Defamation (Operators of Websites) Regulations 2013
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Lord Beecham (Lab)
My Lords, I pay tribute to the noble Lord, Lord Lester, who was instrumental in securing reform of defamation law and has campaigned long and hard for that. I also join him in thanking the Minister for walking us through this rather tangled undergrowth of regulations. I am bound to say that the Minister reminds me less of Moses bringing down the tablets than perhaps Daniel exercising judgment. I should like to think that I was descended from one or other; I may be remotely connected but I do not think that I am descended from either of them.
After 45 years as a solicitor, I know something about the law of defamation, although I would not claim to be an expert. But when it comes to the world of computers, information technology and social media, I confess to being an utter novice. At the risk of being labelled a Marxist by the right-wing press or Conservative Central Office, I recall some words of Marx—Groucho, I hasten to add, and not Karl. In one of his films, which might have been “A Night at the Opera” but I would not swear to that, he is seen poring over a map and declares that a child of five could understand the map. He continues: “Bring me a child of five”. I am tempted to make the same request when confronted by matters of the kind encompassed by these regulations.
We share the Government’s objective to protect freedom of speech, in which the internet and social media can and do play such an important part. We welcome the thrust of the regulations, although perhaps it would have been better if guidance on Section 5 of the Defamation Act had been available in draft form when the legislation was under consideration on its journey through Parliament. The regulations appear to offer reasonable protection to the operators of websites but there are perhaps questions about the extent to which they adequately protect those who claim to be defamed by material appearing on those sites. Thus, the website operator will have a defence, as we have heard, to an action if it can show that it did not post the material in question unless the claimant can show that he or she did not have sufficient information to bring legal proceedings against the poster of the statement and that the operator failed to comply with a notice requiring it to identify the poster requested by the complainant. Of course, this assumes that the claimant has the means to pursue that legal remedy, a somewhat questionable proposition in the light of the matter of costs. We are not now dealing with conventional media stories with a limited shelf life and relatively limited audience, although perhaps quite a wide reach, but with material with a potentially unlimited shelf life—unless, like the Conservative Party’s once publicly available material, it can be conveniently hidden—and a consequently higher risk of damage to a complainant’s reputation.
Part 4 of the guidance explains that the operator will have a defence when the complainant has sufficient information to bring an action against a poster but, again, that relies on the claimant having the means to do so—and what if the poster is outside the jurisdiction? It is all very well for the guidance to proclaim that disputes should be resolved directly between the complainant and the poster but, in the event that the poster does not wish a statement to be removed and his details to be released to the complainant, the latter will have to obtain a court order to obtain the details, again raising the issue of cost. Would it not have been better to have established for these purposes a less formal and less expensive mechanism, in which a panel, perhaps financed by the industry itself, could determine whether the information as to identity should be released and whether the post should be removed, leaving the question of financial compensation to be determined by the courts?
On a further point, what is the Government’s response to the observation of the Secondary Legislation Scrutiny Committee to the need for the guidance to define,
“how terms such as ‘receipt’ are interpreted in this legislation”?
The Explanatory Memorandum to the regulations sets out the response to consultation and lays down welcome tighter timetables for action by the operator and poster following a notice of complaint. However, somewhat disappointingly, it requires further notices to be given when the material has been the subject of two or more complaints rather than immediately. Moreover, paragraph 9 of the Schedule to the regulations makes it clear that even the more limited protection afforded by this provision is available only when the same poster is involved. If a different person posts the same material, the whole process must be gone through again by the defamed claimant—and the material can be identical.
My honourable friend Dan Jarvis, speaking for the Opposition yesterday in the debate in the Commons, asked the Government whether they would keep the new process under early review, given the speed at which the world moves. Is the Minister able to confirm that that is the Government’s intention and that such a review would be initiated within a year of the regulations taking effect and be kept under regular review thereafter? Will they look again at suggestions made in Committee during debates on the Defamation Bill that would require the operator to post a notice of complaint, should one be received, alongside the alleged defamatory material so that those who view the material can, at least, be alerted to the fact that the matter is disputed?
Having said that, we support the regulations. As the noble Lord, Lord Lester, indicated, things change, and it is necessary to keep these matters under review. Perhaps some of the points that I have raised could be taken on board at the time of the first review and in the light of the experience that will develop over the next few months or so.
Lord McNally
My Lords, I am grateful for the contributions of both noble Lords. As the noble Lord, Lord Beecham, said, the noble Lord, Lord Lester, is very much the godfather of this Act, and I have benefited from his wisdom over the whole three years. As he says, the end is nigh, in that the Act will come into force on 1 January 2014, including these regulations. He points to the fact that although the Act itself will, I hope, give the kind of balance between freedom and the rights of the defamed which will stand the test of time, as he and the noble Lord, Lord Beecham, have said, legislators will always have the problem of how fast technology moves. I am not one of those who believe that new communications technologies should be beyond governance, but it is going to be a continuing challenge. The noble Lord rightly points to areas such as copyright, privacy and cybercrime, which we will continue to grapple with. But we set an example by being flexible and, as both noble Lords indicated, by underpinning free speech as far as we can and avoiding overregulation.
The noble Lord, Lord Beecham, always starts with a statement of modesty by saying that he does not understand these things and that they are all so complex. He then deftly skips through the particular regulations posing me difficult questions. I will try to address some of them.
Anyone listening to this debate will know that this is a complex matter, but it is complex because we have to get the balance right between the poster, the internet provider and the complainant. We do not want to overburden the provider with regulations or drag him into court cases. This is an attempt to ensure that the complainant and the poster are brought face to face, as it were, as easily as possible.
We are taking steps to introduce a system of cost protection for defamation and privacy and have recently consulted on that. We are currently considering the views expressed with the intention of introducing that as early as possible next year. I am grateful to the Master of the Rolls for the advice that he has given me on that.
On monitoring, it is always tempting, particularly for the Opposition, to ask for a review within a year. We obviously need an opportunity to see how these matters will settle down. Parliament has put in place formal reviews within a period of three to five years of royal assent. This Act will be subject to the usual arrangements of parliamentary scrutiny. However, the noble Lord, Lord Beecham, is quite right. We will continue to informally monitor the operation of these regulations and we will certainly not hesitate to draw the attention of Parliament to them if they do not seem to function as we hope they will.
On not releasing details and putting complainants to the cost of a Norwich Pharmacal order, there may be a good reason why the poster is unwilling to release the contact details. On balance, we consider that it is right for a court order to be obtained in these circumstances. However, there may also be cases where, through the operation of the process set out in regulations, a poster agrees to release contact details to the complainant, avoiding the necessity to obtain a court order.
The other question was on the matter of the definition of “received” in the regulations. While ultimately it will be for the court to interpret the regulations, we consider that the word “received” should be given its natural meaning and that therefore the notice of complaint would be “received” at the point when it is delivered. That is when it has arrived at the operator’s machine. We will make that view clearer in the guidance accompanying the regulations.
As both noble Lords indicated, the Act has been broadly welcomed by those who have campaigned for it. We believe that it will defend free speech while giving those who are defamed a reasonable opportunity for redress, and with some protection from the costs of doing so. Section 5 of the Act, and these regulations, represent an important part of the package of measures designed to reform the law of defamation. The noble Lord, Lord Lester, is right: given the way the world is moving from the printed page to electronic communications, it would have ducked the issue had we not tried to address the matter in the Act. In so doing, I think we strike a fair balance between freedom of expression and the protection of reputation, as I said in my opening remarks. The regulations strike a fair balance between the various interests involved, and their approval will enable the Act as a whole to be brought into force on a timely basis at the end of this year. I hope that noble Lords will agree that this is a proportionate and sensible measure.
Judicial Appointments (Amendment) Order 2013
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Lord Lester of Herne Hill (LD)
My Lords, I have always been in favour of widening the pool, as far as one can, for judicial appointments, provided that there are adequate safeguards. I am satisfied that there are adequate safeguards and I think that it is in the public interest if the pool of people can be widened in the way which my noble friend described.
Lord Beecham (Lab)
My Lords, I served my articles to a solicitor who was a coroner, and subsequently went into partnership with him. I may regale the Minister with a couple of stories from the coroners’ courts after the sitting. There are certainly some interesting side-lights that he might enjoy. I join the noble Lord, Lord Lester, in congratulating the Government on widening the range of possible appointees. There is no earthly reason why a competent and experienced legal executive should not exercise the coronal functions. In passing, I am also glad that we still have a chief coroner, notwithstanding the Government’s early aspirations in that regard. That should also lend confidence to the legal profession generally that the standards will be maintained.
