Defamation Bill

Lord Ahmad of Wimbledon Excerpts

Monday 17th December 2012 Grand Committee

[Lord Lucas]

Yes, but that is not the way things operate in practice. A lot of the time, the views expressed by someone like me are second-hand, while the views expressed by parents are perhaps not backed up by fact. It is not that we cannot comment, but in my view schools should have a defence against something that is unreasonable. At one point we had to pulp an edition of the guide because of what we had said, and I accept that as a proper interpretation of the law. To have a situation where no school can sue under any circumstances would put them at an unreasonable disadvantage. I appreciate that someone in my position has many privileges, but they should not be absolute.

[Lord Ahmad of Wimbledon]

My Lords, listening to our debate with great attention means that one defines it almost along the line of whether or not you are a lawyer. I am also conscious that we have heard an array of accents, including both Scottish and Northern Irish. I will do my best to explain the Government’s position in whatever accent noble Lords believe mine to be.

As has already been said, and as I am sure noble Lords appreciate, this is an area where the law is still developing. In Derbyshire County Council v Times Newspapers, the House of Lords held that local authorities and government bodies are already prevented from bringing actions for defamation. My noble friend Lord Lester of Herne Hill said that he was involved in that case. Therefore, I speak with a degree of trepidation. However, I heard him express support for the position that I am going to outline. My noble friend referred to the Government’s consultation paper in which we sought views on the suggestion that this principle should be put in statute and on whether it should be extended to a wider range of bodies exercising public functions. A clear majority of the responses considered that wider statutory extension of the Derbyshire principle would not be appropriate and took the view that this would represent a significant restriction on the right of a wide range of organisations to defend their reputation. Indeed, my noble friend Lord Lucas expressed that view. We share that concern. We also consider that a statutory provision would be too rigid and could also lead to litigation and uncertainty over whether particular bodies and functions fell within its scope.

As I have said, the law in this area is still developing and legislation could remove the flexibility that exists under the common law for the courts to develop the Derbyshire principle as they consider appropriate in the light of individual cases. We believe that it is better to allow the courts to do this rather than introduce a rigid and restrictive statutory provision. On that basis, I hope that the noble Baroness, Lady Hayter, will agree to withdraw the amendment.

[Baroness Hayter of Kentish Town]

My Lords, I thank the noble Lord for that response. I also thank the noble Lords, Lord Lucas and Lord Lester, for their contributions. Like the noble Lord, Lord Ahmad, I quake when I hear the noble Lord speak who was the barrister in the case we are discussing. However, I am disappointed by the Minister’s response. To say that this matter is for the courts to decide seems to run counter to everything we are trying to do in this Bill, which is to provide people with a document that will inform them about these issues. Therefore, the noble Lord’s response is very regrettable. I also think it is out of time in that the increasing competition between providers puts one lot of people at a disadvantage compared with another because if a local authority is competing with someone else for the provision of a service, and one side can be sued for libel but not the other, that is a great inequality and it is not a level playing field. I dare say that cases will be brought on that basis. We shall need to return to this issue because there is inequality between different providers of services. However, for this evening, I beg leave to withdraw the amendment.

Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Rosser]

My Lords, briefly, we await with interest the Government’s response. Certainly, the amendment would appear to fill in a gap in this part of the Bill, since one’s understanding of restorative justice was that it was at least as important, if not more important, for the victim as it was for the offender. Yet while the relevant clause provides for participating,

“in an activity … where the participants consist of … the offender and one or more of the victims”,

it then goes on to say,

“which aims to maximise the offender’s awareness of the impact of the offending concerned on the victims”.

It would appear as though the view in this part of the Bill is that the offender’s needs and awareness are regarded as rather more important than those of the victim or victims. I conclude by saying that my understanding of restorative justice is that it is there for the benefit of the victims at least as much as, if not more than, that of offenders.

[Lord Ahmad of Wimbledon]

My Lords, I welcome the enthusiasm and support for restorative justice from across the House. Indeed, at the recommital stage of the Bill my noble friend Lady Linklater moved an amendment in relation to pre-sentence restorative justice. That amendment added an explicit reference to restorative justice meeting the needs of the victim.

Her Majesty’s Government entirely agree that RJ, when used appropriately, can be an extremely positive experience for victims. For example, our own research has shown that 85% of victims participating in direct RJ conferencing with their offenders were satisfied. We therefore gave an undertaking to consider the amendment in advance of Report. I assure the House that we are fully supportive of the intention behind the amendment. We consider that the phrase,

“meet the needs of the victim”,

needs more explicitly to reflect the benefits provided by restorative justice. Victims may have many needs as a result of a crime, and we should be clear about which of them RJ may meet.

I am sure that noble Lords will agree that one of the most important benefits of RJ is to give victims a voice in the criminal justice system. The amendment therefore seeks to reflect this. It puts an equal emphasis on victims and offenders in defining RJ requirements by focusing on victims’ need to have their voice heard. It also seeks to cover the different ways in which victims might want to express themselves. The phrase, “talk about” seems to us a direct and simple way of describing what might happen in the majority of cases—victims talking at a face-to-face meeting or mediation about the impact of the offending. The words,

“or by other means express experience of”,

is intended to cover other ways of sharing experience, thoughts and feelings.

In short, we appreciate that some victims may be too traumatised, or otherwise unable or unwilling, to talk about their experience. Instead, they may want to express their feelings in writing or drawing, or through other means. We therefore believe that the amendment will strengthen the role of victims in the restorative justice process. In the light of this, the Government propose to accept the amendment.

Amendment 113GD agreed.

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Moved by

[Lord Ahmad of Wimbledon]

116: Transpose Schedule 16 to after Schedule 13

[Lord Ahmad of Wimbledon]

My Lords, Amendments 116 and 117 are straightforward technical amendments that simply move Schedule 16 to sit after Schedule 13 and Schedule 17 to sit before Schedule 14. Due to the recommittal process, these schedules are not currently in the correct place when compared to their corresponding clauses. These amendments merely move the schedules into their correct chronological place in the Bill. I beg to move.

Amendment 116 agreed.

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[Lord Ahmad of Wimbledon]

My Lords, the amendments in this group relate to issues raised and debated in Committee. I assure the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Goldsmith, that they have been considered in the intervening time. However, as the noble and learned Lord expected, the Government’s position on both issues is unchanged for the reasons that I will reiterate.

Amendment 116ZA seeks to introduce a sunset clause—I am always conscious that the noble Lord, Lord Beecham, often talks of sunset clauses after the sun has set; I am sure there is no direct relevance—for the DPA scheme. The Government still consider that to be unnecessary at present. Let me be clear: our approach to these proposals allows us to test the water, as my noble friend Lord Marks, said, by dipping a toe in to this novel approach. Our proposals have been designed to deal with the particular issue of bringing organisations to justice for economic crime.

However, let me reassure the noble and learned Lord, Lord Goldsmith, that the introduction of the DPA scheme is not a pilot. The Government are committed to DPAs becoming a permanent fixture in the fight against corporate economic and financial crime. For this reason, we do not consider the proposed sunset clause to be appropriate. Additionally, this provision could have a number of prejudicial consequences for any DPA under negotiation, in force or expired. The inclusion of such a clause would introduce uncertainty that might deter prosecutors and organisations entering into a DPA.

Let me assure the noble Lord, Lord Beecham, that the Government will review the operation of the scheme following its introduction, and I am content to reiterate that undertaking here. Pursuant to the Government’s policy on post-legislative scrutiny, of which noble Lords are aware, all new primary legislation is reviewed within five years of Royal Assent. We consider that there is no need to provide a statutory basis for the review of the DPA legislation and consider, on this occasion, that the undertaking we have given on post-legislative scrutiny conducted in the usual way is sufficient.

