and 17 out of 108 in the High Court. The figures for ethnic minority judges are proportionately worse: none in the Supreme Court, none in the Court of Appeal and only five on the High Court Bench. Even on the circuit Bench, the figures are just 16% and 2.5% respectively.

It is not just the appearance of being unrepresentative that distorts our judiciary. I firmly believe that the fact that there are so few women on the Bench has a substantial effect that distorts our substantive law. In Radmacher v Granatino, the case in which the Supreme Court held that ante-nuptial agreements should in general be respected, the noble and learned Baroness, Lady Hale—the only woman Supreme Court judge—largely dissented from her male colleagues when she said,

“In short, there is a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman”.

There are often gender and racial issues to cases. If the development of the law continues to be left to stereotype white male judges, that will diminish the respect held not just for our judges, but also our law.

In international terms, our record on judicial diversity is appalling. Of all the countries considered in a report by the Council of Europe this year, only Azerbaijan and Armenia were less representative than England and Wales. There is effectively gender equality among the judiciary across the rest of Europe. In the earlier debate, the noble and learned Lord, Lord Lloyd of Berwick, mentioned the success in achieving gender equality in Canada and the United States.

All this is why I welcome the provision of paragraph 9 of Schedule 12 to the Bill, but also why the noble Baroness, Lady Hamwee, and I have put down amendments to enlarge its provisions and to enlarge the existing provision in the Constitutional Reform Act 2005 that encourages diversity. Under Section 64 of the 2005 Act as it stands, there is an obligation already on the Judicial Appointments Commission to promote diversity. However, that only applies to appointments under Part 4 of the Act, which does not apply to the selection of judges of the Supreme Court. Our Amendment 86A would introduce an exactly parallel provision into Part 3 of the Act, which governs the selection of judges, the president and deputy president of the Supreme Court. The Supreme Court is at the pinnacle of our system of justice. If we omit a requirement to encourage diversity there, we cast doubt on our commitment to achieve it throughout the system. The Government and the Bill recognise the need to encourage diversity. That must be reflected at the top.

The reform proposed in paragraph 9 of Schedule 12 to the Bill introduces the so-called “tipping point provision”—also called the tie-breaker provision—by which, where there are two candidates of equal merit, one may be preferred for the purpose of increasing diversity. Without that provision, the requirement that selection has to be made solely on merit prevents the commission from exercising its judgment in that way. However, paragraph 9 applies only to appointments under Part 4 of the 2005 Act; it does not apply to appointments to the Supreme Court. Our Amendment 86B would apply a similar tie-breaker provision to Supreme Court appointments as well.

It has been argued that such a provision is not necessary in relation to appointments to the Supreme Court, on the technical basis that under Section 27 of the 2005 Act such appointments are merely required to be “on merit”, rather than “solely on merit”, which is the requirement in Section 63 under Part 4. It is then said to follow that Section 159 of the Equality Act 2010 would permit recruitment to the Supreme Court on diversity grounds by using a tie-breaker principle. I am not sure that this distinction is a real one. But even if it is, there is nothing in Section 159 of the Equality Act that encourages, still less requires, tie-breaking. The combined effect of our Amendments 86A and 86B would do so. Tie-breaking does help. It should be explicitly encouraged on the face of the Bill throughout the system, and not merely, as the Government recognise, lower down than the Supreme Court.

Our final Amendment, 86C, would make it clear that the duty to encourage diversity is imposed on the Lord Chancellor in exercising his functions under Part 4 as well as on the Judicial Appointments Commission. Amendment 86D in this group, proposed by the noble Lords, Lord Pannick and Lord Powell, and the noble Baronesses, Lady Jay and Lady Prashar, would add the Lord Chief Justice to the list, because the Lord Chief Justice may be a consultee of the commission even if he is not a member of the selection panel, which is a committee of the commission. So Amendment 86D is more comprehensive, on reflection, and therefore to be preferred to our Amendment 86C. Either way, however, the important point is that we now urgently need to give impetus wherever we can to encouraging diversity, so that we can move from merely paying lip-service to the concept towards actually achieving it.

I do not know whether and to what extent my noble friend the Minister will make concessions to these amendments, but I emphasise that they are entirely consonant with the provisions already in the 2005 Act and in the Bill before the House tonight. I simply say this: you cannot expect the public or anyone else to think we are serious about encouraging diversity if we have a system that encourages it from the Court of Appeal down but does not encourage it in the Supreme Court, which is the highest court in the land.

18:00

[Lord Pannick]

My Lords, I support the amendments in the name of the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee, but I want to speak to Amendment 86D, which arises out of the report of your Lordships’ Constitution Committee. The amendment is in my name and those of the noble Baroness, Lady Jay of Paddington, chairman of the Constitution Committee, the noble Baroness, Lady Prashar, former chairman of the Judicial Appointments Commission, and the noble Lord, Lord Powell of Bayswater, who is also a member of the Constitution Committee. I am very pleased to see the noble Baronesses, Lady Jay and Lady Prashar, in their places. The noble Lord, Lord Powell, apologises to the House that he is unable to be present as he has to be abroad today.

As your Lordships have heard, Section 64 of the Constitutional Reform Act imposes a duty on the Judicial Appointments Commission to have regard to the need to encourage diversity in the range of persons available for selection for appointments. The purpose of Amendment 86D is to ensure that this statutory duty to promote diversity is also placed on others who have leadership roles in relation to the judiciary: that is, the Lord Chancellor and the Lord Chief Justice. As the noble Lord, Lord Marks, has said, the promotion of diversity is one of the greatest challenges facing our legal system. Figures produced by Professor Alan Paterson, a very distinguished expert in the field of judicial studies, show that of the OECD countries, the representation of women in our Supreme Court—one member out of 12—puts us shamefully in the last place in that measure of diversity.

The aim of achieving a more diverse judiciary does not mean reducing the standards for appointment. On the contrary, merit remains the criterion. The task, as Section 64 recognises, is to identify ways of bringing to the fore those highly skilled women and members of ethnic minorities who are in the legal profession—there are very many of them—so that they can be considered for appointment on merit. The amendment would impose a statutory duty on the Lord Chief Justice and the Lord Chancellor in this regard.

The Government have previously argued that a specific statutory duty is not needed because everybody understands the need to move forward on this. There are three answers to that approach. First, Section 64 does contain a specific statutory duty on the Judicial Appointments Commission. It is right and proper to make clear that responsibility does not lie solely with the JAC but also with others in a leadership role. The noble Lord, Lord Deben, who I am pleased to see in his place today, made a very powerful speech on that point in Committee.

Secondly, a statutory provision such as this importantly emphasises to the public the recognition by all those in a leadership role that this is a subject to which priority must be given. Thirdly, and finally, the amendment, and the enactment of a statutory duty along these lines, is no criticism whatever of the efforts made by the current Lord Chief Justice—I know personally that he takes the need to promote diversity very seriously indeed—or of the new Lord Chancellor, or, indeed, his predecessors. They all take these matters very seriously, as I know does the Minister, who is personally committed to promoting diversity in the judiciary. However, they will not always be in post and it is important to take this opportunity to address the matter in legislation.

Amendments 86A to 86C, to which the noble Lord, Lord Marks, has spoken, also have my support, although he acknowledged that Amendment 86C may be less preferable to Amendment 86D. Amendment 86DA in the name of the noble Lord, Lord Beecham, which is also in this group, is to similar effect. Again, it has my support, although, if I may say so, it is optimistic indeed for proposed new subsection (4) of the amendment of the noble Lord, Lord Beecham, to suggest that the problem of a lack of diversity may be cured in five years. I remind the noble Lord that in a recent lecture, Lord Sumption of the Supreme Court suggested that 50 years was more realistic on current progress.

[Baroness Jay of Paddington]

My Lords, I rise briefly, but powerfully, I hope, to support the noble Lord, Lord Pannick, in his amendment and to say that I agree with much of what the noble Lord, Lord Marks, said. As has been said, this point was very much the burden of the Constitution Committee’s report on judicial appointments, which I had the privilege of chairing. Above all, our message was that there needed to be decisive and persistent leadership on this question among those making appointments at every level.

I agree with the noble Lord, Lord Pannick, and regretfully disagree with my noble friend Lord Beecham about the prospects for a timescale of five years to make this happen because one of the things which was absolutely clear in the evidence that we took from a number of people who had held office over a long period was that many of them had a personal commitment to improving diversity, as the noble Lord, Lord Pannick, has reinforced, but that none had actually succeeded in doing that. It seemed unlikely that that was to do with their capabilities but was much more a case of there being resistance within the system. Therefore, the obligation on the Judicial Appointments Commission to have a statutory duty to enforce and support diversity seemed to be one that should properly be extended to the wider group of people in leadership positions, as the noble Lords, Lord Pannick and Lord Marks, said.

The response from the Government to our report was surprising in the sense that it referred almost exclusively to the fact that the one thing the Government did not want to do was to overburden the statute book with this provision. Indeed, the Constitution Committee has returned to this subject in the past few weeks. We heard evidence on 21 November from the new Lord Chancellor, Mr Grayling, who again said that he was absolutely committed to making this objective happen. However, when asked why it did not happen, he said that it would be unfortunate to try to impose more legislation on the statute book when the objective could be achieved through the leadership which he and his predecessors said they were capable of. However, I point out to the House and the Minister that the amendment of the noble Lord, Lord Pannick, which I have signed, requires only 13 words to be added to the statute book. Therefore, it seems to me that the overburdening of legislation is not necessarily a powerful argument for rejecting it. The simple fact is that this is a very straightforward recommendation which could be absorbed into the Bill very easily.

The noble Lord, Lord Powell of Bayswater, who is, indeed, another signatory to this amendment and is not here this afternoon as he is in the United States, when speaking with the new Lord Chancellor, Mr Grayling, in our committee, referred again to the recommendation we had made about putting a statutory duty on him and the Lord Chief Justice. The noble Lord, Lord Powell, said—I think this was echoed by other members of the committee and is the point we all abide by—that it was not that we did not recognise that there had been progress but that,

“it has been at the pace of a pregnant snail”.

We now need to overtake the pregnant snail to which the noble Lord, Lord Powell, referred, and put this on the statute book in these very simple 13 words.

[Baroness Prashar]

My Lords, I rise to speak as the former chairman of the Judicial Appointments Commission. I have put my name to this amendment because I feel very strongly about this issue. I absolutely agree with what the noble Lord, Lord Pannick, the noble Baroness, Lady Jay, and the noble Lord, Lord Marks, have said. I think everyone now recognises that promoting diversity is a common endeavour—a joint effort to be made by the judiciary, the Ministry of Justice, the Lord Chancellor and the JAC. It is therefore important that all three have statutory responsibility, because that will focus their minds. As someone who was responsible for giving effect to the statutory responsibility of the JAC, I was always mindful of the fact that the focus really was on the JAC. Others sat around the table and said, “What is the JAC going to do?”

At Second Reading, the Minister said that this would be gesture politics. This is not gesture politics; it is about getting people to take responsibility, because there are a range of things that are outwith the responsibility of the JAC, where efforts need to be made. If your Lordships heard the debate earlier on the amendment of the noble and learned Lord, Lord Lloyd, concerning part-time working, you can see how formidable the opposition can be. We need to change that culture, impose that duty on others and provide an opportunity so that real progress can be made.

[Baroness Neuberger]

My Lords, as noble Lords will know, I chaired the Advisory Panel on Judicial Diversity, and I support all those who have already spoken. I love the analogy of the pregnant snail. It is now two and a half years since we reported, and with all the amazing good will that there has been—and there has been considerable good will, not least from the Minister, who has met with me regularly to see how we can take this further—the progress has been lamentably slow. It is therefore hugely important that the message is sent out widely that this is a statutory duty that applies not only to the Judicial Appointments Commission but much more widely. I particularly believe that we should also extend this to the Supreme Court.

[Baroness Kennedy of The Shaws]

My Lords, I also support this amendment. I sigh, because I feel as though I have been working on this issue of diversity in the legal profession and on the Bench all my professional life, which I now have to confess has covered 40 years. It is really important that we recognise how slow progress has been.

I had a conversation with one of those senior men of the law not very long ago about the fact that we only had one woman on the Supreme Court. I was reminded that when the Sex Discrimination Act came in it brought a great flurry of change into the legal profession. Up until that time, chambers used to say, “We don’t take women”. When I started at the Bar, people said that. Then they started saying, “Women? We’ve got one”. My concern is that that sort of attitude, that somehow we are doing fine if we have a woman here and there, is not good enough. During this conversation, I expressed my sadness that we had only one woman on our Supreme Court and mentioned the name of a very eminent and good woman—at which he said, “I know, but she’s so ambitious”, as though this was a truly terrible thing to be, and an attribute that could not be attached to any of the senior men of law who have gone into the Supreme Court.

There is a culture in the law that is resistant to change; it is just the nature of things. We have to create this kind of encouragement if we want to see things move at a better pace.

18:14

[Lord Deben]

My Lords, it would be a great mistake to do this if we did not have to. The problem is that we have to, because the present situation is not acceptable. No business could be run on this basis. You would have shareholders, even of the most reactionary kind, asking how on earth it was possible to run a major business in which there was one woman, on the basis that you had to have one. I very much appreciate the words that have just been said.

As I said on a previous occasion, if we did not need it, we would not have to do it but because we need it, we have to do it. I know that that sounds odd, but it seems the only answer to the Government’s argument so far, which I do not understand. I do not understand why it is sensible to do this at some points but not at others. That does not seem very sensible either. Surely it has always been best to do it at the top first, then all the way down. You do not do it at the bottom, and then hope it goes up. It is like having girls come into a boys’ school. It is a very odd system but when you want to open up a school you start at the bottom and the number of girls gradually goes up, until you have a mixed school at the top. I say that as the father of four children, two boys and two girls, none of whom went to mixed schools, but I know how they work and that is how you do it.

However, that does not mean that when you are dealing with the law you set a very good example by suggesting that it is not the same at every level. I am interested only in why that should be the case. I have listened to the Government’s arguments and no doubt if I have to listen again, I may be persuaded. Up to now, however, I am missing the logic. I would like to see a logical reason why this proposal should not be there, or why the other bits that are there should not be removed. That is the alternative: if we do not need this, why do we have the bits that we have?

I will say one last word about the addition to the Bill. The noble Baroness made a very good point about how long this is. There are many things in the law that could be removed to make room for this, and I can give a long list of them. For example, there is a part that makes it illegal for Roman Catholic churches to ring a bell. That is much longer than this bit; we could take that out and put this in quite happily. If, therefore, there is a question of overburdening, I can think of a series of overburdens that can be removed—so that argument does not work. I ask the Government to understand that by not doing this, a signal is being made. By doing it, a signal would also be made. I do not understand why they want to make the wrong signal.

[Lord Mackay of Clashfern]

My Lords, I had some experience of trying to push this agenda forward rather a long time ago but I wonder about, for example, creating a duty on the present Lord Chancellor to do this. What does this amount to? I have a feeling that the argument that has been presented suggests that you should make the duty incumbent on all the judiciary at all levels, so that they welcome diversity. That is my answer to the noble Baroness, Lady Kennedy of The Shaws. There is a limit to what the Lord Chancellor can do to change the culture now, with his present powers. There is also some question as to what the Lord Chief Justice can do, though he can be welcoming and so on. The logic of it is for the whole judiciary to be required to welcome diversity and all the benefits that it brings.

[Lord Beecham]

My Lords, I am fascinated, not to say a little distracted, by the zoological references to pregnant snails. I am not quite sure how one could tell, unless one was another snail. Perhaps I ought to address myself to the amendments rather than to this curious analogy.

I certainly support the thrust of the amendment of the noble Lord, Lord Pannick. Amendment 86DA, which is in my name, sets out a process; I should indicate to the noble Lord that perhaps the drafting is not quite as it should be. However, subsection (4) in my proposed new section 64A, which states:

“These duties shall continue for five years, but may be extended for five year terms by order”,

relates to its subsection (3) on the question of annual reports, rather than the principal objectives of that amendment, which are set out in subsections (1) and (2).

Several of your Lordships have pointed out the importance of making progress in this critical area. The noble and learned Lord, Lord Mackay of Clashfern, suggests that the duty should be spread wider, but it is difficult to envisage a duty on the holder of a judicial office to promote diversity in that capacity. It is surely a matter for those with greater responsibility at the top of the pyramid, both politically and judicially—the Lord Chancellor and the Lord Chief Justice, in addition to the commission—to have that duty. It is presumably easier to hold them to account in a less informal way than it would be to hold the whole judiciary to account.

I hope that the Government will accede to the arguments made by noble Lords and noble Baronesses. This is not a dramatic amendment, but it underpins the process that your Lordships have clearly adopted and wish to see implemented. It is a matter on which I should have thought the Government could concede without any kind of embarrassment because it carries out effectively the thrust of the policy on which the majority of the House are clearly agreed. I therefore hope that the Minister can agree to that or, at the very least, give it some further thought and come back at Third Reading. It would be better not to have to vote on this matter, given that there is a great deal of common ground. I am looking to the noble Lord to be as co- operative on this occasion as I was on a previous occasion.

[Lord McNally]

The noble Lord, Lord Beecham, can be very seductive at times, but let me try to respond to an extremely thought-provoking debate. I was interested in the mention by the noble Lord, Lord Deben, of girls going into boys’ schools and vice versa, because I have just had experience of this. My daughter has just moved from an all-girls’ school into the sixth form of an all-boys’ school. After a few weeks, I asked her, “How is it going?”. She said, “It’s wonderful, daddy, all the boys open the door for me”. That is an illustration of how a little change can bring behavioural changes, and that is probably what the noble Lord, Lord Deben, was suggesting, whereby perhaps a few girls in the all-boys’ school of the upper judiciary might produce similar changes in attitude.

I was very grateful for the intervention of the noble and learned Lord, Lord Mackay, because this debate turns on an issue that I explained in Committee. There is no doubt that both the Lord Chancellor and the Lord Chief Justice have a duty under the Equality Act to promote diversity. On the point made by the noble Lord, Lord Marks, that this does not apply to the Supreme Court and therefore implies some sort of ceiling in this, that is not true. We think that the tipping point in the Equality Act already applies to Supreme Court appointments and, therefore, that his amendment is not necessary.

I can put before noble Lords the standard brief that the Lord Chief Justice and the Lord Chancellor already have these duties enshrined, and that the Equality Act takes care of the problems that the noble Lord, Lord Marks, mentioned. However, that would not be the right response to a debate that has contained most of the people whom I count as allies in what I still think is a battle to get greater diversity into our judiciary. I was told earlier that I was being pejorative when I talked about this being a trickle-up. However, the figures quoted by a number of speakers illustrate that there is still a need for leadership, as the noble Baroness, Lady Jay, said. I applaud the leadership that her committee has given in this area, just as I applaud the leadership given by the noble Baronesses, Lady Prashar, Lady Neuberger and Lady Kennedy. However, we need that leadership elsewhere in the judiciary. I am almost tempted, as the noble and learned Lord, Lord Mackay, said, to make it applicable to all the judiciary.

I am willing to be seduced here by the noble Lord, Lord Beecham, as it would be an insult to the House and the opinions of people whom I respect immensely on this matter if I were simply to call a Division and bring in people who have not heard this debate to vote these amendments down. If noble Lords who have amendments in this group would withdraw or not move them, I will take this matter back to the Lord Chancellor. That will also give time for discussions with the Lord Chief Justice to see whether we can, in some way, meet the points that have been made.

I shall tell noble Lords where I am coming from. Recently, a very senior member of the judiciary pinned me in the corner and said, “If you do what you are trying to do to the judiciary, can you guarantee me that in 20 years we will still have a judiciary that is the envy of the world?”. I said, “Yes, but half of them will be women”. That may be overambitious but it is a lot better than a 50-year timescale or a “sometime, never” timescale. I therefore believe, as the noble Lord, Lord Deben, said, that sometimes gesture politics is important.

Tonight, I want to take this debate back to the Lord Chancellor and let him ponder on it. It may be that I will have to resist when we return to the issue on Third Reading, but I do not want to resist tonight because the quality of the debate and the persuasiveness of the argument deserve another look at this matter. In that spirit, I ask noble Lords to withdraw or not move their amendments.

[Lord Marks of Henley-on-Thames]

My Lords, everyone in this House knows that the commitment of the Minister to judicial diversity is very high, and I am grateful for his indication that he will consider this. I should say that I do not accept that the Equality Act deals with the position in the Supreme Court as satisfactorily as it has been suggested it might. The Bill should reflect uniformity all the way up the system. With the indication that my noble friend has given, however, I will of course withdraw the amendment and consider the matter with him between now and Third Reading.

Amendment 86A withdrawn.

Amendments 86B to 86E not moved.

