Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019

Earl of Listowel Excerpts

Tuesday 1st October 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

This draft instrument makes provision for separated migrant children to be eligible for legal aid for civil legal services for non-asylum immigration and citizenship matters. This is important legislation that ensures access to justice for these vulnerable children.

For noble Lords not familiar with its provision, legal aid for civil legal services is available to an individual if the service is in scope—in other words, if it is described in Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act. In addition, legal aid may be available on an exceptional basis where there would be a breach or risk of a breach of the individual’s rights under the European Convention on Human Rights or any enforceable EU rights. This is known as exceptional case funding or ECF. For in-scope matters and ECF, legal aid eligibility is subject to statutory means and merits assessments.

Under current arrangements, separated migrant children seeking to regularise their immigration or citizenship status in the United Kingdom can apply for exceptional case funding to receive legal aid for help with their citizenship application, immigration application form or subsequent appeal. Following litigation and engagement with key stakeholders including the Children’s Society, this draft instrument will bring these matters into the scope of legal aid. This means that separated migrant children will no longer have to make ECF applications to receive legal aid for citizenship and non-asylum immigration matters.

I turn to the scope of the amendment. Officials have been working closely with other government departments and children’s charities to finalise the terms of the amendment since 2018. The amendment makes provision for separated migrant children to be eligible for civil legal services in relation to their immigration applications for entry clearance, leave to enter and leave to remain in the United Kingdom under the Immigration Rules. The amendment also provides civil legal services in relation to separated migrant children’s immigration applications for leave to remain where that application is made and determined outside of the Immigration Rules. This would include applications for discretionary leave to remain and leave to remain on medical grounds, as well as exceptional circumstances or compassionate or compelling factors, which may warrant a grant of leave outside the immigration rules.

Further, legal aid will be available to these children in relation to relevant applications for entry clearance, leave to enter or leave to remain made under the Immigration Rules by another person, including family members and extended family members, and granted either under or outside the Immigration Rules. These applications are determined on the basis of exceptional circumstances under Article 8 of the convention, regarding the right to respect for private and family life, or on compassionate and compelling factors. This amendment includes legal aid applications for registration as a British subject or citizen, a British Overseas Territories citizen, and a British overseas citizen.

Some amendments relate to the procedures for applying for different forms of civil legal services. These are grouped into different categories: gate- way work, controlled work and licensed work. The changes ensure that, for controlled work and licensed work, separated migrant children who require legal representation in proceedings before a court or tribunal covered by this regulation will be able to receive it. There are also some technical amendments to other instruments regarding the merits and financial eligibility criteria. The changes ensure that the tests applied to immigration matters currently in scope of legal aid are also applied to this regulation.

This instrument takes a normative definition of a “child”, being any person under 18 years. Where the age is uncertain, the individual is treated by the director of legal aid casework and the legal aid provider making the legal aid determination as being under 18 years.

For the purposes of this regulation, a child is “separated” if they are not being cared for by a parent or someone with parental responsibility for them. It also accounts for children who are looked after by a local authority or are privately fostered, but for whom parental responsibility has not been determined. It also acknowledges that some separated children may be in other informal caring arrangements or, indeed, caring for themselves.

A Written Ministerial Statement was laid on 12 July 2018 outlining the Government’s intentions to lay this legislation. Following this Statement, the Legal Aid Agency advised legal aid providers of interim amendments to the exceptional case funding guidance for applications made by, or on behalf of, separated migrant children for citizenship and non-asylum immigration matters. The guidance outlined reduced evidence requirements when making an application and that ECF caseworkers will operate on the basis that there is a strong presumption that separated migrant children require legal aid.

To conclude, the draft regulation before us today makes important changes to the scope of legal aid to bring citizenship and non-asylum immigration matters into scope of legal aid for separated migrant children. This is important legislation that ensures access to justice for a highly vulnerable section of our society. I beg to move.

[The Earl of Listowel (CB)]

My Lords, I warmly welcome this regulation and the manner in which the Minister introduced it. As vice-chair of the All-Party Parliamentary Group for Children, I have sat in meetings with young people and children in the immigration system and in care, and have heard their concerns and uncertainties about the future. I very warmly welcome this regulation and the careful and sensitive way in which the Minister introduced it. The Children’s Society, as the Minister pointed out, has been a prime mover in this area over many years; indeed, a consortium of charities has been working towards this goal. I am sure we all feel that it is a momentous occasion to have this legislation after so many years for these children—this access to justice for them.

Many of these children will have spent most of their lives in this country. They may well know few or no people in the country they come from. So there may be good humanitarian reasons why they should continue to live in this country. The theme from these meetings is that the earlier one can begin the process towards leave to remain or citizenship, the better—but so very often, these decisions get left until the last minute, when the child has just about reached the age of 18, which is very unsatisfactory. This regulation will make it much easier to act early in the best interests of these children.

I want to ask the Minister about what will become of care leavers. When these children pass the age of 18, or sometimes prior to that age, they become care leavers. They still have some responsibilities due to them from their local authority, but not as strong. I understand that the Government have given some commitment that there will be an expectation that the default position will be that the exceptional case fund will be applied in these cases, but can the Minister confirm that in his response to the debate?