Amendment 116E, which was tabled by the noble and learned Lord, Lord Goldsmith, broadens the scope of the Secretary of State’s power to specify by order further offences in relation to which DPAs may be entered. As has been stated already, the amendment would extend its scope to the addition of any offence whatever that could be committed by an organisation. We discussed this issue in Committee and have considered with great care the potential to extend the scope of the DPA scheme to cover a broader range of offences. The Government remain of the view that the scope of the scheme should be limited to financial and economic wrongdoing and that it should not be extended beyond this by way of secondary legislation for the following reasons.

First, 77% of the respondents to our consultation agreed that corporate economic crime is the right focus for these proposals, at least initially. Fewer than half of respondents supported the broader availability of DPAs. As we made clear in Committee, the proposals set out in Schedule 17 have been designed as a response to the particular problems of prosecuting organisations alleged to have been involved in financial or economic wrongdoing. Too few organisations are being held to account for economic wrongdoing owing to the particular challenges in investigating and prosecuting the conduct. These challenges are not as acute for other types of corporate offending, including—and I know other noble Lords have mentioned this—environmental offending, where successful prosecutions have been made and where there is already a range of effective alternatives to prosecution. Those responsible for prosecuting offences other than economic and financial crimes have not identified a broader need for DPAs.

The introduction of DPAs, as I have already said, is very much a toe-dipping exercise. We need to ensure that the benefits of DPAs are proven, that there are no unintended consequences and that the right cases are still being prosecuted before considering broadening the scope. The Government are therefore opposed at this stage to removing the restriction on the offences that might be brought within the scope of these proposals. We remain firmly of the view that the current draft of the schedule draws the scope of the DPA scheme appropriately.

However, I would like to reassure the noble and learned Lord, Lord Goldsmith, that the Government will keep this matter under review. If DPAs prove effective in tackling corporate economic crime, and the case is made for extending their availability for other types of offending, then we will reconsider this issue in the future. However, we consider that such a significant change in the scope of the scheme should be made only following appropriate consultation, and by way of primary legislation, with the more rigorous scrutiny that that entails, compared with the affirmative resolution procedure.

I therefore ask noble Lords to wait until these proposals have been fully tested in relation to economic crime in England and Wales, have been shown to be effective and, most importantly, have gained public confidence, before pressing for an extension in their scope. This is an important step forward. It is a new area and therefore it is right that we focus for the time being on economic crime. In light of these points and with the assurance that we will keep the scope of the DPA scheme under review I would be grateful if the noble Lord, Lord Beecham, would agree to withdraw his amendment and the noble and learned Lord, Lord Goldsmith, would agree not to move his amendment.

[Lord Beecham]

My Lords, I am slightly disappointed by that response. It is not clear to me what form the review will take. Leaving aside the sunset clause—which I virtually left aside in moving the amendment—the amendment really talked about the consultation between the Government and the Director of Public Prosecution and the Director of the SFO and producing a joint report, as it were, for Parliament to discuss. It is not clear to me that that follows from what the Minister has described as the usual post-legislative scrutiny. I would be glad to be corrected if it is intended to bring effectively a joint report to be debated as part of that process.

In relation to the reluctance to envisage bringing forward other areas of law—environmental law was debated at some length at an earlier stage but not necessarily just that area—if we have a five-year review it will be at least six years before primary legislation is likely to be enacted, given that it would have to take its place in the queue, as it were, at that time. That strikes me as rather too long a period to wait, given the general acceptance that this offers a way forward, particularly in the field of something like the environment where you are not just looking at a financial penalty but at different ways, which we will touch on later in the amendments of my noble and learned friend, of corporations recognising their responsibilities in practical rather than purely monetary terms.

I have, as I have previously expressed, some reservations about extending the doctrine to individuals, although I take my noble and learned friend’s point about drugs, which is made on a day on which the Government seem to have been much too quick to reject a call from the Home Affairs Select Committee for a Royal Commission to look into what is not a noticeably successful policy on drugs and their impact on society and the courts. However, clearly, the Government are not minded to move things in the direction that either I or my noble and learned friend would wish tonight. In the circumstances, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, paragraph 5 to Schedule 17 sets out both the mandatory elements that every DPA must include, namely an agreed statement of facts, an expiry date and a non-exhaustive list of potential financial and non-financial terms. Each agreement will be tailored to take into account the particular type and extent of the alleged wrongdoing, as well as the wider circumstances of the case and the situation.

A financial penalty is one of the terms that an agreement may contain. We expect that a financial penalty is very likely to be a term in the majority of DPAs. Let me make the Government’s intention clear. The Government believe the level of the financial penalty should bear close relation to the fine that would have been imposed following conviction in court after a guilty plea. A DPA is not a soft option for organisations and setting financial penalties at an appropriate level is important in achieving that.

The noble and learned Lord, Lord Goldsmith, asked whether the financial penalty is optional. The Government believe that parties should be able consider all circumstances of the individual case and this may include a large compensation payment, which will take priority over financial penalty. In the drafting of paragraph 5(4) we have provided an approach to setting a financial penalty that will achieve that aim. The key aspects are: an incentive, in the form of a discount of any penalty—I will come onto the issue of a discount in a moment; consistency of approach with sentencing upon conviction; certainty as regards the level of financial penalty; proportionality as the parties and courts will be able to take into account the means of the organisation and the level of other monetary terms, such as compensation, that take priority.

The noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, both mentioned incentives. The primary incentive for entering into a DPA is to avoid prosecution and conviction, both of which have the potential to cause huge reputational damage and to give rise to other negative consequences for an organisation. As someone who has spent 20 years working in the corporate world, let me assure noble Lords that reputation for a corporate body is of immense importance, and a DPA provides a route where that can be protected.

Our scheme provides a further incentive: any financial penalty under a DPA would be discounted to reflect the position a defendant would be in after pleading guilty in a timely way. In other words, the organisation could benefit, as again the noble and learned Lord mentioned, from a discount of up to one-third. A total of 94% of the respondents to our consultation supported our proposals for a discount although, as has been pointed out already, there was no consensus on whether there should be a maximum reduction and what that might be. Indeed, the figure cited of 57% of respondents did not support having a maximum discount of one-third as we proposed. However, the important point is that there was no consensus as to what the alternative should be.

Furthermore, we know from our consultation and engagement that it is essential that there is consistency of approach and some certainty as to the potential level of financial penalties. Organisations made it clear to us during the consultation that they would not enter into a DPA if there was a real risk that the penalty negotiated and agreed with the prosecutor would be out of line with what a judge thought appropriate.

Through paragraph 5(4) we have, therefore, provided that where a financial penalty term is to be included in the agreement, the sum payable should be broadly comparable to the fine that would have been imposed for the alleged offence on conviction following a guilty plea. This will allow parties to have regard to the guidelines on both sentencing for particular offences and principles including discounts for early guilty pleas. We believe this provision provides an essential benchmark on setting a penalty, not only to the parties but also to the judge, who will decide whether the amount that the organisation and prosecutor have agreed is fair, reasonable and proportionate. Both parties and the judge have some comfort that they will be starting from a clear, common position. The organisation can therefore expect some certainty as to what it faces if it decides to enter into a DPA.