Amendments 87 to 89

Moved by

[Lord McNally]

87: Schedule 12, page 199, line 22, leave out “not be greater” and insert “be less”

88: Schedule 12, page 204, line 19, leave out second “appointed”

89: Schedule 12, page 209, line 31, at end insert—
“Lay justices to be appointed by Lord Chief Justice36A (1) Section 10 of the Courts Act 2003 (justices of the peace who are not District Judges (Magistrates’ Courts)) is amended as follows.
(2) In subsection (1) (Lord Chancellor’s power of appointment) for “Lord Chancellor” substitute “Lord Chief Justice”.
(3) After that subsection insert—
“(1A) Subject to the following provisions of this section and to sections 11 to 15, a person appointed under subsection (1) is to hold and vacate office as a justice of the peace in accordance with the terms of the person’s appointment, which are to be such as the Lord Chancellor may determine.”
(4) After subsection (2) insert—
“(2ZA) The Lord Chief Justice must ensure that arrangements for the exercise, so far as affecting any local justice area, of the function under subsection (1) include arrangements for consulting persons appearing to the Lord Chief Justice to have special knowledge of matters relevant to the exercise of that function in relation to that area.”
(5) In subsection (2A) (Lord Chancellor to ensure local consultation takes place in relation to the exercise of functions under subsections (1) and (2)) for “subsections (1) and” substitute “subsection”.
(6) After subsection (6) insert—
“(6A) The Lord Chief Justice may nominate a senior judge (as defined in section 109(5) of the Constitutional Reform Act 2005) to exercise functions of the Lord Chief Justice under subsection (1).”
(7) In subsection (7) (delegation of Lord Chief Justice’s functions) after “subsection (2)” insert “, (2ZA)”.”

Amendments 87 to 89 agreed.

18:30

Amendment 89A

Moved by

[Lord Beecham]

89A: Schedule 12, page 209, line 31, at end insert—
“36A The Lord Chancellor shall lay before Parliament within twelve months, and thereafter periodically, a report on the composition of the magistracy, including the numbers of lay magistrates and the numbers of full time district judges sitting in magistrates’ courts.”

[Lord Beecham]

My Lords, we have talked a great deal about judicial diversity in the upper courts, and there is a concern about both the composition of the Bench and its current functioning at the level of the magistracy. The concern is perhaps twofold.

First, I know that there is growing anxiety among lay magistrates about the increasing numbers of full-time district judges who are being appointed, thereby diminishing the role of lay magistrates. This matter has certainly been reported to me from places as far apart as Newcastle, Birmingham and Brighton, and it has also surfaced in a number of other areas. Notably, as I understand it, there is concern among lords-lieutenant —who obviously have close working relationships with the magistracy in their areas—at the apparent drift away from the hitherto prominent role of the lay magistracy in the operation of the courts. That is the reason, in particular, for the part of the amendment which seeks a report on the composition of the magistracy, including the number of lay magistrates and the number of full-time district judges. I asked a Written Question about this issue and the reply, slightly surprisingly, was that the Government simply did not know what the numbers were. This has obviously gone on for a very long time. However, if we are serious about looking at the function of the magistracy and its composition, it is surely incumbent on the Government to produce the data.

The problem of the composition of the Bench is perhaps also exacerbated not merely by the question of professional and lay magistrates or judges but by other issues, including diversity issues of gender, ethnicity and, I have to say, class in the local magistrates’ courts. The problem may be made more difficult by the closure of magistrates’ courts, to which I have referred. In addition to the difficulties that some people may have in getting sufficient time off work to serve as magistrates, it will now often be the case that they have to travel to a court which is no longer in the town where they might previously have sat or might seek to sit, and this will clearly compound the problems. It is already difficult enough for working people, whether they are well paid or not, to get time off to attend to these responsibilities, and I suspect that all these matters will continue the push towards having full-time appointments.

There is of course a place for full-time appointments and they have served for many years—formerly in the guise of stipendiary magistrates and now district judges—dealing particularly, but not exclusively, with criminal matters, yet the feeling now within the magistracy is that the role of the lay magistrate is being diminished. Magistrates’ clerks are effectively no longer answerable to their local court committee but answerable upwards, as it were, to the ministry. In many places, what was local justice is apparently coming to be seen as simply another arm of a national department—that is, the ministry—and, as with local policing, that is something that one would regret. One can apply Sir Robert Peel’s definition of policing by the people to local justice—by people from the community, knowing the locality and, to a degree, representing that locality. This is not just a recent matter—it has been going on for some time—and it is not by any means a matter to be laid entirely at the door of this Government. However, it seems to me a process which is to be regretted.

Therefore, this amendment seeks to establish a system in which there can at least be consideration of the facts. I hope that that will lead to the kind of debate and the kind of decisions that we are moving towards in respect of judicial diversity at the other level, but in this case I hope that it will also lead to a reconsideration of the role of lay magistrates. There is a danger—as I said, as reported by magistrates and lords-lieutenant—that the system may be dying on its feet because of this change to the professional local judiciary.

I am not anticipating that the Government will necessarily accept or support this. Again, it might be a matter that the noble Lord will be willing to take back and reconsider. It might be thought over-prescriptive but it will potentially open the door to the kind of developments to which I have referred.

I see that the noble Baroness, Lady Seccombe, is in the Chamber tonight. I think that in Committee she voiced similar concerns from her own very practical experience as a magistrate. My noble friend Lord Ponsonby is not here tonight but I know that he also shares these concerns. I think that it would fit very well with the laudable efforts that the Government are making in the upper echelons of the judiciary if this matter were given some consideration and the topics to which I have alluded could be addressed over time, basically with the same intention but with the added dimension of locality, as well as diversity, in relation to the amateur or part-time lay justice as well as the professional justice. I beg to move.

[Baroness Seccombe]

My Lords, as a former magistrate, I support all the sentiments of the noble Lord, Lord Beecham. He has expressed the great fears of the magistracy that it is gradually becoming more and more centralised and that the point of local justice is disappearing. The thing that I have a little trouble with is how that fits into this Bill at this time, and I should be very interested to hear what the Minister has to say on this.

[Lord McNally]

My Lords, I am grateful for the contributions from the noble Lord, Lord Beecham, and the noble Baroness, Lady Seccombe. Both have made important points about the concept of local justice and the massive boon that comes from a magistracy rooted in its locality and with a knowledge of the problems of an area and, indeed, of the people of an area. In previous debates I have given a run-out to the names Tommy Croft and Billy Quinn. They both worked in the local ICI works near to where I was born and they were both local magistrates. Everybody knew them and everyone, particularly the youth of the locality, dreaded appearing before them. That is the kind of benefit that we get from a magistracy which is rooted in its locality. But, alas, that was 50 years ago. Both my noble friend Lady Seccombe and the noble Lord, Lord Beecham, are right to say that, in our drive for various efficiencies and for uniform high quality, we must ensure that we do not squeeze out the benefit that we get from a lay magistracy. The magistracy performs a vital role in our justice system and the Government are highly supportive of both lay magistrates and full-time district judges sitting in magistrates’ courts.

In our White Paper, Swift and Sure Justice, we restated our view that the lay magistracy is one of our most important assets. The White Paper also sets out proposals to give magistrates new roles and responsibilities. We are currently working through the responses that we received and we will confirm our plans in due course.

I fully understand the request by the noble Lord, Lord Beecham, for information on the composition of this crucial element of our judicial system. I am delighted to confirm that official data from the Judicial Office are already publicly available on the judiciary website. That includes not only information on the number of lay magistrates in each of the 47 advisory committee areas and the name and number of district judges sitting in magistrates’ courts but also detailed information on gender, age, ethnicity and disability. Those data are published annually on 1 April. The number of lay magistrates in post as of 1 April 2012 was 25,155; the number of district judges sitting in magistrates’ courts was 141, with 134 deputy district judges. Perhaps I can illustrate the level of detail to which this information goes: 51.3% of lay magistrates and 29.1% of district judges were female; 53.9% of lay magistrates and 35.4% of district judges were 60 or over; 4.5% of lay magistrates identified themselves as having a disability; and 8.1% of lay magistrates and 2.8% of district judges were from black and minority ethnic groups. There is even more detail on the website, should noble Lords wish to visit the relevant links.

Given the extensive amount of official information on the composition of the magistracy already in the public domain, I suggest that a requirement for the Lord Chancellor to lay a periodic report before Parliament is unnecessary. On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Beecham]

I am very much obliged to the Minister for that information. I am a little surprised that it did not find its way into the Answer to my parliamentary Question some time ago. It is reassuring that that information is available. I shall withdraw the amendment, but I would like to ask whether there is any indication of, for example, employment categories or, frankly, class, although that may be asking too much; it may be difficult to get. I take it that the Minister would wish to promote diversity and look into the concerns that the noble Baroness and I both raised about the role of the lay magistrate in general. I gather that he is sympathetic to that. Therefore, without seeking to incorporate this into the Bill, perhaps he could undertake to have a look at that departmentally and perhaps in conjunction with, say, the Magistrates’ Association and the Magistrates’ Clerks Association, if that still exists, as a matter of government policy rather than legislation. In the circumstances, I beg leave to withdraw the amendment.

Amendment 89A withdrawn.

Amendments 90 to 92

Moved by

[Lord McNally]

90: Schedule 12, page 210, line 11, at end insert—
“Justice of the Peace appointed under section 10(1) of the Courts Act 2003 (justices of the peace other than District Judges (Magistrates’ Courts))”

91: Schedule 12, page 210, line 24, at beginning insert—
“(1) In section 8 (power of Senior President of Tribunals to delegate) after subsection (1) insert—
“(1A) A function under paragraph 1(1) or 2(1) of Schedule 2 may be delegated under subsection (1) only to a Chamber President of a chamber of the Upper Tribunal.”
(2) ”

92: Schedule 12, page 210, leave out lines 28 and 29

Amendments 90 to 92 agreed.

18:45

Amendment 93

Moved by

[Lord McNally]

93: Schedule 12, page 218, line 13, leave out from “power” to “to” in line 14

[Lord McNally]

My Lords, I shall come clean with the House. Earlier, overtaken by the excitement of getting government amendments through, my noble friend Lord Taylor nodded through government Amendment 83, to which I was supposed to speak. It is grouped with Amendment 93, which gives me the opportunity to catch up with it. This allows me to make a concession which was argued with some passion by the noble and learned Lord, Lord Falconer, in Committee, about the provisions enabling the Lord Chancellor to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court’; sadly, the noble and learned Lord was here for only a fleeting moment.

In Committee, these provisions were a matter of considerable concern to many of your Lordships. Although I thought that I defended the position with considerable persuasiveness, the Lord Chancellor decided, the brief says here, that we have carefully considered the arguments that were put forward at that stage as well as those set out in the reports of the Constitution Committee and the Joint Committee on Human Rights. The amendments respond to those concerns by removing from the Bill those provisions relating to the Lord Chancellor’s ability to sit on the selection panel for the Lord Chief Justice and the President of the Supreme Court. Thanks to the noble Lord, Lord Taylor, we have already agreed Amendments 83, 84 and 85 in this group and I am now using this opportunity to move Amendment 93 and to speak to Amendments 97 and 98. I hope that the House will find this acceptable.

In view of the importance of the roles of the Lord Chief Justice and the President of the UK Supreme Court to the administration of justice, we remain of the view that the Lord Chancellor should have a role in these senior appointments. Accordingly, while we will revert to the existing arrangements in that the Lord Chancellor will not sit on the selection panel but will decide whether to accept the selection, reject it or ask the panel to reconsider its selection, we intend to augment these to ensure that the Lord Chancellor is engaged earlier in the selection process. Taking on board the comments raised in Committee, we now propose that the selection panel consults the Lord Chancellor during the selection process. This already occurs in relation to Supreme Court appointments but will be new in relation to the appointment of a Lord Chief Justice.

We have shared the draft indicative regulations with noble Lords relating to the appointment process and these provide for this consultation by the panel in relation to all appointments to the Supreme Court and to certain senior judges in England and Wales, such as the Lord Chief Justice and Lords Justice of Appeal. In addition to this, we will, as I have said, restore the current position whereby the Lord Chancellor will receive the selection panel’s report and, in the light of that, decide whether to accept or reject the panel’s recommendations, or alternatively ask the panel to reconsider its recommendation. I hope that noble Lords will agree that this approach now establishes an appropriate mechanism for the Lord Chancellor’s views to be heard, while safeguarding the impartiality of the selection process. I beg to move.

[Lord Pannick]

I thank the Minister for reverting to the important Amendments 83, 84 and 85. As the noble Lord mentioned, your Lordships’ Constitution Committee was critical of the proposal in the Bill for the Lord Chancellor to sit as a member of the appointments committee appointing the Lord Chief Justice and the President of the Supreme Court. The Minister's advocacy in Committee was outstanding but, as he will know, sometimes the best advocacy is in support of a completely hopeless cause. I genuinely thank the Minister and the Lord Chancellor for listening on this important subject. It is a matter of constitutional concern. I thank them for bringing forward amendments to the Bill in accordance with the recommendations of your Lordships’ Constitution Committee.

[Lord Mackay of Clashfern]

I wonder whether it is worth mentioning that, of course, the Supreme Court is of interest in jurisdictions other than those in which the Lord Chancellor has authority now, and there may be a question about the balance of that. Admittedly, other jurisdictions have representation on the selection committee, but it may be worth while keeping in place that balance.

[Lord Beecham]

My Lords, I endorse everything that the noble Lord, Lord Pannick, said, as a surrogate for my noble and learned friend Lord Falconer. Had he been here I am sure that he would have enthusiastically congratulated the Government on their change of heart. Again, I rather tiresomely congratulate the Minister on accepting the wisdom of the House as previously expressed. We welcome this change and reversion to what is essentially the current situation. We look forward to more of the same as we go through the Bill.

Amendment 93 agreed.

Amendments 94 to 103A

Moved by

[Lord McNally]

94: Schedule 12, page 218, line 51, at end insert—
“( ) provide for section 16(2)(a) or (b) not to apply in relation to functions of the Lord Chief Justice—(i) as a member of such a panel (including functions of chairing such a panel), or(ii) in relation to the nomination or appointment of members of such a panel;”

95: Schedule 12, page 219, line 42, at end insert—
“51A In section 66(1)(a) (Lord Chancellor to consult Lord Chief Justice before issuing guidance about selection procedures) for “consult” substitute “obtain the agreement of”.”

96: Schedule 12, page 220, line 15, at end insert—
“(1BA) The members of the panel may not include the current holder of the office for which a selection is to be made.”

97: Schedule 12, page 220, leave out line 18

98: Schedule 12, page 220, leave out lines 20 and 21

99: Schedule 12, page 220, line 25, at end insert—
“(5) Omit subsection (5) (if practicable, panel to consult current holder of office).”

100: Schedule 12, page 220, line 41, at end insert—
“(1C) The members of the panel may not include the Senior President of Tribunals.””

101: Schedule 12, page 222, line 34, leave out “Regulations” and insert “An order”

102: Schedule 12, page 225, line 1, leave out “In section 97(1)” and insert—
“(1) Section 97”

103: Schedule 12, page 225, line 3, leave out “omit paragraphs (c) and (e)” and insert “is amended as follows.
(2) In subsection (1) (list of provisions requiring consultation)—
(a) omit paragraphs (b), (c) and (e), and(b) in paragraph (d) for “95(2)(a), (b)” substitute “95(2)(b)”.(3) In subsection (4) (modification where requirement is to obtain concurrence rather than to consult) after “section 94A(1)” insert “or 95(2)(a)”.”

103A: Schedule 12, page 226, line 44, at end insert—
“Part 4AAppointment of judge to exercise functions of a head of division in case of incapacity or a vacancy etc76A Where a Head of Division is incapable of exercising relevant functions, or the office of a Head of Division is vacant, the Lord Chief Justice may, with the concurrence of the Lord Chancellor, appoint a judge of the Senior Courts to exercise relevant functions of the Head of Division.
76B An appointment under paragraph 76A—
(a) must be in writing,(b) must specify the functions that may be exercised by the appointed judge, and(c) must set out the duration of the appointment.76C In paragraph 76A—
“Head of Division” means—(a) the Master of the Rolls,(b) the President of the Queen’s Bench Division,(c) the President of the Family Division, or(d) the Chancellor of the High Court;“the Lord Chief Justice” means the Lord Chief Justice of England and Wales;“the Senior Courts” means the Senior Courts of England and Wales.76D In this Part “relevant functions” means functions under any of the following—
section 5 of the Public Notaries Act 1843 (functions of Chancellor of the High Court in relation to refusal of master of the faculties to grant a faculty to practise as a public notary);section 8(5) of the Public Records Act 1958 (President of the Family Division to be consulted in relation to transfer of certain records);section 5(2) or (3) of the Senior Courts Act 1981 (concurrence of Heads of Division with transfer of judges between Divisions of High Court etc);section 7(1) of the Senior Courts Act 1981 (power of Lord Chancellor, Lord Chief Justice and Heads of Division, acting collectively, to recommend alteration of Divisions of High Court etc);section 11(9) of the Senior Courts Act 1981 (concurrence of particular Heads of Division etc with Lord Chancellor’s declaration of a vacancy in the office of a judge of the Senior Courts who is permanently incapacitated and unable to resign);section 54 of the Senior Courts Act 1981 (functions of Master of the Rolls in relation to composition of courts of civil division of Court of Appeal);section 57 of the Senior Courts Act 1981 (determination by Master of the Rolls with concurrence of Lord Chancellor of sittings of civil division of Court of Appeal during vacation);section 61(5) of the Senior Courts Act 1981 (concurrence of Heads of Division concerned with assignment of business of one Division of High Court to another Division of High Court);section 63(3) of the Senior Courts Act 1981 (concurrence of Head of Division concerned with direction that business is to cease to be assigned to specially nominated judge of High Court); section 71(4)(a) of the Senior Courts Act 1981 (determination by Heads of Division with concurrence of Lord Chancellor of sittings of Divisions of High Court during vacation);section 109(2) or 110 of the Senior Courts Act 1981 (President of the Family Division may make certain arrangements in relation to documents relating to probate etc);section 111 of the Senior Courts Act 1981 (President of the Family Division may give directions as to form and content of records of grants made in the Principal Registry or a district probate registry);section 126 of the Senior Courts Act 1981 (President of the Family Division may, with concurrence of Lord Chancellor, make regulations imposing conditions on deposit of wills);section 133 of the Senior Courts Act 1981 (functions of Master of the Rolls in relation to enrolment and engrossment of instruments);section 25(3)(a) of the Administration of Justice Act 1982 (President of the Family Division may, with concurrence of Lord Chancellor, make regulations as to deposit and registration of wills);section 257(3) of the Inheritance Tax Act 1984 (President of the Family Division may make certain arrangements in relation to delivery of accounts for the purposes of that Act);section 37 of the Matrimonial and Family Proceedings Act 1984 (President of the Family Division may, with concurrence of Lord Chancellor, give directions with respect to distribution and transfer between High Court and family court of family business and family proceedings);section 1(9) of the Courts and Legal Services Act 1990 (Heads of Division etc to be consulted in relation to changes to allocation of business of High Court and county court);section 58A(5)(a), 58AA(6)(a) or 58B(7)(a) of the Courts and Legal Services Act 1990 (Heads of Division etc to be consulted in relation to certain matters relating to agreements for funding of legal services);section 56(4) of the Access to Justice Act 1999 (Heads of Division etc to be consulted in relation to changes to destination of appeals);section 57 of the Access to Justice Act 1999 (Master of the Rolls or President of the Family Division etc may assign appeals to the Court of Appeal);section 2(7) of the Courts Act 2003 (Heads of Division etc to be consulted in relation to authorisation of contracting-out of administrative work of courts);section 64(4) of the Courts Act 2003 (Heads of Division to be consulted in relation to change of judicial title);section 66(4)(b) of the Courts Act 2003 (President of the Family Division may nominate Circuit judges etc to sit as members of family proceedings courts);section 77(3) of the Courts Act 2003 (President of the Family Division etc to be consulted in relation to certain appointments to Family Procedure Rule Committee);section 78(2) of the Courts Act 2003 (President of the Family Division to be consulted in relation to certain changes to Family Procedure Rule Committee);section 92(5) of the Courts Act 2003 (Heads of Division etc to be consulted in relation to fees of Senior Courts, family court, county court and magistrates’ courts);paragraph 12(4) of Schedule 7 to the Courts Act 2003 (Heads of Division etc to be consulted in relation to regulations about enforcement officers); section 52(4) of the Constitutional Reform Act 2005 (Heads of Division etc to be consulted in relation to Supreme Court fees);section 183(7)(b) of the Legal Services Act 2007 (consent of Master of the Rolls etc in relation to fees for administration of an oath or taking of an affidavit);paragraph 1(10) of Schedule 3 to the Legal Services Act 2007 (concurrence of President of the Family Division etc with meaning of “reserved family proceedings” prescribed for the purposes of that paragraph).76E The Lord Chancellor may by order amend the list in paragraph 76D so as to—
(a) add an entry,(b) remove an entry, or(c) vary an entry.76F After section 10(6) of the Senior Courts Act 1981 (where there is a vacancy in one or more of the offices of the Heads of Division, a newly-appointed Lord Chief Justice is to take the required oaths in the presence of the holders of such of the offices as are not vacant) insert—
“(6A) Where the holder of an office mentioned in subsection (5) is incapable of exercising the functions of the office, the office is to be treated as vacant for the purposes of subsection (6).””

