European Convention on Human Rights
Lord Beecham Excerpts(11 years, 5 months ago)
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Lord McNally
I am not able to put a cost to human rights any more than to anything else. I see in government—and I suppose that we have a lot of experience of local government in this House—how agents of the state, as the noble Lord said, when making decisions have in the back of their mind that they have to clear certain hurdles about respect for the individual citizen. To me, this is a prize beyond cost.
Lord Beecham
Can the Minister match his welcome, unequivocal statement that there is no intention to withdraw from the European Convention on Human Rights on the question of repeal of the Human Rights Act? Will he confirm that the Government have no intention to seek to repeal the Act?
Lord McNally
Both publicly and privately, I sense that there is no majority in this Parliament in favour of repeal of the Human Rights Act. If an individual party at the next election wants to put repeal in its manifesto, that is its privilege and right, and it will have to take that to the hustings. It will not be in the manifesto of the Liberal Democrats.
Damages-Based Agreements Regulations 2013
Lord Beecham Excerpts(11 years, 6 months ago)
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Lord Phillips of Sudbury
I have only one simple point to make. It is a question to the Minister regarding the Conditional Fee Agreements Order, particularly the 25% cap, which does not apply to any future losses. In proposing this legislation, the Minister rested his case heavily on proposals made by Lord Justice Jackson in his review. Is the Minister aware of a lecture Lord Justice Jackson gave on 29 February last year? In this lecture, he made a point, which appears in the footnote, stating:
“The Personal Injuries Bar Association (PIBA) and the Bar Council have recently sent to me forceful submissions that the 25% cap should apply to ALL damages, as it did before April 2000. I can see the sense of allowing that dispensation in appropriate cases provided that the success fee is only payable by the client as it was pre-April 2000”.
That seems reasonable and it seems doubly reasonable given that the author of these proposals, Lord Justice Jackson, himself had second thoughts which he expressed in public last year. I am wondering, therefore, why the limitation to past losses survives into this statutory instrument and whether the Minister could take this away and follow the latest thinking of Lord Justice Jackson, which is supported by the Bar Council and, I suspect, the Law Society.
Lord Beecham
My Lords, I always like to be consistent and it certainly would be inconsistent of me not to begin with a complaint about the process here. These regulations come to us some five weeks before they are to take effect. The Bar Council has drawn attention to this, rightly stressing that a major change in the law, particularly in relation to DBAs, is being introduced with very little time before they come into effect for people to work out how they are going to be applied.
As the Minister has said, it has always been permissible for damages-based agreements to be implemented in non-contentious matters in tribunals. As he has also said, these were extended by regulations to employment cases. That opened the way to the revival of what used to be called “champerty” in previous times, which of course was unlawful. We are now legalising it under the new nomenclature of damages-based agreements and I can see that there is a case for doing that. Nevertheless, significant issues and questions arise from the Government’s proposal.
Reverting to the timescale, it should be pointed out that other changes affecting contentious litigation are in hand. These include changes to the Road Traffic Act portal and small claims limits in cases, including, potentially, personal injury cases. With all that happening, one might have thought that it would be sensible to bring all the changes together and to do it at a time which allows the parties and the professions to prepare adequately. I hope that the Minister will look again at the timetabling with a view to deferring implementation of whatever regulations finally emerge for six months until October of this year. I am particularly indebted to those who have briefed me, and no doubt other Members of your Lordships’ House and perhaps of this Committee, in relation to these matters, including the Association of Personal Injury Lawyers, the Bar Council, the Law Society and, especially, Professor Rachael Mulheron.
A number of issues arise and I hope that the Minister will be patient while I list them. If he is not able to reply to them all today—he may well not be—I hope that he will take these matters back and consider them. I was going to raise the question of the cap, which was raised by the noble Lord, Lord Phillips. I, too, identified the change of mind by Lord Justice Jackson, to which the noble Lord referred. It is notable of course that the 25% cap in terms of damages-based agreements applies only to personal injury cases. It is a 35% cap in employment cases, which can equally be quite substantial, although not, I guess, running into the millions of pounds of the exceptional cases of clinical evidence and the like to which the Minister referred. Nevertheless, it certainly can be comparable with many ordinary personal injury cases. In those cases, the cap is 35% including future loss, so there is a serious question about the composition of the figure against which the percentage is to be calculated.
Lord Phillips of Sudbury
Before the noble Lord, Lord Beecham, sits down, does he agree that in his own extremely eloquent exposition on these two statutory instruments, and indeed in my own offering, there was a notable absence of reference to the basis upon which I suspect he, and certainly I, put forward our points—that is, access to justice? The majority sitting in this Grand Committee are lawyers, and we take it so much for granted that what we are seeking to amend in these regulations is exclusively for the benefit of improving access to justice. I invite him to concur with me that anyone reading Hansard who saw no reference to that in the course of our two offerings should know that this underpins everything that we have said.
Lord Beecham
I am grateful to the noble Lord for making explicit what was certainly implicit in what he and I were saying. Access to justice is certainly the core argument here. I should perhaps also have declared an interest in that from time to time as we have discussed these matters I have put in time as a now unpaid consultant with the firm of solicitors in which I was formerly a partner.
Lord McNally
My Lords, as a non-lawyer—perhaps the only one in the Room—I fully appreciate that the noble Lords’ interventions were about access to justice. As I have told the noble Lord, Lord Beecham, on earlier occasions, my legal qualifications rest on one of nine papers that I did for part one of my degree on English legal institutions. I remember champerty and maintenance from that paper. It came as quite a shock to me to find, in the process of the Bill, that not only was champerty not outlawed, it was now to become legal. But there we are—such is the passage of time.
Lord McNally
Actually, I knew that. As Harold Wilson said when he retired and Jim Callaghan succeeded him, “I have made way for an older man”.
I take the point made by the noble Lord, Lord Phillips, but let me be blunt. I am always suspicious of Ministers who at any time rest too much on a report, no matter how learned. I do not rest the case for the 25% cap on that being Lord Justice Jackson’s original recommendation, although indeed it was. A sharp-eyed lawyer would say that the noble Lord’s quote about Lord Justice Jackson did not endorse the counterview but simply said that it had merit, which is not the same as advocating that the Government change their policy. Even if it were, this is the Government’s policy. It is the right policy because it protects the future earnings and the future cover for victims in these cases. It remains our policy on that merit, and we are willing to defend it on that basis.