In determining a penalty that is “broadly comparable” to a fine a court would have imposed following a guilty plea, the parties will have regard to relevant sentencing guidelines produced by the Sentencing Council, including the guideline on an early guilty plea, which currently provides for a discount of up to a third. I will come on to the points regarding the Sentencing Council in a moment. But they will also have regard to other law and practice a sentencing court would follow so as to take account of matters such as the means of the defendant and how compensation should be prioritised over the other financial elements of a sentence. Without such a benchmark, we consider it likely that the two parties to the DPA could have such widely divergent opinions as to what the level of the penalty should be that discussions would be unworkable, making negotiations protracted and difficult. This is exactly what we are seeking to avoid by providing for DPAs. We therefore consider that paragraph 5(4) will enable the parties, and ultimately the courts, to ensure that the financial elements of a DPA, taken as a whole, reflect a proportionate and balanced approach. To be clear, this is essential to ensure that a DPA does not look like a soft-option; anything less, in our view, would risk giving that impression.

Amendment 116A would remove paragraph 5(4), thereby providing no guidance at all for the parties or court as to how to approach setting a penalty under a DPA. This would be undesirable for a number of reasons, not least that the parties would be denied guidance on an appropriate penalty. In the event that paragraph 5(4) was to remain part of Schedule 17, Amendment 116B would provide that the financial penalty term should not exceed the fine that a court would have imposed. Again, this would deny the parties and the court the appropriate level of guidance they desire, and suggests that the parties might agree a fine well below what a sentencing court would have imposed upon a guilty plea. For the reasons I set out earlier, this would in our view be unworkable. It also gives the impression that DPAs are a soft option. We do not agree therefore that it is necessary to set a bar as proposed, but with no lower limit. Paragraph 5(4) sets out the clearest and in our view most workable solution to determining a financial penalty.

The noble Lord, Lord Beecham, has tabled Amendment 116BA, which is a variation of an amendment considered in Committee in relation to parliamentary scrutiny of guidance on setting financial penalties. The amendment would require the Sentencing Council to lay before Parliament its proposals for setting a financial penalty. Although not explicit from the terms of the amendment, we understand this to mean any proposal prepared by the Sentencing Council in relation to financial penalty payable under a term of a DPA.

The Sentencing Council has informed us that it is committed to producing sentencing guidelines for many of the economic and financial offences listed within Part 3 of the schedule, which will be in place in time for the implementation of our proposals, to which the noble Lord, Lord Beecham, referred. These guidelines will also cover corporate offending. As a result, a separate DPA guideline is no longer necessary. We will instead be riding on the coattails of guidelines which are produced for a different purpose: namely, sentencing a defendant after a conviction. Those guidelines are already subject to appropriate consultation and scrutiny. Under the Coroners and Justice Act 2009 the Sentencing Council has an obligation to consult a number of interested parties on any sentencing guidelines it proposes. In particular, it has a statutory obligation to consult the Justice Select Committee of the House of Commons. This provides an appropriate opportunity for parliamentary input into these guidelines.

We do not consider that scrutiny beyond that described is necessary or appropriate. The fact that the Sentencing Council’s guidelines will be referred to by the parties and judges in the process is secondary to the primary purpose for which they are developed and used: that is, determining sentence on conviction, and for which there is a robust and comprehensive development and review process.

Amendments 116C and 116D relate to a provision we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with an agreement. We included this provision as a way for the parties to deal with some forms of non-compliance with a DPA capable of being objectively determined such as the late payment of money under a DPA. The aim is for the parties to be able to remedy such non-compliance without recourse to the court: for example, by way of punitive interest in relation to a late payment. Such a term would be negotiated alongside all other terms of an agreement and approved by the judge. We do not envisage that such a term would be appropriate in all cases. Whether or not an agreement includes such a term, paragraph 9 of Schedule 17 provides the formal procedure for dealing with non-compliance of a DPA, which will be the most appropriate way for addressing most instances of non-compliance.

Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Beecham]

My Lords, I understand the points made by my noble friend and by the noble Lord, Lord Lester. This is an innovation in English court procedures and we should approach it with a degree of caution. The case for opening up the judicial system to more public information and understanding is well made, and to that extent I concur with the remarks of the noble Lord, Lord Pannick. I was less happy with the second part of his speech, which addressed the amendments in my name. I endorse what the noble Baroness, Lady Hamwee, has just said about discretion on the part of the trial judge to decide whether or not to permit broadcasting. That ought to be a significant safeguard, but it is not quite good enough to rely just on the Lord Chief Justice. I say “just”; although one has every confidence in the holders of that office, this is, as I say, a new departure and there is a wider interest to be considered. The amendments in my name and that of my noble friend Lord Rosser try to establish the principles both in relation to any decision to extend court broadcasting and regarding the matters to be considered when a court gives a direction, precisely to meet some of the objections and difficulties envisaged by my noble friend Lady Kennedy and the noble Lord, Lord Lester.

Amendment 120B requires any statutory instrument to be subject to the affirmative resolution procedure. I am in slight difficulty here because, when these matters were raised in Committee, the noble Baroness, Lady Northover, said that the government amendments would make the provisions under what was then Clause 22 and is now Clause 23 subject to the affirmative procedure, as recommended by the Delegated Powers and Regulatory Reform Committee. She also referred to what was then Clause 29, which again required amendments to primary legislation to be subject to the affirmative procedure. I may have missed them but I cannot actually see those references in the Bill. They may be disguised under some form of words that does not immediately disclose their presence, but I would be grateful if the noble Lord, Lord Ahmad, could confirm that the affirmative procedure would apply so that it would not simply be a matter of a decision by the Lord Chief Justice but, if there were to be significant changes, particularly to extend the range of matters that could be broadcast, then the affirmative procedure would apply. If that were the case, we would certainly be content to support the Bill in its present form. Perhaps, with the assistance of the Box, he may be able to help me and, more importantly, your Lordships, to come to a conclusion about whether the Government’s intentions are currently reflected in the Bill.

[Lord Ahmad of Wimbledon]

My Lords, it is always interesting to examine such issues. I have listened to the speeches and the arguments, although I was not in your Lordships’ House when the arguments were put forward for the televising of Parliament. I listened, as I always do, to the noble Baroness, Lady Kennedy, who spoke about words being put into people’s mouths and perhaps being interpreted differently. I suppose that every now and again parliamentarians, and politicians in particular, suffer that consequence, which is well understood.

This has been a wide-ranging debate. As we have seen, again there is strong opinion on both sides of the argument. As the noble Baroness, Lady Kennedy, said, her amendment would limit court proceedings to appellate proceedings and, in effect, would require the Government to return to Parliament before broadening court broadcasting to other types of court proceedings, such as those in the Crown Court. I am also aware, as my noble friend Lord Lester of Herne Hill pointed out, that this amendment was specifically recommended by the Joint Committee on Human Rights in its report of the Bill. I would, of course, like to thank the Joint Committee for its report. I am also glad to read that the committee agrees with the Government’s objective of making justice as apparent and as publicly accessible as possible.

We have heard about 18th century judges, although I am minded not to travel back in history to that extent. However, in 1924, the Lord Chief Justice, Viscount Hewart, said:

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

I believe that sentiment underlies the Government’s view.

The noble Baroness, Lady Kennedy, talked about caution. The Government recognise that as regards court broadcasting. It is our view that any order made under Clause 23 will require, as has been mentioned by various noble Lords, the agreement of the Lord Chief Justice. But that is just one lock. It will also require the approval of the Lord Chancellor and will be subject to scrutiny by both Houses of Parliament under the affirmative procedure. Therefore, court broadcasting will be introduced in a safe and proportionate manner. That is akin to putting not one or two locks on the door but to putting three locks. It will take three people to open that door.

However, we can go one step further. We believe that this triple lock, combined with existing reporting restrictions and the additional provision to allow judges to stop the filming and broadcasting of court proceedings to ensure the fairness of proceedings and to prevent any undue prejudice, will ensure that the interests of victims and witnesses, who are most important, as well as jurors, defendants and other parties, are fully protected. I hope that this will address the concerns of not only the noble Baroness but also the noble Lord, Lord Beecham, in relation to the court’s requirement to consider when to allow or to prevent broadcasting.