Amendments 94 to 103A agreed.

Schedule 13 : Deployment of the judiciary

Amendments 104 and 105

Moved by

[Lord McNally]

104: Schedule 13, page 229, line 23, after “(4))” insert “—
(a) for “judicial office holder (as defined in section 109(4)” substitute “senior judge (as defined in section 109(5)”, and(b) ”

105: Schedule 13, page 234, line 3, at end insert—
“10A (1) In paragraph 6(3)(a) of each of Schedules 2 and 3 (requests to certain judges to act as judges of First-tier Tribunal or Upper Tribunal may be made only with the concurrence of the Lord Chief Justice) omit the “or” at the end of sub-paragraph (iv) and, after sub-paragraph (v), insert “,
(vi) the Master of the Rolls,(vii) the President of the Queen’s Bench Division of the High Court of England and Wales,(viii) the President of the Family Division of that court,(ix) the Chancellor of that court,(x) a deputy judge of that court, or(xi) the Judge Advocate General;”.(2) In paragraph 6 of Schedule 2 (judges by request of First-tier Tribunal) after sub-paragraph (3) insert—
“(3A) A request made under sub-paragraph (2) to a person who is a judge of the First-tier Tribunal by virtue of section 4(1)(ca) may be made only with the concurrence of the Lord Chief Justice of England and Wales.””

Amendments 104 and 105 agreed.

Clause 20 : Payment of fines and other sums

Amendment 106

Moved by

[Lord Ahmad of Wimbledon]

106: Clause 20, page 17, line 44, at end insert—
“(1A) In section 20 of the Tribunals, Courts and Enforcement Act 2007 (transfer from the Court of Session to the Upper Tribunal)—
(a) in subsection (1)— (i) in paragraph (a), for “, 2 and 4 are met” substitute “and 2 are met, and”,(ii) omit paragraph (aa) (including the “and” following it), and(iii) in paragraph (b), for “, 3 and 4” substitute “and 3”, and(b) omit subsections (5) and (5A).(1B) In section 25A of the Judicature (Northern Ireland) Act 1978 (transfer from the High Court to the Upper Tribunal)—
(a) in subsection (2), for “, 3 and 4” substitute “and 3”,(b) omit subsection (2A),(c) in subsection (3), for “, 2 and 4” substitute “and 2”, and(d) omit subsections (7) and (8).”

[Lord Ahmad of Wimbledon]

My Lords, Amendments 106 and 107 will remove current restrictions to enable applications for judicial reviews in immigration, asylum and nationality cases, made either to the Court of Session in Scotland or the High Court of Northern Ireland, to be transferred to the Upper Tribunal.

As noble Lords may recall, the House has already considered this issue in relation to England and Wales in Committee when what is now Clause 20 was added to the Bill. I believe that it is fair to say that the Committee welcomed those provisions. Having discussed the matter further with the judiciary and the devolved Administrations in Northern Ireland and Scotland, we are now moving to replicate this provision across the United Kingdom.

The effect of these amendments would be to allow more judicial reviews on immigration, asylum and nationality matters to be heard by Upper Tribunal judges with specialist immigration knowledge and would free up judges in the Court of Session and the High Court in Northern Ireland to deal with other complex civil and criminal work.

Amendment 108 also aims to ensure consistency in the justice systems across the United Kingdom by reintroducing the second-tier appeals test for applications to the Court of Session to appeal against a decision of the Upper Tribunal. The rule of court which introduced this test in Scotland was found to be ultra vires in a decision of the Inner House and, as a result, the rule was revoked by the Lord President. The test requires that, in order for the Court of Session to grant permission to appeal, it should be satisfied that the proposed appeal raises an important point of principle or practice, or that there is some other compelling reason to hear the appeal.

My noble friend Lord Avebury has tabled two amendments seeking to limit or remove the second-tier appeal test in nationality and immigration cases. I do not wish to prejudge what my noble friend has to say and I will, of course, respond in due course, when we come to the next group. However, as Amendment 108 suggests, the Government fully support a second-tier appeals test throughout the United Kingdom.

In summary, the Government believe that where an appeal has been heard and determined by both the First-tier Tribunal and the Upper Tribunal, it seems entirely appropriate that the test to take the matter to a third judicial body should be high. Furthermore, the test is designed to manage effectively the flow of cases to the Court of Appeal and ensure that the court’s attention is focused on the most important cases.

As I have indicated, Amendments 106, 107 and 108 will ensure that there is a consistent framework across the United Kingdom and will remove the spectre of forum shopping between jurisdictions. I therefore beg to move.

[Lord Avebury]

My Lords, can my noble friend confirm that these provisions concerning Scotland will be the subject of a debate on a Sewel motion in the Scottish Parliament? Your Lordships may recall that when we debated the Bill that became the Borders, Citizen and Immigration Act 2009 in your Lordships' House, the Court of Session stated very clearly in its response to the government consultation, Immigration Appeals: Fair decisions, Faster justice, that it regarded the proposed transfer as premature. The Scottish Government had expressed similar concerns and had asked the UK Government not to proceed with the change at that time. I would be most grateful if my noble friend could respond to that point.

[Lord Ahmad of Wimbledon]

My Lords, Amendments 106 and 107 would not in themselves lead to any cases being transferred from the Court of Session or the High Court of Northern Ireland to the Upper Tribunal. It is simply an enabling power. In Scotland, an act of sederunt would need to be made by the Lord President, with the agreement of the Lord Chancellor, before any class of judicial reviews could be transferred from the Court of Session to the Upper Tribunal. The Court of Session will continue to have the discretion to transfer other applications for judicial reviews relating to reserved matters not specified in the act of sederunt by order.

I say to my noble friend that the same is true for Northern Ireland. Before the transfer of a class of judicial review cases from the Northern Ireland High Court to the Upper Tribunal, a direction would be made. As such, a legislative consent motion would not be required.

Amendment 106 agreed.

Amendments 107 and 108

Moved by

[Lord McNally]

107: Clause 20, page 18, line 1, leave out “subsection (1), section 53(1)” and insert “subsections (1) to (1B), section 53”

108: After Clause 20, insert the following new Clause—
“Permission to appeal from Upper Tribunal to Court of Session
In section 13 of the Tribunals, Courts and Enforcement Act 2007 (right to appeal from Upper Tribunal) after subsection (6) insert—“(6A) Rules of court may make provision for permission not to be granted on an application under subsection (4) to the Court of Session that falls within subsection (7) unless the court considers—
(a) that the proposed appeal would raise some important point of principle, or(b) that there is some other compelling reason for the court to hear the appeal.””

Amendments 107 and 108 agreed.

Amendment 108ZA

Moved by

[Lord Avebury]

108ZA: After Clause 20, insert the following new Clause—
“Immigration and nationality appeals from the Upper Tribunal
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”

[Lord Avebury]

My Lords, noble Lords will be relieved to hear that I am not going to repeat the arguments that were advanced when these proposed new clauses were debated in Committee. But I should remind noble Lords that the first new clause would remove altogether the additional and highly restrictive requirement to show an important point of principle, practice or some other compelling reason in immigration and nationality appeals generally from the Upper Tribunal to the Court of Appeal. The second new clause removes that requirement only where the grounds of appeal include refugee or human rights grounds.

My noble friend Lady Northover, who replied to the amendment in July, agreed that the class of cases that we are dealing with can be both complex and of the utmost importance. They deal with grave problems that deserve the anxious scrutiny of the court system. But she claimed that the second-tier appeals test provided just that.

However, I also observed that because of the increased rotation of judges under the Bill, inevitably there would be judges in the Upper Tribunal who would be less familiar with the complexities of immigration and asylum law. In the case of PR (Sri Lanka), which I mentioned on the last occasion, Lord Justice Carnwath said at paragraph 39:

“Parliament has thus provided a statutory framework within which the Senior President and Chamber President should be able to ensure that the gateway to appeals to that level is controlled by judges of appropriate status and experience”.

I fear that that may not always be the case.

In the same case, the Court of Appeal found against the argument that there was a compelling reason for allowing PR's application to appeal from the Upper Tribunal’s adverse decision. It was acknowledged that he had been tortured and that the Second-tier Tribunal had corrected an error of law on the part of the First-tier Tribunal. But the Court of Appeal concluded that:

“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as require the attention of the Court of Appeal”.

That reference was not picked up in our previous debate, nor did the Minister say anything about the Court of Appeal's remark that it would be wrong in principle for it to be constrained by ministerial assurances on asylum cases given in 2010.

There was also the point that because of the LASPO Act there would be more unrepresented appellants in the Upper Tribunal, which has already been mentioned on a previous debate. One cannot help feeling that the real reason the Government have got to this point is concern that the rights of immigrants and asylum-seekers, never a popular minority, are being subordinated to the need to ration scarce judicial resources. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, put it, and quoted with approval in PR (Sri Lanka):

“The rule of law is weakened not strengthened if a disproportionate part of the court’s resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”.

Personally, I cannot think of any more compelling circumstances than the risk that a person may be tortured. I am sorry if the Government do not agree with me. I beg to move.

19:00

[Lord Ahmad of Wimbledon]

My Lords, as my noble friend Lord Avebury has explained, his Amendments 108ZA and 108A also relate to the second-tier appeals test. These amendments seek to remove immigration and nationality appeals, or alternatively those relating to the Refugee Convention or the European Convention on Human Rights, from the scope of the second-tier appeals test. We debated similar proposals in Committee on 4 July.

As my noble friend Lady Northover said at that time, the Government fully appreciate the serious nature of these kinds of appeals, as do the courts. In fact, the immigration and asylum chambers in the First-tier Tribunal and Upper Tribunal were created expressly to deal with these matters and are composed of judges who are experts in this particular area. The Government remain satisfied that they provide the expert rigorous scrutiny that is required in appeals of this kind.

It is therefore the Government’s view that it is neither necessary nor desirable to make it easier for appeals to continue on to a third judicial hearing, unless there is a very good reason for doing so. The test which is applied at present is either that the proposed appeal would raise some important point of principle or practice, or that there is some other compelling reason for the relevant appellate court to hear the appeal.

Removing the test in these cases could see the Court of Appeal in receipt of a high volume of cases which would not have been granted permission under the second-tier appeals test and which may further slow down decisions on some of the most important cases heard there. The test allows judges to determine which cases have a compelling reason to reach the Court of Appeal, a situation which the Government are keen to see continue.

My noble friend also raised the issue that the Court of Appeal in PR (Sri Lanka) ruled that the second-tier appeals test did not allow permission to appeal for individuals facing torture or death on their return to their country of origin. The judgment in this particular case upheld the current system and the suitability of the Upper Tribunal to make decisions on matters of this nature. The judgment specifically states that:

“The two tiers of the Tribunal system are, and are plainly to be regarded as, competent to determine matters of this kind”.

It then goes on to say:

“In short, there is no case for contending that the nature of an asylum-seeker’s case which has failed twice in the Tribunal system is a compelling reason for giving permission for a further appeal”.

These cases have already been heard in the most appropriate part of the system and the second-tier appeals test allows sufficient discretion for judges to grant permission to appeal where they see that there is a compelling reason to do so.

My noble friend Lord Avebury is someone who I personally regard as a great champion of human rights and he is someone who has stood firm in ensuring that, where there is torture across the world, people who come to this country are fully protected. I totally align myself with the sentiments that he has expressed. However, the position of the Government is clear. Finally, I would add that the courts have been clear that there is no reason to believe that the United Kingdom would be in breach of any international obligation if appeals from the Upper Tribunal are available only under the second-tier appeals test.

I would therefore urge my noble friend to withdraw his amendment.

[Lord Avebury]

My Lords, I am most reluctant to withdraw the amendment, but I can see that at this point in the Bill it would be purposeless to press the matter to a Division. I can say only that I am really disappointed in the reply that I have had from my noble friend. I am sure that I am not going to be the only one to feel that emotion. I know that the Immigration Law Practitioners’ Association has submitted a detailed argument on this matter to the Government as well to your Lordships who are likely to take part in this debate. I do not feel that adequate justice has been done to the force of its arguments. But, as I say, I do not see any reason why I should press this to a Division this evening. I therefore beg leave to withdraw the amendment.

Amendment 108ZA withdrawn.

Amendment 108A not moved.

Amendment 108AA

Moved by

[Baroness Deech]

108AA: Before Clause 21, insert the following new Clause—
“Appeals relating to regulation of the Bar
(1) Section 44 of the Senior Courts Act 1981 (extraordinary functions of High Court judges) ceases to have the effect of conferring jurisdiction on judges of the High Court sitting as Visitors to the Inns of Court.
(2) The General Council of the Bar, an Inn of Court, or two or more Inns of Court acting collectively in any manner, may confer a right of appeal to the High Court in respect of a matter relating to—
(a) regulation of barristers,(b) regulation of other persons regulated by the person conferring the right,(c) qualifications or training of barristers or persons wishing to become barristers, or(d) admission to an Inn of Court or call to the Bar.(3) An Inn of Court may confer a right of appeal to the High Court in respect of—
(a) a dispute between the Inn and a member of the Inn, or(b) a dispute between members of the Inn;and in this subsection any reference to a member of an Inn includes a reference to a person wishing to become a member of that Inn. (4) A decision of the High Court on an appeal under this section is final.
(5) Subsection (4) does not apply to a decision disbarring a person.
(6) The High Court may make such order as it thinks fit on an appeal under this section.
(7) A right conferred under subsection (2) or (3) may be removed by the person who conferred it; and a right conferred under subsection (2) by two or more Inns of Court acting collectively may, so far as relating to any one of the Inns concerned, be removed by that Inn.

[Baroness Deech]

My Lords, I rise to speak to Amendments 108AA and 122AA.

In brief, these amendments seeks to transfer the jurisdiction for appeals by barristers—or in some cases the Bar Standards Board—against certain disciplinary matters from the visitors to the Inns of Court to the High Court. The transfer of the visitors’ jurisdiction is something that the senior judiciary and the Bar Standards Board have been working towards for a number of years. We welcome an opportunity to get this into the law. I trust that the Government will accept these amendments.

The background is that judges have long exercised an appellate jurisdiction in relation to the regulation of barristers. Since 1873, judges of the High Court have been exercising this function as part of their so-called extraordinary functions in their capacity as visitors to the Inns of Court. In exercising this jurisdiction, the law being applied is derived from the constitution of the General Council of the Bar and the Inns of Court to which all barristers subscribe.

For some time, the Bar Standards Board has been in discussions with the judiciary about transferring the jurisdiction formally to the High Court. The current system is anachronistic and there is general agreement that it should be updated. As these appeals are already heard by High Court judges, the main impact of the change would be to enable these cases to be dealt with in the usual manner via the normal list in the Administrative Court. This is consistent with the disciplinary arrangements for solicitors and would save time and administrative burden for the courts service.

The clause was previously included in the draft Civil Law Reform Bill in the previous Parliament, but it was unable to be proceeded with for lack of time. This is why I hope the Government will now accept it. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, as the noble Baroness, Lady Deech, has explained this new clause abolishes the jurisdiction for High Court judges to sit as visitors to the Inns of Court and confers on the Bar Council and the Inns of Court the power to confer rights of appeal to the High Court in relation to the matters that were covered by the visitors’ jurisdiction.

The Government agree with the noble Baroness that the practice of High Court judges sitting as visitors to the Inns of Court is inappropriate. The new clause does not itself abolish appeals to visitors or automatically create a right of appeal to the High Court; it is for the Bar Council, the Inns of Court and their regulatory bodies to determine any new arrangements in this respect. However, once the clause is commenced, the practice of High Court judges sitting as visitors in exercise of their extraordinary functions as judges would cease. This is achieved by repealing Section 44 of the Senior Courts Act 1981 in so far as it confers jurisdiction on High Court judges to sit as visitors to the Inns of Court and enabling instead a right of appeal to be conferred to the High Court for barristers and those wishing to become barristers.

The role of judges as visitors is long-standing but somewhat opaque. Repealing the current jurisdiction and conferring express powers to create rights of appeal in respect of the relevant decisions is preferable because it promotes clarity and certainty, which are rightly the aims of modern law.

As the noble Baroness, Lady Deech, has proposed, the power to confer rights of appeal to the High Court would be available in relation to all matters in respect of which the visitors currently have jurisdiction. Under the current regulatory arrangements of the Bar Council, the visitors’ jurisdiction includes disciplinary decisions of the Council of the Inns of Court and decisions taken by the Bar Council’s Qualifications Committee. It would also include disputes between Inns and their members, or those wishing to become members, in recognition that historically the visitors’ jurisdiction extended to appeals from all decisions relating to the conduct of an Inn’s affairs. Abolishing the role of judges sitting as visitors is supported by the Lord Chief Justice, the Bar Standards Board, the General Council of the Bar and the Inns of Court. Enabling appeal to the High Court instead will improve administrative efficiency and transparency, and at the same time make the appeal arrangements for barristers more consistent with those for solicitors. I am therefore grateful to the noble Baroness for bringing this matter before the House and the Government are happy to support the amendment.

Amendment 108AA agreed.

Clause 21 : Payment of fines and other sums

Amendment 109

Moved by

[Lord Touhig]

109: Clause 21, page 18, line 8, at end insert—
“( ) In fixing such an amount, and subsequent additions, account must be taken of the person’s relevant weekly income, excluding housing benefit and child related benefits, and allowance must be made for the protection of a reasonable financial subsistence level, in the manner used to determine the initial fine.”

[Lord Touhig]

My Lords, the intention behind this amendment is to ensure that the new financial penalties imposed on people who make late or incomplete fine repayments do not in any circumstances force individuals or families below a reasonable level of subsistence. In particular, it seeks to safeguard the level of income necessary to sustain housing security and to meet the basic needs of dependent children. It is based upon the means-testing system already used to set fines which is accepted by the Government as a suitable mechanism for ensuring that, while offenders feel financial hardship, their welfare and that of their family is not jeopardised as a result. The noble Lord, Lord McNally, in a Written Answer to a Question I posed, stated:

“There is a very fine balance between protecting vulnerable debtors as well as ensuring that justice is served and the order of the court is met”.—[Official Report, 24/9/12; col. WA345.]

I believe that this amendment falls on the correct side of that line; it will prevent neither the penalisation of those who do not keep to their payment plans nor the unprecedented step of recovering operational costs in such cases. It will simply mean that in some situations where this process could hinder a person’s ability to pay for necessities such as rent or family meals, the precise amount recoverable will be adjusted.

The level of concern about the absence of any such safeguard in the Bill as it stands is reflected in the support for this amendment from a number of charities. These include Housing Justice, the largest Christian housing charity in the UK; the Zacchaeus 2000 Trust, a London-based charity for vulnerable debtors; Depaul UK, which works nationwide with disadvantaged young people; and the Catholic Children’s Society in Westminster, which works with some of the poorest families in this area.

I am grateful to the noble Lord, Lord McNally, for agreeing to meet me last week to discuss my concerns about this matter, but he knows that I left the meeting feeling somewhat concerned because I learnt that one of the most worrying aspects of Clause 21 is that the charging structures for the new penalties will not be laid before Parliament, but will be set following commercial negotiations with the firms contracted to collect fine payments—and this will not happen until after Parliament has passed the legislation. In effect, we are being asked to write a blank cheque for unknown contractors with no inbuilt safeguards to ensure that the most vulnerable individuals and families will be protected from threats to their basic subsistence income. With this clause, our system of justice will depend on the negotiating skills of civil servants pitted against private contractors out to make a profit.

The Courts and Tribunals Service, responding to a freedom of information request on October 3, said that the penalties will be set in proportion to the actual costs of chasing up a late or incomplete repayment. But I have discovered that the service does not hold information relating to the average cost of such processes. This means that any reasonable estimation of the likely amounts that people will be charged is impossible to make. In Committee on 2 July at col. 539 the noble Baroness, Lady Northover, admitted that in practice the actual amount may sometimes even exceed that of the initial fine. Moreover, we have seen no substantive analysis of the likely impact on children or on housing security, neither of which is explicitly addressed in the impact assessment.

The Courts and Tribunals Service, in a letter to the Caritas Social Action Network on 5 November, stated that, “we do not believe there will be significant impact on a child’s welfare”. But in another freedom of information request dated 3 September, I find that the service does not hold information on the family profiles of those sentenced to pay fines. It is therefore unable to project how many dependent children are likely to be affected. Similarly, the absence of information on the housing situations of those currently failing to meet fine payment plans prohibits any projection of how the new penalties will affect people’s ability to meet rent payments. In a letter to the Caritas Social Action Network, the service sought to provide reassurance by predicting that the penalties will be “small and proportionate”. But as those with experience of working to support people in financial hardship will know only too well, any amount regarded as small in some circumstances will in fact be very significant in others. This is particularly significant at a time when an increasing number of families are struggling to meet the costs of essentials including heating, food and rent. Even a small change in their income will often have serious consequences.