Last year I, along with the noble Lord, Lord Storey, met three care leavers. One of them had experienced some periods in a mental institution; as we know, many care leavers experience a great deal of loneliness when they leave care, and the challenge for him of the uncertainty over his immigration status had damaged his mental health. Another young man was working as a taxi driver, illegally and under the radar, which was a very unsatisfactory state of affairs. These young people, who have had such a difficult start in life, could have their rights better protected by us. This regulation does exactly that, so I warmly welcome it.

[The Lord Bishop of Newcastle]

My Lords, I declare an interest as a vice-president of the Children’s Society. I want to share my delight in the work of the Children’s Society and other children’s charities in helping to bring us to this point.

I warmly welcome the draft order amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to bring immigration matters for unaccompanied and separated children within the scope of legal aid. That is a wonderful thing. Without this amendment, children outside their country of origin who are separated from their parent or care giver are at significant risk. The reinstatement of legal aid for separated children will be transformative for some of the most vulnerable children in our country.

However, welcome as the amendment is, it still leaves unresolved, as the noble Earl, Lord Listowel, has said, the needs of these vulnerable young people when they transition to adulthood if their immigration status at that point is still uncertain or temporary. On the day a young person turns 18, everything changes. Protections that have been in place can disappear overnight. This is particularly the case for children in local authority care who become care leavers. The noble Earl referred to this issue in an earlier Question on homelessness. Once children turn 18, immigration legislation kicks in. Where a young person in care has uncertain immigration status, they are particularly at risk of having support from local authorities withdrawn, and they can all too easily become destitute and homeless.

I ask the Minister to assure us that he recognises the vulnerability of care leavers at the age of 18 who have not been able up to that point to regularise their immigration status, and to assure this House that the Government still intend to introduce a presumption of exceptional care funding for care leavers so that they can access legal aid at this critical point in their lives.

Northern Ireland (Executive Formation) Bill

Earl of Listowel Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

We need to look closely at this because, in the absence of a local Minister combining housing policy with welfare policy, which is what should be done, in our system that is just not working. I hope that those matters will come forward by December and that, in the absence of an Executive, we do not do the usual thing and leave it until the middle of March—a fortnight from the end of the financial year—so that a whole crisis and another piece of rushed legislation are coming through. The date of 1 December 2019 is in Amendment 9, which gives time for the Government to discuss with the Northern Ireland departments. It also gives time for us to plan ahead and means that if legislation is required, there will be at least three months in which to insert it and get it done, rather than having last-minute—or five-minutes-to-midnight—legislation coming through. That is the purpose of my amendments and I beg to move Amendment 5.

[The Earl of Listowel (CB)]

My Lords, I welcome Amendment 7, as tabled by my friend, the noble Lord, Lord Empey, as a trustee of the mental health service for adolescents which is the Brent Centre for Young People in north London, as noted in my entry in the register of interests. That centre’s work has been in progress for 50 years; originally, it dealt principally with young people at risk of taking their own lives. The clinicians there tell me that they have never had a young person take their life while under treatment in that centre. They have described to me how when a young person meets a clinician who immediately understands where they are coming from and their concerns, it is immediately effective in assuaging the fears of the young person.

What I am trying to say is that where appropriate services are available, they can be very effective. It troubles me very much to hear that this strategy, developed in Northern Ireland, has been on the shelf for two and a half years because of the vacuum of power. I warmly welcome my noble friend’s efforts to highlight these points today. I hope that the Minister may have something comforting to say on the matter of young men, in particular, taking their lives in Northern Ireland because there has been insufficient action to address their needs.

[Lord Eames (CB)]

My Lords, not for the first time the noble Lord, Lord Empey, has put his finger on urgent issues to do with Northern Ireland. I congratulate him on his persistence in that approach. Today he has once more alerted the Committee to an urgent need that can be traced back to the fact that we have no local administration. The extra strain of business and of making decisions passed on to our Civil Service has been a consequence.

I want to speak particularly about the amendment to address the rising suicide rate in Northern Ireland. This is one more example of the legacy of our past, of what we have been through; it has cast its shadow not on that generation but on the new generation. I have had personal, recent experience of the rector of a parish coming to me, even in my retirement, to seek advice for the son of one of those involved in our Troubles. The son had only recently learned of some of the actions and involvement of his father, and this preyed on his mind so much, even in middle age, that he saw no alternative but to end his life. That is an exceptional case, I accept, but it does something to illustrate that this issue is not just for now: it is a legacy reaching back to us from the past.

The report to which the noble Lord referred is gathering dust. Lives are being threatened. Thank God that in some cases prevention intervenes, but if this Bill produces nothing other than a new recognition of human need—nothing to do with politics, nothing to do with “us and them” and all the usual phrases we have in Northern Ireland—then the opportunity could be seized to put pressure on those avenues that can directly relate to the human need, which is a legacy issue and an overlap. There is a crying need at the moment in Northern Ireland to address prevention of the taking of human life and I urge the Committee to remember that.

