Police, Crime, Sentencing and Courts Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, as my noble friend Lord Attlee has just said, I have tabled Amendment 211 in this group, and I have been very grateful for the cross-party support that I have had from the noble Lord, Lord Bird, and the noble Baronesses, Lady Lister and Lady Bakewell. I am further indebted, as I suspect other noble Lords who take an interest in this important subject are, to the work undertaken on it by Nacro. My noble friend has persuasively talked about this issue in moving Amendment 210. I will not repeat his analysis, but I make it clear that I support it, and it seems to me to be very sensible. But I want to add a bit of gloss of my own and step back from the detail, at least initially. Wherever you stand on the political spectrum, we can surely all agree that the rate of reoffending by prisoners on release is a reproach to us all. Further, in a well-ordered society, we should be making every effort to reduce it. This is one of the things behind the amendments that he and I have tabled.

Why is this? First, there are some hard economic numbers: the costs of our Prison Service and the ancillary services to back it up are stupendous. But there are other, more hidden but very severe social costs that are difficult to measure but nevertheless have a huge impact on our society over the long term: on the prisoner’s family, partner and children, who grow up in very disadvantaged circumstances, with greatly reduced life chances. As the noble Lord, Lord Blunkett, pointed out, there are other hidden costs. The people who have suffered from crime are traumatised by it. Elderly people whose houses have been broken into find it hard to leave their homes and go out. There is a very severe pressure on the fabric of our society, and it leads to neighbourhoods in which suspicions and concerns run rife.

While of course I understand and regret the economic and social costs, the basic issue for me is the point made by the right reverend Prelate the Bishop of Gloucester: it is about common humanity and behaving decently to our fellow citizens, to offer them the best chance of getting back on their feet. At no time is common humanity more needed than at that most vulnerable time when the prisoner is first released.

With that, I turn to my amendment. It does not take a Nobel prize winner to work out that Friday is not the ideal day for release from prison. A long weekend stretches ahead—longer still if followed by a bank holiday—during which the support systems of the state and the voluntary sector are either entirely or largely shut down, as my noble friend pointed out.

In preparing for this debate, I spoke to one of the groups that has briefed us and said, “Can you get someone to talk about this?” I thought that we would get to this amendment last Wednesday, so this is from a prisoner, Michael—that is not his real name—who was released a week ago last Friday: “I was released from prison last Friday, homeless, and everyone knew for months that I would have nowhere to go when I was released. But there I was, late afternoon on the Friday that I was released, still without anywhere to go. The housing people at the council had gone home for the weekend, and I had already been told that there was no chance for a council property. So I was waiting and waiting for news of some emergency accommodation, even just for a couple of days over the weekend. No wonder people reoffend”. Michael’s resettlement worker said, “The holding cell on a Friday is rammed, as such a high proportion of people in prison are released on a Friday. The pressure on the prisons and the resettlement service is incredible. It can lead to people being released late in the day, and, on the Friday, it becomes a race against the clock before services close for the weekend. The barriers to effective resettlement are just too high”.

My amendment, like my noble friend Lord Attlee’s, seeks to spread the days on which prisoners are released and remove the default option of the release day being predominantly a Friday. As he said, his amendment proposes that the courts should decide the specific release date. My Amendment 211 suggests that the governor of the relevant prison should be given the discretion of selecting the five-day window for the release date for a particular prisoner.

I say to my noble friend that the courts are too distant, and Amendment 210 runs the risk of a slightly clunky and administratively burdensome procedure. By contrast, the governor is the person on the spot, with day-to-day responsibility. He or she is therefore able best to take the decision that reflects the particular circumstances of each case and each individual prisoner. I recognise that, in parallel with this new flexibility, there will obviously be a need to make sure that the governors do not slide back to the old default option—the Friday—and some records need to be kept.

That having been said, what unites my noble friend and me is far greater than what divides us. As he said, he and I are concerned about introducing a policy change at very little cost, and possibly no cost, as a way—perhaps only a modest one—of reducing the likelihood of prisoners reoffending. I very much look forward to hearing my noble friend the Minister’s reply.

[Baroness Lister of Burtersett (Lab)]

I support Amendment 211, to which I have added my name. The case has been made very powerfully by the noble Lord, Lord Hodgson of Astley Abbotts. I am also supportive of the aims of Amendment 210, although that goes further by leaving less room for discretion—that may be a good thing, given the Scottish experience, which I will mention later—and I suspect would find even less favour with the Government.

I am struck by the strength of the case for change, from both the short-term perspective of the prisoner being released and the longer-term perspective of the likely impact on reoffending that we have heard about. Just last week, the Justice Secretary emphasised the importance of employment in reducing reoffending, and these amendments would help to support the initiatives to which he referred.

I ask the Minister to put himself in the shoes of a prisoner about to be released. Even the most organised of us would quail at the number of essential things they have to sort out: accommodation, health services, benefits and employment support. As an aside—although I know that the Minister will not be able to answer this question, I would be grateful if he could write to me—why does the law not permit prisoners to initiate their claim for universal credit before the actual release? Having a first UC payment available on the day of release would at least remove one obstacle, helping to create a much more effective resettlement process and, potentially, cut the rate of reoffending.

Returning to the matter at hand, I can only begin to imagine the mixture of relief and anxiety that prisoners must feel on release. To face this on a Friday, when many key services will be closing for the weekend, must be experienced as a set of totally unnecessary hurdles to be negotiated. Is it surprising that, according to Nacro, whose briefing I am grateful for, the inability to surmount those hurdles can lead to reoffending and/or turning to the more accessible comforts of drugs or drink. In the words of one prison-leaver, “If you’re released on a Friday and there are issues then they are not likely to be resolved until the following Monday, leaving the weekend to panic/stew/worry which could easily lead to reoffending.” I would panic/stew/worry if I were in that situation, I really would.

It seemed to me that this was a no-brainer, and thus it was with some surprise and disappointment that I read the negative response from the Minister in Committee in the Commons to the same amendment as Amendment 211. It felt as though he was clutching at straws in his rejection of the case made, and contradictory straws at that. On the one hand, he suggested that the change proposed would create pressure on the other days of the week, ignoring the fact that this amendment is purely discretionary and that, apparently, a third of releases currently take place on Fridays. Surely, if it were acted upon, the amendment would help to even out releases over the course of the week.

On the other hand, much was made of the fact that, in Scotland, prison governors have rarely used this discretionary power, which they have. Can the Minister tell us whether we have any information as to why that is the case? It would be helpful to know so that appropriate steps can be taken. Whatever the reason, however, it is surely not a good cause for refusing to follow suit in England and Wales. Even if it helps only a few prisoners on release, surely helping even a small number is better than helping none at all. It would be good if the impact of the change could be monitored so that, if it is shown to have a beneficial effect, it might encourage governors to use the power more.

In the Commons, the Minister acknowledged that there are challenges in making sure that offenders leaving prison are given access to the services they need so that they can get their lives back on track, but he then said that the Government

“would prefer to focus our efforts on making sure that those services are available on Friday.”—[Official Report, Commons, 22/6/21; col. 706.]

He then spoke rather vaguely about investment in reducing crime and tackling the drivers of reoffending as well as pilot programmes in five probation areas. But what exactly are the Government doing to ensure that services are available on a Friday, and functioning in a way that ensures that an ex-prisoner’s needs are sorted out before the weekend? Why do Ministers think they know better than probation officers and others on the front line who have supported Nacro on this?