19:15

I hope that the Government recognise the danger of legislating for unspecified financial penalties without providing any safeguards that allow for downward adjustment in cases where people risk being so severely affected. Such safeguards are all the more important considering that the penalties will be processed using a new and untested computer system which the Government have not yet even purchased.

As it stands, Clause 21 also raises the prospect of consequences relating to payday loans, an issue I know to have been of concern to many noble Lords in recent days. Increasingly, those facing financial difficulty turn to these loans as a short-term solution, yet as we know, all too often they serve only to exacerbate hardship in the long run. It is against this backdrop that I have found, again through a freedom of information request, that neither the Ministry of Justice nor the Department for Work and Pensions have made any assessment of the relationship between payday loans and fines, either in the context of this Bill or more broadly. Payday loans and the frequently unsustainable levels of interest that accompany them may be both a cause and a consequence of somebody failing to meet their fine payment plan. It would be unwise to risk exacerbating this situation by the imposition of further non-means-tested sums without any thorough analysis.

The Government have rightly said that offenders who run into difficulty can contact the court to explain their situation, and that is most welcome. However, in many cases people in hardship fail to utilise these options, and while they may be penalised for that, it is important that their fundamental well-being is not put at risk as a result. It is also worth noting that despite government assertions that Clause 21 is aimed at deliberate evaders or fine dodgers, there is a range of other reasons why somebody may miss a payment without getting in touch. It could be the result of other unexpected costs, the pressures of a family breakdown, a misunderstanding of the system, or in some cases even a lack of phone credit to get in touch. People with addictions, mental health problems or poor literacy skills may be even less likely proactively to contact the court when it becomes apparent that they will struggle to make a payment. Indeed, in another Written Answer the noble Lord, Lord McNally, told me that the Government,

“does not collect detailed offender profile information which shows the reasons why offenders fail to comply with their payment plans for fines”.—[Official Report, 17/7/12; col. WA27.]

The presumption of deliberate evasion is not only unfounded, but may also risk unduly burdening already vulnerable people.

Finally, I turn to the comments of the noble Baroness, Lady Northover, in Committee. She said that,

“if on experiencing financial hardship a person wishes to appeal or to be referred back to the court, the court will have the discretion to remit part or all of the administration costs following consideration of all the issues”.—[Official Report, 2/7/12; col. 538.]

While that option is reassuring, given that the average cost of an appeal is in excess of £360, it would surely be more effective from a cost-saving point of view to have an inbuilt safeguard that will prevent the imposition of these costs pushing people below a reasonable subsistence level. Similarly it is important to take account of the public costs that will be incurred should a person and his or her family need emergency accommodation or the intervention of social services in the period between a penalty being imposed and a court appeal. Even more significantly, we know that many people—again for a range of reasons—will have neither the capacity nor the confidence ever to make the appeals themselves.

As I said in Committee and repeat now, I do not oppose the principle behind this clause. I firmly believe that people must face up to their financial responsibilities by meeting the fines in full and on time. However, in cases where they fail to do so, for whatever reason, there must be protections against additional costs recovery cutting into the minimum income required for their most basic needs—a roof over their heads and a means to feed themselves and their children. Before giving contractors the power to impose new penalties we should, as a minimum, ensure that some options of downward adjustment are available for the most severe cases. By simply extending the current means-testing system that is already successfully applied to fines, we can avoid pushing people into poverty, increase the likelihood of full payment and prevent expensive appeals. I beg to move.

[The Earl of Listowel]

My Lords, I support the amendment and—

[Lord McNally]

My Lords, because I have three amendments in this group it may be helpful if I intervene now. I will, of course, respond at the end of the debate to the points that are made.

I pay tribute to the noble Lord, Lord Touhig, who has a personal commitment to and involvement in this area. I found our recent meeting extremely useful. On fee levels, I am advised that it is normal practice at this stage of the legislative process not to set fee levels. It is certainly not unprecedented. Perhaps I may also take up the point the noble Lord made in closing. We are talking about fines imposed by the court. There is a responsibility on the offender to pay those fines and a responsibility on the Government to put in place a means of collecting them. It is also important that we look at making affordable financial penalties so that they do not produce the devastating impact that the noble Lord referred to.

The Government take the view that the recovery of collection costs provided for in Clause 21 differs greatly from means-tested fines. A fine is a financial penalty imposed by the court as punishment for a criminal offence. The level of fine is based on the seriousness of the offence and the offender’s ability to pay. On the other hand, collection costs are administrative charges which would apply only as a means of recovering the costs of collecting a fine following a default. They are not intended as a further punishment. The collection costs will be proportionate and have a direct correlation to the actual costs of collecting the unpaid fine. To introduce a means-tested charge, as the noble Lord suggests, would create a complex and resource-intensive administrative system which would increase the operational costs, thus leading to increased collection costs overall.

The Government are doing everything they can to ensure that individuals avoid defaulting in the first place and that fines are not set at a level that is inappropriate and unaffordable. We all agree that fines set at the wrong level are to no one’s benefit. The House should be aware that fines officers have the powers to determine payment plans to help individuals manage their fine payments. Furthermore, we introduced amendments to the Bill in Committee which enable the sharing of data between government departments—primarily Her Majesty’s Courts and Tribunals Service, the Department for Work and Pensions and Her Majesty’s Revenue and Customs—for the specific purpose of ensuring that fines and other financial penalties are set at the right level in the first place.

The additional charge to meet collection costs is avoidable. If a person maintains contact with the court and is complying with the payment plan or pays on time as ordered, they will face no extra costs. I re-emphasise the importance of offenders engaging with the justice system from the onset, particularly if they may have difficulty in paying the fine immediately. It must be remembered that should an individual suffer hardship, they can have their case referred back to the court, which can remit all or part of the collection charges. This provides a strong safeguard. However, it must not be forgotten that ultimately it is the offender’s obligation and responsibility to comply with a court order.

The noble Lord, Lord Touhig, questioned whether it was right to bring forward legislation without setting out the proposed collection costs structure. It is perfectly correct for Parliament to agree the principle of collection costs before the exact costs are finalised. As I said earlier, the collection costs will relate to the direct costs of enforcing an unpaid fine. Therefore, until we commence the procurement tender for fine collection services and see the proposals and costs of the bids, we are unable to give an indication of what the exact collection costs will be. However, I can assure noble Lords that companies will not be able to charge disproportionate fees in order to make a profit and we will publish a revised impact assessment before commencing these provisions.

Government Amendments 110 and 123 create new powers for Her Majesty’s Courts and Tribunals Service to access data held by Her Majesty’s Revenue and Customs for the purpose of enforcing outstanding financial penalties. These new powers will complement those that I have already described in relation to data sharing prior to sentencing. These measures will help Her Majesty’s Courts and Tribunals Service enforce unpaid fines and compensation orders by allowing the courts to obtain additional information on defaulters for more effective and targeted use of attachment of earnings orders.

Under the Courts Act 2003, courts are already able to access an offender’s social security information from the Department for Work and Pensions if the offender has defaulted on the payment of their fine or compensation order and the court is trying to enforce payment. The government amendment will extend these data-sharing arrangements to cover information held by Her Majesty’s Revenue and Customs—for example, earnings from employment.

Amendment 115 makes a technical amendment to Schedule 16 to ensure Her Majesty’s Courts and Tribunals Service can access the full range of information held by the Department for Work and Pensions for the purposes of sentencing an individual.

We treat data protection extremely seriously and, like all our other data-sharing provisions, these provisions are subject to rigorous safeguards. Accordingly, data will be shared only with authorised individuals in Her Majesty’s Courts and Tribunals Service, which may use the information only for the purpose of enforcing an unpaid financial penalty. If the information is supplied or disclosed for any other purpose, with certain specific exceptions, the person supplying the data will be guilty of a criminal offence punishable by up to six months’ imprisonment. The Information Commissioner’s Office has been consulted and has welcomed the proposals on the basis that access to shared data will be limited and will be used for specific purposes. I hope that enables a more rounded debate.

19:30

[The Earl of Listowel]

My Lords, I am grateful to the Minister for intervening in that helpful way and for giving that information. I have put my name to the amendment because I share the concerns expressed so eloquently by the noble Lord, Lord Touhig.

It is a naughty time, particularly for the most vulnerable and impoverished families. It is a very hard time and children need enduring and reliable relationships above all. We would want that for all children. The difficulty is that when families are pushed to the very edge it becomes more and more difficult for them to be in reliable and enduring relationships with their children. Pressures are put on the parental relationship and on the attention that parents can give to their children. We heard from the noble Lord, Lord Touhig, about concerns that parents are so short of money that they cannot afford to heat the home and put food on the table. What sort of pressure does that put on the family when parents cannot look after their family in that way? I am aware of this from meeting parents, mostly mothers, of families in temporary accommodation provided by Barnardo’s and also from going out on visits with health visitors and speaking to mothers. It certainly helped me to understand how, in the past, parents have really struggled on the edge of society. Today, in these circumstances and in the financial conditions we are in, it is hard to conceive how difficult it must be for some families to care for their children as they need to.

I am worried about this and am very grateful for the care that the Minister has taken in taking this forward. I was pleased that he could meet the noble Lord and I was sorry I was not able to join that meeting. What he said is certainly helpful, although I am looking at my notes of what he said to see whether there is anything I can come back on now. I do not think there is. I will finish at this point and look forward perhaps to hearing a little more reassurance in his final comments.

I share the concern of noble Lords that we must do everything possible to protect the most vulnerable families at this very difficult financial time. Many of these families are quite chaotic. They may not open their letters and may be in all sorts of messes. There are also people who prey upon them. Just last week I was speaking to a care leaver in her second year at university. She came from an estate in Stockport where she said there were no expectations—she was expected to have children in her teenage years and that would be her life. However, she has gone on from care to university, where she is now in her second year reading law. She says that when she goes back home, there are three predatory loan sharks on her estate. They will lend money—£250 for Christmas but if you do not pay it back by June next year you have to pay £500. There are all sorts of people who prey on these vulnerable families so, as far as possible, we need to protect them as we legislate here today.

[Lord Beecham]

My Lords, I also strongly sympathise with my noble friend’s amendment, in particular in connection with his reference to the cost of collection. I suspect we will return to that issue when the noble Baroness, Lady Meacher, moves her amendment in relation to bailiffs, because, as was mentioned in Committee and no doubt will be mentioned again today, the cost of collection is often wholly disproportionate to the amount of the fines, particularly when it is in the hands of private firms contracted to either local authorities or the courts. It is quite a different matter when the courts have their own collection services run by their own staff.

There will be considerable concern about the potential direct costs, and the indirect costs, if families are driven further into poverty and we have the problems of homelessness, children being taken into care and the like. It seems that the Government’s intention to outsource this work is likely to aggravate what might be a difficult problem in any event. Clearly, the Government are not going to make any further move on this. That is a matter for regret and certainly something that we will have to keep a collective eye on in future, particularly the likely impact on local authorities if things go wrong and families are unable to maintain the costs.

It is perfectly true that those who receive a financial penalty are obliged to pay it, but the likelihood is that it will not just be them who suffer but their dependants. That has financial as well as social implications. I had hoped that the Government would react rather more positively to my noble friend’s amendment but it does not look as if that is likely to happen. That is a matter of regret and it will be for my noble friend to decide whether he tests the opinion of the House at this very late stage. I suspect he may well not do so, but the issue will not go away. We will undoubtedly want to probe whatever arrangements are ultimately made with those who will be responsible for making these collections.

[Lord McNally]

My Lords, I am grateful for those interventions. The points made by the noble Lord, Lord Touhig, the noble Earl, Lord Listowel, and the noble Lord, Lord Beecham, are undeniable. There are people whose lives are so dysfunctional and chaotic that they can get into a complete downward spiral in how they manage their lives. It is extremely important that we try to make sure that what happens to them does not make that downward spiral worse.

I am pleased that the noble Lords, Lord Beecham and Lord Touhig, acknowledge that we are dealing with people who have offended, who have been before a court and who have been given a fine. As I said in my opening remarks, if they follow the instructions of the court, they should be able to avoid the worst of the kind of downward spirals that both the noble Earl, Lord Listowel, and the noble Lord, Lord Touhig, referred to. As a former Member of Parliament for Stockport, I could take a rough guess at the estate from which the young lady who was mentioned came. Her story is the other side of the penny to what can sometimes be the bleakest of stories. I have a great-niece who works for Blackpool social services and the stories that she tells me of the sheer dysfunctionality of the some of the families that she has to deal with are out of the range of most of our normal lives.

I do not underestimate this and although I will ask the noble Lord, Lord Touhig, to withdraw his amendment, I emphasise again that, in cases where the most vulnerable are sentenced to pay a fine, it may be deemed appropriate for the court to issue a deduction from benefits order, where a maximum level, which is currently set at £5 a week, can be automatically deducted from the person’s benefits to pay their financial penalty. This is capped at a level so that it does not significantly impact on the person or cause further hardship. This maximum weekly deduction from benefits will not be increased by the introduction of the collection costs, so there is some safety net there.

As I said in opening, the costs will be set at a level that is proportionate to the actual costs of collecting the fine. We are trying and we will be returning to this when we debate the amendment of the noble Baroness, Lady Meacher. On the one hand, we have to be aware of these dysfunctional individuals and families who come into the justice system. However, we have to operate that system and try to get the balance right between the instilling of proper responsibility when it comes to fines imposed by the court and the collection of those fines, so that they do not become a kind of option but are real and we have the means of making sure that they are enforced. At the same time, we must try to ensure that a just punishment of the court does not spiral into unjust impacts on other individuals associated with the person who has to pay the fine.

These are difficult and complex decisions. We hope that we have got them right. I certainly do not object to the noble Lord, Lord Touhig, bringing this matter before the House and his continuing interest in this area. I assure the House that the Government will continue to examine this carefully to see what reforms we can bring forward. The noble Earl, Lord Listowel, referred to the operation of loan sharks. That is something that we need to look at with some urgency as well. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.

[Lord Touhig]

My Lords, when the Minister came to the Dispatch Box straight after I spoke, I did feel a sense of excitement—I thought he was going to accept my amendment. I thought, “My goodness, there is another Christmas card I will have to send this year”. I am disappointed that the Government do not feel able to support this perfectly reasonable amendment. I fully understand the point the noble Lord makes and I share the view that people who commit offences and are fined should pay those fines. However, I am sure that nobody in this Chamber knows the level and degree of poverty that the people we are talking about tonight experience. The fines might not be a large amount to us but £15 is two weeks’ electricity for a poor family. I fully accept that those who commit the crime should pay the penalty but it is their children and other dependants who ultimately pay the price and suffer far more, perhaps, than the people who are brought before the courts.

I welcome the noble Lord saying that there will be a further impact assessment. Perhaps I may tease him with this idea. Is he prepared to have some discussions about what could be included in that impact assessment? Those of us who have concerns, such as the noble Earl, Lord Listowel, and others, might be able to suggest what should be looked at. In that way, we might arrive at better legislation that will not make victims of the children and dependants of people who commit these crimes, who are innocent in all these matters and will have a more difficult life as a result.

[Lord McNally]

As I said in my opening remarks, I know how deeply concerned the noble Lord and the noble Earl, Lord Listowel, are about these matters. I would be glad to have further talks with them on what is to be covered by an impact assessment.

[Lord Touhig]

What can I say? I am most grateful to the Minister and he will certainly be on my Christmas card list. In view of the lateness of the hour, I do not intend to test the opinion of the House at this stage. I am most grateful for the comments made in the debate and I beg leave to withdraw the amendment.

Amendment 109 withdrawn.

Consideration on Report adjourned until not before 8.43 pm.

Future Homes Commission Report

Tuesday 4th December 2012 Lords Chamber

Question for Short Debate

19:43

Asked by

[Baroness Whitaker]

To ask Her Majesty’s Government what is their response to the report by the Future Homes Commission Building the Homes and Communities Britain Needs.

[Baroness Whitaker]

My Lords, when I first became interested in housing decades ago, the late and much lamented Victor Rothschild, then head of the Government’s first think tank, the Central Policy Review Staff, said, “Is it impossible to have a sensible housing policy?”. That problem has never seemed solved to me, and this is confirmed by the very good Library note rounding up government initiatives—of which there have been several—ideas from many experts and some very sad statistics.

However, this new report, by an independent commission set up by the Royal Institute of British Architects, makes a very good stab at a large part of the solution. Its members are neither developers nor architects nor planners, but an eminent businessman and public servant as chair, Sir John Banham; a retired civil servant of great distinction, Dame Mavis McDonald, whom I remember as a rising star in the then Ministry of Housing and Local Government; and two more very distinguished members, the criminologist and film-maker, Roger Graef, and the property analyst, Kate Faulkner.

This commission took a sharp and clear look at what is generally recognised to be a dire housing situation: nearly 2 million households currently on the housing list, well over 50,000 homeless, and more than that in temporary accommodation. As Professor Steve Nickell put it, the queue for social housing has doubled since the turn of the century. The private sector is not delivering either, and planning laws are not the problem: there are 400,000 outstanding planning permissions for residential housing. We have been underinvesting in domestic housing for a long time.

The commission found another problem, less often commented on: the quality of new-build homes is now so poor that only one in four people would consider buying one. Most people would choose to buy a century-old home, with all its high running and maintenance costs, rather than one of the poky and poorly designed homes, with too little storage space, too little natural light, poor privacy and noise protection, difficulties in adapting to different needs and general dinginess, which are all too common now in this country, which was once the envy of Europe for its domestic housing but is now falling far short of the space standards in the rest of Europe.

The commission’s remedies are equally clear. To summarise very crudely, it points out, first, that we must have a threefold increase in the number of new homes built every year, from 100,000 to 300,000—and incidentally, the idea that there is insufficient space for building is proven to be a myth, with only 11% of our land built on and plenty of brownfield land; secondly, that funding for this could be kick-started by a pooling of 15% of local authority pension funds assets into an independently managed local housing development fund, investing in both rental and shared ownership housing; thirdly, that we can no longer try to provide proper homes without strengthened design standards; and, finally, that home buyers and communities must have the kind of information that enables them to make an informed choice, and that local government is the paramount institution for taking all this forward.

This very quick summary hardly does justice to the well argued and well evidenced proposals of the commission. The investment proposals are particularly well worked out. I urge noble Lords to read the report for themselves. It is not long and it is written with exemplary clarity.

I would like to move on to what can be done now. The funding process is all-important in these hard times. The Pensions Institute’s latest report draws attention to the deficit suffered by many funds, so a 6% return, likely under the commission’s proposals, would be very welcome. Can the Minister tell me whether the Government have looked at what barriers there might be to local government pension funds pooling their assets and how these could be overcome? Can she set in hand a review of local government pension fund investment regulations to make wide investment in local infrastructure and housing a practical possibility? My noble friend Lord Rogers, who very much regrets that he cannot be here tonight, told me that in Canada pension funds invest in development. Perhaps the department could have a look at the Canadian system.

As for quality, do the Government acknowledge the extraordinary importance of good design, of the total place as well as the home itself, for the well-being, security and prosperity of our citizens? If the Minister accepts this—as I am sure she does—will she look again at the need for space and storage standards? If the Mayor of London can achieve them in London, why should the rest of the UK be deprived of their benefit? Will this form part of the current review of housing standards? Let us also acknowledge that if a new housing development is attractive and of high quality, sensitively attuned to place, residents are very much less likely to object.

There are other powerful recommendations relating to transparency and better information, and which address the current fragmentation of the development process, which noble colleagues will deal with. I welcome the great expertise of the speakers in this debate.

I simply want to draw the attention of this House and the Government to the supremely well informed and clear pathway out of the quagmire of our senseless housing situation presented by this report, and urge action. It was the planning Minister himself, Nick Boles MP, who said last week that having a house with a garden was a basic moral right, like healthcare and education. While I am not too sure about the garden, the idea that a decent home for everyone is fundamentally important does not seem to be comprehensively lodged in government policy. Someone tweeting a response to the report said:

“I think the important thing would be to ensure that appropriate accommodation and shelter is recognised as the human right that it is supposed to be”.

Now can we have a sensible housing policy?

19:50

[Baroness Maddock]

My Lords, I thank the noble Baroness, Lady Whitaker, for initiating this important debate. I do not know if she is aware of it but today the leader in the Times led on the need for more housebuilding and highlighted some of the issues which she has already highlighted tonight and we will discuss further this evening.

We on the Lib Dem Benches find that there is much to support in the report to the Future Homes Commission. As Lib Dems our party policy is developed by our party members and is vigorously discussed before being voted on at our party conferences. Last September we passed a policy paper called Decent Homes for All. In it we set out plans to get to building 300,000 homes a year. The Future Homes Commission report also calls for this.

Perhaps I may highlight a couple of things that we have done in coalition Government. The Government have allocated £500 million to the Growing Places Fund, which is aimed at kick-starting stalled housing projects. The Infrastructure (Financial Assistance) Act earmarks £10 billion of Treasury investment to go towards helping what we call “shovel-ready” housing projects to get started. I am pleased to say that in the recent issue of Inside Housing, which I get every week, figures showed that,

“the decline in new house building has stabilised after more than a year of steady falls”.

That is some good news on this front.

