Police, Crime, Sentencing and Courts Bill

Baroness Kingsmill Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Baroness Kingsmill (Lab)]

Is the Minister saying therefore that it will be a mandatory sentence unless there are exceptions?

[Lord Wolfson of Tredegar (Con)]

Unless the exception is met, this is the sentence that will be imposed. I do not want to split hairs with the noble Baroness, but it is not mandatory in that sense. It is a minimum sentence which has to be imposed unless the conditions are met.

[Baroness Kingsmill (Lab)]

It is awfully important in these kinds of cases that we are very clear and precise in our language. There is a difference between minimum and mandatory. I think what the Minister is actually saying is that this is a mandatory sentence unless there is an exception.

[Lord Wolfson of Tredegar (Con)]

It is not a mandatory sentence, because you can impose more. Let us be clear: it is a minimum sentence, which has to be imposed unless the exceptions are met. To take it outside this clause, if you have a minimum sentence of two years unless there is an exception, the first question is: is the exception met? If it is not, you have to give at least two years. You do not have to give two years; you could give two and a half years. I am not sure I am saying anything different. Reference has been made to America. In other jurisdictions, when they say mandatory, it can be mandatory without exceptional circumstances or any other provision. I am not sure we are saying anything different. I think we are all clear about what we mean. I would prefer to use the phrase “a minimum sentence”, which is the phrase used in the Bill, unless the exception applies.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Kingsmill Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Faulks]

My Lords, I should like briefly to add to what the noble Lord, Lord Thomas, has said. I entirely endorse his comments. One of the problems with ATE premiums is that they are, in effect, unchallengeable because there is an assertion of what a case costs a particular litigant and, when it comes to an assessment, no alternative is put forward. Thereby, a defendant will always have to pay that.

My second and final point is that the noble and learned Lord, Lord Wallace, said in earlier debates that the Government were proposing to increase bereavement damages by 10 per cent, along with damages for pain, suffering and loss of amenity—which, of course, are general damages assessed by judges. I understand that this proposal was made because those damages are statutory and there would need to be a formal amendment or some other device. I would be happy to accept the assurance, which I understand to be coming, that QOCS is on the way and that there will be the appropriate method of bringing it in.

[Baroness Kingsmill]

My Lords, I should like to speak to the amendments in my name. I am encouraged to do so because, as a former personal injury lawyer, I have a deep commitment and engagement with accessibility of claimants to fair and appropriate redress when they are suffering personal injury.

There has been a lot of discussion about the so-called compensation culture in our legal system, but I refute that: there is no such thing as a compensation culture. In fact, if you exclude motor claims, the total number of claims has fallen from 116,380 in 2001 to little over 100,000 in 2010-11. It is 15 per cent lower than that it was in 2001. The Motor Insurers’ Bureau states that total claims provision and expenditure fell by 10 per cent compared to 2009. It is important that we all understand that the so-called compensation culture is a myth, a perception which is very far from reality.

That is why I have tabled some of the amendments. They are technical. It is possible that there have been oversights by the Government. I know that a 10 per cent increase in general damages has been discussed as a possibility. The Government have said that they will implement the 10 per cent increase by unenforceable means, such as requiring the judiciary to increase damages all round, but that is not enough. It is appropriate and important that that should be in the Bill. I should like to hear the Minister's comments on that. When we are talking about something as important as access to justice, people should not be burdened with additional uncertainty about what the costs will be.

I speak also to Amendment 141ZC, which would protect claimants against excessive costs in the event that they lose their claim. It is fully in the spirit of Lord Justice Jackson’s recommendations. As other speakers have said, the amendment implements Lord Jackson’s proposals for qualified one-way costs-shifting by including them in the Bill. That seems a very sensible proposal. It means that claimants would not be scared off by the risk of astronomic costs in the event that they lose. That will encourage access to justice. There is nothing quite as scary for claimants as the feeling, when there is uncertainty about their case, that they will be stuck with a very large bill at the end of it. I would like that to be stated clearly in the Bill and I join noble colleagues in asking the Minister to consider the amendments.

[Lord Mackay of Clashfern]

What is the justification for the costs-shifting system in the case where a person has been able to get a funding arrangement? If a person decides to take his case without a funding arrangement, why should he not have the benefit of the costs-shifting system just as well as the other? Why should the fact that someone has managed to agree with his solicitor be an important point as between the claimant and the defendant? I have said before, and I repeat briefly, that I have heard many expositions from the late Lord Simon of Glaisdale about the unfairness of the legal aid provision in that it deprived successful defendants of their right to recover their costs. This is an even more difficult situation. This is nothing to do with the state and the state’s grant of legal aid but is a question as between the client and solicitor. The client may well decide, “I don’t want to pay this success fee in any event. I am prepared to take my case and if I lose, why should I have to pay the costs of the other side when my colleague, who decides to pay a big success fee to the solicitor, is going to be protected?”.