Serco

Earl of Listowel Excerpts

Thursday 4th July 2019 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord for his question. In December 2018, the Chief Executive of the Civil Service wrote to central government departments asking each to include contract audit activity as part of the implementation of their outsourcing review. As part of this programme of audits, the Ministry of Justice, the Home Office and the Ministry of Defence have invoked contractual audit rights on five contracts with Serco, and those audits are under way.

[The Earl of Listowel (CB)]

My Lords, is the Minister aware that private prisons are 47% more violent than publicly run prisons? How does he explain this? Is this to do with the difficulties facing those prisons or is it something to do with the culture within private prisons?

[Lord Keen of Elie]

My Lords, I am not in a position to comment on the statistic that the noble Earl refers to. However, clearly there is an issue of violence and, indeed, of self-harm in all our prisons which we are anxious to address.

Courts and Tribunals (Online Procedure) Bill [HL]

Earl of Listowel Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, the Government’s view was expressed at Second Reading, but Amendment 1 seems to strike at the heart of what is required. Clause 1 states,

“may authorise or require the parties”.

to use electronic means at hearings. That suggests the possibility of compulsion that would not exclude any section of the community. The amendment I find slightly difficult is Amendment 3, which states,

“may be filed by electronic means or on paper or a combination of both at the choice of the party”.

I would have thought that it should be one thing or the other. I imagine that it might cause confusion if you have an electronic bit and then a bit on paper stuck in, unless there is a clear way of showing in the electronic bit that there is another bit to follow. It is that part of the amendment that I find slightly difficult.

[The Earl of Listowel (CB)]

My Lords, I am reminded that these provisions will apply to family law procedures. Of course, it may improve the resolution of family issues, which will benefit the children involved, but there is a concern that it may make resolution more difficult and thus adversely affect the children in those families. Has the family test been applied to the Bill? I do not see that in the accompanying notes and perhaps it is not appropriate to apply the family test to it. I would be grateful if the Minister could tell me whether the family test has been applied.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I will speak to Amendments 1, 3, 4, 6, 10 and 11, which relate to the operation of the online procedure and how we can ensure that people using it are not disadvantaged. I intend to turn first to Amendment 3, which covers whether a user can choose between digital and paper channels. Then I will move on to Amendments 1, 4, 6, 10 and 11, pertaining to the online procedure and the matter of choice.

Amendment 3 suggests that claimants and respondents should have the choice of whether to use paper or digital channels when engaged in the simplified online procedure. I can confirm that the Government agree with this point, and indeed there is provision for this already. Essentially, where the online procedure comes into place, it will be possible to access it either by way of the digital portal or by way of a written document of claim. Other written documents may also be used when employing the simplified online procedure. The intention, which already applies to some of the digital procedures we have in place for small debt, is that the document will be scanned into the system and will therefore be part of the process. The idea is to ensure that parties are not excluded from the simplified procedure that will be brought in under this online procedure simply because they feel unable to employ, or are incapable of employing, the digital process itself. However, there is a distinction between that and the situation in which, when dealing with debt claims of under £25,000 for example, a claimant or any other party would be allowed to opt either for the simplified procedure that will be promulgated under the online procedure or to have recourse to the existing Civil Procedure Rules and the more complex procedure that pertains there. It is not intended under the Bill that claimants should have an option between the simplified procedure and the more complex procedure. I shall come on to develop that a little more in a moment.

Perhaps I may take this opportunity to confirm that we have no plans to remove the availability of paper channels for citizens under the remit of the Online Procedure Rule Committee. Of course, it is our intention to create a digital service that will be easy to access and use—indeed, so easy to access and use that it becomes the default choice for the majority of users. We recognise, however, that not everyone will be able to use it, or wish to proceed with that digital choice without support. For that reason, a paper route will remain open.

We want to be clear that users can expect an equity of service, regardless of whether they proceed with a digital approach or a written claim. Where different parties choose different channels, we will seamlessly join them together by means of a scanning and printing service, so users who want to send and receive papers will still have that choice—they will not need to resort to the online portal. To that extent, I offer my assurance that paper channels are still available and will be available under the Online Procedure Rules. The Bill will do nothing to remove them.

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[Lord Keen of Elie]

It is to ensure that where, for example, there are debt actions below a certain level—let us take a figure of £25,000—they must be initiated by way of the Online Procedure Rules, the simplified procedural rules, rather than by way of the existing Civil Procedure Rules. It is for that purpose that the paragraph is there. In other words, it will not be open to a party who wants to make a small debt claim to decide they want to use the more complex and potentially more expensive Civil Procedure Rules as distinct from the Online Procedure Rules and the simplified procedure that goes with them.

I shall address Amendments 10 and 11, tabled by the noble Lord, Lord Beecham, alongside Amendment 4, which I believe was tabled by the noble Lords, Lord Marks and Lord Beith, and the noble and learned Lord, Lord Judge, as well as Amendments 1 and 6, tabled by the noble Lord, Lord Ponsonby.

Amendments 1 and 6 concern the continued availability of physical proceedings rather than online proceedings. Amendment 4 seeks to allow the parties to proceedings to choose whether to engage with the online procedure or the current procedural rules. This is a point that I just sought to touch upon. Amendments 10 and 11 are intended to deal with those cases where one party wishes to leave the online procedure, but another does not.