I understand the point made by the noble Lord, Lord Beecham, about speed. I pointed out that very little of what we are doing is entirely new. We fully recognise that at this time there is a need for ability, nimbleness and fleetness of foot in all parts of the legal profession, if we are to take advantage of the changes that are going through. We are not persuaded that the timescales we have set are unreasonable, and we will not be deferred from the course that we have set. We have taken account of reasons for delay regarding mesothelioma and privacy, which I quoted. However, these orders will go through to take account of the fact that LASPO comes into effect on 1 April 2013.
Perhaps I might deal with a number of the specific questions that the noble Lord, Lord Beecham, raised. He was very correct to raise the issue of the American experience in DBAs. I also met the organisation that came over to present its case. I left that meeting with some of his concerns about what this might bring into our legal system. The noble Lord’s description of hedge funds for legal claims is something that we are very conscious of. What we have decided so far is to keep the matter under review. That phrase can often hide weasel words and weasel intent, but we want to see just how much this is going to become a factor in our legal system, while making sure that some of the warning signs that the noble Lord has quite legitimately raised are on the radar of Ministers as well. We will keep this matter closely under review.
The noble Lord raised the issue of VAT on the 25% cap. The 25% cap on success fees is as recommended by Lord Justice Jackson. Including VAT on the success fee on lawyers’ fees within the cap will provide further protection for the claimant’s damages and add certainty for the claimant as to the likely deduction from their damages. This approach is also consistent with the existing cap of 35%, inclusive of VAT, on payments to be made from damages in respect of DBAs in employment matters. The noble Lord also asked about the indemnity principle. DBAs are an alternative method of funding and it would be for solicitors to advise their clients on the most appropriate method of funding according to the circumstances of each case. He also mentioned there being one set of regulations. There is one set of regulations covering both civil litigation and employment cases, as recommended by the Civil Justice Council. We have listened to the concerns of the Law Society and others that there should not be too much regulation in respect of civil litigation in these instruments. This is because failure to comply with the provisions in the instruments would make the agreements unenforceable. As I have said, lawyers are properly regulated in any event.
The noble Lord asked whether the cost of ATE insurance is within or outside the 25% cap. This is an expense and is therefore outside the cap. On why DBA regulations do not contain requirements on termination for civil litigation, as in employment cases, the DBA regulations of 2010 made provisions for employment cases which can be taken forward by non-lawyers. Detailed safeguards need to be built in as a result. Civil litigation can be conducted only by lawyers, who are subject to their own professional regulations.
I think that that covers most of the issues. If not, perhaps I might say to the noble Lord that I welcome the thoroughness with which he has examined these regulations and, as I say, if I have not covered the questions in precisely the detail that I should have done I will make sure that a suitable letter is lodged in the Library of the House. I nevertheless think that the timetable that we have set, the consultation that we have undertaken and the changes that we have made after that consultation, with our having listened to the Bar Council, the Law Society and other interested parties, make the regulations fit for purpose. I therefore recommend them to the Committee.
Lord Beecham
It is a clear answer, but there does not seem to be a particular rationale for excluding defendants from this process. If they secure the retention of a sum of money claimed under the agreement, why should the DBA not be available to them? To confine it to claimants seems too narrow a concept. If the intention of the Government, as it clearly is, is to use the DBA as an alternative method of financing, it should be available to both sides because nobody is being compelled to undertake a DBA. That still requires some further thought.
Lord McNally
I will certainly give it further thought, but the question was whether the regulations as presently set out debar the use of DBAs by defendants. The answer is yes. I will reflect and put those further reflections in the letter.
Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013
Lord Beecham Excerpts(11 years, 6 months ago)
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Lord Beecham
I will deal first with the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013. Again, I have a series of questions that arise partly from the drafting and partly from my ignorance. Again, I trust that the Minister will be generous enough to reply, if not today then subsequently.
I begin with Regulation 9, which deals with the withdrawal of determinations by the court and prescribes that the court before which criminal proceedings are listed may withdraw determinations in certain circumstances. I draw attention in particular to Regulation 9(c), where a reason would be that the provider named in the representation order that recorded the original determination declines to continue to represent the individual. The previous two conditions I can quite understand; first, the individual declines to accept the determination terms that he was offered—arguably, that is not unreasonable—and, secondly, the individual requests that the determination is withdrawn, which is also reasonable. However, I do not understand why, if the provider named in the representation order declines to continue to represent the individual, the determination should be withdrawn unless that determination relates specifically to that advocate. If that is the intention, it should perhaps be clearer, but if it is broader than that it would presumably leave the party unrepresented. Perhaps that needs some clarification.
Regulation 11 says:
“The … court may make a determination … only if it has considered an application made in accordance with”,
the subsequent paragraph. To comply with that, the application must,
“be made by the individual seeking the determination”—
that is obviously straightforward—
“be in writing; and … specify what the relevant court is being asked to determine and the grounds upon which it is being asked to do so”.
My question relates to whether that process is covered by legal aid or advice, or whether the individual is simply left to make his own representations. For some defendants, that could potentially be a matter of considerable difficulty. What is the process to facilitate the making of an application by an individual in those circumstances?
Regulation 12 identifies the right to select a provider, except for a number of categories—or, rather, the other way round; it limits the choice except for a number of categories. The first one is that,
“the provider … is employed by the Lord Chancellor to provide criminal legal aid”.
I find it a curious word to use, that the Lord Chancellor purports to “employ” advocates on behalf of a defendant. To me, that has connotations that might be a little invidious, bearing in mind the recent decision of the courts that recorders and part-time judges are deemed to be employed by the Lord Chancellor and therefore are required to be included in the pension scheme. If employment is to be used in this context, might that not also lead to some potential complications in relation to the status of people “employed” by the Lord Chancellor and possibly even lead to them being included in some sort of governmental pension scheme? The wording needs some explanation.
Regulation 13 deals with the position where there are co-defendants. Under these circumstances, the regulations prescribe that,
“the right of an individual … does not include the right to select a provider who is not also instructed by the individual’s co-defendant”—
in other words, to have two advocates as opposed to one—
“unless the … court or the Director determines that … there is a conflict of interest between the individual and that co-defendant; or … there is likely to be a conflict of interest”.
Again, I ask whether there is any process of appeal against such a decision. After all, the question of whether a conflict of interest might exist would not necessarily be straightforward. What is the process for determining in these circumstances whether there is likely to be a conflict?
Curiously, the regulation then goes on to provide that Regulation 13(1), the basic provision about instructing co-defendants,
“does not apply where the provider selected by the individual is an advocate”.
I simply do not understand what that means. This may be a failing on my part, but I do not understand the purpose of that provision.