I do not understand why the Government are so averse to this very modest change. I had hoped that this was an amendment they might accept in some form and that, while the wording may not be quite right, the essence of the amendments put together would be acceptable. I still hope that the Minister might be more open-minded to it than was his counterpart in the Commons.

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[Lord Wolfson of Tredegar (Con)]

I am trying to deal with the amendments in what I hope is a logical way. At the moment, I am dealing with the amendment which provides that the sentencing court should have regard to the day of release. I am trying to explain—cogently, I hope, and with great respect—why that is not a sensible or workable proposition.

I have dealt with longer sentences; let me now deal with shorter sentences. It might be said that with a shorter sentence the court could identify the release date. I accept that it would be easier for the court to identify the day of the week on which the release would fall if the sentence is very short—let us say two, three or four weeks—and if no other sentences are involved, but the problem there is that if you bring that release date even earlier, percentage wise, that is a significant additional reduction from the sentence. I therefore suggest that these amendments are not the answer—

[Baroness Lister of Burtersett (Lab)]

The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?

[Lord Falconer of Thoroton (Lab)]

The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.

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[Lord Wolfson of Tredegar (Con)]

I am not suggesting it is not possible; I am asking whether it is the best way to deal with the problem. I hear “of course it is”, but I suggest that it is not. Take the example of Scotland, where they have a discretionary power. That is a model of discretion regarding early release, under the Prisoners (Control of Release) (Scotland) Act 2015. Scottish Ministers have the discretion to bring forward the release dates of people in custody by no more than two days for the purposes of benefiting a prisoner’s reintegration into the community.

A freedom of information application was made on 30 March this year to the Scottish Prison Service which showed that only 20 prisoners have been granted discretionary early release under that Act in the five years since its implementation. We are not aware of any problems with implementation. I will ask officials in my department to consult with our colleagues in the Scottish Government to explore that issue further. If I am provided with any useful relevant information as a result, I will write to the noble Baroness to provide further information on that discretionary policy. We think that the best way to deal with this matter is to put money and services in place to ensure that prisoners, whatever day they are released on, have access to the services they need.

I heard the point made by the noble Baroness, Lady Lister, about universal credit. She very fairly gave me the opportunity to reply in writing, because that matter is substantially outside my department. I also heard what the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Chakrabarti, said about that issue; I will therefore respond in writing. At the same time, I will try to pick up the point made by the noble Lord, Lord German, on bank account opening, in so far as it is relevant to the universal credit point.

We are certainly not setting people up to fail; we sincerely want them to succeed and not reoffend.

[Baroness Lister of Burtersett (Lab)]

The Minister has made a slightly better fist of it than the Government did in the Commons, but in a sense he is clutching at the same straws—his presentation is just a bit more articulate than they were in the Commons. Does he not accept that it is better, even if it is just a few people, to help a few rather than none? Is he going to be able to say how he is going to keep services open over the weekend, because that is the issue? We have heard terrible examples of people being put in fields and turning to drugs and so on because the services are simply not there. This wonderful list of all these things the Government are putting money into is great, but I have not heard anything that would explain how the Government will ensure that services are there on a Friday evening, Saturday, Sunday and bank holidays.

I am afraid the Minister has not convinced me and, given the shaking of the head behind him, I do not think he has convinced the mover of the amendment, so I really ask him to look again at this. Although, unlike the first group of amendments, we may not have taken two hours on this group, there is absolute unanimity throughout the House that we can do something practical and it will not cost money. I am sorry, I am making a speech, which I should not be.

Assisted Dying Bill [HL]

Baroness Lister of Burtersett Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak in support of the Bill, focusing on the implications for disabled people. I find it difficult taking a stance in opposition to that of disabled colleagues, such as the noble Baroness, Lady Campbell of Surbiton, whom I think of as a friend; but I genuinely believe that this Bill is not a threat to disabled people, a view strongly endorsed in an email from a group of disability rights campaigners, including Professor Tom Shakespeare, whose work I respect. Moreover, contrary to some claims, most disability rights organisations are not opposed to assisted dying. We must not blur the lines between a dying person and a disabled person. Disabled people would not be eligible for assistance under the proposed law unless they were also terminally ill, expected to die within six months, and of sound mind.

As we have heard, the law in Victoria, Australia, was crafted with the help of prominent members of the disability community. One of them, Tricia Malowney, observed:

“The concerns of the disability community have been met, through the inclusion in the bill that merely having a disability will not meet the eligibility criteria, an acknowledgment that all lives have equal value and that we have the same rights and responsibilities as other Victorians.”


I wonder whether the noble Baroness, Lady Meacher, would consider an amendment that gave the same assurances.

With regards to the claim that assisted dying laws will lead to disabled people being pressured into choosing to die, I am sure that disabled colleagues would agree that we should exercise caution when labelling disabled people as inherently vulnerable. The disability campaigners who emailed made clear that they

“do not want people making decisions for us or about us, and that includes when the time comes, how we end our lives.”

Disability Rights Oregon has not received a single complaint about assisted dying, despite it having been legal in Oregon for nearly 25 years. More widely, systematic reviews have examined the uptake of assisted dying among those deemed vulnerable, including disabled people. One concluded that the hypothesis that disabled people face a disproportionate threat

“does not seem to be borne out.”

The Bill’s safeguards are more robust than current end-of-life practices and certainly more so than the process by which we outsource death to Dignitas or turn a blind eye to dying people ending their own lives behind closed doors.

While I have received many emails opposing the Bill—most, it would seem, via the Right To Life organisation—I have also received many moving letters begging me to support it. I will end by quoting from one of them:

“The motivation to change the law is the very real anguish faced by people with terminal illnesses as they anticipate intolerable suffering and the indignity of the final few days and weeks of their lives. While the suffering and indignity can be partly ameliorated that final period remains a profound concern to many people.”


We have the opportunity to try to end that suffering and indignity. We should take it.

Queen’s Speech

Baroness Lister of Burtersett Excerpts

Tuesday 18th May 2021 Lords Chamber

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, the new plan for immigration will, we are told, increase the asylum system’s “fairness and efficacy”. We certainly need more fairness and efficacy, but the Law Society and refugee and human rights groups warn that this plan spells the opposite, with

“dire consequences for children and young people”,

according to the Children’s Society.

I can do no better than to cite the UNHCR’s devastating critique. This

“discriminatory two-tiered approach … will undermine the 1951 Convention and international protection system, not just in the UK, but globally.”

A commitment to resettlement and improved safe and legal pathways, which are urgently needed but for which there is no detail, cannot,

“substitute for or absolve a State of its obligations towards persons seeking asylum at its borders”.

The inferior temporary protection status offered to irregular entrants who stay in the UK is incompatible with international refugee law. We are told that the

“human consequences …will be very serious’.

The UNHCR has offered to work with the Government

“to adopt a more sensible, humane and legally sound”

approach. Could the Minister tell us the Government’s response to this offer, how their plan will work, given the reported refusal of all EU countries to co-operate, and what are the plans to open up safe routes?

More positive is the commitment to correct what is described as

“historical anomalies in British Nationality law which have long prevented individuals from gaining British citizenship or registering for citizenship, through no fault of their own.”

This is a real injustice suffered by the children of British Overseas Territory citizens of a certain age, denied citizenship simply because their parents were not married. It should have been rectified years ago.

With regard to registering for citizenship, there has been a long-standing concern across the House about the barriers faced by children who were born or have grown up in the UK who have to register their entitlement to citizenship because of their parents’ immigration status. In February, the Court of Appeal ruled that the exorbitant fee is unlawful because it was set without consideration of the best interests of the child. Can the Minister assure us that the consequent Section 55 best interests assessment will be published, and say when?