This is not what the Bill is intended to achieve. The Bill provides the flexibility for a case to progress via the online rules, or via the traditional rules of the civil procedure if necessary. Where a case is so complex that that the online procedure is clearly inappropriate, it will be for the judge to determine, and he will have the discretion to do so, whether a case should remain within the online procedure or should proceed by way of the traditional civil rules instead. Where both parties make a representation that the case should not proceed by way of the online procedure, then of course the court will hear those representations and take them into account, but ultimately it will be for the court to decide the appropriate procedure for the disposal of any claim. That is as it should be and is as it is with regard to our existing civil procedures. Ultimately, it is for the court to make these procedural decisions, not for the parties to dictate them, but of course their views will be taken into account. Equally, where parties, or one party, are of the view that an oral hearing will be required in circumstances where it might not ordinarily have been anticipated, it will be open to that party, or the parties if they are agreed, to make those representations to the court in order that the court can make the final decision about the appropriate procedure to be employed. Again, that is as it should be. It is ultimately for the court to decide the most appropriate process and procedure for the disposal of individual claims.

Under Amendment 4, users would in effect have the right to choose whether to use the Online Procedure Rules or the traditional rules. Similar points are made in the other amendments. We do not consider that that is the appropriate way to proceed. Users will have sufficient control over proceedings to ensure that they have access to justice, which will not be limited in any way, and certainly not in a way that would intrude upon any rights under Article 6 of the convention.

The online procedure system is simply designed to offer the ordinary user an easier way to access justice, while giving parties the choice to remain in a position to make paper applications to the online simplified procedure rather than engage with the digital portal. I reassure noble Lords that we are not seeking to impinge in any way upon the parties’ right of access to justice, but ultimately we must leave it to the court to determine procedural questions brought before it, albeit that it will make those decisions subject to the representations by or on behalf of the parties to the proceedings.

As I mentioned in passing and in response to the noble Lord, Lord Beith, where a physical hearing arises, it will be for the parties to make representations. Ultimately, it will be for the court to determine on the material before it whether such a physical, oral hearing is required for the disposal of a case. That, I suggest, is as it should be.

I hope that that also reassures the noble Lord, Lord Ponsonby, with regard to judicial discretion. That, ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice and for the benefit of the parties. With that, I hope that the noble Lord will consider whether at this stage it is appropriate to withdraw the amendment.

[The Earl of Listowel]

My Lords, before that happens, I express my apologies for not being able to take part at Second Reading. I thank the Minister for asking his office to contact me and I am sorry that I delayed replying until Friday. I just want to comment on the family test. This was introduced in 2014 to be applied to Bills and involved a number of questions such as, “What kind of impact might the policy have on family formation?” and “What kind of impact might it have on stability in the family?” Although the test is not mandatory, this seems an appropriate Bill to have had it applied to, and I simply express the wish that in the future it might be applied to Bills similar to this one.

[Lord Mackay of Clashfern]

My Lords, I have some difficulty with Amendment 1 and the answer that my noble and learned friend has given. As I understand it, the amendment deals with rules. It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that. He will say that he is sorry to whoever comes along with a bit of paper and explain that they are not able to do that because the rules dictate that it has to be done by electronic means, so they will have to get themselves a computer.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, Amendments 5 and 13 in this group are in my name and those of my noble friend Lord Beith, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. Our amendments would incorporate in the Bill a requirement that the Government provide necessary assistance for parties or potential parties to online proceedings, both claimants and defendants, who need help navigating them.

At Second Reading, the Minister promised:

“All our online services will be accompanied by appropriate and robust safeguards to protect and support users and to ensure that access to justice is maintained. In pursuing this approach, we recognise that there will be people who will need help accessing a new digital system”.—[Official Report, 14/5/19; col. 1506.]


He promised that the Government would put in place a comprehensive programme of support, which he described as “assisted digital”, which would include help for court users by telephone, online or by other electronic means or face to face. I pointed out in that debate that the Briggs review had stressed the importance of ensuring that access to justice was not compromised by the introduction of Online Procedure Rules. The Briggs report described the success of the online court as “critically dependent” on providing digital assistance for those who could not cope with computerised procedures.

The Constitution Committee, under the section of its report headed “Access to Justice”, argued eloquently that, with 5.3 million adults in the UK who could be characterised as “internet non-users” and with 29% of people over 65 having “zero digital skills”, not including those with limited digital skills or limited access to computers or broadband, the Bill makes no provision to safeguard access to justice in the way promised by the Minister at Second Reading. The committee recommended that,

“the Bill places a duty on the Lord Chancellor to ensure that adequate provision is made to enable access to online proceedings for those with limited digital means, digital literacy, or general literacy”.

We agree. At Second Reading, not only the noble and learned Lord, Lord Judge, but the noble and learned Lords, Lord Thomas and Lord Mackay of Clashfern, and the noble Lord, Lord Faulks, called for a statutory commitment to digital assistance.

Once again in this group of amendments, I reject the assurance that it is safe to rely on an extra statutory statement of intention by the Government. That is especially true on a matter of such importance to the success of this reform in terms both of access to justice and of the rule of law. This commitment could and should be clearly expressed in the Bill in a way that would make it much more difficult for future Governments to resile from it. I make no apology for putting forward a similar point in relation to designated assistance to that which I made in relation to filing documents on paper.