It has to be said that, from time to time, one hears criticisms of coroners, as one does of other members holding judicial appointments in our legal system. Some of the new appointees may likewise incur some questioning and criticism, but that does not vitiate the thrust of the Government’s policy, which is to widen the range of potential applicants and encourage those who take that particular form of legal career to progress their careers and make their contribution to society.
We are glad to see the order and congratulate the Government on introducing it.
Lord McNally
My Lords, I am grateful to both noble Lords. I suspect that the clue to the unity is the fact that we were using legislation passed by the previous Government, including the reforms to the coroners. The chief coroner is of course very much the child of this House in the way that it advises and revises. It advised us to keep a chief coroner and, being a wise Government, we accepted that advice. I have benefited from it in bringing forward the order.
Lord Beecham
I thought for a moment that the noble Lord was implying that some of us were going to need the services of a coroner before very long.
Lord McNally
Ultimately, we all will.
The noble Lord said that he had some stories about coroners. Along the rocky road that I have travelled, I was political adviser to the Prime Minister, James Callaghan, whose personal physician was Monty Levine. Monty Levine was coroner in Westminster and Southwark for about 20 years. I think he was a doctor who qualified as a coroner. In the order and what is in the legislation, we are bringing consistency, but also an opportunity for diversity, both of which are entirely welcome. I am very grateful for the support from the noble Lords, Lord Lester and Lord Beecham, and I commend the draft order to the House.
Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013
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Lord Lester of Herne Hill (LD)
My Lords, this course is important and sensitive. I would like to give a little background to how SIAC came to be set up and involved in this way in this procedure. It happened because of a case called Chahal. Mr Chahal was a Sikh and suspected terrorist being sent back to India. Under the old three wise men procedure there was no proper judicial process to decide whether he should be sent back, so he brought a case in Strasbourg. The problem was how you reconcile justice and the needs of national security. In the Chahal case, the various NGOs that intervened mentioned that there was a Canadian process that allowed national security and justice to be reconciled by a procedure rather similar to what the House is now considering.
I then did two cases from the bad old days, one in which the then Secretary of State prevented women in the Royal Ulster Constabulary part-time reserve having their sex discrimination cases determined in Belfast on the basis that it involved national security and that in no circumstances could his certificate be set aside. The second one involved alleged Catholic discrimination in Northern Ireland, where another Secretary of State again sought to prevent the applicants having the merits of their cases reviewed.
The SIAC procedure of 1997 was Parliament’s decision at the time to apply something like the Canadian procedure to enable national security and justice to be properly weighed. I have one experience of SIAC from the distant past, when I represented a group of suspected terrorists, who later won their case—not through me—in Luxembourg. My experience then was very unhappy. I and they did not consider that the way it was dealt with by SIAC felt fair. But that was a long time ago and I am sure that lessons were learnt a long time ago. For my part, we are now concerned with not the controversial matters that plagued the House for so long when considering the Justice and Security Bill, but a perfectly sensible grafting on to the existing SIAC procedure of matters that clearly belong within SIAC under those procedures and nowhere else.
I recognise the compromises that are struck in these rules, one of which is where the Home Secretary—the Minister—decides to object to the disclosure of information to the claimant. My understanding is that there can then be a special advocate procedure to deal with that. That is a compromise that I reluctantly accept has to apply in this context. I hope, having said all that, that it provides a little more context to what we are talking about. For my part, I support the Motion before the Committee.
Lord Beecham (Lab)
Once again, there are three of us in this marriage, to quote a much more distinguished person.
I am grateful to the noble Lord, Lord Lester, for his long contribution to the evolution of the law in this area and the conduct of the debate. Of course, we spent a considerable time debating closed material procedures when we were engaged in a more recent piece of legislation. It is perhaps worth remembering that the procedures under SIAC are rather more stringent in terms of the criteria that a tribunal can apply, since the Justice and Security Act requirement is to protect matters of national security, but SIAC’s remit is wider. It has the potential of ruling out material that is contrary not only to the interests of national security but the international relations of the United Kingdom, the detection and prevention of crime or in any other circumstance where disclosure is likely to harm the public interest. That is a much wider range, but this is a rather separate case. We are not at the moment disputing that.
However, the Minister referred to consultation about the proposals. I make it clear that we are not opposing the proposals. He cited the special advocates, the Law Society, the Bar Council and the chairman of SIAC as having been consulted. He did not mention that the Home Office, the Treasury Solicitor, the security and intelligence agencies and the Foreign and Commonwealth Office were also consulted, which is perfectly proper. But can he say if anyone else was consulted? Were organisations concerned with representing people in this situation consulted? Were voluntary organisations such as Liberty or Justice for All consulted? Were any bodies or organisations working with those involved in immigration matters consulted, such as the association of immigration lawyers? It would be interesting to know whether the consultation was confined to those who might be expected to have few, if any, reservations about it as opposed to those who might want to raise other issues.
For my part, having had some communication from the association of immigration lawyers, there is one matter that I would be grateful for some elucidation about. There is a concern that the transitional provisions in the rules could allow a case currently progressing in the High Court as a judicial review to be hijacked and taken to the commission. I have no idea whether there is any substance in that fear. Will the Minister—perhaps not at this moment—clarify whether that is a possibility and, if it is a possibility, how likely it is and how many current cases might be caught? It would be a matter of concern if it is a possibility, although, of course, it may not be and I am perfectly content to await the Minister’s response on that.
Another possibility that has been raised is that perhaps some matters have been held back from being listed for hearing on a judicial review, if indeed it is possible that the problem might have arisen. Again, an assurance that that has not happened would be welcome. Having made all the points that I want to make, I support the order.
Lord McNally
I am grateful to my noble friend Lord Lester for his little historical background. He also hinted, as did the noble Lord, Lord Beecham, that every party which has had responsibility for these matters has agonised over that balance between the proper demands of justice and the need to protect national security. It is right that we agonise. I believe we do because we are of all political persuasions. This country is still a liberal democracy—with a small “l” and a small “d”—and liberal democracies agonise about how to get that balance right.
The noble Lord, Lord Beecham, asked for the list of other consultees and I am hopeful that I will be able to tell him that. As I mentioned in my opening remarks, around 60 cases currently are held in the High Court, which the Home Secretary intends to certify. My understanding is that those cases would then go to SIAC. If the full list of consultees has been passed to me, it has gone right past me, which would not be the first time.
Lord McNally
I will write and put in the Library of the House the full list of consultees.
While I have been here today, the noble Lord, Lord Pearson of Rannoch, has been sitting in his place at the other end. I have to say that passing through my mind was the thought that when Talleyrand died, Metternich apparently said, “Now, what does he mean by this?”. I have been looking at my Order Paper wondering on which item of business the noble Lord would intervene; then I realised that his is the next business. So as regards any unworthy thoughts that he was going to intervene on any of my business, I am much relieved.
Anti-social Behaviour, Crime and Policing Bill
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Lord Beecham (Lab)
My Lords, I have every respect for my noble friend and appreciate the genuineness of his concerns, but I am not persuaded—and neither is the Opposition—that it is appropriate to change the age at which people can be married from the current age of 16, with the condition, to which my noble friend has already referred, of parental consent. We have to recognise that 16 year-olds and above are increasingly sexually active. They can serve in the Armed Forces. Many people, including me, feel that they should have the vote at 16; indeed, they will do so in the Scottish referendum next year.
I accept the legitimacy of the concerns cited by my noble friend. However, the number who might be involved in marriage from 16 to 18 is not clear—or, at least, the evidence is not before us—let alone the number who are adversely affected in the way that my noble friend described. It is a large step to alter, on the basis of what we have heard, what has been the law for some considerable time. This is quite different from matters such as female genital mutilation and the forced marriage issues which we have discussed fully today. The Opposition will not, therefore, support this amendment if it is brought forward again on Report.
Lord Ahmad of Wimbledon
My Lords, I am grateful to the noble Lord for introducing this amendment on behalf of my noble friend Lady Tonge and for explaining that the rationale for it is, in effect, to raise the age of marriage to 18 years. I also thank the noble Lord, Lord Beecham, for his comments. This is one of those occasions when the two Front Benches are at one which people sometimes smile about.