This shameful policy reflects the failure to put children’s best interests at the heart of policy-making. Twice during the Queen’s Speech debate, ministerial responses have ignored calls for a Cabinet-level Minister for children. I trust this will not happen today. Among other things, such a Minister would help to ensure that children are treated as a priority for the levelling-up agenda.

Given the prominence of that agenda, it is incomprehensible, as the Joseph Rowntree Foundation has commented, that there is no sign of the employment Bill, which we were promised would protect and enhance workers’ rights. The Government have responded that the Bill will be introduced when the time is right. But surely, if we are to “build back better” from the pandemic, this parliamentary Session is exactly the right time: the right time to address endemic insecurity, especially among the lower paid; the right time to introduce promised leave, which needs to be paid, for around 5 million informal carers who juggle paid work and care and who have borne such a heavy burden during the pandemic; and the right time to reform shared parental leave, so as to ensure greater paternal involvement, as mothers have paid the price during the pandemic due to increased childcare responsibilities. When will the responses to the long-standing consultations on both carers’ and parental leave finally be published?

The briefing note on the speech includes a welcome acknowledgement that levelling up involves living standards. This means that it must address poverty and in particular child poverty, which is worsening in terms of both numbers and depth. We need investment in what the Biden Administration term the “human infrastructure” of financial support. At a minimum, the Government should now commit to maintaining the £20 UC uplift and its extension to legacy and related benefits, and to improving support for children, given the mounting evidence of how families with children have suffered disproportionately over the past year. The forthcoming levelling up White Paper must address these issues—

[Baroness Scott of Bybrook (Con)]

My Lords, I remind noble Lords that the advisory time limit for this debate is four minutes.

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[Baroness Lister of Burtersett (Lab) [V]]

I am just finishing.

The forthcoming levelling up White Paper must address these issues if it is to offer any hope to the millions who are struggling to stay afloat.

Domestic Abuse Bill

Baroness Lister of Burtersett Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

45: Before Clause 65, insert the following new Clause—
“Controlling or coercive behaviourControlling or coercive behaviour in an intimate or family relationship
(1) Section 76 of the Serious Crime Act 2015 (offence of controlling or coercive behaviour in an intimate or family relationship) is amended as follows.(2) In subsection (1)(b), after “personally connected” insert “(see subsection (6))”.(3) Omit subsection (2).(4) For subsection (6) substitute—“(6) A and B are “personally connected” if any of the following applies—(a) they are, or have been, married to each other;(b) they are, or have been, civil partners of each other;(c) they have agreed to marry one another (whether or not the agreement has been terminated);(d) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);(e) they are, or have been, in an intimate personal relationship with each other;(f) they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (6A));(g) they are relatives.(6A) For the purposes of subsection (6)(f) a person has a parental relationship in relation to a child if—(a) the person is a parent of the child, or(b) the person has parental responsibility for the child.”(5) In subsection (7), for “subsection (6)” substitute “subsections (6) and (6A)”.”Member’s explanatory statement
This new Clause would align the definition of “personally connected” in section 76 of the Serious Crime Act 2015 with that in Clause 2 of the Bill. The result is that the offence under that section of engaging in controlling or coercive behaviour would apply in relation to members of the same family, or people who have been in an intimate relationship, whether or not they live together.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, it is with great pleasure that I introduce Amendment 45 and consequential amendments, with the support of the noble Baronesses, Lady Williams of Trafford—it is not often I say that—Lady Bertin and Lady Sanderson of Welton. Aligning the definition of “personally connected” in the Serious Crime Act 2015 with that in the Bill would mean that the offence of controlling or coercive behaviour would apply whether or not the abuser and abused actually live together. It would therefore cover situations of non-domiciliary family abuse, which my noble friend Lord Hunt of Kings Heath raised in Committee, and post-separation abuse, which was the focus of my own original amendment.

Noble Lords will recall that, in Committee, there was unanimous support for that amendment. The situations we heard about were described using words such as “heart-breaking”, “tragic” and “unacceptable”, and the particular implications for older and black and minority ethnic women were brought out. Victims of post-separation abuse, and in particular economic abuse, told us of its “crippling” effects and of the “invisible chain” that it forges with an abuser they thought they had escaped. A number of noble Lords called on the Government to bring forward their own amendment if they had problems with the one I tabled. I am happy to say that that is exactly what they have done, to the credit of the Minister, who also generously suggested that the government amendment should be tabled in my name.

During the Bill’s earlier stages, Ministers said that they had to await the findings of the delayed research report that reviewed the controlling or coercive behaviour offence. In fact, this report rather sat on the fence when it came to recommending legislative change, which suggests that the Government genuinely listened to the strength of opinion expressed by your Lordships in coming to a decision. I am therefore really grateful to all the noble Lords who supported my amendment in Committee. I am particularly grateful to the noble Baroness, Lady Bertin, whom I have thought of as a noble friend because of the support that she has given me and whose commitment on these issues is second to none.

Together with a number of other noble Lords, we attended a round table the other week hosted by the domestic abuse commissioner designate, whose support has also been a significant factor, I am sure. At it, a number of participants raised the important issue of training, which we discussed more generally in relation to earlier amendments and, of course, on which we have just voted. This was one of the key findings of the official review:

“When attending domestic abuse incidents, it is vital that the police (including domestic abuse specialists) have the training and specialist resources needed to establish whether there are patterns of controlling or coercive behaviours underlying the incident that led to a police callout.”


This reflected the view across stakeholder groups that, despite improvements in the understanding and awareness of CCB, there is a need for better training of prosecutors and judges, as well as of front-line police officers in particular.

Surviving Economic Abuse—of which more in a moment—states:

“Currently, just under half of police forces in England and Wales have not received training in coercive and controlling or coercive behaviour. Government must provide funding to correct this deficit”.


I would be grateful if the Minister could tell us what plans there are to improve training and raise awareness generally of CCB and of how economic abuse fits into this pattern of behaviour, particularly in light of the amendment we just voted for. SEA also states that, at present,

“the majority of coercive controlling behaviour is not reported to the police, and many victims do not immediately recognise what is happening to them.”

Can the Minister tell us the Government’s response to the review’s recommendation that the operation of this legislative change

“should be monitored and reviewed to assess the impact”?

Before concluding, I want to voice my support for Amendments 46 and 47 in the name of the noble Baroness, Lady Campbell of Surbiton. She made a powerful case on Monday and, following the vote on Amendment 4, it would be good if the Government were willing to concede on these related amendments and treat them as consequential.

The Government’s decision to accept an amendment on post-separation abuse has been widely welcomed by organisations on the ground, and by survivors themselves. I pay special tribute to Surviving Economic Abuse, which has campaigned on the issue of post-separation economic abuse with such determination and skill, in response to concerns raised by victims and survivors. It has shared with me, anonymised, some of the responses that it has received from these women. They are truly heartwarming. I will quote just two: “Thank you for sharing this amazing piece of news. I am crying with happiness.” “I woke up this morning and saw the news and I was practically jumping up and down with joy. Yes, joy. These milestones that SEA achieves or helps achieve ... are like magic healing for my soul, this one in particular.”

Many of these women have shown such courage in speaking out and have undergone such an ordeal just at the point at which they believed that they had broken free of their abusers. I dedicate this new clause to them. I beg to move.