Finally, I come to Regulation 16 which deals with criminal proceedings before a magistrates’ court. With a limitation to which I will refer in a moment, on proceedings before a magistrates’ court,
“the Act does not include a right to select an advocate”.
I do not know why that should be the case—I do not know whether it is a new or an existing provision—but it would seem to require some explanation. Why should a defendant not have the right to select an advocate?
The proviso in the regulation says:
“The relevant court may determine that the individual can select an advocate”,
on two conditions. The first is that,
“the proceedings relate to an extradition hearing … or an indictable offence”;
and the second that the,
“court determines that because there are circumstances which make the proceedings unusually grave or difficult, representation by an advocate would be desirable”.
One would have thought that in any extradition proceedings, and on most indictable offences, it would be almost a matter of course that the appointment of an advocate would be desirable. What are the circumstances in which it is thought that it would be inappropriate for an advocate to be selected by the defendant? By definition, these look to be significant matters. Again, what is the procedure to appeal any such decision? Supposing the court was to find that, in its view, these proceedings were not,
“unusually grave or difficult”.
That is very largely a subjective judgment. What is the purpose of this and why are the Government going to these lengths to put barriers in the way of a defendant selecting an advocate?
Happily, I have much less to say about the other two sets of regulations. Indeed, I have nothing to say on one set at all. However, in respect of the Civil Legal Aid (Costs) Regulations, there is a point to question. First, I noticed that there was no consultation on these regulations, which is a slight surprise—although it is fair to say that I think no specific question was asked in response to the original consultation. Nevertheless, I would have thought it sensible to have invited comment on the draft regulations.
Finally, we come back to the matter of timing. Paragraph 9 of the Explanatory Memorandum says that guidance is,
“not being prepared specifically on this instrument”,
but that:
“A programme of training and guidance is being prepared by the Legal Services Commission to support the transition to the new arrangements. This will be … available to legal aid providers ahead of the commencement of the Act on 1 April 2013”.
What exactly has happened about this? To what extent has training taken place and has it been in conjunction with the Bar Council and the Law Society? Will the profession—and, for that matter, the courts—be ready as of 1 April 2013 to deal with these matters? What training and support has been given to the courts, especially the magistrates’ courts, to deal with the new regime?
Lord McNally
My Lords, again, I am extremely grateful to the noble Lord, Lord Beecham, for what he quite rightly termed a cross-examination. I will try my best to cover the points he raised, along with the same health warning that I gave last time, which is that if I find on reflection that I have not fully covered the point he raised, I will write to him and make that letter available in the Library of the House and to interested parties.
On the withdrawal of a determination under Regulation 9(c), the relationship between a defendant and a solicitor could break down, for example, so legal aid might be withdrawn but that would not leave the party unrepresented. They could apply for transfer to a new firm. Regulation 11(2)(c) applies, for example, where an individual seeks a QC or two advocates, so would already have legal aid for solicitors and a junior advocate to assist. The noble Lord also asked about determinations by a court under Section 16 of the Act and pointed out that there seem to be very limited circumstances in which the court may grant representation.
The framework laid out in the Access to Justice Act 1999 is different from that laid out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under the Access to Justice Act, the default position is that the court can grant representation. However, with the rollout of means tests to magistrates’ courts and later to Crown Court, the circumstances in which the court can grant representation have gradually reduced. The responsibility for granting representation has therefore gradually passed to the Legal Services Commission—although, in practice, Her Majesty’s Courts and Tribunals Service staff make the decision. The Criminal Defence Services (General) (No. 2) Regulations 2001 reflect that position. LASPO reflects that shift, and the default position is that it is for the Director of Legal Aid Casework to decide whether to grant representation. The court may do so only when expressly authorised by regulations. The regulations set out the limited circumstances in which a court may do so—for example, where an urgent determination is required in a case of contempt of court.
The noble Lord, Lord Beecham, queried the use of the term “employed”—people being employed by the Lord Chancellor. That is the same language as in the current regulation, and covers the staff of the Public Defender Service, currently operated by the LSC, who will be employed by the Lord Chancellor under LASPO. Is there a process of appeal for conflicts of interests under the regulations? No, there are no provisions for appeal, but the person concerned could renew the application. As to why there has been no consultation on costs of regulation, as the draft regulations substantially replicate existing cost regulations, there is no need for consultation on the precise terms. The principles are well known, used and understood.
We are confident that the programme of training and guidelines will be rolled out in advance of implementation. On the question of representation in magistrates’ courts, I explained the situation under Regulation 16. The only challenge will be via judicial review. Our experience over the past 10 years is that existing provisions work well. Both LASPO and the current thinking of the Secretary of State and Lord Chancellor indicate a move on representation via legal aid.
The Secretary of State for Justice has asked whether access to criminal legal aid is being given in a way that provides the right balance between the needs of justice and the needs of the public purse. The Ministry of Justice has begun work on how we might find a better balance between costs and the needs of justice, and we will bring forward proposals and changes in due course. In the mean time, though, as I say, these regulations very much reflect present position, with the minor shifts that were involved in LASPO. In those circumstances, I commend them to the Committee.
Criminal Procedure Policy: EUC Report
Lord Beecham Excerpts(11 years, 6 months ago)
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Lord Beecham
My Lords, it is a particular pleasure for me to be engaged in a debate again with the noble Lord, Lord Bowness. We spent some happy years as leaders of our political groups in the Association of Metropolitan Authorities in doing that, and I even recall an occasion some 25 years ago when he and I were in Donegal at a conference of the Irish Republic’s local government association at which we were describing the delights of the poll tax to an enthralled if somewhat bemused Irish audience.
I confess to a minimal acquaintance with the EU criminal procedure in my 44 years as a solicitor, so I approach today’s debate with an open and somewhat ill-stocked mind. I am equally unfamiliar with the works of the European Union Committee—arguably a less pardonable admission—but it does strike me as odd that the committee’s report was published in April 2012, the Government’s essentially anodyne response in June 2012, and yet this debate comes to us some seven months later.
One preliminary question relates to the stress of the documents on the fact that British citizens travelling abroad would benefit from a common EU policy guaranteeing fair and due process in relation to criminal charges. That of course is right, but is there an implication that British citizens resident abroad would not be included in that category? I assume not, but would be grateful for confirmation.
The report dissents from the Commission’s proposal for suspects and accused persons to have access to a lawyer effectively “as soon as possible” in all cases—a recommendation going beyond the Council’s road map of 2009 which referred to this right “at the earliest stage of proceedings”, which is of course a very different position. Unsurprisingly the Government, along with several other nations’ Governments, share that view, and the committee subscribes to it, and indeed I endorse that reservation. The Government’s response welcomes the approach taken by the Justice and Home Affairs Council last June. Has this been agreed by the European Parliament in a form acceptable to the Government, and if so what is the position in relation to an opt-in?