Lord Ahmad of Wimbledon
I shall merely rise to reply, not rise to the challenge.
As noble Lords know, in England and Wales it is possible to marry from the age of 16, with parental consent, and from 18 without consent. The consequence of Amendment 8 would therefore be to make it impossible for a 16 or 17-year old to marry. While I understand my noble friend’s concerns, I do not believe this amendment is necessary because the law already provides adequate safeguards for children entering into marriages.
In England and Wales the provisions for the age at which a child can marry are contained in the Marriage Act 1949 and the Matrimonial Causes Act 1973. Section 2 of the Marriage Act 1949 and Section 11 of the Matrimonial Causes Act 1973 provide that any marriage, whether civil or religious, conducted in England and Wales, where either party is under the age of 16, would not be a valid marriage. If a marriage is solemnized and either or both of the parties is under the age of 16 that marriage will be void. For a child aged 16 or 17 to marry, the law requires the consent of the child’s parents or guardians, unless the child is a widow or a widower. These provisions recognise that, while children of this age may have the maturity to enter into marriages, it is still necessary to ensure that they are afforded some level of protection in doing so.
The Government believe that the current provisions provide appropriate safeguards for children entering into marriages. We therefore do not consider it necessary to amend the age at which people can enter into a marriage. The noble Lord has referred to the UN Convention on the Rights of the Child but the convention does not address the issue of marriage. Accordingly the law relating to marriage, including the age at which a person can consent to marriage and can marry, is a matter for determination by the national law of those states, including the United Kingdom, that are a party to the convention.
My noble friend Lady Tonge is also understandably concerned, as we all are, about forced marriages. While I share her desire to do more to stamp out this abuse, the amendments as tabled are not the best way of doing this. We have just debated provisions to strengthen the law in respect of forced marriage, thereby making it a criminal offence to breach a forced marriage protection order and making it an offence to seek to force someone to marry. This is combined with a significant nationwide engagement programme and the work done by the Government’s Forced Marriage Unit to give direct support to victims and potential victims.
Amendment 12 to Clause 109 seeks to make identical provision in the case of Scotland. Marriage law is a devolved issue and Scotland has its own marriage laws. I therefore cannot comment on behalf of the Scottish Government. The noble Lord will be aware of the convention that the United Kingdom Parliament does not legislate on devolved matters in Scotland without the consent of the Scottish Parliament.
I take on board the noble Lord’s point about further discussions between stages of the Bill. I am always open to discussions on all these matters. As I said earlier, this is an important matter and this is about getting it right. If the noble Lord or my noble friend wishes to meet me I shall be delighted to do so. Based on that explanation, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Beecham
Lord Beecham
My Lords, this amendment is in my name and those of my noble friend Lady Smith and the noble Baroness, Lady O’Loan. It relates to Clause 151, dealing with compensation for miscarriages of justice where new evidence comes to light some time after—indeed, sometimes very long after—a criminal trial procedure has been concluded and the defendant convicted and sentenced, and which demonstrates beyond reasonable doubt that the conviction was unsafe. In those cases, the Criminal Justice Act 1988 requires the Secretary of State to pay compensation where the conviction has been reversed or the claimant pardoned. It should be emphasised at the outset that such cases are few and far between, with only two cases a year succeeding out of around 50 claims.
At Second Reading we heard in a compelling and powerful speech from my noble friend Lady Kennedy of The Shaws of an inquiry that she chaired into sudden death cases of infants whose mothers’ convictions were ultimately overturned. We also heard of a case in which a woman whom she represented served 11 years in prison for an arson attack that killed two people but of which it eventually transpired she was innocent. The noble Baroness, Lady O’Loan, reminded us of what might be termed the Irish cases, in which after a very long time compensation was also paid for serious miscarriages of justice.
Lord Beecham
The Minister has given an interesting and full reply to what has been a very interesting and compelling debate, demonstrating yet again that consideration of these matters goes further and deeper in your Lordships’ House than it does in another place, where, frankly, this issue was dealt with in fairly peremptory fashion.
I am grateful to all Members of your Lordships’ House, particularly the noble and learned Lords, for their contribution to the debate, and I will certainly be taking my own advice and that of the Minister and reading very carefully and more than once the contributions that have been made in this very difficult area, both philosophically and in terms of jurisprudence.
It is interesting that the Minister rejects the test that is advanced in the amendment as not acceptable and again repeats the mantra that applicants are not required to prove their innocence because, as he implies, the amendment suggests that everybody whose conviction is quashed should be compensated. That is not what the amendment is intended to achieve and not what it says. The noble and learned Lord, Lord Hope, identified one category where purely procedural defects of a significant nature—for example, somebody being wrongly brought over to this country for trial— was sufficient to make a conviction vulnerable to quashing, and indeed it was quashed. That did not give rise to the sort of concerns that the amendment seeks to address.
Lord Beecham
Lord Beecham
My Lords, happily this is a relatively short matter and appropriately I shall be speaking to it.
The issue here is a change to the way in which shoplifting is to be dealt with. The thrust of the Government’s proposals is to make a summary-only offence of shop theft below £200. That would facilitate matters being disposed of without trial following a written guilty plea, with a fine then usually being imposed on an absent defendant. It might seem somewhat illogical for the Government to preserve the right to elect trial for somebody even on a charge for such a moderate amount, but they are absolutely right to do this.
The problem identified by members of the retail trade and the Magistrates’ Association in particular, and perhaps also by others, is that under the present system an on-the-spot fine can be given for a low-value shop theft if the penalty, which I believe at the moment is £80, is not paid within 21 days. Half of them, incidentally, are not. It then becomes a higher fine of £120 and the court system manages the collection. That is a reasonable way to approach first-time offenders. It should not, however, continue to be available for repeat offences. The penalty notice for disorder—we are into alphabetical descriptions again: the PND—is not an admission of guilt.
The police often caution offenders for shop theft—that does require an admission of guilt. It could be the next stage after a previous PND. A summons to court may follow after two previous incidences of shop theft. If the Government’s measures turn this into a kind of postal process only, there is the danger that repeat offenders will accumulate a succession of fines without really being stopped or deterred at all. The view of the Magistrates’ Association is that a great deal of shop theft goes undetected as it is, and some offenders detected under this process for the third time will have committed nearer to 30 offences. This is obviously not good for the trade. It is also probably not good for the offenders. Many of them have huge problems. They may be afflicted by homelessness and a consequent inability to claim benefits, or they may have problems of addiction to drugs or alcohol. Of course, those aspects will not be picked up on at all under this process. There is therefore a double risk, both to the trader and, indeed, very often to the offenders.
The purpose of the amendment is therefore to narrow the scope within which these new procedures can apply. The figure is one which simply triggers the debate. In the Commons, my honourable friend Mr David Hansen who moved the amendment did so with two figures, £100 and £40. It is irrelevant which figure one looks at, the question is whether the system as proposed will produce more problems rather than fewer for both traders and potentially for offenders, and whether—at the very least—a lower figure might limit that. I hope that the Minister will consider that area. I am not expecting a complete response tonight, but perhaps by the time we come to Report the Government could have had another look at this issue with a view to seeing whether some of these fears which have been expressed by those with an interest in the matter can be properly addressed. I beg to move.
Lord Borrie (Lab)
My Lords, I support the amendment —I suppose because it comes from my Front Bench. However, I do not like the provision in the Bill at all. Shoplifting has been with us, as it were, for a long time. Correct me if I am wrong, but it is unprecedented for shoplifting to be singled out as a form of theft that should receive special attention. What is the gain to the public of that?
Shoplifting is of course prosecuted under the Theft Act 1968. When I was a young barrister prosecuting young shoplifters up and down Oxford Street, the notion was that very few people did other than plead guilty. They wanted to get it out of the way. They certainly did not want to go for trial and have to wait until a jury trial could be arranged. Therefore, they invariably preferred the summary trial. I would be surprised if that were any different today.