Amendment 46 (to Amendment 45)

Moved by

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Amendment 47 (to Amendment 45) not moved.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, before the Question is put on Amendment 45, I first pay tribute to the noble Baroness, Lady Campbell of Surbiton, who is my noble friend, and the noble Baroness, Lady Grey-Thompson. They have made a tremendous sacrifice, and we should acknowledge that. It saddens me, because this is a time when I feel so happy that Amendment 45 is going to go through. I am just really sorry that it has been at the expense of what they have been campaigning for. I ask the Minister to reflect on the number of noble Lords who have asked her to think again about this before Third Reading.

On a happier note, I thank the Minister for her response on Amendment 45, of which she is of course a co-sponsor; I am particularly grateful that she has taken on board and answered in detail the question of “Where now?” This is really just the first step. There is a lot that needs to be done with the development of the domestic abuse strategy to make sure that we raise awareness and implement training, monitoring and so forth.

I want to take this opportunity to thank again all those who have made Amendment 45 possible. Those who have survived economic abuse must take such pride in what has been achieved this evening. I thank colleagues across the House, both those who have spoken this evening and those who spoke in Committee. I thank the Minister, the noble Baroness, Lady Williams of Trafford, who has, I am sure, been pivotal to the Government listening and then agreeing that this particular formulation of the amendment be put forward. I also thank the many women who have spoken out in recent years.

It seems fitting to give the last word to one of these women who has been in touch with me. This is what she said—I have reduced it down, because it was a longer email:

“The Government’s announcement … is such positive news. I just wanted to stay a huge thank you and let you know how grateful I am … and also to your colleagues for all their tremendous care and commitment. Thank goodness the Government has listened.”

Amendment 45 agreed.

Domestic Abuse Bill

Baroness Lister of Burtersett Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Baroness, Lady Lister of Burtersett, who will be followed by the noble Baroness, Lady Verma.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, as I and many others said at Second Reading, the biggest hole in the Bill is its failure to make any provision for migrant women—a group of domestic abuse survivors who are let down badly by current provisions. I therefore strongly support these amendments, which, in different ways, would fill that hole and ensure that abused migrant women receive the same support as other domestic abuse survivors.

It is to the Government’s credit that they listened to the criticisms from domestic abuse organisations and, in particular, those working with abused migrant women such as Southall Black Sisters and the Latin American Women’s Rights Service—to which I pay tribute—and revised the prospectus for the Support for Migrants Victims pilot scheme. However, they refused to face up to the most fundamental criticism, as cited by the right reverend Prelate in her powerful speech, that a pilot scheme of this kind is simply not necessary in order to provide the evidence that Ministers claim they need before taking longer-term action to protect abused migrant women. Southall Black Sisters, for instance, has already provided the necessary evidence and the domestic abuse commissioner designate supports its belief that the Government do not need further evidence to act.

Although much improved from its original specification, the pilot is still inadequate to meet the needs of abused women. According to SBS, and as we have heard, the £1.4 million allocated is nowhere near enough to meet the needs of all the women requiring crisis support. It calculates that this will enable it to support only 50 women for three months each over a year, which would leave many women still excluded from protection and crisis support. At the same time, the £1.09 million grant it was awarded from the tampon tax fund to support women subject to the no recourse to public funds rule is due to end in March. As the right honourable Theresa May pointed out on Report in the Commons, we have to take account of the fact that the removal of financial support from a woman in a relationship might be

“part of the abuse they are suffering”.—[Official Report, Commons, 6 July 2020; col. 712.]

The Government must surely do all they can not to compound that abuse through public policy. At the very least, will the Minister consider suspending the application of the NRPF rule to domestic abuse survivors during the lifetime of the pilot to minimise the hardship that is likely to result?

Whatever the merits of the pilot project there is, as we have already heard, no guarantee that it will lead to lasting change. Such an important part of the domestic abuse strategy should not be dependent on the presence of sympathetic Ministers. Domestic abuse legislation does not come along that often; indeed, how many years have we had to wait for this Bill, welcome as it is? It is therefore vital that provision be made within it to ensure equal protection for migrant domestic abuse survivors. Indeed, the EHRC warns that failure to do so might put us in breach of the European Convention on Human Rights and, as we have heard, it would almost certainly breach our obligations under the Istanbul convention. Given that the Minister said in her letter to Peers following Second Reading that the Government will ratify the convention only when they are satisfied that we meet all our obligations, it is surely imperative that equal protection for migrant women be enshrined in this Bill, as argued by the noble Baroness, Lady Helic, and my noble friend Lord Griffiths of Burry Port.

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Moved by

[Baroness Lister of Burtersett]

149: After Clause 72, insert the following new Clause—
“Controlling or coercive behaviour offence: post-separation abuse
(1) Section 76 (controlling or coercive behaviour in an intimate or family relationship) of the Serious Crime Act 2015 is amended as follows.(2) Leave out subsection (2) and insert—“(2) “personally connected” has the meaning as set out in section 2 of the Domestic Abuse Act 2021.”(3) Leave out subsections (6) and (7).”Member’s explanatory statement
This new Clause would ensure that those who were previously personally connected are protected from any coercive and controlling behaviour (including economic abuse) that occurs post-separation.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, Amendment 149 would protect those who were previously personally connected to an abuser from any coercive or controlling behaviour—including, in particular, economic abuse—that occurs post separation. It would do so by amending the Serious Crime Act 2015 so that its provisions concerning controlling or coercive behaviour were extended to cover those not living together. It would therefore also safeguard those covered by the amendment in the name of my noble friend Lord Hunt of Kings Heath, which focuses on another important group in need of protection. I am grateful to noble Lords who have added their names to Amendment 149. Analysis of successful prosecutions of the controlling or coercive behaviour offence found that six in 10 involved economic abuse, yet the wording of that legislation means that, post separation, the victims of such abuse have no legal redress.

Economic abuse has been a long-standing concern of mine, even if I had not then come across the term, so its inclusion in the definition of domestic abuse in the Bill is welcome indeed. But I must admit that I had not been aware of the prevalence and seriousness of post-separation economic abuse until it was brought to my attention by the charity Surviving Economic Abuse—SEA—to which I pay tribute for all its work on the issue and express my thanks for its help with the amendment.

We are talking about, for instance, spending money from a victim’s bank account or a joint account without permission, running up bills in their name, prolonging the sale of joint property unreasonably, interfering with the victim’s employment, and jeopardising their social security entitlement through malicious calls or wrongly claiming the child benefit. Post-separation abuse can also involve indirect control through use of the family courts.

Following an interview I did on “You and Yours” last Autumn, prompted by SEA’s work, I received a long email from a mother of three children who shared her experience, and I am grateful for her permission to quote from it anonymously. Currently going through a divorce, having suffered a combination of psychological, economic and some physical abuse, a common combination, she detailed the ways in which her husband was putting debts in her name and was taking steps that undermined her financial position before the divorce and any financial settlement. She described his actions as

“malevolent, wilful, controlling that are all-consuming and intent on destruction.”

She describes

“sleepless nights worrying about debts put in my name, no pension provision, my credit score, ability to borrow.”

She said she had learned that

“the drive to dominate does not end after physical separation”,

and she finished:

“I hope your colleagues take note that economic abuse that continues post separation, particularly when children are involved is disordered behaviour that goes against healthy parental and societal norms and should be legislated as unlawful.”


Since then I have received many emails covering various forms of post-separation abuse. One described it as

“a merry-go-round that just keeps turning post-separation”

that

“in many ways has been worse than the emotional abuse I was subjected to throughout the relationship.”

Many echoed this plea from one of them:

“Please give survivors protection from on-going abuse after we leave as this is the most dangerous period for the victims.”


These emails are just the tip of an iceberg of anxiety, suffering and trauma caused by economic abuse which research shows frequently continues after separation.