Similarly, what progress has been made in relation to the draft victims directive, which should align the position of British citizens who become the victims of crime in the EU with the rights accorded here?
Of course, the major issue identified in the committee’s report is the question of opt-out decisions, now highlighted by the Prime Minister’s recent speech and the five-year process it has initiated. The noble Lord, Lord Maclennan, rightly referred to the committee voicing scepticism as to whether,
“it will be possible for the UK to ‘pick and mix’ by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only”.
The report goes on to say that opting out,
“would have significant repercussions on UK criminal enforcement”.
The government response refers to 133 potential opt-out measures which were being analysed and to their “careful” examination of the implications of all the options. Has that process concluded, at least in relation to the matters subject to this debate, and if so, with what result?
There is one particularly important issue to which, following others, I now turn. Appropriately enough in reports and a debate dealing with crime, we have another example of the Sherlock Holmes syndrome—once again the mystery is that of the dog barking at midnight, when, it will be recalled, the mystery was that the dog did not bark. In this case, the silent canine goes by the name of the European arrest warrant, which is barely mentioned in the committee’s report and is totally ignored in the government response, although noble Lords have referred to it in this afternoon’s debate.
This has become a live issue in recent months as the Government have threatened to withdraw from the system despite strong support from a wide range of organisations for a procedure which has proved to be of significant value in combating international crime, including terrorism and other serious offences, as mentioned by the noble Baroness, Lady O’Loan. European arrest warrants are supported by the police, as one might expect, but also by organisations such as Fair Trials International and Justice Across Borders, with the former acknowledging that there may be problems but arguing for reform rather than abandonment of the system. It supported the approach of the Scott Baker report on extradition as a basis for reform. What are the Government doing to promote those recommendations?
In 2010-11, EU member states applied for 5,382 European arrest warrants in the UK, of which 1,149—somewhat under 20%—were granted. Significantly, however, only 7% of those affected British citizens; the vast majority were for citizens of other European countries. For our part, as the noble Baroness pointed out, we have sought 211 warrants and obtained 93.
In any event, it is as well to look at some of the cases. In addition to the Osman case, to which the noble Baroness referred, it is instructive to consider the case of Robbie Hughes, who suffered a life-threatening brain injury in a violent criminal assault. His attackers were eventually arrested, tried in Greece, convicted and sentenced to four years’ imprisonment. Without the European arrest warrant, it is quite possible that they would have escaped justice altogether. Mr Hughes’ campaigning mother, Maggie, points out that the interests of victims are in danger of being lost by the Government’s approach. She noted in an interview in the Observer recently that whereas at one time she met Mr Cameron at his request, now, at this critical juncture in relation to policy on the European arrest warrants, she has been unable to do so. She said that,
“he seemed sincere. But he appears to have no idea, and I’m sorry to say that”.
So what is the Government’s rationale for the policy that they appear to be adopting, so markedly in contrast to the Lord Chancellor’s tub-thumping—not to mention child-smacking—approach to criminal justice and penal policy? Why are the Government threatening to relinquish a powerful tool to bring to justice suspected perpetrators of serious crime, some of it inherently cross-border in nature? Are they more concerned to throw a bone to the ravening Eurosceptics on their Back-Benches at the expense of the victims of crime, whether British or citizens of other EU countries?
If there are concerns about aspects of the EAW system—and indeed there are—why have the Government failed to implement the European supervision order allowing defendants to be bailed to their home country pending trial, thereby avoiding long periods in custody abroad of the kind referred to by the noble Lord, Lord Hodgson, before they are dealt with? Admittedly, that has been a serious problem in some cases. In an age of mass travel and ever faster-developing internet communications, crime is becoming ever more international. It is in everyone’s interest that criminals be brought to justice, whether their crimes are economic, violent or take any other form.
Of course, within the different systems—adversarial or inquisitorial, based on common law or Roman law principles—basic human rights to a fair trial must be a pre-eminent feature of criminal procedure and the criminal justice system. The UK should be leading the way to achieve that, not sulking on the sidelines. I agree with the noble Lord, Lord Hodgson, that this cannot be achieved simply by example. That is all the more reason to work with others in the EU to improve the system on the lines adumbrated by the committee, to a degree by the Government, and by the organisations to which I referred.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, clearly the noble Lord, Lord Beecham, had got his Monday morning grumpy hat on in his final tirade against the Government. I will come back to the points that he made in a minute.
I know a little about the House’s European Union Committee and I pay tribute to it. This report is in the great tradition of a committee at this end of the building which has always produced evidence-based reports in a considered way. This inquiry has been helpful in that
I concede one point to the noble Lord, Lord Beecham: the response and debate timetable seems to be leisurely, to put it mildly. I am not sure who takes the blame for that. Nevertheless, we have had the benefit of a good report.
I make no complaint that a number of references have been made to the Government’s decision to adopt an opt-out/opt-in approach to the 2014 decision. I shall take up the invitation of the noble Lord, Lord Bowness, not to pre-empt that debate. I am aware that Sub-Committees E and F of the European Union Committee are looking at this matter and I look forward to the report. I suspect that it will be in the great tradition of the European Union Committee in terms of an evidence-based analysis and wise recommendations. I shall not pre-empt that debate today.
It was interesting that the contributions to the debate endorsed the findings of the report that co-operation in this area is not the great danger to our beloved criminal justice system that might be suggested. The noble Baroness, Lady O’Loan, made the point that, in practice, it has worked extremely well and to the benefit of British citizens to have a policy of co-operation and of trying to set minimum standards. I understand the point of the noble Lord, Lord Hodgson, about national amour propre. I always find in our papers there is always scepticism that any country could have a justice system as fair as ours and that foreigners are not to be trusted with such matters. However, the more serious reality is that we have different forms of systems and that that sometimes makes it difficult to get complete cohesion. However, I take the point of the noble Lord, Lord Hodgson, that it is important that we carry public opinion and understanding with us on these matters.
A number of references have been made to the European arrest warrant. Again it is a matter of balance. The noble Baroness, Lady O’Loan, made a number of telling points about the effectiveness of the European arrest warrant and the fact that it is an important weapon in the armoury against organised crime, cross-border crime and other matters in what the noble Lord, Lord Maclennan, referred to as an increasingly mobile continent.