I see little point in this clause if it introduces for the first time special provision relating to one particular kind of theft. Why this kind of theft? Why not theft from one’s employer, or from one’s friends and neighbours? Why shoplifting, in particular? From my experience of years ago, I am afraid that the general public seem to think that shoplifting is not nearly as serious as real theft. It is something that most people engage in when they are young, or otherwise. However, to label this aspect “shoplifting” rather than theft in general, as the Government are doing, is perhaps to lend credence to the notion that shoplifting is not so important at all.
I suggest that the very least which could be done would be to adopt the amendment of my noble friend Lord Beecham. Really, however, the Government ought to withdraw the clause. Is the Bill not big enough, covering enough subjects, as it is, without dragging in something which has no relevance to any other part of the Bill?
Lord McNally
It is always a great pleasure to follow the noble Lord, Lord Borrie. I have always thought of him as a complete Front-Bench loyalist but also acknowledge his considerable experience in this area. By the way, I am only teasing him about being a Front-Bench loyalist.
A long time ago I was director of the British Retail Consortium, and I know that it is one of the most irritating things for shopkeepers, large and small, when shoplifting is seen as some kind of victimless crime or childish prank. I often think, when looking at first-time offenders, that they should be listed as “first-time court offenders”. It is a scourge, and as the noble Lord, Lord Borrie, knows as a former champion of the consumer, in the end the consumer pays for the tolerance of shop theft. Therefore this certainly in no way trivialises shop theft. We intend to produce guidelines for the police on these provisions and we are currently working with the police and retail associations to draft guidance on them, which we hope will be available in time for Report. That will primarily cover the circumstances under which it would be appropriate to pursue the Section 12 Magistrates’ Courts Act procedure, which allows defendants to plead guilty by post.
The volume of people who go through the court is certainly a problem. Just over 120,000 people were brought to justice for shop theft in 2012, 40% of whom received out-of-court disposals. However, we do not believe that these changes will result in shop theft being treated less seriously; in the vast majority of cases they will affect neither where the case is tried nor the sentence that is imposed. Ninety-nine per cent of shop theft cases are heard in magistrates’ courts, and of those who are convicted 98% are sentenced there. Only 1,650 shop theft cases were sentenced in the Crown Court last year, and 90% of them resulted in a sentence that the magistrates’ court could have given.
It is true that there are remaining concerns about that in the retail sector. However, we believe that they flow mainly from a misunderstanding about what the provisions seek to achieve. Any incident of theft continues to be a serious matter. However, the changes we are introducing simply enable more efficient processes to be employed to bring such cases to justice quickly. They do not change the fact that 99% of shoplifting cases are already considered in the magistrates’ court and that 90% of cases involve goods worth less than £200.
Amendment 16 would reduce the number of shop theft cases to which Clause 152 applies by reducing from £200 to £100 the monetary threshold that defines these cases. However, I appreciate that that was a figure given to stimulate the debate. The purpose of the clause is to enable cases of low-value shop theft to benefit from more efficient arrangements that are limited to summary-only offences. In particular, it will mean that the procedure that enables defendants to plead guilty by post will be available, and the police will be able to make use in these cases of powers that they already possess, whereby they can prosecute certain offences where they are uncontested. The result will be to speed up the prosecution of these cases and to provide swifter justice for retailers.
Nobody would suggest that the theft of valuable property should be made a summary-only offence. A line has to be drawn somewhere, and the £200 threshold was chosen on the basis of research that was done in 2006 for the Sentencing Advisory Panel. That showed that 90% of all shop theft cases heard in magistrates’ courts involved goods worth £200 or less. Lowering the threshold to £100 would catch rather fewer cases—77% of them, according to that research. I am not sure what would be gained by excluding cases where the item stolen was worth more than £100. Almost certainly it would have no effect at all on where the defendants were tried or on the sentence that could be given. It would simply mean that the more efficient and speedier procedures would not be available in those cases.
I assure noble Lords that we do not expect all cases of low-value shop theft to be dealt with by post and prosecuted by the police in the defendant’s absence. That is not the intention. It may well be appropriate for prolific shoplifters to be charged and bailed to appear in court, to be dealt with in person. That would not only be suitable but necessary in cases where a custodial sentence was in prospect. The new provisions do not prevent this: whether the “guilty by post” procedure is used is discretionary. This is a matter for guidance which we are developing, as I have just said.
Amendment 17 would exclude from the ambit of Clause 152 any case in which the defendant had already received a caution, conditional caution or penalty notice for disorder in respect of shop theft. It is not clear why a case should be excluded from the scope of these provisions simply because the defendant had previously received a caution or other out-of-court disposal. That sort of disposal is not an unusual outcome for a first offence of shop theft.
The Government are aware of concern about people being given a succession of cautions for similar offences and have considered this as part of the simple cautions review, the outcome of which we will announce shortly. The expectation will therefore be that defendants who have already received an out-of-court disposal will be prosecuted. Prosecution for low-value shop theft under the streamlined procedure permitted by the new section seems an obvious and appropriate next step, and it would be perverse to rule that out. A person being prosecuted for the first time for offending at this level is most unlikely to receive custody, and is therefore very suitable to be dealt with under the new procedure.
I am grateful for the contributions made and hope that the amendment prompted the debate for which the noble Lord, Lord Beecham, hoped. I also hope that my explanation will provoke him to withdraw his amendment.
Lord Beecham
I always enjoy being provoked by the Minister. On this occasion I am happy to withdraw the amendment.
Lord Beecham
I am grateful to the noble Lord for giving way. I just want to say that we entirely support the amendment moved by my noble friend and hope that the Government will give it serious and prompt consideration. It seems to make an absolutely unanswerable case and one that could lead to the saving of public money, quite apart from any other consideration, avoiding, for example, children having to be taken into care or extra services being required in an emergency, which would save the public purse. That is another reason for supporting the amendment and I hope that the Minister will be able to say something positive about it.
Lord McNally
I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.
This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.
The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.
I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.
I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister, Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.
Probation Services: Privatisation
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Lord McNally
Any transformation programme is difficult, and keeping to a timetable is always challenging, but I do not believe that a six-month delay would promote better or more efficient work than is now being done. Of course we will keep these matters under review and check how progress is being made. There is a campaign in some quarters against the idea of these proposals but, in the main, we are having very constructive discussions with the trusts. I am confident that we will be able to keep to the tight but achievable timetable that we have set.
Lord Beecham (Lab)
Does the Minister think that the rushed changes to the probation service, before the House of Commons has even discussed the amendment passed by this House to the Offender Rehabilitation Bill requiring parliamentary approval for such changes, will prove less of an omnishambles than NHS reorganisation, the 111 helpline, universal credit, personal independence payments, legal aid or the sale of Royal Mail?
Inheritance and Trustees’ Powers Bill [HL]
Lord Beecham Excerpts(10 years, 10 months ago)
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Lord Beecham (Lab)
My Lords, I join other noble Lords in thanking the Minister for the clarity with which he went through this very technical Bill. He has made it comprehensible, I think, to all who have heard him address these issues today. Before we began today’s debate, the noble Lord, Lord Henley, inquired whether I had any more Dickensian quotations—we tend to bandy them across the Chamber at one another. I confess that I have not come up with anything, except perhaps to note that this is after all a Bill about expectations great and modest.
The noble Lord also said that he was pleased that the Bill did not interfere with the freedom of testation, which of course it does not. It is perhaps worth reminding your Lordships that the Inheritance (Provision for Family and Dependants) Act allows for applications to be made in respect of an estate where a dependant feels that his or her interests have not been adequately reflected in the will that has been made or, indeed, under an intestacy. However, this measure does not deal with that particular set of events.
The noble Lord inquired into the numbers involved. The impact analysis of the Bill refers to there being something like 1,045 estates valued at £450,000 or more; that was the figure he was looking at, which currently applies for cases where there is no surviving spouse. However, although there are 1,000 such estates or thereabouts, the estimate is that only 5% to 10% of those are intestate estates. We are therefore dealing with pretty modest numbers, although they are obviously significant to anyone involved with one of those estates.