For instance, in a national survey last year by Refuge and the Co-operative Bank about one-quarter of all respondents said they had experienced economic abuse after separation from their partner, nearly one in 10 said their former partner damaged or stole property that had to be replaced, and 6% reported that in each case their ex-partner had spent money from a joint account without consent or discussion, had run up bills in their name or had refused to pay any child support. In all, only just over half of those who had experienced economic abuse said it had ended when they split up with the abuser, and some said it started only after they had ended the relationship. The research underlined the devastating and long-term financial and mental health effect that economic abuse can have on well-being.

More recently, nearly four-fifths of post-separation abuse victims who responded to SEA’s pandemic survey said the perpetrator had attempted to control their finances, with success in two-thirds of all cases. Nicola Sharp-Jeffs of SEA has detailed how coerced debt is a particularly effective and insidious form of economic abuse and is all too frequent post separation. One project found that three out of five domestic abuse survivors had been subject to at least one coerced debt. One woman described such debts as “invisible chains” that link you to the perpetrator post separation.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, it has been a privilege and an honour to move this amendment which has had such great support from across the House and in particular an unusual level of support from the Minister’s own Benches.

We have heard a lot of very strong arguments. I will not go through them, given the time. At present, there is a disincentive for victims of abuse to leave. We have heard about the positions of older and disabled women, children and black and minority ethnic women. We have heard from a former Victims’ Commissioner and a judge, and we have heard the very moving personal experience of the noble Lord, Lord Paddick. Almost everyone who spoke dismissed, out of hand, the idea that post-separation abuse, and in particular economic abuse, could be treated as a form of stalking.

I had hoped that, having listened to the debate, the Minister would put up the white flag and basically say that the case had been overwhelmingly put. A number of noble Lords on her own Benches said they hoped she would bring forward her own amendment on Report. But I do welcome the fact that she said she will look again at this. That is progress. But she said there are arguments on both sides. Well, I have heard argument after argument for this amendment, and not one against it. The Minister did not really put an argument, so I look forward to what I hope will be productive discussions between now and Report, and I hope she will take note of the calls that, if she will not accept this amendment, she should bring forward her own amendment on Report.

I will leave it at that. I thank noble Lords again for such strong support for this amendment. But in the meantime, I beg leave to withdraw it.

Amendment 149 withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Baroness Lister of Burtersett Excerpts

Wednesday 10th June 2015 Lords Chamber

[Lord Faulks]

My noble and learned friend makes a good friend—I mean, a good point: he is a good friend. We have given significant sums to various bodies: £16.8 million to the advice services fund, £107 million to the transitional fund launched in 2010 and £68 million to the advice service transitional fund. It is important that advice is accessed via these means, and I entirely agree that much assistance can be derived thereby.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Government are threatening a further £12 billion in social security cuts. This is bound to increase the need for advice on social welfare law. Does this not strengthen the case made by my noble friend for bringing forward the review of how Part 1 is working so far?

[Lord Faulks]

I think that the noble Baroness is referring to universal credit. The point about social welfare reforms I have already answered. Of course the Government are aware of all the potential difficulties that may confront individuals with cuts in either welfare provisions or access to legal aid, which was the subject of the Question. We will be having a careful look at these as they happen, but there must be a systematic review, and that is our intention.

Criminal Justice and Courts Bill

Baroness Lister of Burtersett Excerpts

Tuesday 9th December 2014 Lords Chamber

[Lord Lester of Herne Hill]

Mr Geoffrey Cox, a Conservative Member of Parliament, asked the Secretary of State for Justice what he meant by “a minor technicality”, and he replied by giving examples of a failure of proper consultation. In my experience, a failure of proper consultation can be a very serious matter. I want to give just two examples of cases that I was involved in—one I won and the other I lost. One was about closing Barts Hospital. A judicial review challenge was brought on the basis that the Minister had not properly consulted before deciding to close the hospital. The judge exercised discretion in any event, and we lost. However, it was a very important exercise because it involved the court in calling to account what the Minister had done to see whether it was an abuse of power; it was not.

In the other case, involving a Labour Government, the consultation was about the Export Credit Guarantee Corporation and whether the new rules on anti-corruption had been properly consulted on. It turned out that the only people who had been consulted were large corporations. A small NGO, the Corner House, brought a challenge based on the fact that it was not a proper consultation, and it succeeded. As a result, the Minister had to do a further, proper consultation and to beef up the anti-corruption rules. I give those two examples to show that the Secretary of State for Justice simply does not appreciate how important a breach of procedural good government can be in a particular public interest case.

I want to say two other things. One is that the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out that the Government have produced no evidence, as distinct from ideology, to justify the changes that are being contemplated and are now the subject of ping-pong, and they still have produced no evidence. The Constitution Committee, on which I also have the privilege of serving—not a left-wing, radical, subversive organisation—led by its chair, the noble Lord, Lord Lang, on 4 July asked the House to reflect on the wisdom of the Government pressing ahead with the reform to judicial process despite the warnings of the judiciary. In spite of the Constitution Committee ringing the alarm bell and repeating the warnings—I will not bore the House with the details—the Government went ahead. As far as I can see, neither of these reports was even referred to by Mr Grayling in the debates in the other place.

It is very important, if we have expert committees that are advising both Houses, that at the very least Ministers do them the courtesy of replying to them in the debate, and they have not done so. I cannot match the eloquence of the noble Lord, Lord Deben, or the eloquence and wisdom of my noble kinsman, the noble and learned Lord, Lord Woolf, in what they have said, but I very much hope that we will rise above party politics this evening.

[Baroness Lister of Burtersett (Lab)]

My Lords, like the noble Lord, Lord Deben, and the noble Baroness, Lady Campbell of Surbiton, I speak as a member of what was last week dubbed the sisterhood and brotherhood of non-lawyers. It is very important that non-lawyers speak in support of lawyers on these issues because, as the noble Baroness, Lady Hamwee, said at Second Reading of the Bill, “These are citizens’ issues”. We are talking about the most marginalised, powerless and voiceless citizens whose concerns are at stake.

I speak also as a member of the Joint Committee on Human Rights. We opposed the original clause on grounds of both principle and practice, including the argument put so powerfully by the noble Lord, Lord Deben, that we should not condone unlawful decision-making. This is of particular importance to the enforcement of the public sector equality duty, a point which has been made to us by the Equality and Human Rights Commission. I declare an interest as the honorary president and a former employee of the Child Poverty Action Group, which, as Sir Stephen Sedley has pointed out, was a pioneer in the use of judicial review to further the interests of children in poverty and their parents and played an important role in elucidating the law on social security to the benefit of everyone involved.

I will recount briefly a recent case that is relevant also to Motion D, in which the CPAG acted as an intervener. It was a judicial review against a decision to cut the funding for local welfare assistance schemes—which replaced the discretionary social fund—which we know, from a growing body of evidence, is causing real hardship. The decision has taken place without consultation and without first carrying out the review that had been promised to Parliament during the passage of the Welfare Reform Act 2012. As it happened, the Government settled the case—they clearly did not think that they would win it—and have now consulted. The CPAG’s solicitor said to me that if the Government’s version of the Bill becomes law, this intervention probably would not have been possible,

“because of the uncertainty around whether our charity would end up liable to pay costs. As a result, the Courts would have been ignorant of the broader issues at stake”.

Indeed, the case may not even have got permission because the Government might have argued that, even if they had consulted, their decision would have been highly likely to be the same. I hope that that does not prove to be the case. We do not yet know what the decision will be. However, in answer to a Written Question just the other day, I was told that they have had over 5,000 responses to that consultation. That is not a mere technicality; that is about listening to what local authorities and other citizens of this country think about this issue.