Our amendments are comprehensive but flexible. Amendment 5 would introduce the general duty to provide assistance to a party or potential party to proceedings under Online Procedure Rules in accordance with the detailed provisions set out in Amendment 13. That amendment would give the Government flexibility on who should provide assistance and how. Designated assistance could be provided either directly through HM Courts & Tribunals Service, under contract with outside organisations, or through the voluntary sector. It would be for the Minister to determine what assistance could be provided by telephone, what by electronic means and what in person or by other reasonable means.

Our amendments are concerned with outcomes rather than structure; different providers might provide assistance in different but complimentary ways. However, in determining what assistance must be provided, and by what means, the appropriate Minister is to be subject to an overriding requirement that he or she should consider that assistance sufficient to enable the party receiving it to have a reasonable understanding of the nature of the proceedings, of the procedure under the Online Procedure Rules, and of how to access that procedure. The assistance will have to cover the completion of online forms—easy for lawyers and officials, perhaps, but often a nightmare for lay litigants. It will also have to cover the kinds of evidence that may be necessary to support or establish a claim or defence. Designated assistance should also be available about the requirements and meaning of the Online Procedure Rules. The requirement for assistance on the kinds of evidence required to establish a litigant’s case is particularly important and will save parties, and ultimately the courts, considerable time and trouble. Far too often, proceedings fail or are delayed because litigants in person are unaware of the kinds of evidence they are likely to need to establish their cases. Assistance with this aspect at an early stage of online proceedings may do much to help reduce costs, delays and frustration.

Those who may say that this is a step too far in favour of the courts service providing legal advice are missing the point of these reforms. The days are over when the court office tells litigants to go and seek the advice of a solicitor on generic issues such as this, for precisely the reasons expressed by the noble and learned Lord, Lord Thomas, in relation to hiring expensive lawyers. If online proceedings are to work well and improve rather than stifle access to justice, they have to be targeted on enabling litigants without lawyers to use the courts successfully. Perhaps at this stage I should declare the same interest as the noble Lord, Lord Pannick, in relation to my being a lawyer in offline courts. That is the point of these reforms. It will be achieved only if parties are provided with the kind of help our amendments would require.

An important further point is that for litigants whose first language is not English and who have no familiarity with English, interpretation or translation should be available to enable them to understand proceedings in a language familiar to them. Far too often, the need for lawyers arises even in relatively simple cases where intelligent and capable litigants whose command of English is limited are obliged to instruct lawyers simply because they receive no help in understanding proceedings in their own languages. I beg to move.

[The Earl of Listowel]

My Lords, I support this amendment. I am a patron of the charity Best Beginnings, which has produced an application that can be downloaded from the NHS store for mothers around the births of their children. We are finding that it is tremendously effective in reaching black and minority-ethnic mothers in particular, and mothers on the lowest incomes. This has been developed with all the royal colleges, and it has taken time, money and a real strong effort from the charity over many years to develop such a good product that reaches out particularly to families for whom English is not the first language. One of the key selling points of this app is the videos attached to it. Mothers will see people like themselves talking about what it was like to experience depression or how to breastfeed and communicate with your infant. They can identify with those parents.

There is a tremendous opportunity here to make something which is really effective and helps litigants in person and people whose first language is not English to understand how to approach these matters. The noble Lord’s amendments are very important to ensure that there is a commitment up front to producing the best possible means for families and others to engage with the digital technology available and to get the best outcomes for them and their families.

Of course, with a product such as this—I am not pushing this one specifically—there are back-end analytics through which one can tell in an anonymous way exactly how often it is used and who uses it, so there would be plenty of feedback on how well it is working. I hope that the Minister can give a reassuring answer to the noble Lord.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Earl of Listowel Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Lord Pannick]

My Lords, I echo the words of the noble and learned Lord, Lord Judge. We are dealing here—at least potentially—with matters of significant constitutional concern. The power which the Secretary of State or Lord Chancellor is being given includes a power to make “consequential provision”. That is a very broad phrase: it is not merely transitional, or transitory or saving, it is consequential—something that is a consequence of that which is in the legislation. It is, therefore, entirely appropriate that this amendment should be approved by this House.

[The Earl of Listowel (CB)]

My Lords, on the matter of meeting the new challenge of litigants in person, particularly in the family courts, I highlight the value of the family, drug and alcohol court national unit. While the national unit supports these drug and alcohol courts for children in the public law system, the same judges—and I imagine the same clerks—also work in public family law. The wonderful thing about this unit is that it supports judges, clerks and the administration in family courts to become better at their job; better at managing these cases which are often very difficult and troubling.

So when the noble and learned Lord, Lord Keen of Elie, writes to me—I am grateful to him for his letter today on the matter of the Family Drug and Alcohol Court National Unit—and says that the responsibility is now passing down to local authorities, I hear what he says and understand why he says it. However, there is a distinct benefit to the judiciary and the courts in training them to be more effective in working with these families, particularly now that they are often litigants in person. I therefore hope that he may keep an open mind, and that perhaps he will be persuaded that some money should come from central government for this special national unit for supporting family drug and alcohol courts.