I have to congratulate my noble friend Lord Wills again on the ingenuity with which he manages to bring into legislative debates matters about which he is particularly concerned. I am tempted to throw in a slightly Dickensian reference to King Charles’s head, but will not pursue that at any length because, of course, he raises a legitimate and interesting point, which we will no doubt have the opportunity of debating further. However, when it comes to exploitation of vulnerable people or misconduct by any adviser—be it a solicitor, bank or anyone else whose responsibility clearly ought to be to act in the interests of those to whom an estate has been left—the numbers are again pretty small. The noble Lord mentioned 65 cases. There are 240,000 grants of representation every year; that figure appears in the commission’s report. It is a minuscule proportion, but of course any one case is too many. Not far from where I used to practise in Newcastle—I declare my interest as a now-unpaid consultant in a firm in which I was formerly senior partner—there was a serious case where, I recollect, a £90,000 bill was levied on a £100,000 estate by a solicitor who was, of course, subsequently struck off and also visited with criminal sanctions. I think the office where he carried out this misfeasance remains to this day unlet and unoccupied. That is not to say that my noble friend is not right to raise the issue. It will be interesting to see what proposals he has to make about it.
The noble Lord, Lord Marks, made some interesting points. He referred to the fact that dealing with the issue of cohabitees is to be Liberal Democrat policy, which must of course give great heart to cohabitees, bearing in mind what happened to things like student loans and nuclear power. Nevertheless, hope springs eternal in a Lib Dem’s breast. We might see some action—possibly—along those lines. I share the noble Lord’s concern about cohabitation. The commission argues a strong case for dealing with what is now a growing number—the noble Lord referred to 6 million although I think the documentation suggests 7.5 million —of people, about 15% of families, living in that state. I am not sure why the Government choose not to proceed—not necessarily in this Bill but in this Parliament—on a matter which I would have thought would command support. The consultation responses to the commission’s report were fairly limited. Although I recall there were some in the part about cohabitation, they were a relative handful.
If I have a confession to make, it is that I did not quite struggle through the entirety of the Law Commission’s report, but did look particularly at the section on cohabitation—which, appropriately enough, comprises about 15% of the report. There were obviously those with particular religious views who were concerned about the cohabitation proposal but there did not seem to be great hostility beyond that. I would have hoped that the Government would look more sympathetically at that. It need not be in this Bill but they could, at least, pursue further consultation with a view to bringing forward legislation, whichever Government assumes office after the next election.
I agree with the noble Lord on that issue but am not entirely convinced about his references to the desirability of the half-share—which, under present circumstances, may be held on a life interest—becoming absolute. In many cases that would be absolutely appropriate, but it might be a bit hard in a situation where the total estate is not that much more than the statutory amount of £250,000 but where there are children, particularly if they are from a first marriage or civil partnership, for example. Such children might see their inheritance reduced effectively to a quarter of the estate; whereas ultimately, under the existing framework, it could be a half. If there is a lot of money, that is less relevant, but if it is a relatively modest estate there might be some potential hardship to children, particularly in the case of a second marriage or second civil partnership. Having said that, I suppose that it is always possible to revisit these matters in due course, but it would be interesting to see how that plays out.
Two other matters occurred to me. The first comes from the left field, as it were, and relates to the position where a testator or intestate with English domicile had two wives. That may be the case if someone of a certain religion had come from a country where it was possible to have more than one spouse. I am not sure what the current situation is, let alone how that would apply in these circumstances. I do not know whether the Minister, his colleague or those behind him can advise about that. It is not going to be a huge issue but it might be an issue.
I mentioned the second issue—the potential impact when a joint tenancy is part of the family’s assets—at the meeting that the Minister helpfully organised. A joint tenancy is one in which there is an undivided share of property. A husband and wife, or any two people, hold the property, which automatically passes on death to the other. It is not included in the estate and is not therefore taken into account under the present arrangements. That is as opposed to a tenancy in common, where you have a distinct share that can be left by will or would pass under the intestacy rules. I suppose it is possible that the inheritance family provision legislation could apply in that context; someone may feel that they have been significantly bypassed and could make an application. I do not know what the prospects of success for such an application would be. Perhaps I am overcomplicating things but I wonder whether some notice ought to be taken of the potential impact of a joint tenancy absorbing perhaps a significant part of the estate and taking it outside of the regime that the Bill helpfully provides. Perhaps one might consider that in Committee or perhaps the Law Commission might want to advise the Minister before we get to Committee as to whether anything might be done in that respect.
Basically, we are supportive of the proposals. Subject to possible minor adjustments here and there, they represent a way forward. I join the noble and learned Lord, Lord Lloyd, and others in paying tribute to the commission and particularly to Professor Cooke for the amount of work done and the clarity with which the case has been made, both in documentation and in the helpful session that we had. We look forward to completing the work on the Bill fairly rapidly. It will certainly provide justice for many people and improve on the current situation. In principle, therefore, we support the Bill.
Lord McNally
I could not agree more. I also say that I take very seriously my responsibility to bring the non-controversial parts of the work before the House.
Whether we should take the non-domicile question out of the Bill can be looked at in Committee. It seems to me that what we have done is no more than to recognise the realities we face in our relations with our Scottish colleagues, but I take on board the point made by my noble friend Lord Marks that in an increasingly international world some of this might have cross-border dimensions.
My noble friend Lady Hamwee made the point about housing now being a big part of any inheritance. She also raised the question of inheritance tax implications. We can look at that in Committee if necessary, but on her specific question about the commencement provision, there is no precise timing as yet, but the intention is that commencement will be all at one time.
I was extremely pleased by the contribution of the noble Lord, Lord Shaw, both for his welcome for the Bill and for the personal example that he gave, which was extremely helpful to the Committee. I shall treasure the compliment of the noble and learned Lord, Lord Lloyd; I shall tuck it away. We will have to leave it to the historians to decide whether it is Wills, Ashton, Etherton or one of the joint parentages we were talking about earlier in the debate. Nevertheless, the fact that the noble and learned Lord has been willing to take on the chairmanship has given an impetus and confidence to this procedure.
I was greatly sorry that the noble Lord, Lord Beecham, did not take this opportunity to give us a quote from Bleak House. Surely there is one somewhere here.
Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013
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The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, the draft Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013 amend the Legal Aid (Information about Financial Resources) Regulations 2013 that came into force on 1 April this year. The draft regulations make provision in relation to requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport to facilitate a determination for the purpose of legal aid that a relevant individual’s financial resources include an interest in a motor vehicle. This amendment is intended to support the Criminal Legal Aid (Motor Vehicle Orders) Regulations 2013 that came into force on 30 July this year. These provide for mechanisms of enforcement in relation to unpaid contributions towards the cost of criminal legal aid in the Crown Court imposed under the Criminal Legal Aid (Contribution Orders) Regulations 2013.
The motor vehicle orders regulations authorise the magistrates’ court to order the clamping and sale, through motor vehicle orders, of an individual’s vehicle when the contribution required to be paid by the individual towards their Crown Court legal aid costs is overdue. Before granting a motor vehicle order, the court must be satisfied that the defendant owns the vehicle, and it is for this purpose that the amendment before the Committee is significant. Requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport, in practice the DVLA, in accordance with the amendments made by these draft regulations will enable the director to confirm whether an individual is the registered keeper of a particular vehicle. If the individual is the registered keeper of that vehicle, the director will also be able to request any particulars contained in the register in relation to that vehicle. An applicant for legal aid is required to indicate in their application whether they, alone or with anyone else, own a motor vehicle, and if so, the registered vehicle number of that vehicle. The individual’s statement that they own a vehicle, taken together with the DVLA’s confirmation that the individual is the registered keeper of the vehicle, will be a way of evidencing that the individual owns the vehicle for the purposes of the motor vehicle orders regulations.
These draft regulations also add the Armed Forces Independence Payment to the list of prescribed benefits in the schedule to the 2013 regulations. If an individual is in receipt of a prescribed benefit, the director may request information about the benefit from various other government departments, including the amount the individual is receiving. Due to the timing of the secondary legislation that created the AFIP, it could not be included in the schedule when the 2013 regulations were first made; it was always intended to add the AFIP to the schedule at the earliest opportunity.
Having accurate information about the financial resources of an individual who is applying for or in receipt of legal aid is an important part of ensuring that only those eligible for legal aid receive it and that those who can afford to contribute to the cost of their legal representation are made to do so. I should stress that the proposed data sharing arrangements with the DVLA will in no way impact on defendants, solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on court users. As was the case with the original 2013 regulations, nothing in these regulations dilutes the Government’s obligation to protect an individual’s personal information and to maintain confidentiality.