However, I do not think that it is fair to say that we have taken a negative view on that. We have pointed out, and a number of contributors have raised the fact, that there are issues about proportionality, dual-criminality and pre-trail detention that we wanted to discuss to try to get the arrest warrant improved. That has been our approach. The Home Secretary has responsibility for the European arrest warrant and it has been considered as part of the Scott Baker review. The Government’s response to that review is to take the opportunity of the 2014 opt-out decision to work with the European Commission and other member states to reform the European arrest warrant and to improve its operation.
The noble Lord, Lord Maclennan, warned and underlined that, in these areas, we cannot have complete harmonisation and that the case-by-case approach that the Government have taken has been right but that EU legislation adds value. My experience in the Ministry of Justice over the past two and a half years, as the report itself reflects, is that we have taken a very pragmatic and positive view in decisions in this area. The idea that somehow we were sitting out European co-operation in this area simply is not true.
The noble Lord, Lord Hodgson, asked whether we felt that existing limitations are sufficient to protect the criminal justice systems of member states. We believe that they are. There are a number of safeguards in the treaty to protect the criminal justice system of member states, including the existence of the emergency brake. The UK and Ireland have the additional safeguard of the opt-in. We agree that it is a difficult issue; that is why we scrutinise any new proposals to ensure the appropriate balance. Again, I take on board the noble Lord's argument that we must make sure that EU theory and its practice on the ground match up.
On the question of the directive on access to lawyers, it is too early to say what our final decision will be. We would want to consult Parliament were we minded to opt in and a series of further trialogue meetings is scheduled to take place in the next few months. However, we are participating in the negotiations. If the Government are satisfied that the final text represents an appropriate balance between the rights of defendants and the wider interests of justice, we will give serious consideration to applying an opt-in to it. We will consult Parliament about that before any decision is made.
The noble Lord, Lord Beecham, asked whether there was an assumption that UK citizens resident abroad could not benefit from these measures. The right should be afforded to all EU citizens resident in the relevant member state. He also asked what progress has been made on the victim directive. The directive was adopted on 4 October 2012 and is due to be implemented in 2015. The directive is aligned with the aims and objectives of our domestic criminal justice policies to ensure that the needs of the victim are put first.
Lord Beecham
Can the noble Lord enlighten me and other noble Lords as to why such a long time has elapsed between adopting the directive and implementing it? There may be a good reason for it but it would be interesting to hear what it is.
Lord McNally
No, I cannot give an explanation, but I will write to the noble Lord about that.
On the implementation of the European supervision order, we take our international obligations seriously and have implemented the vast majority of the measures, subject to the 2014 decision. Any further implementation of these measures will be considered on a case-by-case basis as part of the wider 2014 decision. In practice, the European supervision order is unlikely to help to avoid lengthy pre-trial custody in cases where an EAW has been used to secure the return of the suspect. That is for the simple reason that, the EAW having been needed to secure the return, the suspect has shown himself to be a flight risk, having already resisted voluntary return. In those circumstances, it is difficult to see the same suspect persuading the court to allow him to return home again.
The Government welcome the report. As I said, it shows the committee’s practice of employing detailed scrutiny and careful analysis. Criminal procedural rights reflect long traditions which have been developed carefully and with close consideration by both courts and Parliament, and now the devolved Assemblies. They reflect matters of considerable public policy concern, ensuring that offences can be properly and effectively investigated and prosecuted and that criminal proceedings are fair.
A number of safeguards are built into the treaty to ensure that the differing legal traditions of member states are respected. In addition, the UK opt-in applies in this area. We think that, in principle, minimum rules concerning the rights of individuals in certain areas of criminal procedure and the rights of victims of crime can help to facilitate judicial co-operation and mutual recognition—a point made by my noble friend Lord Maclennan. These measures are intended to build greater trust among the competent authorities of the EU member states which are charged with acting on decisions made in other member states by giving them greater confidence that the decisions were made against a background of minimum standards.
In order to ensure that all legislation in this area is appropriate and effective, we think that it is important that EU legislation is brought forward only in accordance with the treaties; where there is a convincing evidence-base for the need for such legislation; and where it is a proportionate response to an identified problem. This is an area in which there has been progress within the EU in recent years. The criminal procedural rights road map was agreed at the end of 2009 and subsequent legislative proposals have been brought forward by the European Commission. Furthermore, the Budapest road map, agreed in June last year, focuses on strengthening the rights and protection of victims of crime. So far, the Commission has brought forward six legislative proposals in this area and four directives have been adopted. We expect up to three further instruments to be proposed this year.
As the committee notes in its report, the UK already has a high standard of criminal procedural rights. This has been noted by the Commission, which has taken inspiration from our systems and procedures. The directive on the right to information clearly draws upon the PACE notice of rights and entitlements provided to suspects in England, Wales and Northern Ireland. The directive on the rights of victims of crime was also inspired by our practice. We have found that we can participate in most proposals in this area without having to make substantial changes to UK law and practices. The changes that we need to make to implement the victims directive are largely aligned to our domestic reform objectives—that the needs of victims are put first across the criminal justice system. We welcome the committee’s consideration of the potential added value of EU legislation in this area. The committee notes that in certain areas the EU legislation can be of real practical benefit to UK nationals travelling abroad if they become subject to the criminal justice systems of other member states, either as victims or as suspects. My noble friend Lord Maclennan and the noble Baroness, Lady O’Loan, made that point.
We also welcome the committee’s examination of the potential disadvantages of measures in this area: namely, the disruption to diverse and sensitive national criminal law systems. The Government have set out our approach to proposals for further EU legislation in the justice and home affairs area, including criminal procedural law, in the coalition agreement. The Government approach proposals on a case-by-case basis with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. This approach has been applied in respect of all criminal justice measures that have been brought forward since 2010 and we have opted in to all the criminal instruments in this area.
As I said at the very beginning, this has been an extremely useful debate on the basis of a very helpful report. Despite the rather intemperate rant of the noble Lord, Lord Beecham, at the end of his remarks, I think that the way in which we have gone about these areas has been pragmatic and analysis-based—where the Government have been more in keeping with the traditions of your Lordships’ European Union Committee than the noble Lord suggested. We have a good practical record. Where we have questioned, looked for amendments or waited before making a final decision, those actions have been based on good policy grounds, not on any kind of ideological motivation or hostility to the process. In that respect, I look forward to further work with the European Union Committee.