When the noble Baroness, Lady Kennedy, mentioned that moving cameras changed people’s actions, they certainly changed my action. As she mentioned it, I looked towards the camera and the camera moved. There is some credence and fact behind that statement.

The Government announced plans in September of last year to allow the broadcasting of judgments and advocates’ arguments in cases before the Court of Appeal and, over a longer period, to allow broadcasting from the Crown Court but to limit this to the judge’s sentencing remarks after conclusion of the trial. We believe that this will help to increase the public’s understanding of sentencing, with low risk to the proper administration of justice. Let me assure your Lordships’ House that we have no plans to extend court broadcasting beyond these two sets of circumstances. We believe that, once Parliament has approved the principle of broadcasting selected court proceedings, the details safely can be set out in secondary legislation. I would remind the House that the Delegated Powers and Regulatory Reform Committee did not take issue with this approach as long as the secondary legislation was subject to the affirmative procedure, which it now is. This means that the Lord Chancellor may make an order only under this clause which has been approved by both Houses. That being the case—I refer in particular to the comments made by the noble Lord, Lord Beecham —Amendment 120B is not needed as that ground is covered already by Clause 30(4)(f). As with all primary legislation, these provisions will be subject to post-legislative review three to five years after Royal Assent.

Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Carswell]

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

[Lord Ahmad of Wimbledon]

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

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

Amendment 112 agreed.

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[Lord Beecham]

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

[Lord Ahmad of Wimbledon]

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

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

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

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

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

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

[Lord Pannick]

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

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

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

Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 4th December 2012 Lords Chamber

Moved by

[Lord Ahmad of Wimbledon]

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

[Lord Ahmad of Wimbledon]

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

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

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

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

[Lord Beecham]

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

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Moved by

[Lord Ahmad of Wimbledon]

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

[Lord Ahmad of Wimbledon]

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

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

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

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

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

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

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

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Moved by

[Lord Ahmad of Wimbledon]

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

[Lord Ahmad of Wimbledon]

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

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

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

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

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

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

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

[Lord Avebury]

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

[Lord Ahmad of Wimbledon]

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

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

Amendment 106 agreed.

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[Lord Ahmad of Wimbledon]

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

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

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

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

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

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

It then goes on to say:

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

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

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

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

[Lord Avebury]

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

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[Baroness Deech]

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

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

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

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

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

[Lord Ahmad of Wimbledon]

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

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

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

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

Amendment 108AA agreed.

Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, forgive me for speaking after the noble Lord, Lord Beecham, but I hope to add a few words to what he said because I was slow on the uptake and did not realise that the last amendment on this schedule is in this group. I endorse 100% the argumentation of the noble Lord, Lord Beecham, for the five-year review. I think I am alone in this House in being fiercely opposed to the whole schedule on principle. I understand the extremely persuasive arguments advanced by all who have spoken tonight—shortly to be enlarged upon by my noble friend Lord McNally—but I am profoundly concerned that we are stepping into a realm that we have no past experience of and which could work out to be far from the hopes of the Government in advancing this proposed plea-bargaining regime.

There are a number of unknowns here that could, in the event, show that, overall, Schedule 17 works against the public interest. There should be a pause after five years so that that can be looked at very clinically, impartially and clearly so that we can take stock of what is a revolutionary change in our criminal law. Let us make no bones about it: this is one of the greatest revolutions in our criminal law system in 100 years. It is not a change that has been signalled well to the public. There has been extraordinarily little comment in any of the broadsheets, magazines or television programmes. In fact, I have not seen reference to this innovation anywhere. For those reasons and many others, I hope that my noble friend the Minister will accede to the amendment. After all, if the Government are right in their arguments for Schedule 17, they have nothing to fear in a five-year review.

[Lord Ahmad of Wimbledon]

My Lords, I welcome the broad support for the introduction of DPAs. I align myself with the words of the noble and learned Lord, Lord Goldsmith, about my honourable friend Edward Garnier in terms of the work he has done in this field.

My noble friend Lord McNally and I have listened very carefully to the arguments and discussions that have taken place on the amendments in front of us. I can assure your Lordships’ House that this Government are about listening and hearing about experiences. While the proposals are quite specific at the moment, this does not rule out returning in future to the extension of the remit of DPAs, particularly where issues beyond economic crime are concerned.

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[Lord Phillips of Sudbury]

That applies in a case that has been tried in open court and a conviction has been made. It is vastly different from the plea-bargain situation where there is no open-court hearing, no obloquy and no public shame.

[Lord Ahmad of Wimbledon]

I thank my noble friend for his intervention. As I said in my opening comments, it is not something that the Government are entirely ruling out, but it is the Government’s view at this stage that because this is something new to our justice system, the provision would be focused on organisations. However, I hear very clearly and my ears have not been closed to the points made by the noble and learned Lord. It is a matter that we will examine at some future point in time when this particular DPA scheme is reviewed, as I am sure it will be.

Generally speaking, the law on corporate criminal liability is such that, in order to achieve a conviction, a prosecutor must show that the “directing mind and will” of the organisation satisfies the necessary fault element for the offence. This is often difficult to show, especially in increasingly large, globalised and more sophisticated organisations. Cases can often involve lengthy and protracted investigation, with associated high financial and resourcing costs, with no guarantee of success.

Our proposals will not change the law on corporate criminal liability. However, they will offer an additional route for holding to account organisations that are willing to engage in the process and might otherwise face prosecution. These issues are not present to the same extent in relation to prosecuting individuals. However, I have noted with great interest what the noble and learned Lord, Lord Goldsmith, has said about his personal experience and the experience of the United States in this regard.

Furthermore, one of the elements that the Government considered as regards prosecuting economic crime committed by organisations is perhaps not the same as that which applies to other areas such as health and safety. Therefore, an extension of the proposals to other forms of offending does not appear necessary at this time. In particular, we are not persuaded that a DPA would be the appropriate response where direct physical harm has been caused to an individual by the organisation’s wrongdoing.

As this process is new to our criminal justice system, the Government would like to tread carefully. Our view is that a narrow, targeted approach is the best course of action to begin with. As I have already assured the House, I shall keep the points raised by my noble friend and the noble and learned Lord, Lord Goldsmith, under review. At a future time, should a case be made for applying deferred prosecution agreements to individuals, or for applying them to a broader range of offences, as the noble Lord, Lord Marks, has mentioned, it is right that we come back to Parliament with the necessary primary legislation to extend the scope of the scheme rather than seeking to do it through secondary legislation.

The noble Lord, Lord Beecham, spoke to Amendment 48. The Government’s view is that that amendment is unnecessary. We have already provided an undertaking that we will review the operation of the scheme following its introduction, which is of course essential given the novelty of DPAs in our criminal justice system. Returning to a point that was raised by my noble friend, the Government are in any event committed to reviewing all new primary legislation within five years of Royal Assent. That was the previous Government’s policy on post-legislative scrutiny. We do not need to put such a review on a statutory footing or to sunset the scheme provided for in the Bill. If, following the review, changes to the scheme are necessary or desirable, we can of course bring forward further primary legislation at that stage.

The noble Lord, Lord McNally, and I have listened very closely to the compelling arguments that have been made. With the assurances that have been given to ensure that the matter is reviewed, I would be grateful if my noble friend Lord Marks and the noble Lord, Lord Beecham, would agree to withdraw the amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I hear the assurances that the Government are listening and I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord for his opening remarks where he said he was short so would be brief. I suppose I can replicate those comments. This amendment seeks to provide for parliamentary scrutiny, as the noble Lord, Lord Beecham, said, for Sentencing Council guidelines in setting financial penalties.