The commission report suggests that more land be made available, and makes a convincing case for suggesting that this is achievable without damaging communities, as is often feared. I think that the noble Baroness referred to that. In our Liberal Democrat policy paper we also identified the need to increase the supply of land and we suggested a pilot of community land auctions where local authorities could designate an area for auction. In addition we proposed a stronger consideration of “use it or lose it” in planning policy. At the moment people can just start on a site and it is assumed that development is going to go ahead and that they have continuous permission. I understand that the Government have looked at this and that trying to draw up a workable policy is proving rather difficult.

There are other areas where the commission report, our party policy and government policy coincide, including one of the areas to which the noble Baroness referred—the use of pension funds. The policies do not all look specifically at local authority pension funds, but in the 2012 Budget the coalition Government, of whom we are part, announced plans to establish a new pension infrastructure platform owned and run by the UK pension funds. This was to help invest an initial £2 billion in UK infrastructure, which may include housing, by early 2013. I understand that seven funds are already signed up and expect to deliver this initial £2 billion in January. The Government are also working with other private-sector pension funds to encourage them to invest in UK infrastructure projects. We heard from the noble Baroness that this has been very successful in other countries.

Given that the Liberal Democrat Party is the only party that has always been in favour of localism—the devolution of decision-making to local authorities—we strongly agree with the call for local authorities to take a leading role in housebuilding, using their powers to work with local people, organisations and developers in their area to create attractive developments that people want to live in. This is also in line with what local authorities are calling for themselves. I declare an interest as a vice-president of the Local Government Association. I understand that it is having a conference on 19 December which is entitled, “Housing the Nation, Financing New Homes”. I know that my noble friend Lord Greaves will touch on this, but I am aware that the ability of local authorities to deliver affordable housing in all parts of the country is not the same. As he will point out, in some areas it proves rather difficult.

One of the areas with which I strongly agree in the commission report is the need to improve design standards and for sustainable, aesthetically pleasing developments. Again, the noble Baroness referred to this. In my experience British builders have traditionally been conservative in their approach and often kicked against new building regulations and ideas. In addition, as a nation we have never developed a system where you are required to have qualifications to operate as a builder. Any one of us in this Chamber could set up as a builder tomorrow. No specific qualifications are needed.

This is an important debate and we have only a short time to deal with it. I look forward to the noble Baroness’s answers, particularly on the issue of how we can deal with improving standards, not only aesthetically but also making our houses sustainable and making the sort of houses that people want to live in.

19:56

[Lord Best]

My Lords, I am very grateful to the noble Baroness, Lady Whitaker, for securing this debate and for her excellent opening speech. We have been blessed over the past few weeks with a string of important new reports on housing, of which the readable and sensible one from the Future Homes Commission, as described by the noble Baroness, is particularly valuable. For my sins, I have also read most of the others. In my five minutes, perhaps I could reflect on their messages and on overarching conclusions that can be drawn from all of them.

We have had four reports concentrating on the private rented sector, in particular on the role of lettings agents, from the Property Ombudsman, Shelter, the RICS and Which?. They all argue for more consumer protection in the private rented sector, which has grown so dramatically in recent years. We have also had the annual monitoring report on the state of the nation’s housing from the Chartered Institute of Housing, Shelter and the National Housing Federation. I fear that its traffic lights are nearly all red, or at best amber, confirming that housing remains a highly problematic issue, particularly for those who rely on housing benefit.

Another report during the last few weeks has come from the Smith Institute, looking at how local authority pension funds could finance local investment. This proposition has been taken forward in the Future Homes Commission report, which notes that just £10 billion of the £180 billion invested in these pension funds could finance a serious housebuilding programme. Reporting for the Government, Sir Adrian Montague has looked at channelling institutional investment into market renting; that is, “Build to Let” schemes, which would create new homes for rent with professional management. The Building and Social Housing Foundation also launched a report on building more homes for market renting. It notes that the most likely partners for institutional investors are not the private developers, since they have little experience of the rented sector, but those large housing associations which are willing to diversify into market renting in addition to—but not in substitution for—their role in providing affordable housing.

Meanwhile, a report from the Chartered Institute of Housing, the National Federation of ALMOs and the Association of Retained Council Housing, Let’s Get Building, points out that councils could themselves address the need for new affordable homes for rent if they were given more headroom to borrow to build. Despite the recent localising reforms to the housing revenue account, local authorities still cannot act like a housing association and borrow prudently against their considerable housing assets.

The last report I have time to mention—and what a flurry of new reports there has been in these past few weeks—is the All-Party Group on Housing and Care for Older People’s new offering Housing our Ageing Population: Plan for Implementation. This adds an extra dimension to the others by pointing out the huge advantages of concentrating on building high-quality apartments for our older population. Retirement housing has highly significant benefits in terms of health, well-being and the relief of loneliness, while making big savings for NHS and social care budgets. Perhaps best of all, building to meet these needs brings thousands of family homes, some in need of the input of energetic young households, on to the market, multiplying the total number accommodated.

Putting the Future Homes Commission’s excellent document alongside these other contributions, what overarching conclusions might one reach? First, all are agreed, as are the Government, not least the very committed Minister for Planning, Nick Boles, that we need a huge increase in housebuilding to meet the nation’s needs. Secondly, in relation to the wider economy, these reports all highlight the direct contribution to GDP made by constructing new homes. If there was a return to the level of building of just a few years back, even though that was not keeping pace with the demand from new households, it would add 1% to GDP, taking us out of recession at a stroke.

Thirdly, all agree that local councils are the central players for housing provision, not only in their role as local planning authorities but as primary partners with housing associations and developers and as direct providers themselves. It may well be local authority pension funds that will provide the extra capital for housebuilding needed during this continuing credit crunch.

Finally, we need an emphasis on good design as the key to ensuring all this investment lasts and that new development gains public acceptance. Perhaps this is of the greatest importance in relation to housing for older people. Unless the design of new accommodation means plenty of light, space and air, with big windows and balconies, storage space and good ventilation, older people will never be attracted to right-size and leave their family-sized accommodation, even though it may well be increasingly difficult to manage, expensive to heat and with problematic stairs and steps. The message from the HAPPI report, as well as from the excellent report of the Future Homes Commission, is that unless we recognise the significance of good design, all our other efforts in seeking to address the nation’s acute housing problems will be a waste of time and money.

20:02

[Lord Sawyer]

My Lords, I thank my noble friend Lady Whitaker for engaging with this excellent report. We went together to the launch. It is clear, to the point and exactly the kind of thing we need.

In the short time I have available, I shall follow the previous two speakers and say more about a bit of a hole in the Government’s policy, which is design. Their policy covers many important aspects of housing but it does not say very much about design, and this report does. There is poverty of expectation about design and space. No one in the supply chain, whether bankers, building societies, developers or even the Government, talk about it enough or promote it. It is absent. Consequently, people get limited choice from developers who stick with the standard design. It is easy and cheap to produce boxes with two bedrooms of 12 feet by 11 feet and a living room of 15 feet by 11 feet. That is pretty dreadful really, but many thousands of such houses have been built over the past years. Yet when asked about design, witnesses report that people have aspirations. They like large windows, natural light and large rooms with high ceilings—all the things that people who can afford to move away from the bottom and middle of the market buy for themselves.

Some of the homes that we build today are a disgrace, with no space for storage or for other things for the family: places to work, places to eat and separate spaces for other members of the family. International comparisons reveal that the scale of space problems is serious. We have the smallest spaces of any western European country for people to live in. Along with space, people need light. This report shows that natural light is the single most important attribute in a house, yet we now see that many homes with small standard-design windows have been built over previous years. While addressing this report, I would like to see the Government take on some of these issues.

Space, light and storage are very important and should be included in the building regulations, a point made by the noble Baroness. There should be a much more comprehensive way of getting to know what customers want and getting those things followed by builders and developers. Often today, properties are simply described as one-bed, two-bed or three-bed, which tells you nothing about design or space or what the house or flat is really about. That is totally inadequate.

There may be those who think that in a time of austerity with deep-seated problems in the housing market and many big political issues in housing, a focus on design should not be a priority. I think they are wrong. Previous speakers have said that, and the report says it. When you see how blighted and limited the lives of people can be without proper space, light or design, you see how important it is. You see couples with no storage space. If you read the report, you will see that it mentions a couple in Liverpool who bought a new-build house and have to store things in the boot of the car outside. It is amazing that these things can happen. When you see so many people with those small 15 feet by 11 feet rooms for all the family to live in and no common areas in the house for people to work in, you realise how much benefit good design could bring to the lives of those people.

Homes are important to people. After families and loved ones, homes are perhaps the most important thing. When I was a trade union official, how many times I heard people say, “Oh my God, if I lose my job, I lose my home”. I knew that the job was important, but, my God, the thing that was most important to them was their home. That is very important and we must never underestimate it. The successful Scandinavian countries spend a lot of time and energy on design and space; there must be some lessons for us there. Good design is a major contribution to the mental and physical well-being of the population, and it must be important to productivity and business success. I would like the Government to look at the chapters in the report about design and think about incorporating some of them in government policy. I am sure there will be some good ideas there and that the Government will not be too proud to take on good ideas when they are able to find them.

In particular, will the Minister comment on what current policies the Government have to improve design in new-build homes and what their thoughts are on the space, light and storage issues, the three big things that are lacking? Will the Government let us know at some time what plans they have to provide more information for consumers and, in particular, to raise the level of debate? I know it is not their job solely, but we need them to be involved in raising the level of debate in the country about design so that people can be more informed and we can get the whole thing moving in the right direction.

20:07

[Lord Greaves]

My Lords, I, too, thank the noble Baroness, Lady Whitaker, for introducing this short debate on this very interesting and useful report. I associate myself with pretty well everything that has been said by all four previous speakers, particularly my noble friend Lady Maddock. I am particularly pleased with the emphasis in the report on design, which is so important. I think it is a little optimistic about how useful the Localism Act will be in these areas, but we will see.

I shall talk about a case study of the problems and frustrations in my own area—Pendle in Lancashire—associated with trying to make a very modest contribution to affordable housebuilding in this country. I should declare an interest as a member of Pendle Borough Council. I have read what seem to be innumerable announcements and press releases while lots of schemes with interesting names have been coming out of the Government about housebuilding, but none of them seem to reach our valley up in the Pennines in east Lancashire.

We have a shortage of affordable family housing, like many areas, partly due to the fact that most three-bedroom houses on council estates have now been sold off. We have wanted to build a number of affordable family houses on council-owned land on small sites, many of which are a result of the housing market renewal programme, when the powers that be at that time would not allow us the money we needed for renovation of areas unless we knocked down a few blocks of houses. We resisted as much as we could, but some of the worst have gone and we are left with small brownfield sites. The idea was to replace what had been there with a mix of affordable houses to sell, to rent and possibly for shared ownership.

It has proved very difficult indeed to do this. In the small town of Brierfield there is a cleared site that was formerly three streets where various schemes were drawn up for 30 or 40 houses. In my own town of Colne a small, cleared site of two blocks is proving impossible to redevelop and in my own ward there are two derelict blocks of housing which are all boarded up. Many but not all of those now belong to the council; it requires a compulsory purchase order and demolition before any rebuilding can take place. That will cost, believe it or not, around £1 million and that money simply does not happen. Yet when there are sites, the money simply does not add up.

The idea is that the council provides the land for free and that the development is done by the council’s own joint venture company on behalf of the local housing association, which now operates all the former council housing in the area. One scheme of just eight houses in my own ward is now going ahead. We had hoped that it was going to be a mix of tenures; it now all has to be for rent and that only just adds up. Most of the schemes on these sites do not add up at all. The grant per unit from the Homes and Communities Agency is £21,000 to £22,000 per unit; the affordable housing unit, including the free land, might cost £95,000 to build. The ability of the registered social landlord, Housing Pendle, to pay for it does not come to more than about £70,000 to £75,000 when one takes into account the level of local rents that can be charged and the future administration and maintenance costs. There is a gap there of something around £20,000. The council has been able to plug that gap with right-to-buy receipts in one scheme, but there is a limit to those.

We want to build and it is a very modest scheme. It is necessary locally but we cannot do it, in most cases, because the money which is available and the subsidies that are available from central government via the HCA are simply not big enough to plug that gap. Like many other authorities in the north of England and similar areas, we are stuck. We want to make our own, very small contribution and it is not possible. I hope that the Minister will look at that.

20:13

[Lord Whitty]

My Lords, I thank the noble Baroness, Lady Whitaker, the RIBA and the Future Homes Commission for producing such a good report. I declare an interest as chair of Housing Voice, which was designed 15 months ago to raise housing up the political agenda. There is no doubt that we have succeeded in that with help from a lot of others—the whole list of reports that the noble Lord, Lord Best, outlined indicates that. Indeed, we have produced our own report which comes to roughly the same conclusions as everybody else’s if we are to tackle what is a chronic dysfunction in all sectors of the housing market, we need 250,000 or 300,000 homes brought to the market in one way or another, probably for the next 20 years.

That is a colossal problem and it requires some change in long-term strategy. The Government, as the noble Baroness, Lady Maddock, said, have taken some useful initiatives, as did the previous Government, but, frankly, in terms of the size of the problem, they are tinkering. They may be successful, but the long-term problem requires a more long-term solution. Others have emphasised the lead role of local authorities in this aspect. Although I share some of the scepticism of the noble Lord, Lord Greaves, about the effect of the Localism Act 2011, at least it is a start at putting local authorities in the driving seat on housing needs in their area, assessing and helping to meet them, using neighbourhood plans and other planning to ensure that adequate homes are built for the kind of population that lives or works in their areas. However, in order for local authorities to succeed, they and/or their partners in delivering those homes need long-term access to resources.

That is the central dilemma for any long-term strategy. Local authorities have restrictions on their borrowing powers if they are to invest either in their own stock or in partnership with private developers or housing associations. There are grave restrictions in the Treasury rules on local authority borrowing. Just today, the London councils have pointed out that the cap on borrowing against their stock is actually inhibiting the ability of London to build enough homes for the population.

Another source of resources which the report identifies is institutional funds, in particular, local government pension funds. The report suggests that 15% of these assets should be invested in providing funds for housing. I have just retired as chair of a local government pension scheme member fund and I think that 15% may be a bit ambitious in terms of the attitudes of the advisers, trustees and members of the funds. Nevertheless, significant funds could be raised not only from local authority funds, but, as the noble Baroness, Lady Maddock, said, from a wider range of pension funds.

We are in an austerity period and there are grave restrictions on public expenditure, but at the end of the day some of these problems, particularly in relation to social housing, will not be resolved unless there is an increase in public expenditure over the longer term in housing. It need not be of traditional form—it could be in partnership with all sorts of partners—but some form of expenditure is needed. There is a fundamental dilemma in government spending in housing. On present plans, although the Chancellor may change them shortly, roughly £100 billion will be spent on housing over the next five or six years. The problem with that is that £90 billion of that £100 billion is to be spent on housing benefit, not on building houses. It is almost the reverse situation from that of the Macmillan Government and other Governments in the 1950s and 1960s. It is a very painful process to switch subsidy away from individuals and welfare and back into providing housing, and affordable housing. But if we do not start on that process now, it will be not only the present generation of house seekers and new family formations that find themselves in dire distress, but future generations as well.

As my noble friend Lord Sawyer has just said, for many people their house, or home, is at the centre of their quality of life. If we are to resolve this issue over the longer term we have to find a way where government support, institutional investment and private investment is directed at providing more homes, and better quality homes, for our people. It is one of the biggest issues facing this Government; at present, they have not yet matched up to it. I hope that despite his occasional infelicities, Nick Boles is taking on this task; I assume that he is not being considered for transfer to the Foreign Office, since his diplomacy needs a little bit of attention—but at least he has the drive. I hope, therefore, that the Government will begin to shape up to that task and that all who are interested in housing help them so to do.

20:19

[Lord Stoneham of Droxford]

My Lords, I welcome the debate and thank the noble Baroness, Lady Whitaker, for initiating it. I found it difficult to disagree with anything that has been said so far in the six speeches tonight—but I suppose that noble Lords would expect me to say that, particularly of my own colleagues.

I declare my interest as chair of Housing 21, a national housing and care provider for the elderly. The Future Homes Commission report shows the continuing severe gap between the current housing supply and what is actually needed. It also shows the potential of housing investment stimulating the national growth rate, since £1 spent in housing creates £2.84 elsewhere in the economy. Good housing design and energy- saving initiatives underline the social benefits of new housing, and pension fund investment in UK rental and shared ownership housing is overdue and needed. It can be used to keep the pressure off the government deficit.

Housing must be one of the key drivers of the coalition Government’s growth strategy. It played this role in the 1930s recession while government spending was constrained and interest rates were low. No one can doubt its potential now. Although I hope that there has been an improvement this autumn, the problem is that we have been going backwards in the past year. In the 12 months to September 2012, new housing starts, at 98,020 homes, were 9% down on the previous year, ending in September 2011. More worryingly, in the same 12 months to September 2012, housing association new starts were down 23% at 16,810. I hope that this is simply a case of worse before better, but we have to ask why this performance has been so disappointing.

We know that the mortgage market is still difficult and restrictive and lenders have been cutting back. In March 2012, the Government aimed their new-buy indemnity scheme to help, but there remains a problem with the higher interest rates now charged on these new-buy mortgages. Housing associations have also suffered from uncertainty due to changes in grant funding and the change in their overall funding arrangements, as they have had to move to private bond placements as banks have reduced their previous dominance in this sector. Sadly, confidence among potential house buyers has remained low out of fear of unemployment, and because the fall in house prices may not yet be complete. Changes in the planning system have also caused uncertainty in the market, but as the noble Baroness, Lady Whitaker, said, there remain some 400,000 potential homes with planning permission still to be built.

So what is to be done? First, the Government, through the HCA, must ensure the current programme of funded social housing must is be delivered. There is a lot to do in the last two years of this Government, and the recent further government initiative on retirement housing is also welcome. We just need to get on with it, but we also need to do much more. In September, the Government announced their £10 billion guaranteed housing loans for private sector renting and social housing. This is a real opportunity, but I fear we remain a little cautious about the extra housing we will get from it. The indication that I have received is the Government’s target by 2015 is for 15,000 extra homes. I hope that the Minister could clarify this. I believe that, given average house prices, it should be three times this, and if we spent a higher proportion of this funding on actual development projects its impact on the economy, as the Future Homes Commission demonstrates, would be three times the housing investment.

Pension funds could provide further funds for private rented, council and other forms of social housing, where funding streams could be secure. We should ask whether the Government are going to allow councils to borrow now that they control their housing revenue accounts so a further impetus on new housing could be sourced.

I finally return to a previous theme of mine. To be successful in government, you need people who can demonstrate that they can pull the right levers to get things done. We need to get the most from the guaranteed housing loans. We have to keep the pressure on public sector departments to release land which could be used for housing development. We have to keep the dialogue going with lenders and developers to improve confidence in the sector and wider funding opportunities. We have to work with housing associations and councils to maximise their plans for more housing. So we need the drive and determination of a Minister, such as a Heseltine or a young Macmillan, to direct and galvanise all this work. We also need to give the Minister an objective of doubling our current annual housing development by 2015. The Future Homes Commission has shown us the potential of what is required. The coalition must now grasp the levers and deliver.

20:23

[Lord McKenzie of Luton]

My Lords, I, too, would like to thank my noble friend Lady Whitaker for the chance to discuss, albeit briefly, the report of the Future Homes Commission. As the noble Lord, Lord Best, said, it is one of a string of important reports on housing that we have received recently. We welcome this report, which contains a number of innovative proposals to tackle the worst housing crisis in a generation.

We find ourselves in a situation where we are building fewer than half the new homes needed to keep pace with new household developments, let alone to address the backlog. There are some 2 million people on housing waiting lists; homelessness is increasing; and the private rented sector has rising rent levels and inadequate regulation where, according to the commission, some 37% of property fails to meet the decent homes standards. As the noble Lord, Lord Greaves, says, there is a shortage of affordable housing, and as the noble Lord, Lord Stoneham, has just told us, housing stocks are actually declining. This is at a time when growth in our economy is weak at best, and is dragged down by the dramatic decline in the construction sector, where every £1 of construction output could generate nearly £3 of demand in the economy. Where people need homes and jobs, young people need skills and apprenticeships, the economy needs growth and the construction sector needs work, the imperative of building more homes should be something on which we can all agree. To increase the number of new homes built every year to over 300,000 certainly sets an ambitious target—indeed, a step change.

However, this is not just a numbers game. It is about the quality of the homes provided; crucially, it is also about how this scale of investment is to be funded—a matter spoken to by my noble friend Lord Whitty in particular. We very much support the emphasis of the commission in highlighting the key role of local councils in helping to create sustainable communities. We share the vision of mixed communities living in well designed and high quality homes in neighbourhoods with good facilities where people want to live. However, sustainable communities will not be helped if people are shunted from pillar to post because of draconian housing benefit rules. What is clear is that in the current climate, traditional forms of finance from the Government and banks will not be sufficient to deliver the scale of funding required. There is a lack of mortgage finance for those who wish to buy and a current dearth of institutional investment for those who want to rent. The Future Homes Commission drew attention in particular to the demand for private sector rental property as being a huge and neglected issue, driven not so much by those who cannot afford to buy, but by those who choose to rent, particularly for job mobility.