To echo the very powerful speech of the noble Lord, Lord Deben, at issue here are the accountability of the Government, the rule of law and access to justice—the very kind of principles that your Lordships’ House has traditionally upheld. I hope very much that your Lordships will uphold them again today.

[Lord Phillips of Worth Matravers (CB)]

The amendment proposed by the noble Lord, Lord Pannick, will do no more than bring the law into accord with the position as described, with apparent approval, by the Secretary of State for Justice in the other place. I hope the Minister will do what he has not yet done, which is to explain to this House why it is open to objection.

Criminal Justice and Courts Bill

Baroness Lister of Burtersett Excerpts

Monday 27th October 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments. First, I declare an interest as the honorary president and a former director of the Child Poverty Action Group. It is an organisation which helped to pioneer the use of judicial review for the marginalised citizens about whom we heard in debating the previous amendment, thus emphasising that we are talking about not just the interests of lawyers but the interests of some of the most deprived, marginalised citizens of our country. I speak also as a member of the Joint Committee on Human Rights. I remind your Lordships’ House that in the first of our two reports on our grave concern about the human rights implications of these changes, we said:

“We therefore do not consider the Government to have demonstrated by clear evidence that … judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate”,

notwithstanding what the noble Lord, Lord Horam, said with regard to the previous amendment. I have reread our debates on this issue and I have read all the briefing that we have received. I can only come to the conclusion that the provisions in Part 4 are a series of highly imperfect solutions looking for a problem—a problem that no one else can see.

As regards Amendment 157, in Committee I raised the concerns of NGOs. I said that they warn of,

“the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs”.—[Official Report, 30/7/14; col. 1601.]

Michael Spencer, solicitor for the Child Poverty Action Group, said:

“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.

The Minister responded quite fully to my concerns and fears. He said that,

“we do not believe that the provisions would affect the common law position concerning when costs would be awarded against a party … These clauses should not cause anyone to pay costs who would not do so under the current law, except those who should but of whom the court is unaware. I hope that will allay, to some extent, the fears that some have about making challenges to a school or some other small project, which they might reasonably hope would be the subject of a judicial review”.—[Official Report, 30/7/14; col. 1612.]

However, I fear that the concerns and worries of groups outside this House have not been allayed. As the most recent briefing from this very wide group of NGOs, which represents a wide range of lawyer and non-lawyer interests in this area, still raises concerns, I discussed with Justice why it was still worried about this, despite the reassuring words that the noble Lord gave us in Committee. Justice said:

“While the Minister’s assurance is welcome, as the Minister explains, he cannot predict how the courts will respond to the change in position proposed by the statute. Similarly, Parliament cannot have a full picture of the rules which the court will be applying, as the Bill provides for the detail of the change to be in the rules to be set down by the rules committee. Yet, there is nothing in the Bill which would send a message to the courts that they should not depart from their previous approach to the allocation of costs. If the Government doesn’t intend to change the position in the common law, the question is: ‘Why not make that clear on the face of the Bill?’. Instead, by leaving the ambiguity in place, and creating a clean statutory slate of instructions for the courts, Ministers are creating a real risk that individuals will be deterred from litigating while the costs risk is ascertained. As and until the position is clear, individual solicitors will be unable to advise their clients on the likely costs risk, if any. Caution will be required. The breadth of the disclosure requirement in Clause 71 makes this chilling and deterrent effect particularly dangerous”.

I will not go on but there is a real danger here that I hope we in this House will prevent happening.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support Amendment 157 for the reasons already given by the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. There are indeed currently real perils in Clause 71 in the way of the chilling effect that it must inevitably have. In Committee on 30 July, as reported at col. 1607, in relation to what was then Clause 65 and is now Clause 71, the Minister twice said that the senior judiciary welcomed this provision. I was troubled by that and looked at the response of the senior judiciary of last November. I hope that I have the right document and that I have isolated the right paragraphs; that is, paragraphs 34 and 38. I am sure that the Minister will correct me if I am wrong, They suggest that, in certain circumstances, there should be mandatory disclosure of financial circumstances. As I read that response—and I am unsurprised by this—the important point is that it refers only to when determining whether to make a protective costs order or when questioning,

“whether to make a costs order against a non-party”.

Those are not routine events, and they would not require, as the clause as it stands does, a disclosure of financial resources on all applications. If I am wrong about that the Minister will correct me, but if I am right, with respect, that wholly deprives him of the support on which he rested in Committee: the senior judiciary’s response.

Criminal Justice and Courts Bill

Baroness Lister of Burtersett Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, this group of amendments is concerned with Clauses 74 and 75, and it relates to costs capping orders, or protective costs orders, as they were previously called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs should the claim fail.

At the moment costs capping orders are a matter for the discretion of the court. They are rarely made, particularly in contexts other than environmental claims, which Clause 76 rightly recognises to raise special considerations because of an international convention, the Aarhus convention. The Minister, in correspondence, has helpfully referred to three or four cases a year of protective costs orders being made outside the environmental field. It is not a major problem. I have seen no evidence to suggest that the current exercise of the costs capping order power by the courts has caused any problems at all, other than the general problem that government departments would much prefer not to be the subject of judicial review applications at all.

Amendment 166 addresses a particular vice of Clause 74. Clause 74(3) provides that a costs capping order may be made,

“only if leave to apply for judicial review has been granted”,

but such a provision would defeat the very object of a costs capping order. If an applicant cannot seek and obtain a costs capping order in an appropriate case until leave to move for judicial review is granted, applicants will inevitably be deterred from bringing those judicial review proceedings in the public interest in the first place. They will be deterred because of the risk of having to pay an unquantified amount of costs at the permission hearing. I suggest to your Lordships that protective costs orders should remain available, if and only if the judge considers it appropriate in the circumstances of the individual case, prior to the grant of permission to move for judicial review. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am sorry I missed the beginning of the noble Lord’s introduction of this amendment but I got called out. I simply want to speak on behalf of the Joint Committee on Human Rights. Our latest report says:

“We remain of the view expressed in our Report on judicial review that restricting the availability of costs-capping orders to cases in which permission has been granted would be a disincentive to meritorious public interest challenges being brought”—

that argument has been made—

“and we maintain our recommendation that the Bill be amended to remove this restriction”,

and that we explicitly support,

“Lord Pannick’s amendment … which would preserve the court’s current power to make a costs-capping order at any stage of judicial review proceedings, including before permission is granted”.

I hope that your Lordships’ House will feel able to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support this amendment. By the same token that the House approved the earlier amendments, logically this amendment must be allowed as well. The vice of the proposed legislation is once again the narrowing of the courts’ discretion and the chilling of the judicial review. In this case, in the most important area of public interest litigation, it is really imperative that this amendment succeeds.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, my noble friend Lord Beecham referred to the Joint Committee on Human Rights report on the residence test and legal aid for children. I want to return to a point I raised in Committee from the Joint Committee’s report, which referred to child protection cases. The committee said:

“We are confused as to why the Government excluded certain child protection cases from having to satisfy the residence test, but did not exclude from the test all legal remedies including judicial review. Whilst welcoming the funding of legal advice, we do not understand the justification that it is a good use of public money to give funding for advice that cannot be taken through to a judicial review”.

The Minister responded in Committee that,

“the Government’s position is that they do not believe that the JCHR should have concluded what they concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account”.—[Official Report, 30/7/14; col. 1666.]