Schedule 17 provides that the amount of any financial penalty payable under a DPA must be comparable to that which a court would have been likely to impose on conviction. In determining that amount, sentencing guidelines will be relevant. The Sentencing Council, as the Committee may already know, has already indicated that it will produce sentencing guidelines to cover the offences likely to be encompassed by DPAs when committed by an organisation, including fraud, money laundering and bribery offences.

The Sentencing Council is responsible for preparing and monitoring sentencing guidelines with the aim of ensuring greater consistency in sentencing and is of course under a statutory obligation to consult a number of parties when preparing draft guidelines. In response to the noble Lord, Lord Beecham, this of course includes, as he may well know, the Justice Select Committee. As such, the Government do not think it necessary to introduce a further requirement for parliamentary scrutiny of any guidelines that may be relevant to DPAs in this way. I therefore invite the noble Lord, Lord Beecham, to withdraw his amendment.

[Lord Beecham]

I am disappointed with the Minister’s response, although it was commendably brief, as he promised. I do not think the response will go in any way to allay what I anticipate will be public concern over this. However, in the circumstances, I beg leave to withdraw the amendment but reserve the right to return to it on Report.

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[Lord Beecham]

My Lords, I certainly endorse my noble and learned friend’s remarks and support his amendment. I also support Amendment 32 standing in the name of the noble Baroness, Lady Hamwee. I shall speak to Amendments 31A and 31B, which again would provide effectively parliamentary oversight and approval of the code of practice to be drawn up by the Director of Public Prosecutions and the director of the Serious Fraud Office.

In his letter to me that other noble Lords may have seen, the noble Lord, Lord McNally, indicated that of course the Government believe in,

“the fundamental principle of prosecutorial independence”.

We certainly affirm that. The Minister went on to say that it is therefore appropriate for the code to be issued by the DPP and the director of the Serious Fraud Office,

“rather than it being put on a statutory footing in regulations laid by a Government minister”.

In my judgment, prosecutorial independence merely applies to the way in which a case can proceed, whether it should proceed and the like, but not necessarily the framework.

This is a novel framework being established for this purpose and, I reiterate, it will need to command public support. I do not refer to the individuals currently holding those offices or necessarily to those previously holding them, but neither of those departments has, shall we say, an unblemished reputation among the public over a series of quite different matters over the years. I have every respect for the current holders of those offices. As it happens, they both seem to be doing a very good job but the history is somewhat difficult in both cases. After a consultation process, the holders of those offices would have effectively the final word without any real intervention or guidance by Parliament. That is inappropriate in the particular circumstances of this case. What I propose would not interfere with their prosecutorial discretion, but it would allow the public to have confidence that the framework being established, within which prosecutorial independence would be exercised and maintained, is one that has Parliament’s support. It would not simply be left to Parliament to debate, without being able to influence it, following consultation carried out under the provisions of the Bill. For what it is worth, I have the support of the noble and absent Lord, Lord Phillips. The noble Lord, Lord McNally, looks to the heavens in gratitude. I shall direct the noble Lord, Lord Phillips, to Hansard tomorrow. There is a serious point here and I ask the Government to reflect upon it.

[Lord Ahmad of Wimbledon]

My Lords, in providing for a code of practice for prosecutors in relation to deferred prosecution agreements, the Government have sought to ensure consistency with other statutory provisions relating to guidance for prosecutors on operational matters. As I have said before, the scheme for DPAs is a new concept for our criminal justice system and as such does not fall within the scope of any existing guidance for prosecutors.

I will turn to specific amendments and refer first to Amendment 30. The Government consider that there should be a code for DPAs comparable to the code for Crown prosecutors issued by the DPP under Section 10 of the Prosecution of Offences Act 1985. The code for Crown prosecutors sets out the general principles that prosecutors should follow when undertaking their functions. My noble friend Lady Hamwee referred to paragraph 6(1)(a) of Schedule 17, which reflects Section 10 of the Prosecution of Offences Act 1985 as to the general nature of the guidance to be set out in the code of practice for DPAs. However, unlike Section 10 of the Prosecution of Offences Act, paragraph 6 of Schedule 17 sets out in further detail the matters that must be covered in the code of practice for DPAs. Let me be clear: the key elements of DPAs are clearly set out in the Bill. The code of practice will provide guidance to prosecutors on the exercise of their discretion on operational matters. As such, the code is fundamentally an operational document and seeks to preserve prosecutorial discretion in operational matters. This approach will ensure that the code provides guidance in relation to key procedural matters for DPAs and decisions to be made by prosecutors.

Amendment 31 would add to paragraph 6 a further matter on which the code of practice may give guidance by adding to the list, as the noble and learned Lord, Lord Goldsmith, said,

“the choice of expiry date for a DPA”.

The Government’s view is that paragraph 6(2) is already clear that the code may give guidance on any relevant matter. If prosecutors consider it necessary and desirable to have guidance on the duration and expiry of an agreement, they would have the power to issue such guidance under that paragraph. We do not therefore see any particular or specific need to highlight this issue, although, again, the points of the noble and learned Lord, Lord Goldsmith, have been noted on this matter.

Amendments 31A and 31B seek to make the DPA code of practice for prosecutors subject to the affirmative resolution procedure. The noble Lord, Lord Beecham, referred to the letter issued by my noble friend Lord McNally. He is correct that the fundamental principle of prosecutorial independence means that it is appropriate for the code to be issued by the DPP and the director of the Serious Fraud Office. The code is an operational document, as I have already said. As such, we do not consider that it is either necessary or appropriate to make this code subject to parliamentary scrutiny. This approach is consistent with that under Section 10 of the Prosecution of Offences Act 1985 in respect of the code for Crown prosecutors. I should add that a supplementary delegated powers memorandum has been provided to the Delegated Powers and Regulatory Reform Committee, which has not raised any concerns about the approach taken in Schedule 17.

Amendment 32, referred to by my noble friend Lady Hamwee, relates to the duty on prosecutors to take account of the code of practice for DPAs when exercising functions under Schedule 17. It is essential that there is transparency and consistency in the way DPAs operate. The code of practice will play an important part in meeting these requirements. Requiring prosecutors to “take account of” the code throughout the deferred prosecution agreement process will ensure that it is considered and applied in relation to making decisions and exercising functions. Parties to the agreement, the judge and the public can be confident that each agreement will be approached and made in a consistent manner. We do not consider that requiring a prosecutor to “have regard to” rather than “take account of” the code would make any material difference to the extent of its use by the prosecutor.

In conclusion, there is a strong case for ensuring parity between the legislation providing for the deferred prosecution agreement code of practice and the code of practice for Crown prosecutors issued under the Prosecution of Offences Act 1985. I hope that, in light of the explanations I have given, my noble friend Lady Hamwee, the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, will agree not to press their amendments at this time.

[Baroness Hamwee]

My Lords, I thank the Minister for that. In view of the hour, I beg leave to withdraw the amendment.

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[Lord Beecham]

I have a good deal of sympathy with the amendments in this group tabled by my noble and learned friend and the noble Lord, Lord Marks, and I will be interested to hear the Government’s response. Both aspects seem to be matters that they should consider before Report.

[Lord Ahmad of Wimbledon]

Transparency and openness are key to the operation of the new deferred prosecution agreement process. In designing this process the Government have sought to strike a balance between the need for the parties to be able to negotiate without prejudice and to discuss a proposed agreement with a judge openly, with the imperative to avoid the perception that this is justice behind closed doors. Certainly, it is not to give the impression of cosy deals being struck in private.