As we have heard, the suggestion is that the funding gap can be filled by institutional investors. The analysis seems to show that the percentage of UK financial institutions’ property portfolios held in the residential sector, at 1%, is significantly less than in many other countries. The RIBA points out that typically, for residential property, the institutions do not wish to take on planning or construction risk and that currently there is very little for them to invest in. There is a lack of good quality, large-scale rented and shared ownership schemes.

The commission proposes that there should be a local housing investment fund of £10 billion, created by pooling 15% of the assets of the largest 15 local authority schemes. This 15% is the current maximum of the assets of such schemes which can be invested in infrastructure, although the Government are consulting on increasing this to 30%. Do the Government support this recommendation? We should clearly be mindful that any investment of pension fund assets has to be in the best interests of the members. Following the review by Sir Adrian Montague, can the Government outline what they now consider to be the main barriers to significant institutional investment in housing?

My noble friend Lady Whitaker, supported by a number of noble Lords—the noble Baroness, Lady Maddock, my noble friend Lord Sawyer and the noble Lord, Lord Greaves—alighted on the recommendations about the need to change attitudes to poor design, including space standards. These matters affect not only the well-being of households that occupy properties but their very willingness to buy new homes in the first place. Good design is also a component of getting the acceptance of communities to new developments. We acknowledge that the Government have announced a review of housing standards, but would not wish to see the ability of local councils to set standards being diminished. We certainly subscribe to the concept that local authorities should have a pivotal leadership role at every stage in developing new housing provision. This is essential in tackling what the commission describes as a fragmentation of the development process. However, we remain dismayed at the latest government proposals to bypass local planning authorities which are contained in the Growth and Infrastructure Bill.

The commission concludes that to realise its vision,

“land will be needed in or close to virtually every city, town and village”.

This will certainly test the leadership of local authorities and, indeed, the effectiveness of the duty to co-operate.

20:29

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, I join other noble Lords in thanking the noble Baroness, Lady Whitaker, for drawing this report to the attention of the House. I do not think there is any disagreement among any of us about the importance of it. It is aspirational and practical and draws attention to a lot of the things we all know exist. It also draws attention to things that we all know we would like to see. There is a small problem with finance at the moment but that does not mean to say that we cannot all look forward and take serious steps to deal with it.

I agree with all the points that have been made about making sure that we have adequate and affordable housing and a mixture of tenures. A number of noble Lords have specifically mentioned that any new housing should be of good design and good quality. It is a complete waste of money not to do that. One has to be able to send messages out to developers that it is important that a block of flats is not just thrown up that looks like any other block of flats that is thrown up elsewhere. Therefore, I have no difficulty with any of those points, and I do not think that any other noble Lords have either.

I do not think any of us would disagree with the fact that we are not building enough homes—we are not. We know that. My honourable friend the Minister for Planning made that very clear in an interview the other day. There is government recognition that there has to be a doubling in the number of houses that are built over the next few years. That may be aspirational, but we know that it is required. However, things are moving gently. There is a projected growth of 232,000 households per year until 2033. We know that there were 117,000 completions last year and the expectation is that at least that figure will be met this year and going forward. However, it is clear that that will still not be enough.

The Government also support the necessity to support people’s aspiration to own their own home. A number of noble Lords pointed that out. I think that the noble Lord, Lord Sawyer, pointed out that the security of knowing that they have a home in which they want to live is a real part of people’s lives. Therefore, the quality of homes, both of rented and affordable housing, is very important.

However, the report recognises that not just government action is needed. A response is also needed from the industry: that is, housebuilders, mortgage lenders and landowners. That includes public land. As noble Lords will know, we are beginning to put pressure on departments and local government to release the land they do not need. Assembling land in this way will also be an important aspect of ensuring that there is enough land available on which housing development can take place.

The noble Lord, Lord Best, mentioned four reports that are all pouring out at the same time. I thank him for what he has done and acknowledge that the happy reports on housing for older people to which he referred have raised very important issues, particularly the fact that if older people can get housing which they like and want to move to, which may not be as big as their current family home, they release those homes for families and other people.

The report, as has been said, calls for an increase in the number of new homes built every year to 300,000, which of course is substantially above the current predictions. It also looks for a £10 billion local housing development fund, to be financed by local authority pension funds. Practically all noble Lords who have taken part have referred to the pension funds. There is no disbarment to local government pension funds doing that at the moment. They can already choose to invest in affordable housing projects, although there will be constraints on how much they can put into it—I believe that a figure of 15% was put forward. However, this is not something for which the Government need to legislate or do anything other than encourage—as they are doing—the local authority pension funds to think about making that investment. As everybody has said, it is correct that this money could be used to boost home ownership and development, and once we can get the construction industry moving, that will itself contribute to the economy; it will create new jobs and skills—the noble Lord, Lord McKenzie, referred to apprenticeships—and it begins to open up and unlock all sorts of problems.

The Government are investing a lot of money in housing; the noble Lord, Lord Greaves, perhaps rather unaccommodatingly suggested that there were a plethora of announcements coming out on this. However, to be fair, there is a lot of money and a lot to be said about it. Investing £4.5 billion—a significant sum of money—along with £15 billion from the private sector, will deliver 170,000 new, affordable homes over the period of the spending review. In the September package we provided an extra £300 million to deliver 15,000 additional affordable homes and to bring a further 5,000 empty homes back into use. The Government, therefore, are investing heavily in housing and are encouraging others to do so.

A £10 billion debt guarantee will support more rented housing, including affordable rents. Our reforms to the planning system, which have already been mentioned, will all improve the speed and quality of planning decisions and will bring in local people in order to get their enthusiasm and encouragement for development. So often, as we know, local people are very resentful about any development. Neighbourhood planning should ensure that there is not only a better idea of where housing should go, but there should also be a better idea of quality of housing, what that housing is for, whether or not it is family housing, and where it is placed. Therefore there will not be so much antagonism to development. Part of the Localism Act underscored the point that developers ought to talk to local people about what they want to do in order to try to get that accepted before it goes to a planning committee. We also announced in September that the Government and housebuilders are together investing an additional £900 million in FirstBuy, which will help first-time buyers into home ownership.

These are not trivial sums of money but rather mega-sums, which will generate a renaissance of housebuilding and homebuilding. As noble Lords know, I never like to be unkind, but I point out that the previous Government were not absolutely shining white in terms of the numbers of homes that were delivered. I believe I am correct in saying that the number of homes we are building is well in excess of those built over the last few years of the previous Government. We need to move on all of that.

The Deputy Prime Minister announced last week that the European Investment Bank is going to inject £400 million into affordable housing, particularly to deal with energy-efficient homes—again, a matter that was raised in the report. Another £225 million of government money will leverage private investment to help unlock the large housing sites. The housing development fund is intended to bring together local government pension funds for investment in housing. As I said earlier, that can be done without further legislation.

Any investment decisions made by the Local Government Pension Scheme must be made by its local administering authorities. They must act in a way that protects taxpayers and local services. I know that the Local Government Association is already bringing together people associated with local government pension funds to discuss what can be done.

I am rapidly running out of time. The best that I can do now is to say that I hope that I have given to the House a sense of the fact that we welcome this report as being aspirational and pragmatic. There is plenty in it for everyone to work on. We acknowledge that design and space issues are important, and we clearly acknowledge that we need more affordable housing, and more housing, in this country. The ways of achieving that against the background of a not very secure financial position are important. However, the ideas that are flowing in from all areas are very similar, and on much of this we will be able to harness the future housing of the country.

I thank the noble Baroness again for introducing this debate. I know that we will return over and over again to the matters raised in the report, to which the Government are already directing their attention and addressing in many ways.

Crime and Courts Bill [HL]

Tuesday 4th December 2012 Lords Chamber

Report (2nd Day) (Continued)

20:42

Amendment 109A

Moved by

[Lord Beecham]

109A: Clause 21, page 18, line 26, at end insert—
“75B Minimum size of charging order
The Secretary of State shall by regulation prescribe the minimum amount above which a charging order may be granted in respect of a judgment debt, which shall be laid before, and approved by a resolution of, each House of Parliament.”

[Lord Beecham]

My Lords, this amendment relates to yet another matter affecting very often the poorest in our society and certainly those facing acute financial difficulties. Some time ago, the Government launched a consultation about the financial threshold below which charging orders on property would not be available to enforce debts. The previous Government made some legislative provision potentially allowing for this and they consulted on the matter. The intention was to legislate subsequently but the consultation ended in February 2010, which did not leave that Government very much time.

A month later, the Office of Fair Trading issued a guidance document on irresponsible lending and recommended that creditors should make it clear to borrowers at the time of entering into any loan agreement that there was a possibility of a charging order being made against their property. I am afraid that subsequently nothing happened about that. Time went by and the Government then launched their own consultation, having indicated in the coalition agreement that there would be a threshold of £25,000 below which enforcement action could not take the form of a charging order against property. That was in the coalition agreement but it would appear that, as a result of the consultation, the industry persuaded the Government that this was insufficient. Consequently, the policy is now apparently that the threshold will be only £1,000. We are talking here not about mortgages but about unsecured debts. Therefore, with only £1,000 owing, it would be open to a creditor to seek a charging order, which could lead to the loss of a home and, for that matter, to a great deal of anxiety and stress for the debtor.

In the debate in Committee, the noble Baroness, Lady Northover, did not really give an answer as to why the Government had changed their position from that outlined in the coalition agreement, which seemed a perfectly sensible provision. She made some reference to the fact that an alternative might be worse, inasmuch as creditors might go for bankruptcy proceedings, although of course a creditor has that possibility in any event. The protection of the family home must surely be a major consideration, particularly where there are children, as there very often will be in these cases.

20:45

Therefore, the amendment seeks to give the Secretary of State the option to prescribe a minimum amount above which a charging order may be granted in respect of a judgment debt. It does not stipulate £25,000 or any particular figure but it does set out a procedure under which an affirmative resolution will be required to approve the level that the Government ultimately opt for. My hope is that it would be very much closer to the figure of £25,000 than the pitifully low figure of £1,000, which apparently is now government policy.

I am not quite sure where we are in relation to implementation of the Government’s proposals. Perhaps the Minister will be able to enlighten the House about that. However, assuming that the Government continue to take that stance, I ask why they have chosen to abandon their position in the coalition agreement and what the potential implications are for other costs—the kind of costs that have been referred to in earlier debates that might fall on local government or, indeed, the benefits system—in terms of families being dispossessed and having to be rehoused, with children possibly being taken into care and all the other consequences that can follow from the loss of a home. Furthermore, why do the Government seem so anxious to protect the interests of creditors, who clearly, in the light of the warnings from the Office of Fair Trading two years ago, are certainly not always of the most reputable kind? In particular, the Office of Fair Trading warned against threats and harassment on the part of creditors seeking to recover their debts in this way.

I do not know whether the Government have definitely established a position—perhaps we shall find out shortly—but I hope they have. They will revert much more closely to the coalition agreement’s projected figure than the abysmally low figure that was canvassed in Committee, although the Government have now happily decided to deal with payday loans and the extortionate rates of interest charged there. Of course, payday loan lenders could be taking advantage of this very provision, whatever rates of interest they charge. On present form, with a debt of as little as £1,000, they could seek possession of property via a charging order on the debtors. That would be an appalling outcome and, given that the Government have sensibly accepted the proposals of my noble friend Lord Mitchell in respect of some elements of the activities of these lenders, I hope they will apply a similar approach to the issue in this case. If it is not possible to deal with this amendment today, perhaps this matter could be dealt with at Third Reading. I beg to move.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, as explained by the noble Lord, Lord Beecham, this amendment raises the issue of charging orders. Noble Lords will be aware from the debate in Committee that the power to prescribe the minimum amount above which a charging order may be made already exists in Section 94 of the Tribunals, Courts and Enforcement Act 2007. It makes provision for the Lord Chancellor to make regulations that a charging order may not be made to secure a sum of money below a certain amount. It remains the Government’s intention not to exercise this power. There are several reasons for that.

The Government are committed to providing the right level of protection to genuinely vulnerable debtors. However, we must not do that at the expense of the effectiveness of the civil justice system. We have a duty to ensure that creditors have reliable methods available to them to enforce their debts and charging orders are a legitimate and proportionate option for them to pursue. It is essential to remember that a charging order does not compel a debtor to sell their property. That can be achieved only through an order for sale. Most creditors never apply for orders for sale; only 0.5% of the creditors who have applied for a charging order go on to place an application for an order for sale. Nevertheless, the Government have ensured that there are effective safeguards in place for debtors who are subject to such an order.

In November this year, following a public consultation on this subject, we laid before Parliament draft regulations which set a £1,000 financial threshold for orders for sale relating to Consumer Credit Act cases. These regulations are subject to the affirmative procedure so there will be a separate opportunity for your Lordships’ House to consider those. Responses to the Ministry of Justice consultation on solving disputes in the county court in 2010 indicated that £1,000 was the most appropriate threshold. Respondents to the consultation felt that a higher threshold would risk pushing creditors to seek more draconian methods of recovering their money, such as bankruptcy proceedings, which would expose debtors to a significantly increased likelihood of losing their homes, an outcome that none of us would wish to see.

We must also remember that orders for sale are subject to judicial discretion. The court must take into account all the circumstances of the case before deciding whether to make an order. That provides essential protection against disproportionate action. The consultation showed that a high financial threshold for the making of an order for sale would restrict judges’ discretion in individual cases—for example where a debtor has all their assets tied up in property including investment properties or stocks and yet owes a number of small debts to multiple creditors. It may be equitable to grant an order for sale to release some of that capital.

With the new order for sale regulations in place, creditors have the assurance that they can recover what is owed to them while debtors are not in danger of disproportionate enforcement action. The Government believe that these regulations are proportionate and an effective approach to achieving the necessary delicate balance between creditors and debtors. They therefore do not plan to introduce a financial limit on charging orders. In the light of that explanation I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Beecham]

My Lords, that is a very disappointing response, which echoes the response given by the noble Baroness, Lady Northover, in Committee in July. Neither she nor the noble Lord have explained why the coalition agreement, which is very explicit in terms of laying down a £25,000 threshold for an order for sale, which of course follows on from a charging order, has been abandoned. The noble Baroness said:

“In terms of the coalition's commitment to a threshold for orders for sale at £25,000, evidence in the consultation did not support a £25,000 limit”.—[Official Report, 2/7/12; col. 542.]

But we do not know—at least I do not know—what that evidence was and from where it was derived. It was presumably from the creditors. I cannot imagine that there would be significant evidence from those who owed money or those who advise those who entered into consumer credit arrangements who were in difficulties suggesting that £25,000 was too high a limit.

Furthermore, at the last count, the Government were at least contemplating a £1,000 limit. That is much too low in my submission but even that has been abandoned without any explanation. The Government are falling over backwards to help creditors in this position—many of them are not the most desirable organisations operating in the financial services world—at the expense of the worry and disturbance that can be caused to borrowers and their families and ultimately to the taxpayer, because in so far as these orders are enforced, homelessness and all the other social consequences will follow which will be a burden for the taxpayer.

It is extremely disappointing that the Government have caved in to pressure from the industry at the expense, I repeat, of very vulnerable people and the taxpayer at large. But as it is clear that the Government are not disposed to make any move consistent with their original policy, I feel obliged to beg leave to withdraw the amendment.

Amendment 109A withdrawn.

Amendment 110

Moved by

[Lord McNally]

110: After Clause 21, insert the following new Clause—
“Disclosure of information to facilitate collection of fines and other sums
(1) Schedule 5 to the Courts Act 2003 (collection of fines and other sums) is amended as follows.
(2) Paragraphs 9A to 10 (disclosure of information by Secretary of State to court officer to help court decide whether to apply for benefit deductions etc) become Part 3A of the Schedule.
(3) Accordingly, after paragraph 9 insert—
“Part 3ADisclosure of information, and meaning of “relevant benefit” etc”.(4) In the heading before paragraph 9A, after “Disclosure of information in connection with”, insert “making of attachment of earnings order or”.
(5) For paragraph 9A (power of Secretary of State to disclose information to help court decide whether to apply for benefit deductions) substitute—
“9A (1) The Secretary of State or a Northern Ireland department, or a person providing services to the Secretary of State or a Northern Ireland department, may disclose social security information to a relevant person.
(1A) Her Majesty’s Revenue and Customs, or a person providing services to the Commissioners for Her Majesty’s Revenue and Customs, may disclose finances information to a relevant person.
(1B) The disclosure authorised by sub-paragraph (1) or (1A) is disclosure of the information concerned for the purpose of facilitating the making, by the relevant court or a fines officer, of any of the following—
(a) a decision as to whether to make an attachment of earnings order in respect of P,(b) a decision as to whether to make an application for benefit deductions in respect of P, and(c) such an order or application.(2) In this paragraph—
“finances information” means information which—(a) is about a person’s income, gains or capital, and(b) is held—(i) by Her Majesty’s Revenue and Customs, or(ii) by a person providing services to the Commissioners for Her Majesty’s Revenue and Customs in connection with the provision of those services,or information which is held with information so held;“social security information” means information which is held for the purposes of functions relating to social security—(a) by the Secretary of State or a Northern Ireland Department, or(b) by a person providing services to the Secretary of State, or a Northern Ireland Department, in connection with the provision of those services,or information which is held with information so held.(2A) The reference in sub-paragraph (2) to functions relating to social security includes a reference to functions relating to any of the matters listed in section 127(8) of the Welfare Reform Act 2012 (statutory payments and maternity allowances).
(3) In this paragraph “relevant person” means a person who is appointed by the Lord Chancellor under section 2(1) or provided under a contract made by virtue of section 2(4).”
(6) In paragraph 9B(1) (limits on onward disclosure)—
(a) for “9A(3)” substitute “9A”, and(b) for the words after “making” substitute “, by the relevant court or a fines officer, of such a decision, order or application as is mentioned in paragraph 9A(1B).”(7) In paragraph 9B(2)(b) (use of information otherwise than in connection with decision mentioned in sub-paragraph (1)) for “as is mentioned in that sub-paragraph” substitute “, order or application as is mentioned in paragraph 9A(1B)”.
(8) In paragraph 9B(3) (disclosures that are not unlawful)—
(a) in paragraph (a) (disclosure in accordance with order of a court etc) after “order of a court” insert “or of a tribunal established by or under an Act”, and(b) in paragraph (b) (disclosure of information previously lawfully disclosed) after “disclose” insert “or use—(i) any information which is in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it, or(ii) ”.(9) In paragraph 9B(5) (offence of wrongful use or disclosure of disclosed information punishable on summary conviction by a fine not exceeding level 4) for the words from “liable” to the end substitute “liable—
(a) on conviction on indictment—(i) to imprisonment for a term not exceeding 2 years, or(ii) to a fine, or(iii) to both;(b) on summary conviction—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum, or(iii) to both.”(10) In paragraph 9B after sub-paragraph (5) insert—
“(6) Sub-paragraph (5)(b) applies in relation to offences committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (general limit on power of magistrates’ courts to impose imprisonment) as if the reference to 12 months were a reference to 6 months.
(7) A prosecution for an offence under sub-paragraph (2) may be instituted only by or with the consent of the Director of Public Prosecutions.”
(11) Omit paragraph 9C(2) and (4) (meaning of “benefit status” and “prescribed”).
(12) In paragraph 9C (interpretation etc of paragraphs 9A and 9B)—
(a) in sub-paragraph (1) for “This paragraph applies” substitute “Sub-paragraphs (3) and (3A) apply”, and(b) after sub-paragraph (3) insert—“(3A) “Relevant court” has the same meaning as in Part 3 of this Schedule.
(3B) In paragraphs 9A and 10 (as in the provisions of this Schedule which extend to England and Wales only)—
“fines officer” has the meaning given by section 36;“P” has the meaning given by paragraph 1.”(13) Paragraphs 9A, 9C and 10, as amended by the preceding provisions of this section, extend to Scotland and Northern Ireland (as well as to England and Wales).
(14) Accordingly, in section 111(1) of the Courts Act 2003 (subject to subsections (2) and (3), Act extends to England and Wales only) after “(3)” insert “and to section (Disclosure of information to facilitate collection of fines and other sums)(13) of the Crime and Courts Act 2013 (extent of paragraphs 9A, 9C and 10 of Schedule 5)”.”

Amendment 110 agreed.