We have a challenge with regard to the many families in this country who are struggling to stay together or to manage amicably and effectively a separation with the least damage to their children. Having well-equipped judges and clerks in the courts to help this process is vital, and I suggest to the noble and learned Lord that this special national unit can help with that.

[Lord Keen of Elie]

My Lords, Amendment 3 relates to the power in Clause 3 for the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to the authorised staff provisions by way of regulations. It provides that they are subject to a process of negative resolution by Parliament, while the amendment seeks to apply the affirmative resolution procedure.

We believe that it is necessary to take the power in Clause 3(2) to avoid any implementation difficulties or legislative inconsistencies that could arise from changing the law. We have already identified consequential amendments to primary legislation and have made provision for them in the Schedule to the Bill. The necessary changes to secondary legislation may not become apparent until after the provisions in the Bill are implemented; therefore, this power is needed so that the authorised staff provisions can be given full effect. However, I emphasise that it is not concerned with making consequential amendments to primary legislation, for which provision is already made in the Schedule, and so this is a narrow power. As I indicated, the power cannot be used to amend primary legislation, so in these circumstances we considered that the negative resolution procedure is entirely appropriate.

I hear what noble Lords and noble and learned Lords have said about moving from the negative to the affirmative procedure, and I will give further thought to that. However, at this stage I invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment.

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The amendment sets a very low level of qualification for an authorised person and we do not see why the Government cannot accept it. I note that the Minister has pointed out, and will no doubt do so again, that three years’ post-qualification experience, which is what we seek, is a higher bar than that currently required of assistant justices’ clerks. However, such staff do not currently perform judicial functions, let alone the range of judicial functions that, under the Bill, might be performed in the future. Therefore, if there is to be uniformity in practice, we can surely set the bar for qualification at three years’ post-qualification experience, which is not a very high level. One has to ask whether the reluctance on the part of the Government to set minimum post-qualification periods is down to fiscal concerns about staff salaries. I look forward to hearing the Minister’s response to those concerns. I beg to move.

[The Earl of Listowel]

My Lords, I understand that the purpose of the amendment is to ease the burden on the courts. In a statement last year, the President of the Family Division highlighted the ever-increasing burden on the public side of the family courts as the number of children taken into local authority care accelerates. This is an area of the courts that is experiencing a lot of pressure, and I just want to highlight to the noble and learned Lord and to the Committee that problem-solving courts can also be a good solution to the pressures on our courts. The family drug and alcohol courts are a good solution to reducing the pressure on the courts and might help to limit the use of the innovation to which the Schedule refers.

The founder of the family drug and alcohol courts, District Judge Nicholas Crichton, highlights that the problem-solving courts are much less adversarial and more solution based. For instance, one often finds with children being taken into care that a young, teenage mother addicted to drugs and alcohol will have one child and that child will be removed. She will promptly have another child, and then another child, and each one will be removed. However, if one treats the mother’s addiction and gets her off alcohol and drugs, which the family drug and alcohol court is good at doing, she may well stick with the one child or the second child, and this eases the burden on the public family courts. I recognise that the Schedule seeks to deal with the heavy burden on our courts. I encourage the Minister to look carefully at developments in this area and to consider problem-solving courts as another way of dealing with this issue.

The family drug and alcohol courts highlight the value of the achievement of District Judge Nicholas Crichton in introducing them. The Government have generously funded them from the beginning, through both the Department for Education and the Ministry of Justice, and it is highly commendable that they have invested in this important new approach to keeping families together and stopping children from being removed into local authority care unnecessarily.

[Lord Neuberger of Abbotsbury]

My Lords, the noble Baroness is right to be concerned about the expertise and experience of the people who make decisions. My concern about the amendment is that it puts a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions. There will be many decisions where people with her requisite experience would be appropriate, but there will be others where less experience would be adequate for the decision-making.

Given that the rules which will set out the requirements will have to be laid before Parliament, and that many of the decisions outside the rules are made, effectively, by the Lord Chief Justice, while what the noble Baroness said has considerable force in some circumstances, it would unsatisfactorily reduce the flexibility of these proposals. They are largely not concerned with the problems of judicial recruitment which have been canvassed in the House today—which any self-respecting former judge, such as myself, is concerned about—but, none the less, the proposals in the amendment would unduly constrain the flexibility which the measures in the Schedule sensibly envisage.

National Probation Service

Earl of Listowel Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we are conscious of the terms of the Justice Select Committee report which was issued last Friday, and we will give considerable consideration to its detailed terms. We agree that community sentences are often more effective than short prison sentences, particularly in reducing reoffending, and we certainly intend to look at that area in more detail.

[The Earl of Listowel (CB)]

My Lords, as the Minister will know, local authorities have a duty for care leavers up to the age of 25 to provide support with education, training and housing. As he looks at the probation service, will he ensure that there is more connection with local authorities so that they can discharge that duty properly?