Amendments 33, 37 and 39, in the name of the noble and learned Lord, Lord Goldsmith, would remove the preliminary hearing element from the process for entering into deferred prosecution agreements. The Government’s strongly held view is that the preliminary hearing is an essential feature of the process for entering into a DPA. It is at this stage that the prosecutor and the organisation are able to discuss the potential for an agreement and its outline terms openly with the judge.

Judicial scrutiny at this early stage is very important to determine whether an agreement, first, is likely, in principle, to be in the interests of justice, and, secondly, whether its proposed terms are fair, reasonable, and proportionate. More importantly, the preliminary hearing allows greater judicial involvement and judicial influence on the outcome, which critics say perhaps is lacking in the model used in the United States. After all, it is the doctrine of UK law that not only should justice be done but it is seen to be done.

Participation by organisations in the DPA process will be voluntary, as has been said previously. Some 93% of respondents to our consultation agreed that the preliminary hearing should be held in private in order to limit any potential prejudice to an organisation’s commercial interests and to prevent jeopardising a future prosecution.

Amendments 34 and 36, also proposed by the noble and learned Lord, Lord Goldsmith, probe the requirement that at the preliminary hearing and the final hearing the prosecutor must apply to the Crown Court for a declaration that entering into a DPA is in the interests of justice and that the proposed terms are fair, reasonable and proportionate.

It is clear from the legislation as drafted that the hearing and the declaration sought will relate to an agreement which both parties have been negotiating. While the schedule does not state explicitly that the organisation can or will take part in the proceedings we think that this is very much implied. We are clear that while the prosecutor is the party to initiate the court process leading to the declaration, the organisation will be entitled to take part, as a separate party, in those proceedings. The detail of the criminal procedure relating to such hearings will be set out in criminal procedure rules. Adding the suggested words will not in our view clarify either the purpose of the hearing or the organisation’s role in it and we do not, therefore, think that they are necessary.

Amendment 38, in the name of my noble friend Lord Marks, relates to provisions setting out the approval process of an agreement at a final hearing. During a preliminary hearing held in private, the judge will have indicated whether an agreement is likely to be in the interests of justice and whether the proposed terms are fair, reasonable and proportionate.

Before the final hearing. there will be further scope for the parties to refine the agreement, such that the agreement may not be identical to that before the court at the preliminary hearing. The provisions in paragraph 8 of Schedule 17 therefore allow for the final hearing to start in private to give the parties and the judge a final opportunity to ensure in a confidential setting that everything is as it should be before the agreement is approved in an open court.

It must be remembered that there is always the possibility that even at this late stage, either party can decide whether the process should not go forward, or the judge may not be satisfied that the agreement should be concluded. If the agreement is not made, the confidentiality of discussions between the parties should be protected to protect any potential jeopardy to the organisation’s interests and to avoid potential prejudice to any other prosecutions. Restricting the ability to hear the case in private only to situations where there could be a substantial risk of prejudice to the administration of justice is, therefore, too restrictive. It is not expected that the final hearing would need to start in private for all cases, but we make provision for those presumably limited cases where this may be deemed to be necessary.

Importantly, where a DPA is made and approved the prosecutor must publish any declarations and reasons, including any initial decisions not to approve the DPA, so that there will be transparency once the DPA has been made. I hope that the Committee will agree that it is desirable for the parties to have a final opportunity for further discussion with a judge, should they consider this necessary, about an agreement in private, ahead of moving into open court for an agreement to be formally approved. I suggest that it is neither necessary nor desirable for a judge to determine whether the first part of a final hearing should be in private, solely based on the criteria suggested by Amendment 38.

On Amendment 40, if the terms of a deferred prosecution agreement are complied with, the agreement will expire on the expiry date set therein. Under paragraph 11 of the schedule, the criminal proceedings that were instituted and suspended will then be discontinued by the prosecutor by application to the court. The purpose of this is to bring the criminal proceedings to an end clearly and transparently.

Once the proceedings have been discontinued, the prosecutor will publish that fact and will additionally publish details of how the agreement was complied with. Amendment 40, as tabled by the noble and learned Lord, Lord Goldsmith, seeks perhaps to probe further as to why it is necessary to publish this.

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[Baroness Hamwee]

My Lords, paragraph 13 of the schedule provides for the use of material in criminal proceedings. Sub-paragraph (4) states that certain material,

“may only be used in evidence … on a prosecution”,

either for the same offence or for an offence as it says in the paragraph—I will not take up the Committee’s time in reading it. The material in question is,

“material that shows that P entered into negotiations for a DPA, including in particular”.

I was concerned by the phrase “in particular”. The way I have dealt with that in the amendment to probe this is to insert “any” so that it is “any material”,

“that shows that P entered into negotiations for a DPA”.

I hope that the Minister can assure me that the items listed are merely the most obvious examples and that this is not an exhaustive list. It seems to me that it could be interpreted that way. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, this amendment relates to paragraph 13 of Schedule 17, which deals with the use of material arising from DPAs. In particular, it seeks clarification about what can be relied upon by a prosecutor in future criminal proceedings when a DPA has not been approved by the court and made. The Government’s intention is to provide necessary protections and safeguards as regards organisations voluntarily entering into the process towards the making of a DPA in the event, for whatever reason, that an agreement is not finalised. Without these safeguards, some organisations might not voluntarily engage and co-operate with the prosecution.

On the point raised by my noble friend Lady Hamwee, I can give her the assurance that paragraph 13(6)(a) is a non-exhaustive list of materials that are likely to be produced during the process towards the making of an agreement, which would show that negotiations had been entered into. They are the most obvious documents, and the use of the words “including in particular” makes it clear that they may not be the only materials that might show that negotiations had taken place and would not be capable of being used other than in the limited circumstances referred to in paragraph 13(4). I suggest that inserting “any” at the start of, or removing “in particular” from, paragraph 13(6)(a) would not make the position any clearer.

I trust that with the assurance that I have given to my noble friend she will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I think that that amounted to a yes in response to my request for assurance. I beg leave to withdraw the amendment.

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[Lord Beecham]

We wholeheartedly support this amendment.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lady Hamwee for drawing the Committee’s attention to this issue. The Government firmly believe that wrongdoers should not be able to profit or otherwise benefit from their offending behaviour; that is why DPAs will require organisations to comply with tough terms and conditions. These terms may include financial elements such as requirements to pay compensation to victims, a financial penalty, and the reasonable costs of the prosecutor, as well as a requirement on the organisation to disgorge the proceeds of criminal wrongdoing. However, it should also be remembered—as it was in discussions on a previous amendment, as pointed out by the noble and learned Lord, Lord Goldsmith—that DPAs can include other non-financial requirements, such as updating anti-corruption or fraud policies and retraining staff. Those are important attributes.

Deferred prosecution agreements are intended to ensure that organisations recognise and are held to account for their wrongdoing and take steps to mend their ways. Fulfilling the terms of an agreement should not be seen as simple entries in an organisation’s financial book-keeping records. The harm inflicted on the victims of economic crime and innocent third parties should not be seen simply as a cost of doing business.

It will come as no surprise to your Lordships that my noble friend referred to tax. The tax obligations of organisations relating to financial penalties and compensation payments can be, and are, complicated. These obligations have been very carefully developed over many years to ensure the right balance is struck. Although I welcome my noble friend’s efforts to clarify taxation arrangements under a DPA, the question of whether and which financial elements might be tax deductible is, and should continue to be, determined by finance legislation so that all relevant matters and consequences can be taken into consideration. That also avoids a piecemeal and haphazard approach to tax matters which might set an unhelpful precedent or have unintended consequences. Matters in respect of taxation are properly a matter for the Finance Acts and not for legislation such as this.