Public Bodies Bill [HL]

Baroness Kingsmill Excerpts

Monday 28th March 2011 Lords Chamber

[Lord Borrie]

It would be churlish of me not to welcome the 172-page document that has been issued. I have been one of those who has suggested that one common feature of the Public Bodies Bill is that whole lists of organisations covering every conceivable subject were inserted into schedules, in nearly all cases without any explanation as to why or how their functions would be replaced or where we were to go from here. It was a rushed job. Among the bodies listed when Schedule 7 existed—and I am glad that the Government have got rid of it—were the Office of Fair Trading and the Competition Commission.

The Minister said several months ago when we first touched on this, at Second Reading and in Committee, that the intention was to merge those two bodies. Then it became clear that they were not being abolished but somehow brought together. I say “somehow” because it is only now, or 10 days ago, that we have had the 172 pages of explanation. Delighted though I am to see that document, it still raises the issue of how the Government still want by this amendment to insert the Competition Commission and the Office of Fair Trading into the schedule when they have not yet had the outcome of the consultation. In other words, the Government still want to determine the future and merger of these two bodies before they have received the answers to the question that the consultation paper very fairly raises of what the advantages or disadvantages would be of a merger.

It is not appropriate in this debate to raise large numbers of issues about that very lengthy document, and I hope there will be other occasions on which to do so. However, in relation to the Office of Fair Trading, which is to become part of the Competition and Markets Authority, a number of provisions in the first eight or 10 sections of the Enterprise Act 2002 list a whole lot of functions for the Office of Fair Trading—to promote consumer interest, to educate and inform consumers and to have various other functions. The Minister might say that some of those functions will go to Citizens Advice and some will go to trading standards offices. That might be so. However, as a debate on this Bill and the loss of the National Consumer Council indicated, the Minister explained that Citizens Advice would be adequately resourced to be able to substitute for what the NCC now does. The suggestion in the consultation paper to which the Minister now refers indicates that the consumer functions of the OFT are to disappear, as are the consumer functions of the National Consumer Council. Am I right in thinking that that is the result of bringing together the competition functions of the OFT and the Competition Commission?

Furthermore, how are the new bodies to function? I am interested to find that the consultation document seems to further the idea that has been working well for 40 or 60 years of a two-stage investigation. The main first investigation, the prosecutorial investigation, was done by the first government department, and then the OFT when it came into existence. The second stage investigation was of a more quasi-judicial type, with experts from different parts of business and the professions brought together in panels to determine individual cases. That range of expertise to be drawn upon by the Competition Commission has generally been thought of, internationally, as a very helpful procedure. As far as I read it—I hope that this is broadly correct—it is intended that the panel system should continue but it is suggested that more people should be full-time rather than part-time. I have generally thought that the very part-time nature of the Competition Commission’s panel members is their plus point, because on every day of the week except for one, or perhaps two, they are in their own business, profession or work and bring that in to inform their work as members of the Competition Commission when investigating cases.

I then noticed that it is intended that the actual employees—the economists, lawyers and civil servants within the Competition Commission—are to operate as teams not just at one stage or at the second stage but right the way through. That might be because there is a conflict in the mind of the Government. It might be to do with wanting to save money, which you do if only one team operates on the same case throughout instead of moving from one to another. Yet it also makes it more difficult, surely, for the second stage to be truly independent of the investigation. To make a rather crude analogy, you have the work of the court getting mixed up with the work of the investigators and the police.

I have those various doubts and questions, but then I, like everyone else who has it, has only just received the consultation paper. I think the noble Lord said that we have two or three months to go through it and give our answers but why, here and now in March when the consultation paper has only just gone out, are we as the House of Lords being asked to determine in this Bill that there shall be a merger of these two bodies?

[Baroness Kingsmill]

My Lords, I support much of what my noble friend Lord Borrie has just said. I have always been in favour of a merger of these two bodies and am pleased to see that the Government are thinking of bringing that about. I have received the consultation paper and I have not yet come to terms with all the points therein. This is a merger that, on the face of it, has a lot to commend it—as I said, I have always supported it—but I feel that the devil is in the detail and that there is much detail to be determined.

From what I have seen in the consultation paper, the one aspect that I regret is the separation of consumer protection from competition issues. When I was at the Competition Commission, our primary and overriding rule was the public interest. We felt constantly that we were protecting the interests of consumers. It is regrettable to separate out those consumer interests and consumer protection from the competition regime. While it is very good that it is proposed that the panel system should be retained, the balance between that panel of, if you like, independents and the professionals who are fully employed must be carefully regulated. I also agree that the part-time nature of the role is one thing that enables its independence and expertise to be maintained.

We also ought to be looking at the separation of the two roles or stages within the competition regime. The first stage is a sort of triage: how serious, how big and how important is this, and what are the main issues? It is important to have that first stage, and it is fundamental to the fairness of the whole procedure that, once that triage stage has happened, it should move on to another panel that looks at it afresh, having had the triage diagnosis to enable it to do so. From my point of view as an ex-regulator and as one who is now on the boards of many companies that have undergone and are undergoing competition investigations, business needs certainty and speedy results. We must ensure that the merged body produces both. If it does, as a result of the consultation document that emerges, that could be a very good thing.