[Lord Keen of Elie]

My Lords, I agree with the observations of the noble Earl that there is a need to improve cross-government approaches to the needs and requirements of those leaving our prisons.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Earl of Listowel Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I begin by following the noble Lord, Lord Flight, in his encouragement to the Government to move forward in these specialist courts, and declare my interest as a landlord. We have in England, according to the statistics from last March, over 120,000 children living in bed-and-breakfast and temporary accommodation. The private rented sector can make an important contribution to dealing with that problem, if we can make it as attractive as possible—and these courts would make the private rented sector more attractive.

I thank the Minister for speaking to the Cross-Bench group and answering questions on the Bill and introducing it today. I particularly welcome it after listening to what my noble and learned friend Lord Thomas said about the potential savings from the Bill. Money is very short and we need to spend it where it can make most difference. I welcome particularly that aspect of the Bill, although there needs to be care where the savings are made. I welcome what the noble Baroness, Lady Chakrabarti, has said on ensuring that there is a high level of qualification requirement for people overseeing the new arrangements.

I declare my interest as a trustee of the Michael Sieff Foundation, a child welfare charity that has been working for the last four years to seek to support the implementation of my noble friend Lord Carlile’s inquiry into youth justice. I am also vice-chair of the All-Party Parliamentary Group for Looked After Children and Care Leavers and treasurer of the All-Party Parliamentary Group for Children. I have been in those roles for 15 years, so I am particularly interested in the matters relating to family courts and youth courts.

I welcome the first clause in this Bill as it at least opens the possibility of ensuring that we get exactly the right judges into the family courts. The judges in the family courts have a very complex and difficult task; they need to be hugely empathetic and, to use that term, emotionally intelligent. It is a very specific requirement, so if this Bill allows an opportunity to encourage and find more appropriate judges in those courts, it would be most welcome. I look forward to probing that in Committee and outwith the Chamber.

Sir James Munby, the president of the Family Division, was speaking recently, and gave examples of families going to the private courts arguing about the length of their child’s hair and asking a judge to sort that out, or asking what time exactly on an afternoon they can be dealt with. They can also come in with concerns about domestic violence, and the judge has to decide whether it is in the child’s best interests to have a relationship with both parents or whether the risk of domestic violence is significant and it cannot be permitted. It is a hugely challenging role.

The noble Lord, Lord Beith, raised the issue of problem-solving courts. My noble friend Lord Carlile highlighted the need to develop those in his report about four years ago. We have moved forward on that very slowly; I believe that progress is imminent, and I would be grateful if the Minister could confirm that and assure us that the Government have very strong support for these courts. I believe that the Ministry of Justice innovation arm is taking that forward, but assurance from the Minister would be very welcome.

I was very sad to hear that the Family Drug and Alcohol Court implementation unit is to close in September. I learned this just this week from Sir James Munby—and I am sorry not to have given the Minister notice that I wished to raise it as a concern today. I am very concerned; I visited it several times and have seen parents being given certificates enabling them to retain their child, who otherwise might be taken into care. This wonderful court, introduced by the district judge Nicholas Crichton, allows judicial continuity over 12 months with a family. It allows the use of a multi-disciplinary team, including social workers and clinical psychologists, to work with these families. It is tremendously effective in preventing children being taken into local authority care. To go back to concerns raised by my noble and learned friend Lord Thomas, it may not save the courts or the MoJ huge amounts of money, but it saves local authorities huge amounts of money and saves society a great deal of money in the longer term.

I will read briefly from an article by Sir James Munby on the closure of FDAC, which is to be published shortly:

“In the same week as we saw the launch of the Care Crisis Review, undertaken by the Family Rights Group with the support of the Nuffield Foundation, came the news that the Family Drug and Alcohol Court (FDAC) National Unit has had to withdraw its application for funding to the Life Chances Fund because of lack of support from local authorities”,


on which it now depends. The Government have historically funded its work, which has been most welcome. They have recently stopped doing so, which is why it needs local authority funding. In addition, he says, came the news that,

“the National Unit would be closing in September because of the lack of continuing funding from central govermment. This is grim news, not least at a time when, as both I and my designated successor made clear at the launch, the care system is in crisis”.

That refers to the system of child protection for children in foster care. Sir James continues:

“FDAC is the most researched of the recent innovations in family justice. Rigorous, high quality academic evaluation … has proved, conclusively, that FDAC works … Similarly rigorous independent evaluation proves that FDAC saves the local authorities who participate significant sums of money: £2.30 for every £1 spent. FDAC is one of the most important developments in family justice in the last 40 years”.


So, in parenthesis, in a Bill that is looking at modernising the justice system, we should certainly be discussing this, if not in the Chamber, then outside it. To continue:

“The continued expansion of FDAC is critically dependent upon the work of the National Unit, whose invaluable work, as midwife and then as health visitor, is so important in the planning, implementation and nurturing of each new FDAC. FDAC improves the life chances of some of the most vulnerable and marginalised parents and children in our society: it increases the sum of human happiness and decreases the sum of human misery—and it saves the system money”.


I wish to detain the House for as little time as possible this afternoon. However, can the Minister say what assistance he might give me in seeking to ensure that no stone is left unturned in trying to avoid this closure? I would also appreciate advice from your Lordships on what might be done to prevent it. If any noble Lords are concerned about this, I would be grateful to hear what support they can give in raising this matter with the Government.