Charging Orders (Orders for Sale: Financial Thresholds) Regulations 2012
Lord Beecham Excerpts(11 years, 7 months ago)
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Lord Beecham
My Lords, the Minister has outlined the position in relation to charging orders and orders for sale but has omitted—with respect—a couple of highly relevant factors. The first is that we are here dealing with consumer credit arrangements and the lender has already priced in the possible risks of not recovering his money. Therefore, we are seeing something like double jeopardy, with the debtor having in any event to pay a higher rate of interest than would normally be the case—and would certainly be the case in the event of a secured loan—and also having now to face the possibility of an order for sale based on a charging order.
I have to confess that I certainly had not taken note of the regulation introduced last October which allows charging orders to be made—not the order for sale, but the initial charging order—even before the debtor has defaulted on the loan agreement. In other words, it is effectively at the option of the creditor to convert an unsecured loan into a secured loan, even before any default has been made. That is surely not a satisfactory proceeding. The coalition is to be commended for its original agreement to establish a significant threshold. Moreover the last Labour Government, who I am bound to say facilitated some of these proceedings, are to be congratulated on not in fact proceeding with their original intention of making orders rather like these and explicitly withdrawing from advancing such orders in 2009.
The accompanying Explanatory Notes and evidence base for this order disclose quite clearly that there is a significant number of cases under £25,000, but there is not much in the way of detail. Indeed, paragraph 211 of the report openly admits that the data set is very limited, meaning that any conclusion drawn from it is not robust. What is significant is that at the moment something like 10% of applications for charging orders are below £1,000. That is not a large number; in fact, it is almost so insignificant as to make one wonder why the Government are bothering at all to proceed with these regulations. The number of charging orders made for loans above £25,000 is very small indeed—some 6.7%—and there are not a large number of cases altogether. However, what is significant is that it would appear that in 2009-10 ultimately 566 orders for sale were granted, which was double the number of orders made as recently as 2005. Therefore, on the face of it, there is a growing trend to rely on these orders.
One reason advanced for not having a threshold higher than £1,000 is that it is open to a creditor to pursue bankruptcy proceedings on any debt exceeding £750. However, that of course then raises the question of whether that is a reasonable level in itself. Why have the Government not addressed the level at which bankruptcy proceedings might be instituted and aligned it properly with a reasonable level, particularly bearing in mind, as I said, that the risk has already been priced into the cost of the loans by these creditors? These are not normally small concerns; they are consumer credit agreements and it is often large firms that lend money in this way.
It seems that the Government are missing an opportunity to carry out one of their more welcome pledges in the original coalition agreement and that they will achieve virtually nothing in the way that these regulations have been put forward. Furthermore, looking at the timing, it is rather surprising that the regulations referring to charging orders were put through quite separately from these regulations. It seems to me that in principle they are linked and that it would have been better if the two had been considered alongside each other at the very least, because the former has clearly paved the way for quicker action by creditors, who see an opportunity to collect their debt via this process.
Citizens Advice has long campaigned on this issue and it produced a report called Out of Order some three years ago. It raised some interesting points not only on the matters that we are discussing today but also by asking what the Government might do about non-consumer credit agreements, for which these protections, such as they are, are not available. I am bound to admit that this is somewhat beyond the scope of these regulations but I ask the Minister to indicate—if he can today but, if not, perhaps subsequently by letter—whether the Government are looking at non-consumer credit agreements. Clearly, particularly in the present economic climate, there is a risk of many more debtors falling into greater difficulty and creditors pursuing them by these means. That might lead not only to difficulty for borrowers and their families but ultimately, in the event of orders for sale proceeding, to a greater charge on the public purse.
Of course, as the noble Lord pointed out and as the Explanatory Memorandum and other documents indicate, judicial discretion has to be considered, although it has to be said that, in the view of Citizens Advice, it is by no means clear that that discretion will be frequently exercised in the face of pressure from creditors. Citizens Advice takes the view that orders for sale should be permitted only where there is a willing default—that is, where it is not a question of somebody having a capacity to maintain the payments but where they decline to do so. Citizens Advice agrees that where a wilful default is made by people who can afford to meet the debt, a charging order and an order for sale will be an appropriate last resort. The trouble is that, as matters have developed, it is more likely to come about much earlier than as a last resort for people without the capacity to pay and, equally, without any wilful component in their behaviour, thereby exposing vulnerable people to what might well be regarded as predatory action by less than scrupulous creditors. That would be an unfortunate outcome which I am sure the Minister—because I remember some of his remarks when we discussed this in debates on the Crime and Courts Bill—would have little sympathy with but it may perhaps be an unanticipated consequence of the regulations before us.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Beecham, for that constructive response. I know from our exchanges during the Crime and Courts Bill of his long-standing interest in this area and I understand why he continues to probe on the matter. The Government remain committed to providing more protection for debtors and we are taking appropriate action to ensure that that happens. When we debated this on the Floor of the House, and again today, the noble Lord pointed out that the coalition agreement talked about a £25,000 limit and we now talk of £1,000. I suppose that the honest answer is that that was the outcome of the consultation. We now feel that the balance of what we wanted to do is better met by the guideline of £1,000 rather than £25,000, not least because we were advised that the higher limit could steer creditors more in the direction of bankruptcy solutions, with the impact that I indicated on house ownership, rather than a settlement under these regulations.
We were also very much influenced by the judiciary, which believes that a very low threshold, with a great deal of judicial discretion, provides a far more guaranteed protection for the creditor than the protection afforded by a higher level—
Lord McNally
For the debtor, yes; I am sorry.
With these things it is always a matter of judgment. The judgment that we have come to, and the level we have set it at, is the result of consultation, with the aim of striking a right and proportionate balance that will give power and flexibility to the judiciary and a degree of protection for the lower levels of debt.
The noble Lord asked about early enforcement of parts of the Tribunals, Courts and Enforcement Act 2007. Following the Solving Disputes consultation paper we implemented Section 93 of the TCE Act. It closes an existing loophole, providing a greater degree of security to creditors and encouraging debtors who are in financial trouble to make more reasonable yet affordable offers to pay.
The Government consulted on introducing this section in 2010 in their Solving Disputes in the County Courts paper. Some 74% of respondents supported its introduction, arguing that it offers protection both for creditors, for whom a charging order is often the only effective long-term solution to recovering a liability, and for the debtor. By commencing Section 93 of the Act we have given creditors a certain ability to convert unsecured loans to secured loans. I am sorry—I had better clarify that. One of the criticisms that has been made is that we have given creditors the ability to convert unsecured loans to secured loans by extending the use of charging orders in this way. We do not believe that that is true. Charging orders are used to secure an unpaid judgment debt, not a loan. Legitimate judgment creditors who have obtained a valid judgment through the courts should have the right to enforce the judgment by the most appropriate means available.