I am not sure that the committee actually said that. The committee acknowledged the Government’s argument that they would prefer that people do not have to make an application for judicial review. I am an adult and I would not want to go to judicial review without the help of a lawyer—lawyers do have their uses—and it is a bit unrealistic to expect a child to do so. However, the Minister carefully avoided the key point we were making, which is that,

“it is inevitable that judicial review will be a necessary remedy in certain cases. We are concerned that, if the residence test applies, there will no longer be the risk of a judicial review when a local authority fails a child in its care. This deterrent effect of a judicial review encourages local authorities to discharge their duties properly”.

We are therefore going back to the points made earlier about accountability and the deterrent effect. If a local authority knows that legal aid is not there, the chances of judicial review being brought are highly remote. The deterrent effect is, therefore, lost and the accountability of local authorities is diminished. That cannot be right.

Criminal Justice and Courts Bill

Baroness Lister of Burtersett Excerpts

Wednesday 30th July 2014 Lords Chamber

I see no reason why Parliament should not legislate to clarify the court’s discretion, but that is a world away from introducing a presumption in favour of imposing on any party who provides support for a judicial review application an obligation to provide information about resources or likely resources right at the outset, even before an application is brought, and introducing what amounts to a presumption that he will be liable for the costs of an application if it fails, because that party would therefore not bring the application.

[Baroness Lister of Burtersett (Lab)]

My Lords, I want to ask a question which was touched on by my noble friend Lord Beecham, by the noble Baroness, Lady Campbell of Surbiton, in our previous grouping, and also today by the noble Lord, Lord Pannick. At Second Reading, the Minister categorically assured your Lordships’ House that ensuring the courts have the information they need when awarding costs,

“does not mean that everyone who donates to a campaign will be at risk”. — [Official Report, 30 June 2014; col. 1542.]

Yet in both written and oral briefings that I have received, this very risk has been one of the concerns that have been raised. For example, Liberty and the Bar Council both warn of the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs. Michael Spencer, solicitor for the Child Poverty Action Group—I remind the Committee of my interest as honorary president of that organisation, already referred to by the noble and learned Lord, Lord Woolf—spoke to the Human Rights Lawyers Association and warned:

“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.

Will the Minister spell out in words that a non-lawyer can understand who will and will not be at risk of liability? If it is not everyone, is it someone or is it no one? There are two very different ways in which the assurance could be interpreted. If it is no one, could the Minister point—perhaps this is not so helpful for the non-lawyers—to where in the Bill that is made clear? Some people are reading the Bill as saying that it will affect someone, even if not absolutely everyone.

Perhaps the Minister could also answer some very specific questions put by the coalition of civil society organisations that have been briefing noble Lords about the clarity needed on third-party costs liability. They ask whether, if a family chips in to fund a relative’s challenge to a treatment in a care home, they will be liable for costs, perhaps putting their homes at risk. Lawyers may act pro bono to support people who cannot pay. Will their gift in kind mean that they are treated as someone funding or likely to fund the case? If a community group uses crowdsourcing to fund litigation, as was the case with the Lewisham hospital challenge, will every donation carry a cost risk?

I hope that today, once and for all, it can be clarified who exactly is at risk as a result of these clauses. If the fears being voiced by so many organisations are realised, I suspect that noble Lords may want to come back to this matter on Report.

[Lord Cormack (Con)]

My Lords, the noble Baroness asks some pertinent and important questions. I had not intended to contribute to this debate, but was moved to do so by the extremely perceptive observations of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Marks, both of whom made some valid points.

We will be constantly reminded in 2015 of those central words of Magna Carta:

“To no one will we sell, to no one deny … justice”.

When the noble and learned Lord, Lord Woolf, talked about access to justice and how important it is that everyone should have it, it reinforced my belief that, although it is entirely proper to ask the sort of questions which my noble friend Lord Marks addressed, I would rather—I have said something similar in this Chamber before—we erred on the side of leniency. One is constantly reminded of that old adage that it is better that 10 guilty people get off than that an innocent person does not. In the context of the judicial review, it is far more important that the sort of people for whom the noble Baroness, Lady Campbell of Surbiton, pleaded the other day should not be discriminated against than that somebody who may be a little better heeled should be so. I hope that we can bring a balance to this matter and remind ourselves of that basic tenet of the rule of law:

“To no one will we sell, to no one deny … justice”.

--- Later in debate ---

[Lord Carswell (CB)]

My Lords, it is a known principle of the law that first-hand evidence is better than second-hand. As one who received and considered interventions in many appeals over the years, perhaps I may intervene briefly to assure the Committee how exactly correct the representations made by the noble Lord, Lord Carlile, and the noble Baroness, Lady Kennedy, were concerning the usefulness of interventions to the courts which hear them.

Of course, there are two stages, as has been made clear to the Committee. First, there is the stage at which the judges consider whether an intervention should be allowed at all. I assure your Lordships that that is a very carefully monitored procedure and that it is far from automatic that an intervener will be allowed to put in an intervention. Secondly, if the intervention is permitted, it is usually fairly briefly presented—and, if I may say so, if it is an intervention by the Members of this House who have mentioned this, very well presented. Some of the regular interveners—the names of three of them are before your Lordships—are of extremely helpful compass and have contributed a great deal to the decision in the proper form of appeals and to the advancement of the law in these cases.

I simply rise to say from the point of view of one who has received many of these interventions and has benefited from them that what has been said on the authority of other people is exactly right.

[Baroness Lister of Burtersett]

My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:

“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;

and, as has been pointed out:

“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.

It went on to say that,

“it is not clear to us at what mischief this clause is aimed”,

a point made with regard to the previous group of amendments. The committee goes on to say:

“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.

In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.

The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:

“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.

I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.

[Lord Marks of Henley-on-Thames]

My Lords, as the noble Lord, Lord Pannick, pointed out, Clause 67 proposes, first, that an intervener cannot get its costs except in exceptional circumstances; and, secondly, that an intervener must pay the costs of all the parties occasioned by its intervention except in exceptional circumstances. Both of these propositions—but particularly the second—are extraordinary. They are plainly designed to deter interventions by making them possible only if the intervener can fund all parties’ costs occasioned by the intervention.

If an intervener finds evidence, all the other parties’ evidence in reply will be at the cost of the intervener. If an intervener’s counsel speaks for half a day and the other parties’ counsel reply for a day and a half, they do so at the intervener’s cost. All that is on a win-or-lose basis, so even if the intervener is proved right and the government department or departments are proved wrong, and even if the judge has been greatly assisted by the interveners, the interveners will still pay all the parties’ costs occasioned by the intervention. This is against the background that, far more often than not, interveners do indeed help the court. After judgments, one frequently sees judges expressing their gratitude for the assistance of interveners, who, as has been said, often bring a broader experience to a particular judicial review application than an individual applicant can bring. The Committee was greatly assisted by the first- hand evidence of the noble and learned Lord, Lord Carswell, as to how helpful interventions often are.

The arguments in favour of this clause appear to be based on the proposition that interveners are often campaigning organisations with an agenda that is—in the widest sense of the word, at least—political or quasi-political. So they are, but such campaigning organisations have considerable expertise in their fields, as noble Lords have pointed out, and noble Lords benefit regularly from briefings from such organisations. If those interventions lack merit, the courts already have discretion to make orders for costs accordingly. However, these provisions would threaten not only the right to intervene but also the ability of the organisations which currently intervene habitually in judicial review cases to raise funds for their activities. That is a threat, I suggest, to the functioning of civil society. I will not name particular organisations because a number have already been named in this debate. I believe that to inhibit the activities of those organisations would be profoundly wrong. I do not believe that any body of credible evidence has been advanced in support of this clause to support the proposition that interventions have caused a problem that needs correcting. Still less do I believe that the courts’ existing powers to make costs orders are inadequate.