I look forward to taking part in Committee and to scrutinising this important legislation. I also look forward to the Minister’s response.

Courts: Modernisation

Earl of Listowel Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, there is no reason why reallocated court staff will not be in a position to provide advice as they have in the past. We are at the commencement of an extensive reform of our court processes. Indeed, I quote the Lord Chief Justice and the Senior President of Tribunals:

“While there is still much work to do, the introduction of this Bill is a positive first step in legislation to deliver reform”.

[The Earl of Listowel (CB)]

My Lords, the recommendations of my noble friend Lord Carlile’s inquiry into youth justice were, in particular, to use youth courts, not adult courts, for young people, and more problem-solving courts. Does the Minister agree that we need to be more effective in dealing with young people in the courts so that we stop the revolving door into custody?

[Lord Keen of Elie]

My Lords, I entirely agree with the observations of the noble Earl.

Media: Press Sustainability

Earl of Listowel Excerpts

Thursday 22nd March 2018 Lords Chamber

[Lord Keen of Elie]

Yes.

[The Earl of Listowel (CB)]

Will the review look at the initial training of journalists and their continual professional development, to ensure that they get all the support that they need?

[Lord Keen of Elie]

I am not in a position to anticipate how Dame Frances is going to proceed with the review.

European Union (Withdrawal) Bill

Earl of Listowel Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Smith of Newnham]

My Lords, we have already heard that this amendment is necessary, for some of the reasons that the noble Lord, Lord Davies, mentioned. I shall speak in favour of Amendments 21, which has my name on it, and 22. Like the noble Lord, Lord Kirkhope, I propose not to talk much about the details of areas that should not be amended, other than by a parliamentary role, but to focus a little more on the role of Parliament and the importance of ensuring that retained legislation should not be amended other than with clear parliamentary engagement, either through primary legislation or, as subsection (4) of the new clause in Amendment 21 suggests:

“Regulations … may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament”.


One thing about the vote to leave the EU, as the noble Lord, Lord Blencathra, pointed out in Committee on Monday, is that the people of this country voted to bring back control of our laws because they believed that Parliament was capable of making better laws than the EU. Not all of us in your Lordships’ House necessarily agree that we wanted to bring back control. But, to the extent that the United Kingdom voted to leave the European Union, surely the importance of the Bill is in ensuring not just that legislation is on the statute book but that there is no Executive power grab and that Henry VIII clauses and other opportunities—as in Schedule 8, outlined by the noble Lord, Lord Pannick —should not enable Ministers to make decisions that subvert the legislation without full parliamentary engagement.

It is hugely important that the rights and duties that have been outlined in existing legislation cannot be changed by ministerial fiat. If this amendment is not accepted, it is therefore important that the Government bring forward some other suitable amendment on Report that enables us to be reassured that the aim of the withdrawal Bill is not to give more powers to Ministers but, rather, to take back control to Parliament.

[The Earl of Listowel (CB)]

My Lords, in considering how to deal with this legislation in future, will the Government keep very much in mind the impact on families? The Minister may be aware that in Germany there is no Sunday opening and that after 8 pm businesses are not allowed to send emails to people who work in their offices, yet it is the most productive of nations. I would say that part of that is attributable to the care that it takes about family life and finding a balance between that and work. The risk is that, in driving towards greater immediate remuneration and productivity, we fail to take the long-term view and think through carefully what changing these regulations would do and the impact that would have on family life.

In Germany, 15% of children grow up without a father in the home; in Britain, it is about 20%; in America, it is 25%. If we keep on putting pressure on families to be more and more active in the job market, the risk is that this will contribute to family breakdown and we will be shooting ourselves in the foot in the long term. I agree with Amendment 21: we should think very carefully and go through as strict a process as possible before removing these protections. Of course, it is a complex argument, because employment can reinforce family life and protect from family breakdown, but it needs to be carefully thought through. The Germans, with their better life balance, seem to be more productive than us, so we may need to keep that lesson in mind in legislating in such areas in future.

[Viscount Trenchard (Con)]

I agree with what the noble Earl said about the balance between work life and family life, particularly with regard to the recently adopted hours which are becoming commonplace in your Lordships’ House, but I regret to say that I cannot support the amendments, because they do not achieve their intention.

As the noble Baroness, Lady Hayter, recognised, the intention of her amendment is to ensure continuity and certainty in the law both before and after exit day. She worries that the powers granted to Ministers to amend retained EU laws should be both restricted and subject in each case to an enhanced scrutiny procedure, which would also provide for a period of consultation with the public and relevant stakeholders. But the effect of the amendments is to increase uncertainty and, ironically, reduce the likelihood—the certainty that is needed—that retained law will continue to provide exactly the same protections as before. Indeed, the period of public consultation to be provided in the enhanced scrutiny procedure gives the impression that policy changes may also be entertained. As we have heard from Ministers, the Bill is not about policy change.

Without these powers, there are huge risks that retained EU law will be defective for technical reasons—for example, due to the enormous number of references to Union institutions, which all need to be changed. Such changes would take so very much longer if each change was made subject to the enhanced scrutiny procedure proposed by the noble Baroness. That is just one area in which the amendments are counter productive.