Amendment 111

Moved by

[Baroness Meacher]

111: After Clause 21, insert the following new Clause—
“Regulation of bailiffs
(1) The Secretary of State shall establish arrangements for the regulation of enforcement services and enforcement agents, as defined in Part 3 of the Tribunals, Courts and Enforcement Act 2007.
(2) In establishing a regulatory system for enforcement services and agents, the Secretary of State shall, by order, make arrangements for the licensing and accreditation of companies whose activities involve judicial or quasi-judicial enforcement of debts, collection of fines and seizure and sale of goods.
(3) The Secretary of State may, by order, designate a person or body (“the Regulator”) to authorise persons to provide enforcement services, and regulate the conduct of such authorised persons and businesses.
(4) In carrying out functions as are conferred on the Regulator by or under this section, the Regulator shall—
(a) carry out inspections as it considers necessary of authorised persons holding licences or accredited under this section;(b) provide for, or procure the provision of, training and accreditation;(c) keep under review generally the activities of bailiffs and enforcement agents;(d) establish an independent complaints system for debtors to use in cases where bailiffs and enforcement agents have abused their powers.”

[Baroness Meacher]

My Lords, Amendment 111 would introduce a new clause, Clause 22, to establish an independent regulator for enforcement services and enforcement agents—known to most of us as bailiffs.

The importance of this amendment lies in the enormity of the problem. For years, banks have used hard-sell techniques on the doorstep to foist loans onto vulnerable people, many of whom have no prospect at all of repaying that debt. Many others find themselves with debts that they can just about cover on condition that life carries on fairly calmly. But of course if crisis strikes—serious illness, disability or mental breakdown—the debts become unmanageable. And a third issue is now looming. Next year we will see the biggest cuts in welfare spending ever experienced in this country. Evidence from a small survey in Haringey suggests that the cumulative impact of the local housing allowance cap, the overall benefit cap and cuts in council tax benefit—just those three things alone—will cut the income of couples with two children by just over £108 per week, leaving such families with only £150 per week to cover food, fuel, clothes, transport and other necessities. They will not cope; it is quite simple. I am very grateful to the Zacchaeus 2000 Trust for those figures.

21:00

In my view we are going to see an explosion of unmanageable debt in this country next year and the years following. Bailiffs will be worked off their feet; thousands and thousands more will have to be employed; and the misery of vulnerable people will increase from very high levels to heights that we have never known. We also know that if a bailiff becomes involved a £50 debt turns into a £125 debt, just from the issue of a liability order. That debt then doubles if the bailiff actually has to visit the home. Those who cannot pay their debt because they are sick, disabled or mentally ill suddenly find that debt growing when they have no control over the situation.

Our amendment seeks simply to ameliorate the suffering of people with unmanageable debts by requiring the licensing and accreditation of companies and the authorisation of individuals to undertake enforcement activities. It also requires the inspection of such services, the training of bailiffs and the provision of an independent complaints process. It is not really that unreasonable. Having spent some time close to these matters, and considering the job they do, I cannot think of any other group of employees in the country who probably more need to be regulated than bailiffs. We know that for decades inadequately trained, unsuitable people have knocked on the doors of the vulnerable, making unreasonable demands that people cannot deal with, threatening those people and then removing their meagre possessions. It is pretty tough stuff.

I welcome the Government’s consultation exercise and the impact assessment. The major question for this House is whether the Government’s preferred option will sufficiently protect vulnerable people from harassment and, in many cases, ongoing terror—leading to mental breakdown, hospitalisation and in some cases, and we know this to be true, suicide.

The first requirement of a regulatory system is that it must ensure that bailiffs are suitable people to do this sensitive work; that they can identify a vulnerable person when they see one; and that they know how to react if someone clearly needs help to deal with their financial and other problems. Very welcome is the Government’s decision that to do nothing is not an option—I really thank Ministers for that; at least that is something. Ministers want to balance the need to minimise the regulation of businesses with the need protect customers. I think that we are used to that position. They want to do this through an improved certification process. The question for your Lordships is whether the right balance can be struck within the certification process.

I put a number of concerns to the Minister at a meeting yesterday. Although I am grateful to the Minister for finding the time to meet me, I was deeply disappointed to find that the details of the certification system are in the very early stages of development. It is therefore impossible to judge how far the requirements of this amendment could be met through a robust certification process. To do this job properly we need to know what it is we are talking about. The fact is that we do not.

One important element is that these people will have to do a CRB check. But will this be an enhanced CRB check? If it is not then, frankly, it will not be much help. It should be an enhanced check. Perhaps the Minister can respond to that.

Another important element will be the need for the bailiff to prove that he has achieved the necessary competence to do the job. There are seven elements to the competence required in the Government's consultation document but only one refers to the business of identifying those with vulnerability and knowing what actions to take in that case. Dealing with vulnerable clients is surely the toughest part of the bailiff's job. Vulnerable people include people with learning difficulties, psychosis, depression, physical disabilities, single parents with small or disabled children, elderly people with a degree of dementia and so forth. What will the training tell an applicant about the vast range of problems they will encounter? How vulnerable does a debtor have to be in order to be considered vulnerable? I hope that the Minister can respond to these really important questions. Without such knowledge, the bailiff simply cannot do the job other than in an incredibly cruel way.

Will those designing the training take account of the research done by the Royal College of Psychiatrists and the Money Advice Trust into debt collection and mental health? I shall take just one example of what they talk about. People are happy to talk about physical disability. They will tell someone who comes to the door, “I’ve got asthma” or “I’ve got a heart condition”, but the last thing you do is tell a stranger that you have a mental health problem. It is important that bailiffs are sensitive, thus enabling a person to disclose a mental health problem, otherwise the situation will soon get out of hand. What will enforcement officers be trained to do if they come across a vulnerable person? At the meeting the Minister gave me a reassurance about what would happen, and I would be grateful if he could give that assurance on the Floor of the House because it is important that we should know what happens when a bailiff comes across a vulnerable person.

Finally on the training issue, how long will the training take? If it is going to be two days, we know that it is not at all serious in terms of dealing with the issues I am covering. What about the personal specification for bailiffs? The Government will need to ensure that people with empathy are appointed to do this demanding job. They have to be tough, but they also have to understand. If I may put it bluntly, in the future the job will need to be done in an entirely different way. The debts of vulnerable people may have to be written off, and that should be done quickly rather than having people knocking on doors, or indeed knocking in doors, when they are dealing with an impossible situation.

Another matter of concern is the proposed approach to complaints. The consultation document refers to most enforcement agencies belonging either to the Civil Enforcement Association or the High Court Enforcement Officers Association. These bodies have codes of practice and in-house complaints processes. As we know, internal complaints procedures are pretty unsatisfactory unless they finish up with an independent appeal process. Can the Minister say whether the Government’s proposals will at the very least include an independent complaints appeal process? Also, what plans do the Government have for enforcement officers who do not belong to a trade association? What will happen about complaints made against those officers?

I note the proposals for the Bailiffs and Enforcement Agents Council to become the licensing body, possibly including the private parking industry in order to achieve economies of scale. I hope that the Minister will give the House the benefit of the Government’s thinking on these proposals because they could be quite interesting. This amendment does not prescribe the precise form that regulation should take because that is a matter for regulations and orders made under the Bill, but it does prescribe the necessary elements of independent regulation. We recognise that there are several options for undertaking the regulatory work, and the Financial Conduct Authority may be the preferred option. Others include direct regulation from within government with compliance functions outsourced to, for example, trading standards. That is a model which the Government may prefer.

I believe that the elements set out in this proposed new clause are essential to any effective regulatory system for enforcement agents. Can the Minister explain to what extent he believes—I realise that it can be only a belief—the Government’s plans will include the necessary requirements to end the maltreatment of vulnerable householders? In particular, what will the certification process include by way of inspections, training and an independent complaints appeals process? I beg to move.

[The Earl of Listowel]

I rise to speak briefly because I am moved by what my noble friend has just said. No doubt the Minister will want to reassure her as far as possible, but of course we recognise that people will owe money and that that money needs to be reclaimed, if that is possible. I would appreciate some information about how these bailiffs are recruited and how they are trained. These are matters that my noble friend raised. In particular, what happens when there are children in the home? What responsibilities do these practitioners have in terms of families? What if the mother is pregnant or has a child aged under 12 months? Perhaps these are details that will be worked out further down the line, but I would certainly appreciate any information that the Minister can provide. I imagine the Minister has had opportunities to meet with the charities which serve these families and I would be interested to hear what discussions have been had in that regard.

I share the concerns of my noble friend Lady Meacher. She helpfully highlighted the impact of various factors, including the welfare cuts which will take place next year. I was speaking to the chief executive of Action for Children last week and, if I remember correctly what she said, she described a mother she had met who had been obliged to move out of central London because of the housing benefit cuts but wanted to keep her daughter in the school she was used to. So she travelled into London each day to take her daughter to school but then had to spend the rest of the day on the streets in London, with her young infant child, because she could not afford to make the journey home and then back out again.

There are real challenges to families in the current climate and I would appreciate all the reassurance and information that the Minister can provide so that, whatever is done here, any risk to families is minimised.

[Lord Beecham]

My Lords, this topic has a long history. It is five years since the Tribunals, Courts and Enforcement Act 2007 envisaged a code which would cover the powers of bailiffs, the fees they could charge and the processes they would be allowed to undertake. Part 3 of that Act contained the notion of a system of independent regulation—a phrase which we hear in another context at the present time. Subsequently, nothing much has happened. It is fair to say that the present Government, in January of this year, introduced some national standards, on a voluntary basis, to be adopted by local authorities and those working for them, presumably in connection with council tax and matters of that kind. However, beyond that, there has been very little.

When this House debated an amendment in my name in July, we were told by the Minister—again, the noble Baroness, Lady Northover—that, as we had already understood, the consultation period on the Government’s proposals in respect of Part 3 of the Act had ended on 14 May and we would receive the Government’s response by the autumn. I asked a subsequent Parliamentary Question in the autumn and was told that there would be a response in the autumn. Autumn is indeed a season of mists and mellow fruitfulness but we have, on the face of it, more mist than fruitfulness when it comes to an outcome of the Government’s deliberations. The Minister indicated that the response would be coming soon but we are now out of autumn and into winter—as the temperature in this Chamber clearly affirms—and we do not yet see the Government’s direction of travel. Having regard to the disappointment that I voiced over the last issue, I am not over-confident that we will get a resolution that will meet the requirements of the case.

In Committee, I cited a number of instances of what can only be described as appalling behaviour by bailiffs; I am referring to private bailiffs as opposed to the enforcement officers employed directly by the courts. I can update your Lordships’ House with a few more cases. One case involved a company which had a distress warrant and threatened that the defendant would go to prison. In another case, the same company was issued with a distress warrant and the defendant tried to make an arrangement to pay. The defendant received texts, notices through their door and, on one occasion, the bailiff banged on the door. The defendant and her partner were out and two children aged 6 to 8 and a 14-16 year-old were at home. They explained that their parents were out and the bailiff threatened these children that they would take all their possessions and toys and that their mother would go to prison if the monies were not paid.

21:14

On another occasion, a woman whose daughter had a brain tumour and was constantly in and out of hospital was visited by the bailiffs. The mother would not answer the door because her daughter was in a bad state on that particular day. The bailiff spent some time kicking the door and returned a warrant to the court with the footnote, “Defendant very aggressive”. One might think that that was quite a projection on the part of the bailiff.

On another occasion, a private bailiff clamped the work van of a defendant, who was then told he would have to pay a lot of money to have it released. The bailiff said he would have it towed and sold to pay the civil car parking charges. The defendant took his tools and left the keys with the bailiff; the van was simply locked up and subsequently vandalised where it had been clamped.

Those are but three examples of some of the behaviour. Not all private bailiffs, of course, behave in this manner but sufficient of them do to raise very serious concerns. The concerns are not limited to misbehaviour of that kind. There is also the question of charges, to which the noble Baroness has referred. There is no national scale of fees for bailiffs enforcing magistrates’ court fines, and it has been reported that a £45 fine can give rise to charges of £300 or more. The question of charges arose in earlier debates this evening. Again, it is clear that this can be quite excessive in relation to the amount that is in issue.

Citizens Advice has long raised problems with bailiffs. In 2011-12, it dealt with just under 25,000 inquiries involving problems with private bailiffs—25,000 problems in 52 weeks. By my calculation, that is 500 problems a week, or 100 per working day nationally. That is a very significant number but will not completely cover the extent of the problem by any means.

Citizens Advice has constantly raised problems about misrepresentation of powers, intimidating behaviour of the kind that I have described, excessive fees—sometimes in excess of what is allowable in law—failure to accept reasonable offers of payment, and failing to recognise debtors in vulnerable situations. These are almost exclusively the provenance of private bailiffs as opposed to county court bailiffs. However, there is also a concern that the Government’s policy is intended to encourage further use of private bailiffs as opposed to the direct employment of bailiffs by the courts, where these problems are very much less and virtually insignificant.

We really do need to hear from the Government about when they will come forward with recommendations. It must, surely, be imminent after all this time and I very much hope that we will have information within weeks rather than further months. If the noble Lord is in a position to outline what those are likely to be, can he also indicate how the matter will be progressed, and whether regulations will be brought for approval by Parliament or what process will be invoked? This has now gone on far too long. Far too many people are suffering and far too many irresponsible people seeking to collect money are behaving in an irresponsible fashion. This is, frankly, achieving the proportions of a scandal that we really have to deal with in the interests of the justice system, as well as of those directly affected by the malpractices of some of these private bailiffs.

[Lord McNally]

My Lords, I think that we all agree that the kind of issues raised by the noble Baroness, Lady Meacher, and the noble Lord, Lord Beecham, are of concern. The problem hitherto has been insufficient unanimity as to what should be done about bailiffs. It is vital that our proposals strike the right balance between providing effective enforcement and protection for the vulnerable in society, while not imposing unnecessary burdens on business. However, the Government have brought forward a significant programme of reform, focusing on addressing the power of bailiffs, the fees they charge, and better regulation.

I share noble Lords’ concerns about the inappropriate behaviour of some bailiffs and the unnecessary distress that this can cause to those who already find themselves in an often difficult and distressing situation. I assure the House that the Government remain committed to bringing forward effective proposals that protect the public by ensuring that bailiff action is proportionate. However, the need to protect debtors from the aggressive pursuit of their debt must be balanced against the need for effective enforcement. A workable means to enforce the payment of debts and fines is essential to both the economy and the justice system. Without assurance that it is possible, with due process, to recoup money from debtors unwilling to pay, it would be too risky for creditors to lend, and the effectiveness of the courts would diminish.

As the noble Baroness is aware, the Government launched a public consultation on bailiff reform in February this year, which set out proposals aimed at improving clarity so that both debtors and creditors know where they stand, strengthening protections for the vulnerable and ensuring that individuals can collect the money owed to them. Any regulation of bailiffs must comply with the general principles of regulation: it must be proportionate, accountable, consistent, transparent and targeted. While at its heart it must provide protection for consumers, it cannot do this by placing an undue burden on business. If we do not find this balance, we risk replacing one set of concerns with another.

As we indicated in the consultation paper, the Government’s preferred option is not to introduce an independent regulator. The Government’s response will address this in more detail, but we have received no new evidence to suggest that the creation of an independent regulator would be a proportionate response to the concerns that have been raised about the practice of some bailiffs. In addition, regulation costs money. Regulation would necessarily impose a cost on the enforcement sector and, as a result, the industry would recoup the cost through fees, with the risk of the cost being passed on to debtors.

The proposals set out in the consultation paper are intended to work as a package. Reforming the fee structure, addressing the powers of enforcement agents, tightening certification and introducing competence criteria and specific training will tackle the majority of abuses by rogue bailiffs. We need to make sure that the profession attracts the right people and that they can demonstrate they are fit to do the work, which will include providing a satisfactory CRB check and undertaking the necessary training. Bailiff standards must improve.

Since a bailiff on the doorstep may be the first time a person has had to face their financial situation, any training needs to cover not only what they can and cannot do but how to handle what could be very vulnerable people. It is important that they know how to assess the situation and decide which cases should be referred back to the creditor for their specific instructions on how the matter should proceed. That is the answer that the noble Baroness asked me to put on the record: where the bailiff faces a situation where they believe that they are dealing with a vulnerable person, they should refer back to reassess how matters should proceed. The consultation paper covered the issue of vulnerability and training, and I am working with Helen Grant MP, who has responsibility for these reforms, to ensure that full consideration is given to the level of CRB check, and the content, level and length of training a bailiff will need to undertake.

We are aware that reform in this area has been long and widely awaited. This subject attracts a great deal of interest and very diverse views. We have a responsibility to ensure that we have fully evaluated these views and taken them into account in our response. Many of the issues that have been raised today were either explored in the consultation or provided in a response. As I have explained, it is essential that our reforms maintain the value of enforcement while protecting those who find themselves in debt. This is a delicate balance and we need to make sure that we get it right.

The consultation response is being finalised and will be published in due course; I am afraid that that is as good as I can do on that. All that I can say in defence is that tomorrow we are having the Autumn Statement. I understand the impatience, which I share, and we will push ahead. In the mean time officials are working with all stakeholders to ensure improvements continue to be made in this area. Once the response has been published, we will work closely with stakeholders to deliver its recommendations. I hope that, having had the opportunity to raise the issue, the noble Baroness will be prepared to withdraw her amendment and await the Government’s proposals.

[The Earl of Listowel]

Before the Minister sits down, is it appropriate at Report to ask him one brief question? Does he expect pregnant women and mothers with children under the age of two to come within that criterion of vulnerability?

[Lord McNally]

I hesitate to respond to what is clearly a very emotive situation as laid out by the noble Earl, Lord Listowel. There is danger in all of these cases—and even the noble Lord, Lord Beecham, fell into it—of using illustrations in an emotive fashion. We are trying to get a balance. I suggest that what you are saying and the assurance that has just been given by the noble Baroness, Lady Meacher, come within some assessment of vulnerability which will require further guidance. This is not me laying down the law from the Dispatch Box. I am trying to make a common-sense assessment. I regret that I cannot start responding to various speculations in advance of the publication of the work that we have done.

[Baroness Meacher]

I thank the Minister for his response, but I have to say that it is deeply distressing that we are having this debate when we do not really know what we are talking about. We do not have even the response to the consultation. We do not know what the Government’s plans really are. We should be having significant amendments debated and completed at Report stage, yet we cannot do that.

Will the Minister make clear whether the consultation response, or indications about the key points in it, could be made available to us before Third Reading? That is one important point. Secondly, I hope to have a meeting with Helen Grant and obtain some information from her. I would like to reserve the right to bring something back at Third Reading, hopefully on the basis of some rather better information than we had today. As Lord Beecham said, I am aware of this matter going on for 20 years. I was involved in the bailiff issue 20 and indeed 30 years ago, when I worked at the CAB. It is not new. It is overdue and we are in grave danger of having too little too late. Will the Minister say whether he can produce some information before Third Reading.

[Lord McNally]

My Lords, I can only say that I can in due course—in so many different ways, in due course.

[Baroness Meacher]

I have no option but to withdraw the amendment.

Amendment 111 withdrawn.