These draft regulations support the Government’s proposals to make the legal aid system operate more efficiently, and to improve confidence in the system as a whole by ensuring that those who are entitled to help receive that help while those who can afford to pay, do so. I beg to move.
Lord Beecham (Lab)
My Lords, I begin by welcoming the noble Lord, Lord Bates, to the Front Bench. I am not sure that he has a relevant interest—to quote the appropriate phrase, perhaps—in these regulations, but it is good to see another Peer from the north-east occupying a position of some influence, I hope, with this Government.
The regulations refer to an “interest” in a motor vehicle. That can take more than one form and need not necessarily be ownership. Presumably, somebody might be the keeper of a vehicle which is rented or hired, or indeed owned by somebody else, and I am not quite clear how the regulations would apply in those circumstances. It is also interesting that the explanatory notes refer to the fact that details of the scheme were to be published in an addendum to the consultation response alongside an updated impact assessment. I do not know whether that has been published and I confess that I have not been able to find an impact assessment. Will the noble Lord indicate what the potential impact is, for example, in terms of the number of vehicles that might be expected to be reported and, for that matter, the number of vehicles about which action might be taken, presumably in taking possession of those vehicles?
Will the noble Lord also indicate the approach that will be taken in relation to possible removal or disposal of such a vehicle and what criteria would be likely to be applied? For example, if someone, whatever his involvement in an offence might be, was dependent on having transport, for example, to work, would that be a material factor or would the process be directed simply at taking into account a financial recovery? Presumably, if a contribution was sought from somebody, he would be expected to dispose of any financial interest in the vehicle, which could conceivably cause difficulty. Is a process to be directed to that question? What other impact is anticipated in relation to the application of the order?
In relation to the other part of the regulations, given the concern about members of the Armed Forces, I find it a little surprising that a benefit specifically directed to, presumably, members of the Armed Forces who have suffered a disability, possibly in the course of their service, should be taken into account. Will the noble Lord inform your Lordships about the rationale for that? I appreciate that it might be regarded as analogous to the disability living allowance but one might have thought that, if a disability is incurred in the armed services, a rather different view might be taken. Will the noble Lord indicate the potential impact of this, in terms of the number of cases which it is envisaged might arise on an annual basis? Obviously, we are not going to take a point about these regulations, except to note that they seem to have been in force for some seven months before coming to this House for consideration. It does seem an inordinately long time after regulations have come into force to proceed with the process of parliamentary approval. None the less, we as an Opposition are not going to take any point against them as such.
Lord McNally
My Lords, I thank the noble Lord for that helpful intervention. On the point about publication, the impact assessment was published on 5 July 2013. On discretion, the primary legislation already puts in a number of safeguards. The court may make a clamping order only if it is satisfied that a defendant’s failure to pay the amount sought was due to wilful refusal or culpable neglect. The clamping order must not be made unless a defendant has an interest in the vehicle, and a clamp may not be fitted to a vehicle that displays a current disabled person’s badge. So safeguards are there. The court may grant an order only if the individual has an interest in the vehicle. If the individual shares a vehicle with their spouse or partner, this would be sufficient. However, we would not go after a vehicle which was the subject of a hire-purchase agreement, for example.
I appreciate the noble Lord’s probing. I was one of the initiators of this tightening of the regulations, because I had in my mind the idea of the drug-pusher who was kingpin of his estate and who seemed to be able almost to defy the law by driving around in a swanky car. It might at least send a message to those who saw him as a role model if his swanky car was taken off him. However, I understand that that needs to be carefully balanced against other matters in law—and I think that it is balanced.
On the Armed Forces matter, AFIP is a benefit for Armed Forces veterans to protect them from any possible financial detriment as a consequence of the replacement under the Welfare Reform Act 2012 of disability living allowance with personal independence payments from 8 April 2013. Like the DLA and PIP, AFIP is a benefit which is deducted from the gross income of an individual when their eligibility or liability to make a contribution towards the costs of legal aid made available under Part 1 of the Act is being calculated. It is therefore four-square with other benefits in that respect. With those assurances, I commend the regulations.
Court of Appeal (Recording and Broadcasting) Order 2013
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Lord Hope of Craighead
No. I think I had the upper hand, to be perfectly frank. When I introduced it in 1992, the broadcasters understood that if they abused the rules, that would be the end of the system. My experience was that they stuck precisely to what we asked them to do. I was not aware of any abuse of the system. My noble and learned friend Lord Mackay of Drumadoon, who is more familiar with Scotland than I am, may have other experience, but that was my experience. Of course, as far as the Supreme Court is concerned, we have to keep a careful watch on what is being used and what is done with what is being used, but in my experience we have not been let down by that either.
I think the broadcasters will appreciate that this is very much up to them. If they abuse the system, that will be the end of it and judges will not give their consent. That is why that particular part of this order is so important. It is a crucial point of the whole system.
Lord Beecham (Lab)
My Lords, the Opposition certainly support the Government’s intention in helping to make the legal system more transparent and to educate people in its workings. I am much encouraged by the remarks of the noble and learned Lord, Lord Hope, about the experience in Scotland. It would be interesting to know what the viewing figures are for these proceedings but at least we are clearly not in the realm of “Strictly Come Appealing” or possible interpretations of that kind.
Perhaps the Minister could indicate whether and at what stage there might be a review of the situation. Obviously, as the noble and learned Lord has said, if there were some transgression on the part of the media, judges could stop facilitating the process of broadcasting. But is there an intention—as in the normal course of events presumably there would be—to review the operation, and would that be in conjunction with the senior judiciary? We are limiting the arrangements, in the first instance at any rate, to the Court of Appeal. There would be concern if it were proposed to extend it to other, lower courts, particularly if witnesses and parties were to appear in broadcasts, but fortunately we do not seem to be following the American model of turning this into a source of entertainment rather than education. To the extent that this proposal will contribute to a better understanding of the legal system, it is certainly to be welcomed.
I had not understood the position in Scotland to have been as it has been described to us today. I pay tribute to the noble and learned Lord for having blazed a trail for what ought to be a distinctly progressive move towards enlightening the public and the users of the legal system about how it operates, at least on this important level, in addition to the broadcasts that currently take place of the Supreme Court itself, as the noble and learned Lord reminded us. We warmly endorse matters as they are laid before us and look forward to seeing how they progress in practice.
Lord Mackay of Drumadoon (CB)
I am conscious that not every Lord Mackay has any right to say anything about the judicial system in England, and he should confine himself to the system to which he belongs, in Scotland. However, it might help Members of the Committee if I endorse what the noble and learned Lord, Lord Hope, has said here today.
My impression of the proceedings recorded in Scotland is that the lawyers and judges who took part were confident that the trust placed in the broadcasters was merited. I have heard no criticism of the recording or, ultimately, transmission, of the broadcasts. On the other hand, among one’s lay friends—including legal friends—who watch some of these programmes, there is a range of opinions on the success of the venture. Sometimes it is clear from questioning the viewer that he or she has not followed everything that was broadcast. One reason may be that a documentary can only last an hour or so but must represent filming of a trial lasting 10 days or 20 days, or whatever. To some extent the fact that programmes are sometimes misunderstood or not fully appreciated may—in a funny way—be a further justification for taking a small but very well thought-out step towards deciding whether broadcasting has a role to play in the judicial system in England.
Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013
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Lord Beecham
At end to insert “but that this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.
Lord Beecham
My Lords, the amendment in my name would add to the Motion moved by the Minister that,
“this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.
I am grateful to the Minister for so clearly outlining the Government’s thinking and the details of their proposals.
Of course, the fate of the AJTC was debated at length during the passage of the Public Bodies Bill, which lit the torch for the Government’s proclaimed bonfire of the quangos. Deep concern was expressed in all parts of the House, led by the late and much lamented Lord Newton, to whom the Minister rightly paid tribute, and endorsed by the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Howe, among many others.
Lord Newton had served with great distinction for 10 years as chairman of the Council on Tribunals, a non-departmental public body attached to the MoJ with oversight of the tribunal system, which in turn was replaced by the AJTC. Administrative justice as a feature of our legal system has grown in importance over the years in response to the need to offer an accessible means of redress for citizens wishing and needing to challenge the decisions of public bodies in a wide range of contexts. This changing landscape, incidentally, is another example of why, with justification, the original scope of the civil legal aid and advice scheme widened over the years, much to the apparent distaste of the present Government, who have in effect withdrawn administrative justice from what remains of legal aid.