Our Amendments 74A, 74C and 74D preserve the courts’ general discretion to order a party to pay an intervener’s costs if the courts consider it just to do so. Amendments 74H and 74K preserve the general discretion of the courts to order an intervener to pay another party’s costs. I can see no possible basis, in either justice or common sense, to interfere with the existing court process and to deter interventions in the way that Clause 67, as drafted, is bound to do.

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[Baroness Kennedy of The Shaws]

Can the Minister address the following concern? A distinction has been made between those who voluntarily intervene, in that they approach the court and indicate that they might be able to contribute something of special value, and those invited to participate. I chair the council of Justice, which, as this House knows, is an absolutely cross-party and no-party organisation—it is an independent organisation of lawyers, one of the organisations regularly described as acting as an intervener. It does so because of its commitment to the rule of law and the recognition that it is a lawyers’ organisation that has things to say about law which may be missed in the kind of judicial review where a particular issue is being raised that may have much more generalised concerns.

I am concerned that every so often Justice will identify an issue in an action that is not immediately obvious and will therefore draw the court’s attention to that fact; consent is then given to its intervening. I am, therefore, very worried about this distinction between the voluntary and the invited-in. Often it is the volunteer organisation saying, “We think there is an issue here that the court should hear”, which is of great value. I shall give an example of that. Noble Lords heard from organisations such as Justice and Liberty during the torture case. I know that it went all the way through but there are cases where there are legal issues, and when my noble and learned friend Lord Mackay—I refer to him as a friend because he is a dear friend—raises the issue of why we have seen some growth. It is because our world is more complicated and because we are dealing with issues such as international terrorism and more complicated issues in medicine that interventions from specialist organisations can be useful. Often, however, the courts do not know how they could be assisted until the voluntary suggestion is made that something of value is on offer.

[Baroness Lister of Burtersett]

My Lords, I asked a number of practical questions that had been put by Justice. I want to save the Minister from jumping up and down and I do not want to come between your Lordships and lunch, so perhaps he could write to all those who have taken part in the debate with the answers.

[Lord Woolf]

Clause 67 has created a particular type of party, namely a “relevant party”. The relevant party is defined in subsection (8). I have no problem with that definition. However, in his closing remarks the Minister said that if, of course, a person is invited to intervene, as Justice could be invited to intervene, in effect this would not apply. The words are, of course, very specific, because of the presence of the word “must”. I draw attention to the fact that the court could invite people to intervene who are not a relevant party. Would he bear that in mind?

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[Baroness Lister of Burtersett]

I oppose Clause 68 standing part of the Bill. The Joint Committee on Human Rights welcomed many aspects of the Government’s original proposals on cost capping, as have others. However, as the noble Baroness, Lady Campbell of Surbiton, pointed out, we are very concerned about Clause 68. We said that it has the potential to limit very severely the practical effects of PCOs in protecting access to justice. We quoted in our report the supplementary written evidence given to us by the Bingham Centre for the Rule of Law, which stated:

“A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk”.

In essence, that is very much the argument put forward by the noble Lord, Lord Pannick. Therefore, in the JCHR’s view, Clause 68 is too great a restriction and will undermine effective access to justice.

The committee also shares the concerns of others that both Clauses 68 and 69 give the Lord Chancellor unreasonable Henry VIII powers. We noted that the Government have not explained the necessity for giving the Lord Chancellor “such an extensive power”, and one which has serious implications for the separation of powers between the Executive and the judiciary. Therefore, we recommended that those powers be removed from the Bill.

It is worth noting the JCHR’s wider observation that the judicial review proposals as a whole,

“expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”.

We warned that the kind of politically partisan arguments put forward by the Lord Chancellor in support of these proposals—for example, in the Daily Mail of 6 September 2013, which I think was referred to in earlier debates—

“do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law”.

I am well aware that it was my own Government—a Labour Government—who combined these two roles, but such a politically partisan approach has led the JCHR to suggest that the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice. Personally, I think that Part 4 of the Bill means that that time has now come.

[Baroness Deech (CB)]

My Lords, I intervene very briefly, again as one who has been judicially reviewed—indeed, as one who is constantly being judicially reviewed. There is something of a flavour here that judicial review is always a case of David versus Goliath. However, it has to be remembered that sometimes it is a case of David versus David. Although the first David may passionately believe that what is being done in their name is in the public interest, the person on the other side may equally strongly and decently believe that what they are standing up for is also in the public interest. They are not necessarily a well funded public organisation. That is why I have some sympathy with the retention of Clause 69(2), and with giving some support to the other party who also believes that their costs should be capped because they are defending something that they believe is in the public interest. Other than that, I think that the general tenor of the argument that judicial discretion should prevail is the right one. I support the general thrust of the amendments, subject only to our remembering that the person who is not the claimant—the respondent—may have an equally innocent and good case and believe that they are standing up for the public interest.

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[Baroness Lister of Burtersett]

My Lords, it is always a privilege to follow the noble Baroness, the campaigner on such matters. I support everything that the noble Lord, Lord Pannick, has said, but I want to focus on Amendment 82A to draw attention to an issue that arose at the Joint Committee on Human Rights which, unusually, has done two reports on the legal aid changes. The second of these looks particularly at the impact of the residence test on children. The Government responded to our first report by making some concessions, which we welcomed, with regard to Sections 17 and 20 of the Children Act 1989. However, concerns were then raised with us that, although this was welcome, so far as it went, it did not go far enough because it does not exclude from the residence test all legal remedies, including judicial review. I remind noble Lords that we are talking about cases relating to children in need: the additional care needs of a disabled child; support needs for homeless families; and unaccompanied children who are homeless and need appropriate accommodation, support, care and supervision.

Anita Hurrell of Coram Children’s Legal Centre, gave us an example of what this would mean. She said:

“I would just highlight the situation faced by a child advised that they have a meritorious claim and with a solicitor telling them that they could pursue that claim and could need an immediate remedy such as some kind of injunction if the situation that they are living in is very desperate. That same solicitor is going to be advising the child that they cannot help them pursue that claim. They are in effect going to be saying to the child, ‘You can go to the High Court but you can go there on your own’ … It is going to be impossible for children to understand that they have this right but that it cannot be enforced”.

It would be difficult for most people to understand why that would be the case.

In its conclusions, the committee said:

“We are confused as to why the Government excluded certain child protection cases from having to satisfy the residence test, but did not exclude from the test all legal remedies including judicial review. Whilst welcoming the funding of legal advice, we do not understand the justification that it is a good use of public money to give funding for advice that cannot be taken through to a judicial review”.

Will the Minister comment on the point about what could be a misuse of public money?

The committee continued:

“We are concerned that children could be provided legal advice on Section 17 and 20 Children Act 1989 cases, only to find that their same solicitor will at some point no longer be able to help pursue a meritorious claim”.

It went on:

“We acknowledge the Government’s argument that they would prefer that people do not have to make an application for judicial review”.

That is quite understood. The committee continued:

“However, we believe that it is inevitable that judicial review will be a necessary remedy in certain cases. We are concerned that, if the residence test applies, there will no longer be the risk of a judicial review when a local authority fails a child in its care. This deterrent effect of a judicial review encourages local authorities to discharge their duties properly. Such cases requiring judicial review are of a serious nature and children should retain legal support”.

I find it very difficult to believe that anyone could disagree with that.