Lord Beecham
My Lords, I would be grateful if the Minister could clarify a couple of matters. He referred to the order allowing charging orders to be applied for, but is he aware that under the regulations enacted last October it would be possible to do that without the debtor having at that stage defaulted? That would seem to convert an unsecured loan into a secured one.
My second question relates to responses. Am I right in thinking that the balance of responses reflects the fact that most of those responding were creditors rather than debtors, their representatives or organisations interested on behalf of debtors?
Lord McNally
My Lords, the balance reflected the interests of the responders. The noble Lord is quite right: the creditors had one set of priorities and those speaking out of concern for debtors had others. That is the nature of consultations, as the noble Lord will be aware. I also pray in aid the strong view of the judiciary that it wants to retain as much judicial discretion as possible. In my remarks I listed the clear considerations that a judge takes and the fact that these matters come before a judge.
On the issue of whether it is pre-emptive, as it were, under the measures that we took last October, as I explained, it gives debtors who are in financial trouble the opportunity to make more reasonable and affordable offers to pay. The noble Lord appears to be saying that adjustments can be made only after disaster has struck, but that is not my reading. If I am not right in my interpretation I will write to the noble Lord. However, it seems to me that it provides an opportunity to intervene in a constructive way when people are running into difficulty.
Lord Beecham
My Lords, I am grateful to the Minister. However, as I understand it, the order does not require the debtor to be in any difficulty or to have made any default at all before the charging order can be applied for. That does not mean, of course, that the order for sale would automatically follow, but it is a precursor to that and can arise even before any default has taken place. We are unable to take this much further today, but I invite the Minister to look at the situation in due course.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(11 years, 8 months ago)
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Baroness Hamwee
My Lords, over the years I have been very much persuaded on this issue by those who have put forward the arguments that we have heard this afternoon. However, my noble friend made a point on Report which I confess I had not thought of before. That was that we should ensure that the banks and other lenders are taken along with new arrangements, because it is so important to keep the flow of credit—something that your Lordships have discussed on many occasions.
When he comes to reply, will the Minister tell your Lordships any more about discussions with the banks or other lending institutions? After all, many discussions have taken place with the lending institutions about the availability of credit. His point was important; when he spoke last week I realised that there is another side to this. I absolutely take the points that were made about the behaviour of some bailiffs, but that very cohort, or constituency, of those who are affected would be affected if credit were not available.
Lord Beecham
My Lords, I raised the issue of bailiffs at Second Reading. I followed it up with a Written Question which asked when the Government would respond to consultation. I was told, as I have reminded the House before, that it would be some time in the autumn. Autumn is now safely past us and we do not yet have a response. I spoke in Committee and subscribed to the amendment moved by the noble Baroness, Lady Meacher, on Report. I would have been very happy to subscribe to today’s amendment had it not been for the fact that there were already four signatures on it, which would have left me as a fifth wheel on the coach of the noble Baroness.
I strongly support her amendment because it is important to get some movement here. As my noble friend Lady Smith has pointed out, the Government have introduced three substantial new proposals to the Bill at a late stage. Two of them were at least subject to the recommitment procedure, and followed consultations—consultations, incidentally, which began after the consultation closed on the whole issue of bailiffs, on which the Government consulted last winter and spring. The third amendment, which deals with self-defence, was of course tabled two days before Report, with no apparent consultation with anybody at all beforehand.
I entirely subscribe to and share the views of noble Lords who believe that the Minister is absolutely genuine in his concern about this matter, but why has it taken his department so long to consult all relevant bodies? There was an extensive consultation period; seven months have now passed. What further consultations, if any, have taken place—that is a legitimate question to ask—and with what result? The Minister indicated, in answer to previous questions, that he hoped that there would be a response by the end of November. We are now past that date, and there is still nothing to be seen. As the noble Lord, Lord Kirkwood, has pointed out, time is not running out completely, but it is running out fast against a particular deadline.
Incidentally, I hope that the noble Lord, Lord Kirkwood, will consider another aspect of the coalition agreement, to which I have made previous reference during the passage of this Bill, namely the part of that agreement which indicated that the Government would introduce a threshold of £25,000, below which it would not be possible to obtain charging orders. On the first day back in January we will have in Grand Committee regulations prescribing a £1,000, instead of a £25,000, threshold. No doubt we will have an opportunity to debate that on a subsequent occasion.
In respect of this matter, the noble Baroness’s amendment is, as she put it, almost the least that could be done to get some progress quickly on this matter. If the Government do not accede to this request and if we are looking to another Bill to come forward—I do not know how many Ministry of Justice Bills we can expect to see in the next Session of Parliament—it clearly will take a long time. In the mean time, as other noble Lords have pointed out, there will be the potential for substantial suffering on the part of far too many people—not merely adults because children would be affected as well, including children in the most vulnerable and difficult of circumstances. It is simply unforgiveable that the department has let down the Minister, which is the fair way to put it, in progressing this matter. I hope that the noble Lord will feel able to accept the noble Baroness’s amendment. If not, I certainly shall advise my colleagues on these Benches to join her in the Lobby.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, perhaps it will at least allow the Whips to send out the necessary message that I can make no commitment to the noble Baroness beyond what I have said in meetings and at various stages of this Bill. I will briefly try to explain why not. I have listened to this debate and I have listened to the concern of the House. Yes, the House can send messages but, in truth, the matter is being dealt with. I note that my noble friend Lord Lucas said that the matter had been being discussed for the past 33 years and that the noble Baroness, Lady Meacher, referred to merely the past 20 years. Therefore, I am not too apologetic that the department is taking a little time to take this matter forward.
The consultation paper sets out the objectives, including providing more protection against aggressive bailiffs while spelling out the need for effective enforcement; a fair, transparent and sustainable costs regime that provides adequate remuneration; and minimising excessive regulation on business while ensuring effective protection for the vulnerable. That is the balance that we are trying to get right.
In previous stages of the Bill, I have outlined that the Government are clear that aggressive bailiff action is unacceptable. We remain committed to bringing forward reforms which will protect the public from this and ensure that enforcement action is proportionate. We have a firm commitment in the coalition agreement to effect this and we will not falter. The Government understand that bailiff action can be, by its nature, a deeply unpleasant experience for those in debt. We also understand how this can be exacerbated by unnecessarily aggressive and threatening behaviour by some bailiffs. Those who are subject to bailiff action are often the most vulnerable people in society, as has been repeated on a number of occasions in this debate. We will not stand by and allow them to be subject to needless bullying, which can have a very real and significant effect on their well-being.