The proposal to abolish the council evinced little response other than hostility both inside and outside Parliament. Having established three tests by which the status of public bodies was to be charged—namely, whether the body is needed in order to “perform a technical function”, whether it needs to be politically impartial and whether it needs to,
“act independently to establish facts”.
The Minister in the House of Commons, giving evidence to the Public Administration Select Committee, avowed that the council failed all three.
The Public Administration Select Committee, on the other hand, thought that,
“it could be, and has been, argued that the AJTC in fact meets all three of them”—
a judgment with which I profoundly concur.
The committee pointed to the high level of successful appeals across the system, with higher rates when legal representation was available, declaring:
“This poor decision-making results in injustice to individuals and cost to the taxpayer on a scale that PASC finds unacceptable. The role of the AJTC in providing an independent overview … is therefore one of vital national importance … overseeing a system that protects the rights of millions of citizens every year”.
It concluded that,
“oversight by an entity independent from Government is valuable and should be continued”.
The Justice Select Committee, in its eighth report for the previous Session, echoed many of these concerns and, while conceding that certain functions might be transferred to the Ministry of Justice, stated that it did not,
“believe that the abolition of the AJTC satisfies the statutory tests”,
set out in the Public Bodies Act,
“in respect of efficiency and effectiveness”.
I note in passing that, interestingly, in evidence to the Public Administration Select Committee, the Minister in the other place did not seem to rely on these tests. The Justice Committee concluded by recommending,
“that the Government reconsiders its decision to abolish the Council”.
The Minister, Helen Grant, rejected this recommendation in a brief letter which did not address the concerns raised by the committee, and which was copied to the Scottish Parliament Justice Committee, of which the Justice Committee knew nothing until its attention was drawn to it by the Scottish committee—clearer evidence of the woeful incompetence of the Ministry of Justice could hardly be imagined.
The Government’s proposals, affecting as they do some 650,000 people a year who appear before tribunals, sit oddly with the retention as non-departmental public bodies of the Civil Justice Council, when only 63,000 cases, roughly 10% of those appearing before tribunals, come before the civil courts, and the Family Justice Council.
Moreover, as Lord Newton pointed out, administrative justice is not confined to tribunals. It extends to local authorities and important areas of administrative justice,
“including, in education, school admissions and exclusion appeals”.
He went on to say that,
“it also includes the whole area of decriminalised parking … They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice”.
For an essentially gentle man, Lord Newton went even further, declaring:
“The Ministry of Justice knows nothing—and, frankly, as far as I can judge, cares less”,—[Official Report, 28/3/11; col. 993.]
about these latter issues.
In debates on the Public Bodies Bill and subsequently, Ministers have shifted the basis of their argument to one of cost, yet the amount of the savings they predict are, even on the scale of the MoJ’s budget, let alone public expenditure as a whole, trivial—all of £700,000 a year, as the Minister has confirmed. The council’s running costs have already been reduced from £1.2 million in 2010-11 to that figure.
Where is the evidence that the MoJ, of all government departments, has the capacity to deliver the work hitherto carried out by the council and to press on with the work of improving the system, securing better decision-making and reducing the need for appeals, as opposed to putting obstacles in the way of appeals by withdrawing legal aid and advice or—as in the case of employment tribunals, which we debated last week—imposing fees which will deter claimants from using them? This, after all, is the department responsible for the fiasco of the interpretation service, for the problems of the single court issue of money claims, and for the recently exposed disaster of the electronic tagging contracts. This is the department that is pushing ahead with untested proposals in relation to the probation service and payment by results and which refuses FoI requests for information about pilot schemes that it abandons. Dickens would have rejoiced at the opportunity to satirise a department that combines all the vices of the Court of Chancery in Bleak House and the Circumlocution Office of Little Dorrit.
There is a more fundamental point. How can the Government, who are enacting legislation, promulgating regulations and changing structures in these important areas of administrative justice, and at the same time hugely reducing legal aid and advice, justify the absorption of an independent body with a remit to oversee the whole system and advise government? The Administrative Justice Advisory Group, which the department has set up, is in no way a satisfactory alternative, having, in the words of evidence given to the Public Administration Committee, no status, standing or budget of its own. It lacks a chairman and a secretariat, it is dependent on MoJ policy staff and it meets only twice a year.
What is the Government’s response to the nine recommendations made in the final report of the AJTC on ways to,
“maximise the robustness of this body”,
which, at the moment, has all the attributes of a watchdog equipped with neither bark nor bite? What is the position of the devolved Administrations in Scotland and Wales? Hitherto they have been represented on the AJTC. Will they establish their own councils once the AJTC disappears and, if so, what will be their relationship to the MoJ on areas of administrative justice covering non-devolved matters such as welfare or employment law?
The House will wish to pay tribute to the members and staff of the council who have been on organisational death row for three years but have managed to continue to discharge their responsibilities with exemplary fortitude. It is worth quoting further from the final report. It refers to the predicted nearly 100% increase in First-tier Tribunals for social security and child support to 807,000 cases a year by 2015-16 as illustrating the pressures with which the system will have to cope, exacerbated by the wholesale reduction of access to legal aid and advice, which we have so often debated.
The council questions, with reason, whether HMCTS, which is reducing the publication of performance data, is able to or has the independence to monitor performance. Its final report poses several questions about the role of HMCTS. I will quote from that report. The AJTC rejects,
“any suggestion that HMCTS is independent of government. HMCTS is not a judicial body”—
although it may have judicial representatives upon it—
“and it does not operate on an arms-length basis from its sponsor department. Rather, we believe that HMCTS as an executive agency of the Ministry is ‘as much part of government as the MoJ itself’, with MoJ Ministers being accountable within Parliament for what HMCTS does in the same way as they are for what their departmental officials do”.
The council concedes that,
“the constitution of the HMCTS Board provides some independence in the governance of the agency”,
although not its role. The council points out that,
“whatever the correctness of our view on the independence of HMCTS, such is not relevant to the separate question of the existence of and need for a body to offer independent advice to government, which is currently offered by the AJTC and in future could only possibly be offered by”
the advisory group, with all the limitations to which I have referred. The council raises a series of other points about the performance and the future of HMCTS, which are surely germane. The council makes the point that:
“The task therefore of ensuring effective scrutiny will be many times more difficult in future than it has been … Cutbacks in the availability of advice and legal aid and the introduction of fees … are likely to act as even greater barriers and disincentives to redress than restrictions in the availability of judicial review”—
about which there is also great concern—and, tellingly, that there are,
“disturbing signs that MoJ explicitly sees the use of fees as a mechanism to reduce demand on the tribunals system”.
Can the Minister deny these serious charges?
I conclude with a final quotation from the council:
“There is an inevitable risk that those who have access to the levers of power may yield to the temptation to use them to exclude or restrict challenges. And even if that temptation on occasion is resisted there will always be the suspicion that it may not be resisted on others. Effective oversight is necessary both to ensure that temptation is resisted and also to create confidence amongst citizens that it will be”.
I wholly endorse that view and I suspect that I am not alone. I beg to move.
Lord McNally
My Lords, considering that this is the third time today that the noble Lord, Lord Beecham, and I have faced each other across the Dispatch Box—admittedly the other two times were in the Moses Room—he is in fine and feisty form. But his speech revealed what I think is the abiding problem of the Labour Party when looking at these matters: savings are always trivial and can be dismissed; always look for the firewall of a committee to get between a Minister and responsibility; and, if in doubt, appoint a consultant or, even better, a tsar. It is a philosophical difference between us. I really do believe that this is where responsibility lies and that the effective oversight he called for should be oversight in Parliament by parliamentarians to Ministers at the Dispatch Box. We will have to disagree on some of these matters, but I will try to answer a number of the points that he made.
The noble Lord mentioned the AJTC’s report on the Future Oversight of Administrative Justice. This final report was published on 17 July and the department has not yet fully considered the recommendations in detail. However, we thank the council for its constructive recommendations. We are already tackling many of the issues raised, such as the need for good-quality information and signposting, and the Right First Time agenda. We also welcome the AJTC’s invitation to parliamentary committees to take an enhanced role in scrutinising the work of the department in this area. We will consider the report’s recommendations as we progress our strategic work programme and build on the principles of fairness, efficiency and accessibility.