21:30

Amendment 112

Moved by

[Lord Pannick]

112: Before Clause 23, insert the following new Clause—
“Supreme Court security officers
(1) In Part 3 of the Constitutional Reform Act 2005 (the Supreme Court) after section 51 insert—
“Court security51A Security officers
(1) A Supreme Court security officer is a person who is—
(a) appointed by the President of the Supreme Court under section 49(1) or provided under a contract, and(b) designated by the President as a Supreme Court security officer.(2) The President may give directions as to—
(a) training courses to be completed by Supreme Court security officers;(b) conditions to be met before a person may be designated as a Supreme Court security officer.(3) For the purposes of sections 51B to 51E, a Supreme Court security officer who is not readily identifiable as such (whether by means of uniform or badge or otherwise) is not to be regarded as acting in the execution of the officer’s duty.
(4) In those sections “court building” means any building—
(a) where the business of the Supreme Court, or of the Judicial Committee of the Privy Council, is carried on, and(b) to which the public has access.51B Powers of search, exclusion, removal and restraint
(1) A Supreme Court security officer acting in the execution of the officer’s duty may search—
(a) any person who is in, or seeking to enter, a court building, and(b) any article in the possession of such a person.(2) Subsection (1) does not authorise a Supreme Court security officer to require a person to remove any of the person’s clothing other than a coat, jacket, headgear, gloves or footwear.
(3) A Supreme Court security officer acting in the execution of the officer’s duty may exclude or remove from a court building, or a part of a court building, any person who refuses—
(a) to permit a search under subsection (1), or(b) to surrender an article in the person’s possession when asked to do so under section 51C(1).(4) A Supreme Court security officer acting in the execution of the officer’s duty may—
(a) restrain any person who is in a court building, or(b) exclude or remove any person from a court building, or a part of a court building,if it is reasonably necessary to do so for one of the purposes given in subsection (5).(5) The purposes are—
(a) enabling business of the Supreme Court, or of the Judicial Committee of the Privy Council, to be carried on without interference or delay; (b) maintaining order;(c) securing the safety of any person in the court building.(6) A Supreme Court security officer acting in the execution of the officer’s duty may remove any person from a courtroom at the request of—
(a) a judge of the Supreme Court, or(b) a member of the Judicial Committee of the Privy Council.(7) The powers given by subsections (3), (4) and (6) include power to use reasonable force, where necessary.
51C Surrender, seizure and retention of knives and other articles
(1) If a Supreme Court security officer acting in the execution of the officer’s duty reasonably believes that an article in the possession of a person who is in, or seeking to enter, a court building ought to be surrendered on any of the grounds given in subsection (2), the officer must ask the person to surrender the article; and, if the person refuses to surrender the article, the officer may seize it.
(2) The grounds are that the article—
(a) may jeopardise the maintenance of order in the court building (or a part of it),(b) may put the safety of any person in the court building at risk, or(c) may be evidence of, or in relation to, an offence.(3) Subject to subsection (4), a Supreme Court security officer may retain an article which was—
(a) surrendered in response to a request under subsection (1), or(b) seized under that subsection,until the time when the person who surrendered it, or from whom it was seized, is leaving the court building.(4) If a Supreme Court security officer reasonably believes that the article may be evidence of, or in relation to, an offence, the officer may retain it until—
(a) the time when the person who surrendered it, or from whom it was seized, is leaving the court building, or(b) the end of the permitted period,whichever is the later.(5) In subsection (4) “the permitted period” means such period, not exceeding 24 hours from the time the article was surrendered or seized, as will enable the Supreme Court security officer to draw the article to the attention of a constable.
(6) Subsections (3) to (5) do not apply where a knife is—
(a) surrendered to a Supreme Court security officer in response to a request under subsection (1), or(b) seized by a Supreme Court security officer under that subsection,but, instead, the knife must be retained in accordance with regulations under section 51D(3) unless returned or disposed of in accordance with those regulations or regulations under section 51D(1).(7) If a Supreme Court security officer reasonably believes that a retained knife may be evidence of, or in relation to, an offence, nothing in subsection (6) prevents the officer retaining the knife for so long as necessary to enable the officer to draw it to the attention of a constable.
(8) In this section “knife” includes—
(a) a knife-blade, and(b) any other article which—(i) has a blade or is sharply pointed, and(ii) is made or adapted for use for causing injury to the person.51D Regulations about retention of knives and other articles
(1) The Lord Chancellor may by regulations make provision as to—
(a) the provision to persons—(i) by whom articles have been surrendered in response to a request under subsection (1) of section 51C, or(ii) from whom articles have been seized under that subsection,of written information about the powers of retention of Supreme Court security officers,(b) the keeping of records about articles which have been so surrendered or seized,(c) the period for which unclaimed articles have to be kept, and(d) the disposal of unclaimed articles at the end of that period.(2) In subsection (1) “unclaimed article” means an article—
(a) which has been retained under section 51C,(b) which a person is entitled to have returned,(c) which has not been returned, and(d) whose return has not been requested by a person entitled to it.(3) Without prejudice to the generality of subsection (1), the Lord Chancellor must by regulations make provision as to—
(a) the procedure to be followed when a knife is retained under section 51C;(b) the making of requests by eligible persons for the return of knives so retained;(c) the procedure to be followed when returning a knife pursuant to a request made in accordance with the regulations.(4) In subsection (3)—
“eligible person”, in relation to a knife retained under section 51C, means—
(a) the person who surrendered the knife under subsection (1) of section 51C or from whom the knife was seized under that subsection, or(b) any other person specified in regulations under subsection (3);“knife” has the same meaning as in section 51C.
51E Assaulting and obstructing Supreme Court security officers
(1) Any person who assaults a Supreme Court security officer acting in the execution of the officer’s duty commits an offence.
(2) A person guilty of an offence under subsection (1) is liable on summary conviction—
(a) to imprisonment for a term not exceeding 12 months, or(b) to a fine not exceeding level 5 on the standard scale, or(c) to both.(3) Subsection (2) applies—
(a) in England and Wales in relation to offences committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (general limit on magistrates’ court’s power to impose imprisonment), and(b) in Northern Ireland,as if the reference to 12 months were a reference to 6 months.(4) A person who resists or wilfully obstructs a Supreme Court security officer acting in the execution of the officer’s duty commits an offence.
(5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”
(2) In section 48(3)(a) of the Constitutional Reform Act 2005 (delegation of President’s functions to chief executive) after “under section 49(1)” insert “or 51A(1)(a) or (b)”.”

[Lord Pannick]

My Lords, Amendment 112 is in the names of the noble and learned Lord, Lord Phillips of Worth Matravers, and myself. The noble and learned Lord is abroad today and sends his apologies to the House.

The amendment seeks to give security officers at the United Kingdom Supreme Court the same powers as those available to court security officers in the other courts of England and Wales under Sections 52 to 57 of the Courts Act 2003. Those sections give court security officers statutory powers to search people, to exclude or remove people from court buildings or to restrain them in court buildings, and to seize, retain and dispose of offensive articles in court buildings. The provisions also create a criminal offence of assaulting or obstructing a court security officer.

There is at present a gap in the law because the Courts Act 2003 confers these powers only on staff appointed and then designated as security officers by the Lord Chancellor in relation to those courts where he is responsible for running an efficient and effective service. In the case of the Supreme Court, the Constitutional Reform Act 2005 vests in the president of the court the power to appoint staff, and the chief executive is under a duty to run an efficient and effective service. The powers conferred by the Courts Act are therefore not at present available to Supreme Court security officers.

Although, of course, Supreme Court security officers would hope never to have to use such powers, it is necessary for them, and for the judges, lawyers and members of the public they are protecting, to know that they have these vital powers at their disposal as security officers should the need arise. Unhappily, as we all know, there have been cases of such powers being needed in courts around the country.

I am sorry that your Lordships do not today have the advantage of hearing from the noble and learned Lord, Lord Phillips, the immediate past president of the Supreme Court, but I hope I have said enough to persuade noble Lords, and, in particular, the Minister that this amendment is necessary. I beg to move.

[Lord Goldsmith]

My Lords, I support this amendment. I understand that the Government may be in a position to say something favourable about it, so there is no need to say anything further, other than that the amendment may anticipate a little bit the debate that may take place on the next amendment about the importance of recognising the Supreme Court as an independent court no longer dependent on the Lord Chancellor.

[Lord Carswell]

My Lords, I support this amendment. For most of my 50 years in courts, this function was carried out by police officers who had the authority and the presence to be able to keep order. At times in my rather coloured career, that was necessary. At one time, we received intelligence that a gun was being smuggled into court to shoot either a witness or me or both of us. Happily, it did not arrive. The police presence was phased out, as it has been in other parts of the United Kingdom, and it has been necessary to appoint security officers. In my experience, they have never had to use these powers. They are needed because a lot more people attend the Supreme Court than used to attend the Appellate Committee upstairs or the Privy Council hearings. I support the amendment as one that it would be wise to have.

[Lord Ahmad of Wimbledon]

My Lords, this amendment concerns the security arrangements for the UK Supreme Court. As the noble Lord, Lord Pannick, has so elegantly explained, Amendment 112 would provide UK Supreme Court security officers with powers similar to those of court security officers appointed by the Lord Chancellor in accordance with the Courts Act 2003 in England and Wales and would address that gap.

The Government accept that UK Supreme Court security officers should have the same broad powers as court security officers in England and Wales, subject to appropriate safeguards, including in respect to training and security clearance. Having looked at the amendment, the Government are happy to commend it to the House.

Amendment 112 agreed.

Amendment 112A

Moved by

[Lord Pannick]

112A: Before Clause 23, insert the following new Clause—
“Chief Executive of the Supreme Court of the United Kingdom
(1) The Constitutional Reform Act 2005 is amended as follows.
(2) For section 48(2) (chief executive), substitute—
“(2) The President of the Supreme Court shall appoint the Chief Executive in accordance with the arrangements for the time being in force for the selection of persons to be employed in the civil service of the State.”
(3) In section 49(2) (officers and staff), omit the words “with the agreement of the Lord Chancellor.””

[Lord Pannick]

My Lords, again, this amendment is tabled in the names of the noble and learned Lord, Lord Phillips of Worth Matravers, and myself. It raises two issues of fundamental importance concerning the independent status of the Supreme Court—that is, its independence from the Executive. The first issue is that it would make the president of the Supreme Court and not the Lord Chancellor responsible for appointing the chief executive of the Supreme Court. The current position is that Section 48(2) of the Constitutional Reform Act 2005 provides that:

“The Lord Chancellor must appoint the chief executive, after consulting the President of the Court”.

The process for the appointment of the first and current chief executive, Jenny Rowe, involved an ad-hoc commission chaired by a Civil Service commissioner and which included three of the then Law Lords along with a retired senior civil servant as the external member. The Ministry of Justice provided the commission with secretarial support and a firm of head-hunters was used to identify potential candidates. The amendment does not envisage any change in the substance of that process. It worked well and produced an appointee who is widely recognised as deserving much of the credit for the successful birth and early years of our Supreme Court. However, in principle this is an appointment which should be made by the president of the Supreme Court and not by the Lord Chancellor.

The power to appoint all the other officers and staff of the Supreme Court is already invested in the president of the court by Section 49(1) of the 2005 Act, even if, in practice, he delegates the exercise of this power to the chief executive. Section 48(4) of the 2005 Act says that the chief executive has to act under the direction of the president, so it is an anomaly that the power to appoint the chief executive is not also a matter for the president.

There is also an important question of principle: of course, the Supreme Court acts independently of the Executive, but it must also be seen to do so. Indeed, that was the major reason why the Supreme Court was created by the 2005 Act and why the Law Lords left this place. For the president of the Supreme Court to have the responsibility for appointing the chief executive would emphasise to all concerned that this is an independent institution.

The noble and learned Lord, Lord Phillips, has asked me to tell your Lordships that in his experience of the first three years of operation of the Supreme Court, the existing appointment provision led more than once to confusion in parts of the government machine that the chief executive should in some sense be acting at the behest of Ministers. The amendment is designed to put it beyond doubt that this is not the case. If the appointment power were to be vested in the president, there then arises the question why the Lord Chancellor should be consulted at all on this matter, particularly given that the chief executive is and would continue to be appointed in accordance with civil service recruitment rules, and the process is and would continue to be presided over by a Civil Service commissioner.

The Lord Chancellor is, of course, no longer a judge, and any role he might have in the process could only now be as a politician and government Minister.

I can tell your Lordships that the justices of the Supreme Court, including the noble and learned Lord, Lord Neuberger, the new president, simply do not understand how it can be constitutionally appropriate for the Lord Chancellor to exercise any such role. So the amendment would therefore confer responsibility on the president of the Supreme Court for appointment of the chief executive of that court, and would remove the role of the Lord Chancellor.

A second issue is raised by this amendment, arising from the terms of Section 49(2) of the Constitutional Reform Act 2005, which provides that the chief executive of the Supreme Court requires the consent of the Lord Chancellor when she decides on the number of officers and staff of the court, and the terms on which officers and staff are to be appointed. The noble and learned lord, Lord Phillips, has said publicly that he considers it critical to the court’s independence, and the perception of its independence, that the chief executive owes her primary loyalty to the president of the court and not to a Minister. The justices of the Supreme Court believe it would be preferable for the statutory provisions to be changed to make it even clearer that the chief executive has a direct accountability to Parliament for the proper use of the court’s resources and that she acts entirely independently from ministerial direction.

This is not just a matter of principle, important though the principle of independence is. The practical reality is that it makes no sense whatever for the chief executive to have to agree with the Lord Chancellor, which means of course his officials, on the number of officers and staff of the court. The justices of the Supreme Court are clear that neither the Lord Chancellor nor his officials can be in any position to second guess decisions that the chief executive makes in consultation with, and, if necessary—although the noble and learned Lord, Lord Phillips, assures me that it never came to that during his time—at the direction of the president, about the staffing requirements of the court.

In any event, the chief executive already has two separate disciplines upon her in making those staffing decisions—the budget that Parliament has decided to make available to the court, and the requirement on her as chief executive under Section 51(1) of the Act that the chief executive must ensure that the court’s resources,

“are used to provide an efficient and effective system to support the Court in carrying on its business”.

The amendment would therefore remove the need for the chief executive to seek the agreement of the Lord Chancellor to these matters, to make even clearer her direct accountability to the president on the one hand and to Parliament, if needs be via the Public Accounts Committee, on the other. I can tell your Lordships that the current president of the Supreme Court, the noble and learned lord, Lord Neuberger, supports this amendment on both of the matters that it covers: removal of the role of the Lord Chancellor in the appointment of the chief executive and in relation to staffing issues at the Supreme Court.

I understand that discussions are continuing on these important issues. I hope that the Minister will agree to consider these important issues further between now and Third Reading so that we can, if necessary, return to the matter then. I beg to move.

[Lord Mayhew of Twysden]

It seems almost trite to make the point that wherever you have a chain of command within an organisation, that chain of command should be clear and not muddled or uncertain. If you find that those defects are present, you are bound to get trouble sooner or later—and it will probably be sooner. In the case of the United Kingdom Supreme Court, it seems to me to be very important that there should be no such blemish in its constitutional arrangements, for the very reason that has been explained so powerfully to us this evening, and which the noble and learned Lord, Lord Phillips—with the support of all his brethren—would have been adopting, we understand, were he present. The whole point of the setting up of the Supreme Court is that it should be operationally squeaky clean of any contamination by the Executive. That was the point of moving it away from the Judicial Committee of your Lordships’ House, something that many of us regretted. If that is to be the case, however, then it is particularly important that there should be no capability of misunderstanding and resulting conflict—let alone litigation—arising out of an assertion that there is a dual chain of command here.

21:45

It is not necessary to go into the statutory provisions of the 2005 Act, which have already been explained to us this evening. This amendment proposes that the Lord Chancellor shall no longer be the appointer, but the president, of the court. I suggest that that must be right, if one bears in mind the overriding importance of the operational independence of that court. I very much share the hope, expressed at the end of his speech, of the noble Lord, Lord Pannick, that as a result of their discussions the Government will come to the conclusion that this is an amendment which should in its substance be supported. If it is not possible for that to be achieved, then I very much hope that we shall have a very clear explanation why, and of what is thought to be achieved by a Government who insist on keeping the appointment in the hands of the Lord Chancellor—particularly when it falls to the chief executive, under the present constitutional arrangements, to appoint all the other officers and officials of the court. I very much support this amendment.

[Lord Goldsmith]

My Lords, I, too, support this amendment. The noble and learned Lord, Lord Mayhew of Twysden, has underlined what is critical on this amendment, which I very much hope the Government will consider. It is right that they will be considering this amendment between now and Third Reading.

There are two points. One is the practicality of the arrangements which the amendment proposes: they cannot be doubted. Arrangements for the appointment of the chief executive which include the president of our Supreme Court and the arrangements provided by the Civil Service rules seems to me undoubtedly to be a very proper way of proceeding. One cannot doubt that it will be effective. Certainly, the ad hoc way that the present chief executive was appointed was very successful. I had the privilege to have Miss Jenny Rowe working in my office for some time while I was Attorney-General; they could not have hoped for a better first chief executive.

So there can be no objection in principle by the Government to this proposal; and there is every reason in principle why they should want to see this amendment accepted. It is this worrying question of perception—is the Supreme Court really independent? I recall, in one of your Lordships’ committee rooms a long time ago, explaining to a group of Argentinian politicians, I think, how it came about that a decision had been made in relation to General Pinochet by the Judicial Committee of your Lordships’ House. I explained that the committee was entirely independent and that it was called a Judicial Committee, of professional judges, appointed to that role, who had no political affiliation. They nodded wisely and at the end of it all and said, “So why did the Government let it happen?”.

And that is the problem. If we have these apparent connections between Parliament, judges, the Lord Chancellor who is a serving Minister and now is really only a political Minister, and the court, people will think, “Ah, well, there must be some string-pulling going on”. We must remove all of those suggestions, and therefore I strongly support this amendment. I understand that it will not be moved to a vote this evening, but I very much hope that it will not be necessary to move it to a vote on a future occasion, because the Government will accept it.

[Lord Bach]

My Lords, in bringing up the rear, as it were, on this point, I will be very brief. I was the junior Minister with some responsibility for the Supreme Court while the building was being refurbished and finished. It was exciting to see noble and learned Lords in their hard hats going around the building as it was being refurbished. It has developed into an extraordinarily effective court which is a great credit to all those involved in it and is now a natural part of our constitutional settlement. I was also a Minister when the Supreme Court was actually opened. That, too, was an exciting time. I have a lasting interest in how the Supreme Court functions. I strongly support the amendment moved by the noble Lord, Lord Pannick, as it seems to me to go to an issue of independence. The independence of that court is of supreme importance, if I may use the expression. It is very important that the general public and the world outside understand that that court is at the very top of the British judicial system and is independent of the Executive in every way. That is why I support the amendment.

[Lord Beecham]

My Lords, I rise briefly to place on record the full support of the Opposition for this amendment. I hope that the Government will accept its spirit, if not the precise wording, today. It seems to set the final stone in the arch, as it were, of the construction of the Supreme Court. It clearly makes sense and I endorse entirely the observations of noble and learned Lords, the noble Lord, Lord Pannick, and my noble friend Lord Bach.

[Lord Ahmad of Wimbledon]

My Lords, I am minded of the fact that during the dinner break one of my noble friends remarked how cold the House had become given that we are in the winter months. I hope that some of my words may warm the temperature spiritually if not physically. Before I deal with the substance of what has been laid in front of us, I assure the House that Her Majesty’s Government fully and utterly respect the independence of the judiciary, and that there is no question of our duty to uphold that independence.

As the noble Lord, Lord Pannick, has alluded to, and as many noble Lords will recall, this House considered what are now Sections 48 to 50 of the Constitutional Reform Act 2005. Then, as now, the concern was how the court’s independence might be maintained following the Appellate Committee of the House of Lords transition into the UK Supreme Court. Several noble Lords have already made strong arguments as regards the current situation. I am not here to revisit arguments that have been raised historically. However, the Government retain a fundamental concern with regard to accountability and proper lines of accountability which need to be established so that the elected Government are responsible for the proper fiscal and managerial operation of the court.

The noble Lord, Lord Pannick, my noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Goldsmith, who was the Attorney-General, made very specific points about the challenges faced by the Lord Chancellor in appointing the chief executive, and the fact that a chief executive appointed by the Lord Chancellor has two masters in effect—one judicial and the other ministerial—and, as was argued, this breaches the principle of the separation of the Executive and the judiciary.

As I have said, the Government will listen to the arguments and have an open mind on the issue. As the noble Lord, Lord Pannick, alluded to, we are indeed engaging with the Supreme Court in order to consider the impact of this arrangement and of the amendment as tabled, and to resolve any concerns it may have about its independence and how this might best be preserved. However, it is our considered view that this constitutional change should not be rushed and that the Government and the Supreme Court should continue to discuss and consider together how any reform may be taken forward.

Reference has been made to Third Reading. I cannot at this time give an absolute concrete assurance from the Despatch Box, which I am sure noble Lords will appreciate, as to whether we will have concluded our consultation with the president of the Supreme Court, but these discussions are of course ongoing.

In lieu of these comments, I hope that the noble Lord, Lord Pannick, will be content to withdraw Amendment 112A on the understanding that this is a live issue which is being looked at, and which has been raised directly with the president of the court.

[Lord Pannick]

I am very grateful to the Minister. Of course, he gives no absolute concrete assurance, but I take from that that he gives a more qualified assurance that he will at least do his best to ensure that these important matters can be brought to a conclusion in time for Third Reading. It may be appropriate to seek to bring these matters back at that time, particularly as I do not understand the Minister to have identified any factor that can explain how it can be compatible with respect for the independence of the judiciary—which he says, and which of course I accept, the Government fully uphold—to maintain the constitutional provisions that this amendment seeks to remove.

The only factor to which the Minister referred that could come anywhere near providing any possible explanation was accountability. However, the whole point about the independence of the Supreme Court is that it is not accountable to Ministers; it is accountable to Parliament, of course, and it is answerable to Parliament in the sense that Parliament can override any decisions that the Supreme Court makes, and it is Parliament which decides on the resources that are provided to the Supreme Court in order that it can perform its function.

We have not heard any possible explanation of how these constitutional arrangements can be maintained consistently with the independence of the judiciary. I thank all noble Lords who have contributed to this debate. I will say to the Minister that I am sure that when and if it is necessary to bring this matter back before the House at Third Reading—I hope at an earlier time of day—there will be rather more noble Lords, and noble and learned Lords, who I am sure would wish to express similar views to those that the House has heard tonight. However, for now, I beg leave to withdraw this amendment.

Amendment 112A withdrawn.

Parliamentary Privilege

Tuesday 4th December 2012 Lords Chamber

Message from the Commons

A message was brought from the Commons that they concur that it is expedient that a Joint Committee of Lords and Commons be appointed to consider the Green Paper on Parliamentary Privilege presented to both Houses on 26 April (Cm 8318), and that they have ordered:

that a Select Committee of six Members be appointed to join with the Committee appointed by the Lords;

that the Committee should report by 25 April 2013; and

that the Committee shall have power

(i) to send for persons, papers and records,

(ii) to sit notwithstanding any adjournment of the House,

(iii) to report from time to time,

(iv) to appoint specialist advisers, and

(v) to adjourn from place to place within the United Kingdom.

House adjourned at 9.58 pm.