In light of these points, I would be grateful if my noble friend Lady Hamwee would agree to withdraw her amendment. In conclusion, I say to the Committee, and in particular to the noble and learned Lord, Lord Goldsmith, that I think it would be beneficial to arrange a meeting with officials so that we can address some of the issues more specifically in advance of Report stage. But for now, I hope that my noble friend Lady Hamwee will agree to withdraw her amendment.

[Baroness Hamwee]

My Lords, of course I will withdraw the amendment. I understand that tax is complicated and that the Government prefer to deal with it in specific legislation. Nevertheless, I think that at the moment there is the very real possibility that a donation to charity made under this provision would be treated as deductible. I hope that the Minister will arrange for that to be confirmed to me or otherwise so that I can consider what to do on the next occasion. I beg leave to withdraw the amendment.

Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 13th November 2012 Lords Chamber

Overall, the development of confidence will be critical, but we know, beyond peradventure, that it is an experience which can be life-changing. The Government’s commitment to RJ, which is now being put into statute, must be the key to its proper development. I commend these amendments to the Minister in the hope of seeing the Government getting things right at the start of this important policy initiative. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, I welcome the widespread support restorative justice has received across both Houses. Through this Bill, Her Majesty’s Government aim to empower victims by giving them an opportunity to be heard, and also to ensure that offenders understand the impact of their actions on others and, more importantly perhaps, to motivate them to change. We seem to be in agreement that we should be working towards encouraging restorative justice to be used more widely—a sentiment that I know echoes across this House as well as the other place— not as a replacement to, but in parallel with, existing sentencing powers.

As we have heard from my noble friend Lady Linklater, Amendment 12 adds an explicit reference to the needs of the victim to our definition of restorative justice requirements, which is a sentiment I strongly relate to. The Government are aware that restorative justice can be very beneficial to victims, and our research in pilots demonstrates that 85% of victims participating in direct restorative justice conferencing with their offenders were satisfied, so we entirely agree that restorative justice, when used appropriately, can—most importantly—meet the needs of victims.

Therefore, I cannot argue with this point, and if my noble friend Lady Linklater is willing to withdraw Amendment 12, I will consider it in advance of Report and return to this subject at that time. I am sure that my noble friend will understand that I cannot give an explicit undertaking at this stage to bring forward a government amendment but, as I have said, the Government will give sympathetic consideration to the points she has strongly made.

On Amendment 13, I hope that it is fair to say that, as my noble friend acknowledged, we are at a turning point in relation to restorative justice. The Government are attempting to take a victim-led approach to restorative justice and to move away from the offender-led process. We are also making sure that the victim is aware of, and considers, restorative justice as an option much earlier in the process.

This amendment would allow the court to defer sentencing for restorative justice even when the agreement of all the parties, including the victim, has not been obtained. This is despite agreement being necessary for the activity to take place. The Government take the view that it is important that the victim is able to consider and decide whether to give his or her consent before the court defers sentence. We are therefore not convinced that a court would want to defer sentencing unless everyone was signed up to it, as this could ultimately lead to lengthy delays, which are in no one’s interest. We must also remember that additional delays can result in increased costs.

In addition to concerns that the amendment could increase court time, we need to consider the impact on the victim of deferring a sentence. This is about the victim. In many cases, the victim will want speedy justice and closure, if for nothing else than in order to put the whole episode behind them. Any victim of crime shares that sentiment. I wonder whether deferment without the victim’s agreement could look as if restorative justice was being imposed on the victim in the sense that, “We’ve already delayed the court case for you, so you may well wish to consent”.

As I said earlier, I welcome the strong support for restorative justice from across the House and particularly thank my noble friend Lady Linklater for tabling her amendments. Support for the victim is vital, and I totally align myself with that sentiment. In light of the points I have made and my commitment further to consider Amendment 12, I would be grateful if my noble friend Lady Linklater would withdraw her amendment.

[Baroness Linklater of Butterstone]

My Lords, I thank the Minister for that response. I am glad that, overall, he has accepted my arguments. I shall have to read Hansard carefully and perhaps ask a few more questions about deferral because it is a new element of reticence that I was not expecting. I am therefore likely to want to come back to this subject, but in the mean time, I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, I speak to Amendments 15 and 16. I noted with some amusement that my noble friend Lady Linklater said that her children were in their forties, which made me feel like a mere child on the Front Bench.

Amendments 15 and 16 in the name of my noble friend Lady Hamwee relate to the duty on the Secretary of State to issue a code of practice regarding the processing of data gathered under an electronic monitoring requirement imposed for either the purpose of monitoring compliance or monitoring whereabouts in short tracking offenders.

As my noble friend said, Amendment 15 is intended to extend the scope of the code of practice to include the use of data as well as the processing of data. In fact, the code itself would be designed to ensure such use meets the principles and obligations set out in the Data Protection Act 1998 for the processing of such data. “Processing” is defined in Section 1(1) of that Act to include the “obtaining, recording or holding” of data, including, among other things, the

“use of the information or data”.

To add the words “use of” to this provision could call into question the breadth of “processing” in relation to the code and could have the effect of narrowing the requirement, which I am sure is not the intention of my noble friend.

The code will undoubtedly cover the use of data obtained under this provision. It will fully and clearly set out the expectations, safeguards and broad responsibilities for the collection, retention, and sharing of data. For example, we envisage that the code will set out the circumstances in which it may be permissible to share data with the police to assist with crime detection.

The noble Lord, Lord Clinton-Davis, correctly pre-empted what I am going to say on Amendment 16. I am always astonished by the great wisdom in this House. Indeed, I can give the assurance that the Government fully recognise the need to consult all stakeholders during the development of the code. Accordingly, the Government intend to consult the Information Commissioner as well as all the other interested parties listed in the amendment to ensure that the framework for processing such data is transparent and lawful while being of value to organisations that are going to use it at an operational level. In the interests of simplicity and flexibility, and given the Government’s undertaking to consult key parties, I feel that this amendment is not needed. Therefore, I hope that I have been able to reassure my noble friend on both counts and that she will be willing to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am sorry that I did not do my homework adequately on the first of the amendments and I am grateful for the clarification. On the second of the amendments, will the noble Lord repeat what the Government will consult on? Although he said that the Government would consult these organisations, I was not sure that that extended to the point I made about the impact on offenders; in other words, pulling this into the whole package of taking us forward on the rehabilitative route. Towards the end of his response, the noble Lord explained what the consultation would be.

[Lord Ahmad of Wimbledon]

My Lords, the Government will consult on the full content of the code of practice. My noble friend listed several organisations, including the police and the Information Commissioner. All those listed in the amendment will form part of the consultation.

[Baroness Hamwee]

My Lords, I beg leave to withdraw the amendment.

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[Lord Marks of Henley-on-Thames]

My Lords, I speak to Amendments 18 and 19 in my name and that of my noble friend Lady Hamwee.

Amendment 18 concerns information disclosed to a court, under the same paragraph—paragraph 27 of Schedule 16—as my noble friend’s earlier amendment; it relates to social security information and information to be disclosed by HMRC relating to a defendant’s finances. In both cases, the information is disclosed to assist the court in inquiring into the defendant’s financial circumstances. Sub-paragraphs (3) and (5) of paragraph 27 limit the purposes for which the disclosure is to be made and used—broadly for the purpose of assisting the court in dealing with the offender, with a general prohibition on further and wider disclosure. So far, that all seems entirely appropriate, but sub-paragraph (7)(b) appears to allow such information to be disclosed much more widely and outside the ambit of the proceedings before the court concerning the defendant, provided only that the information is summarised—what is sometimes called “gisted”—and anonymised by framing it in such a way that the defendant is not identified. That allows disclosure of social security and HMRC information relating to the finances of the offender for purposes other than his sentencing which was the purpose for which the information was originally obtained from the government bodies concerned.