The noble Lord also asked about administrative justice in reserved sectors in Scotland and Wales. We are focused on ensuring that users of the system can expect consistency of service and adjudication, no matter where they access it. The MoJ has agreed to support the Governments in Scotland and Wales to complete their reform programmes. We believe that the change in approach will be beneficial to users by encouraging closer working between the bodies actually responsible for developing policies and implementing reforms. We have draft formal protocols between the UK Government and each of the devolved Administrations to oversee the system. These will include examining and addressing issues for users in Wales, Scotland and Northern Ireland accessing reserve tribunals.
Lord Beecham
My Lords, needless to say, I am not persuaded by the Minister’s argument. Indeed, one could go on to examine further the problems with a system administered by HMCTS, not least in the context that that organisation itself will presumably be subject to some reorganisation or privatisation of some of its functions. I do not accept that that can offer an independent service, nor that independent agency is superfluous. It is very important for public confidence that there should be an independent body as effective as the council and its predecessor have been. However, it is clear that the Government are going to proceed with this. There is not a massive attendance in the House tonight and there is therefore no prospect of my amendment being carried were I to put it to the vote. In any case, it would not be fatal. In the circumstances, I beg leave to withdraw the amendment.
Judicial Appointments Commission Regulations 2013
Lord Beecham Excerpts(11 years, 1 month ago)
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Lord Beecham
My Lords, I join other noble Lords in congratulating and thanking the Minister for his very clear presentation of the regulations, and join some of your Lordships in expressing a slight note of regret that the noble and learned Baroness, Lady Hale, has not been appointed to the very high position of Lord Chief Justice—not this time at any rate. That in no way reflects, of course, on the esteem in which the new incumbent is held across the system. However, if the noble and learned Baroness had been appointed, it would have sent a powerful signal endorsing the Government’s approach.
In congratulating the Government generally on coming forward with these proposals, it is as well to remember where we are in the higher courts in terms of diversity. Of 110 High Court judges, only 17 are women and only five are from black and ethnic minority backgrounds, with no female heads of division. However, we now have a female Supreme Court judge and that is welcome. Those facts illuminate the reason for the Government’s approach, which we certainly endorse. I particularly welcome the reinforcing of independent elements in the appointments processes and, of course, promoting diversity. That includes the revision of the composition of selection panels for the most senior appointments. The Government’s intention is explicit—to make the appointments more diverse and increase lay representation on the panels. However, I am not entirely clear about the extent to which the selection panels themselves reflect diversity among their members, particularly at the higher levels. As there are five members of the commission, it is important that diversity is also reflected at that level.
I particularly welcome two matters. The first is that these procedures will apply to tribunals. In answer to the noble and learned Lord, Lord Hardie, that, I think, is the relevance of the inclusion of the Chartered Institute of Legal Executives in the new process as they are eligible for tribunal appointments, as the Minister indicated. There is, therefore, every reason why they should be on the panels.
Lord Hardie
To clarify, is the noble Lord saying that the legally qualified person who is a fellow of the Chartered Institute of Legal Executives would only be part of a commission which appointed members to a tribunal?
Lord Beecham
I am not in a position to say that—the Minister is—but I gather that he or she would not necessarily be restricted in that respect. Personally I welcome that because otherwise you would have the somewhat anomalous position where the converse would not be the case: the member engaged in tribunal appointments would, by definition, not be a member of the chartered institute and would be either a barrister or solicitor. There is the option for balance—it is not necessarily the case—where the CILEx member was involved in other than tribunal appointments. That possibility could occur. I dare say the Minister will correct me if my interpretation is wrong. I very much welcome the inclusion of CILEx in that.
I return to the question of the steps the Government will take to ensure that there is diversity in the appointment of membership of panels, especially in relation to gender and ethnicity. The noble and learned Lords, Lord Scott and Lord Brown, referred to the difficulties raised by the provision relating to incapacity. It is rather striking that incapacity is only treated as a matter of concern if it afflicts a holder of judicial office. It is not inconceivable that it might afflict the Lord Chancellor but that is not covered by the arrangements. That is slightly odd. I sympathise very strongly with the observations of the noble and learned Lords in that regard. There must be a procedure in which the Lord Chancellor is not perceived to have an unfettered and sole discretion in this matter. That might not be the Government’s intention—I suspect it is not—but it would be much better if that were explicit. I hope the Minister will take this back and possibly make it the subject of further regulation. The point that was made was quite powerful.
There are two other matters I invite some comment on. First, given that we are not talking about judicial appointments, I wonder whether the Government have taken on board sufficiently—or to any extent—the impact on future appointments of the changes they are proposing, particularly in criminal legal aid. There is widespread concern, expressed across the legal profession and reaching into the judiciary, that diversity issues will arise if, as seems likely, there is a significant reduction in the size of particularly the criminal Bar but also of the solicitors’ side of the profession. I declare my interest as a member of the Law Society and an unpaid consultant to a firm of which I was formerly senior partner. There is a fear that the ladder of appointments might become rather remote from those who currently succeed in progressing. Even now, as I indicated, they do not progress as high as the Government would wish. Again, I invite the Government to consider the impact of these changes on their aspirations for diversity in the judiciary.
Secondly, there is an area that I confess is beyond the scope of these regulations. I invite the Minister to indicate what steps the Government are considering to sustain and promote diversity among the magistracy. That is diversity of all kinds: again gender and ethnicity but also, although it is not in this series of recommendations affecting the judiciary, social class as well. A local justice system needs diversity in its officeholders to a significant extent, as does the judiciary with which we are today concerned.
Having said all that, the Government are certainly moving in the right direction. We hope that some of the points made today might be reflected in further regulation. This is a good start but needs to be taken further. No doubt over time the Government will assess what progress has been made and what steps they could take to encourage more applications for judicial officers at all levels from a wide range of people qualified in every respect to fulfil that important duty.
Lord McNally
My Lords, I am extremely grateful to all those who have contributed to a very interesting debate. I have to confess that as I sat waiting for the debate to begin, I felt rather like a character in Alfred Hitchcock’s “The Birds”, as I watched various distinguished Members of your Lordships’ House flutter on to their perches waiting to take a peck at me. I shall start by responding to the noble Lord, Lord Beecham, who is always thoughtful and incisive in what he has to say.
I think that a lot of people were hoping that the selection of the Lord Chief Justice would give us an opportunity to make a great statement in terms of diversity with the noble and learned Baroness, Lady Hale, as one of the candidates. But, as has been made clear in a number of letters to the Times today, that does not take away from the fact that we have a very good choice for the Lord Chief Justice and we wish him well in his appointment. A name which has been bandied around a great deal is that of the noble and learned Baroness, Lady Hale. I remember when the Metropolitan Police appointed its first black policeman, PC Norwell Gumbs. For a while, PC Gumbs seemed to be on duty outside 10 Downing Street, Buckingham Palace or almost anywhere that would give the impression of a diversity that did not actually exist. I must also say to the noble and learned Lord, Lord Hope, that in the three years that I have been a Minister, the Supreme Court has made three or four appointments, none of which has been particularly diverse, although undoubtedly extremely eminent. As my noble friend Lord Marks said, in these regulations we are taking some stuttering steps forward in diversity. I have been assured by the very highest ranks of the judiciary that if I am patient, in 20 years’ time all will be well. I would say that that is not a timescale that the country will be satisfied with.
We are trying to encourage the panels themselves to be diverse. It could take us into a much wider debate, but I am conscious that it is from the criminal Bar that we get the flow of eminent lawyers who go into our senior judiciary. I hope that the Bar itself becomes much more constructively involved in looking at how we bring about social mobility there. For one reason or another—you cannot put all the blame on legal aid—in my opinion, access to the Bar is probably less socially mobile than it was 20 or 30 years ago, and that should be a matter of concern to us.
I also agree with the noble Lord, Lord Beecham, in that I am a great supporter of the magistracy. There is always a problem in respect of its social composition but I think that it has come a long way from being the local squire dispensing justice. Indeed, if we want to look for diversity in our judicial system, it is there in the magistracy, where there is far greater diversity both in terms of gender and ethnic representation. I hope that we will look at how we encourage more people into the magistracy and how we can give the magistracy greater responsibility and powers within our criminal justice system. While I remain in this post, I will certainly look for those opportunities.