I continue to have a number of questions about this and I think it is a shame that this merger should be regarded and looked at in the context of the Public Bodies Bill. It deserves a piece of legislation of its own and should not just be shovelled in with the consultation document, with such a short time to consider it. Having said that, it is, on the face of it, an appropriate merger.

Parliamentary Voting System and Constituencies Bill

Baroness Kingsmill Excerpts

Monday 13th December 2010 Lords Chamber

[Lord Monson]

The noble Baroness, Lady Hayter, made her argument extremely well but are she and her supporters aware that, 50-odd years ago, only two groups of people in the world could vote at the age of 18? The first comprised citizens of the Soviet Union, where you could vote at 18 provided you voted for the Communist Party. The second group consisted of white South Africans, who made up about 20 per cent of the population of that country. In most other parts of the world the voting age was 21 but there were at least four exceptions. These four exceptions were countries that are generally regarded by progressive opinion as highly praiseworthy, with superb welfare states and high standards of literacy, healthcare, education and so on. They were the Netherlands, Denmark, Sweden and Norway, where the minimum voting ages ranged from 23 to 25. That is not a preclusive argument against lowering the voting age but it is certainly something to reflect on.

[Baroness Kingsmill]

I support the amendment of my noble friend Lady Hayter. My reason for this is that 16 year-olds today are a very mature bunch of people. They have been well educated, on the whole, and many of them have studied current affairs to a far greater degree than I did when I was at school. We encourage our 16 year-olds to take responsibility; we wish them to behave well and to pursue active citizenship. I can think of no better way of doing so than exercising the vote responsibly. It is patronising in the extreme to think that 16 year-olds are not interested in how our Government are run. Most 16 year-olds I know are extremely interested in this area, as were most of my children’s friends when they were 16. Some of the frustrations that we see on the streets today may well have arisen from the fact that people have not had the opportunity to be active citizens or to exercise the vote. This is, therefore, a wholly worthy amendment and one that I support.

[Lord Maclennan of Rogart]

In opening the debate on active citizenship from these Benches two weeks ago, I made clear my view that votes at 16 would be timely. I do not resile from that one little bit. I served in the mid-1960s on the Latey committee on the age of majority, which reduced the age of majority for certain civil purposes to 18. A year later I also served on the Speaker’s Conference on electoral law, which recommended that the age of voting should be not 18 but 20. None the less, Parliament rejected that advice and the following year voted for votes at 18. So, I have a track record of involvement in this debate.

However, it appears that what we are talking about in this amendment is not giving people votes at 16 but giving them the right to participate in a one-off referendum. That raises somewhat different issues. It is also clear that, throughout the debate in Committee, there has been lengthy opposition to and debates on amendments, which—if the process goes on in this manner—will have the effect, whether it is desired or not, of postponing the referendum. As many people as possible should take part in the referendum, so that we have a clear indication of what the public view is. Whatever side of the argument we may be on, to have the maximum turnout for the referendum is highly desirable. If we are to achieve that maximum turnout, it makes sense to hold the referendum on a day when people are turning out for other polls. That is why I favour the proposal of the coalition Government to hold the referendum on the day of the Scottish election and the local elections, when roughly 85 per cent of the electorate will at least be able to turn out. That seems a very strong argument for not holding up this process. Consequently, we should view somewhat askance an amendment that could result in denying people that opportunity, or at least the likelihood of there being a substantial turnout.

The second issue that causes me to hesitate about having 16 year-olds voting in the late spring—as is implicit in the Government’s attitude—is that it seems improbable that many of them would be on the register in time for that. Even if the decision were taken by this House to change the provisions and allow them to vote, it would have to go back for approval to another place. Consequently, we could expect substantial delays. Practically, their being on the register—which they would need to be if their votes were to be validated—is very improbable.

Prostitution

Baroness Kingsmill Excerpts

Thursday 3rd June 2010 Lords Chamber

[Lord McNally]

My Lords, I thank my noble friend for his good wishes. On the question of consultation and the organisations that he referred to, yes, we are in listening mode and we will be very pleased to have further discussions with him. As I said in my initial reply, we have studied what the courts were doing with cases brought before them. That will also affect the development of future policy.

The 2009 Act was first implemented on 1 April. At the moment, we must see how it beds down. As it stands, it is for the decision of local police forces, but there is a lot of learning to be done about how to respond to these issues and I hope that that will continue to be so at both national and local level.

[Baroness Kingsmill]

My Lords, I wonder whether the Government have any plans to curb the demand side of the sex industry, as well as the supply side.

[Lord McNally]

As the noble Baroness is aware, that was very much the thrust of the 2009 Act. We shall see whether the Act causes a drop on the demand side. Having done a quick crash course on these issues, I do not believe that there is a silver bullet for this. As noble Lords know, some countries such as Sweden go for the demand side, while others such as Holland go for decriminalisation. The department is looking very carefully at the experience of countries abroad in how to deal with this as well as at how various experiments in approach in this country are progressing and what impact they are having on this problem.