What is the point of sub-paragraph (7)(b)? If there is a point to this collection of information, is this Bill and is this Schedule the place for its introduction? If we are to widen powers to obtain and use information in this gisted and anonymised form, then provisions authorising that should form part of a Bill concerning the collection of such information and not be added by a side wind in this way to a schedule which concerns sentencing and information required to assist the court with that sentencing.

Amendment 19 would ensure that, where social security or financial information about a defendant is obtained from the relevant government departments, the defendant must be shown that information and be told to whom it has been disclosed. It is fundamental that a defendant, about whom confidential financial information is obtained from government in connection with proceedings against him, should be entitled, as of right, to see that information to enable him to challenge and explain it, to know the information upon which the court is asked to act and also to know the identity of anyone to whom it has been disclosed. The paragraph, as drafted, permits such disclosure to him, or at least it does not prohibit it, by sub-paragraph (7)(a), but it does not require it and it should.

Will the Minister consider accepting the amendments or at least take them away and come back with amendments to the same effect?

[Lord Ahmad of Wimbledon]

My Lords, this group of amendments relates to provisions in Part 6 of Schedule 16 that enable the sharing of data between government departments for the purpose of setting fines and other financial penalties. My noble friend referred to definitions and what is where I will attempt in my response to Amendment 17 to make clear that, at each stage of the process, access to the data we refer to will be limited to only those with appropriate authority and a genuine need to see the data for the purposes of assisting a court that may wish to see it for sentencing purposes.

My noble friend Lady Hamwee referred to the use of the word “wants” in paragraph 27 of Schedule 16. This is intended to ensure consistency with subsections (1), (2) and (3)(a) of Clause 22. We have not used such words as “requires” or “needs” in the Bill because, technically, the court neither requires nor needs access to information held by the Department for Work and Pensions or HMRC. The information in question could be obtained by other means; for example, by requiring the defendant to provide details of their own financial circumstances. The relevant person “wants” the information because it comes directly from the Department for Work and Pensions and HMRC and this is the most reliable way of giving the court the accurate information about the defendant’s financial circumstances. It may arise that financial circumstances have changed. There will always be provisions within such proceedings to allow someone in such a situation to be allowed to present an up-to-date position of their financial circumstances.

Turning to Amendment 18, tabled by my noble friend Lord Marks of Henley-on-Thames, I can confirm that Part 6 of Schedule 16 allows for the disclosure of financial information obtained under these provisions in a summary format. Nevertheless, paragraph 27(7)(b) only allows for the publication of financial information if it is in anonymised form. I remind the Committee that under paragraph 28, the publication of any financial information without lawful authority is a criminal offence, punishable by up to six months’ imprisonment.

The purpose of allowing the publication of summarised financial information obtained under this provision is to allow anonymised financial information to be shared for the purposes of research and statistical analysis. This information will be invaluable in helping to identify trends in the criminal justice system and the financial circumstances of offenders.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, of course I will not press my amendments. Nevertheless, I am not sure that the Minister has answered the point about the defendant’s entitlement to see the information. I accept my noble friend’s assurances that it is the intention of the Government that the information will be disclosed, but there is absolutely no reason why such a provision should not be in the legislation, rather than the current, rather negative, lack of a provision that exists at the moment.

[Lord Ahmad of Wimbledon]

My Lords, again, I assure my noble friend that the defendant would know of any such use of data. If any legal representative of the defendant wished to access that data, they would also be made available. I hope that we can clarify any other outstanding issues either before or on Report.

[Baroness Hamwee]

My Lords, it might be useful if at some point we could have a discussion whereby we can understand precisely what all the steps are. Like my noble friend Lord Marks, I am clear about the assurances that have been given, but I am not clear to what extent they are within the wording of the schedule and, even having listened to the Minister, how much they need to be there.

As regards Amendment 17, I will look at the references to the other provisions to which he pointed me when he said that there was a need for consistency. I understand that that is important so as not to suggest there is no difference in provision. I might need to ask him if he would be good enough to spend a little time with me, and perhaps my noble friend Lord Marks, to go through the steps in detail. For the moment, I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, perhaps I can come back on this. The point is reinforced by the fact that designation under paragraph 3(1)(c) is subject to the affirmative procedure under Clause 30.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend for moving her amendment. When devising the new process for deferred prosecution agreements for England and Wales, the Government sought to ensure that it aligned with key strengths and aspects of the existing criminal justice system. To that end, we provided for decision-making throughout the process to be properly guided, including by the code of practice for prosecutors, and overseen by the judiciary.

Paragraph 3 of the schedule provides that the decision to enter into a deferred prosecution agreement with an organisation should be exercised personally by designated prosecutors, namely the Director of Public Prosecutions and the director of the Serious Fraud Office. This is to ensure that there is prosecutorial oversight of each DPA at the highest level. It mirrors existing requirements for such oversight, including, for example, decisions to bring proceedings under the Bribery Act 2010. Offences under the Bribery Act 2010 are among the economic and financial offences for which we propose DPAs. This process should be available, as detailed in Part 2 of Schedule 17.

My noble friend Lady Hamwee and the noble Lord, Lord Beecham, asked what would occur when the relevant director, whom we hope in each case will make the decision personally, is not available. In order that due process can continue without delay, we have provided the power for the relevant director, if they are going to be unavailable, to designate another prosecutor to exercise the oversight and decision-making functions. The noble Lord, Lord Beecham, asked whether they could assign this power to anyone. I suggest that someone who is qualified and in such a senior role will assign it to an appropriate prosecutor in their relevant area.

Consistent with similar powers for personal decisions by directors, such as those under the Bribery Act 2010, we have not sought to constrain the ability to delegate the power to enter into a DPA. We are not contemplating large numbers of deferred prosecution agreements each year, and are confident that the directors are fully committed to making decisions personally, as envisaged, and would designate another person to do so only in exceptional circumstances and with good reason—and, I will add, would designate only an appropriate person.

I consider it important in the interests of openness and consistency that DPAs should align as closely as possible with existing and established law, and with the processes of our criminal justice system. That is what we have sought to achieve in paragraph 3, and indeed throughout Schedule 17. I therefore hope that with this explanation my noble friend will withdraw her amendment.

[Lord Beecham]

I am grateful for the Minister’s response, but he has not quite addressed the issue. There is nothing in the Bill that would require the substitute prosecutor to be a designated prosecutor; they could be anybody nominated by the original designated prosecutor. I again invite the Minister to take this back and have a look at it. It seems—and I think that the noble Baroness agrees with me—that there is a lacuna here that needs to be filled.

EU: European Justice and Home Affairs Powers

Lord Ahmad of Wimbledon Excerpts

Monday 15th October 2012 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, I know many noble Lords wish to speak on this. Perhaps we can take the noble Baroness, Lady Hamwee, and then come across proportionately to the other Benches.

[Baroness Hamwee]

My Lords, does my noble friend agree that it is fundamental to the EU that there is freedom of movement and, that being so, that we need the tools to deal with negative consequences, when there are negative consequences? If that is so, will he give the House an assurance that the Government’s decisions will be based on evidence and informed opinion—of which there is quite a lot—because the Statement is not neutral? Does my noble friend further agree that playing hard to get is not always the best way to progress a relationship?

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[Lord Bowness]

My Lords—

[Lord Ahmad of Wimbledon]

My Lords, if we take the Labour Benches and then we will move back to the Cross Benches and the government Benches.

[Lord Wood of Anfield]

My Lords, in the event that we opt out and then persuade 26 other EU countries of the importance of us opting back in on an individual item, would the act of opting back in trigger a referendum under the Government’s own legislation?