However, as I have highlighted previously, the Government are looking to tackle problem bailiffs in a number of ways. These are set out in the wide package of proposals within our Transforming Bailiff Action consultation paper. This package of proposals will focus on the root causes of many complaints. Among other proposed reforms, it will improve clarity so that everyone knows where they stand by stipulating when and how a bailiff can enter a property, what they can take and, not least, what they can charge.
The noble Baroness’s amendment will not address these issues, nor will it supply debtors with an independent complaints process which will meet their needs. The Legal Services Act contemplates a service relationship between professionals, such as solicitors and their clients, which is not present between bailiffs and debtors. Under this amendment, debtors would not be able to complain to the Legal Ombudsman because the bailiff is not providing them with a service as required for complaints under the Act. It is therefore neither appropriate nor sensible to try to force the regulation of bailiffs into this framework which is not constructed to address the circumstances in question.
Lord Brown of Eaton-under-Heywood
My Lords, I, too, feel compelled to say just a word in support of this amendment. I support it for the reasons already eloquently given by my noble and learned friend Lord Phillips of Worth Matravers and other noble Lords and have no intention of repeating those. I echo, too, his tribute to the present chief executive of the court, Jenny Rowe, who has worked tirelessly in setting up the court and progressing it over the three years that it has existed. I confirm—because I remember it all too well—what my noble and learned friend Lord Woolf said about the problem that the present wording of the legislation caused with regard to the chief executive’s role at an earlier stage in the court’s life.
On the critical point at issue, I respectfully suggest just this to your Lordships: constitutionally, it is no more appropriate for the Lord Chancellor to appoint the chief executive of the Supreme Court merely after consulting with the president of that court than it would be for the president of the Supreme Court, after merely consulting with the Lord Chancellor, to appoint the Permanent Secretary of the Ministry of Justice. The separation of powers means just that—the judiciary is not the Executive.
Lord Beecham
My Lords, I speak with diffidence as, I think, the ninth lawyer to speak in this debate—albeit from the junior branch of the profession—to add my support to the amendment moved by the noble and learned Lord, Lord Phillips. For the avoidance of doubt, I should say that my noble and learned friend Lord Falconer, who is not in his place tonight, would have supported this amendment, were he here. He has made that very clear. My noble and learned friend Lord Goldsmith is right to say that the legislation under which the present situation obtains was imperfect. It is now an opportunity for the House and, I hope, the other place, to correct what was a mistake—forgivable, but nevertheless a mistake. The independence of the judiciary, particularly that of the Supreme Court, must be at the heart of our judicial system. It is timely that we are discussing this amendment tonight, because in the House of Commons today the Justice and Security Bill is being debated. The role of the judiciary in relation to certain proceedings, which we have debated at length in your Lordships’ House, is very much part of those discussions. In addition, there are proposals in the air around judicial review and, again, the role of the judiciary in a particularly important and sensitive area of law.
Perception counts for a good deal in these matters. I entirely endorse the views of all but one of the noble Lords who have spoken tonight, that it is important to reinforce the independence of the judiciary. That independence has not in substance been threatened over the past few years, but there is always a risk that at some point it might be, and that in any event it might be perceived to be an issue on the part of the public. I do not know whether the noble and learned Lord will seek to test the opinion of the House if the Minister cannot provide a clear, unequivocal response to the suggestion here. Frankly, I cannot think why it should take any time at all for there to be discussions about the issue, which seems to me perfectly straightforward. If the noble and learned Lord seeks to test the opinion of the House, again, I will invite my colleagues to support him through the Lobbies.
Lord Butler of Brockwell
My Lords, I hesitate to intervene in the debate when so many distinguished members of the judiciary have spoken. The fact that I do so is the fault of the noble Lord, Lord Lester. Many years ago, when the noble and learned Lord, Lord Browne-Wilkinson, was about to deliver the lecture to which the noble Lord, Lord Lester, referred, the noble Lord, Lord Lester, encouraged me to speak to the noble and learned Lord and argue the case for the interest of the Treasury in the administration of justice. I had a very interesting debate with the noble and learned Lord, although I made absolutely no impact on him at all.
However, I want to put in a contrary voice because the administration of the courts, including the Supreme Court, is a matter of administration. It takes place at the taxpayer’s expense. It is therefore necessary that the Government have an interest in and a responsibility for it; on these administrative matters and the use of resources it is legitimate for the Government to have a proper interest. I argue that that does not impinge on the independence of the judiciary. The independence of the judiciary, which refers to its operation as judges, and here we are talking about an administrative matter. In that case, the arrangement that exists at the moment, which was legislated for and brought into effect by the Constitutional Reform Act, is probably right. However, I realise that, in the light of the views of the members of the judiciary, this is not a popular view.
Baroness Kennedy of The Shaws
My Lords, it comes as a sort of alarm to hear the noble Lord, Lord Ramsbotham, indicate that there may be vulnerable people who, because they are unrepresented and do not have adequate support, may be agreeing out of court to cautions or to certain kinds of settlement of charges against them without proper legal advice. That should be a serious source of concern. In responding, I hope that the Minister will have something positive to say. Undoubtedly, the removal of legal aid is having that kind of outcome. I await with interest what the Minister will say. I support any protection that there can be for the vulnerable in the courts.
Lord Beecham
My Lords, I take the Government’s point about resources, but as my noble friend rightly points out, there are two sides to that equation. One is the cost to the system, which can flow from inadequate representation of defendants, adjournments and the rest of it, as well as the cost of providing it. Of course, there are defendants who get assistance in the form of interpretation. As it turns out, recent developments in interpreting services have been, to put it mildly, controversial. Contracts have been given to organisations that apparently have not performed very well, at considerable cost in terms of the fees paid to them. Equally, as might be the case in connection with people who are unable to understand proceedings and follow them unassisted, some of the interpreters who turned up to the courts were simply not up to the job. It has been something of a disaster.
This is an analogy for the Government to look at in terms of providing services for people who, for different reasons, are unable perhaps to follow a case properly, to understand it properly, or to give proper instructions to their legal advisers. I hope that the Government will look at that and look at this position in the round. The noble Baroness has already identified the discrepancy between witnesses and defendants. Here, we potentially have two classes of defendants, some of whom may not speak English adequately and for whom interpretation will be provided, and others who may not be able to follow because of learning disabilities or other aspects, and for whom nothing would be provided.
Looking at the whole situation surely is sensible. I hope that the Government will acknowledge that there is a disjunction here between what is provided for different classes of defendants, and will not simply put this on the back shelf but will look at it with a degree of urgency. Miscarriages of justice can flow at any time from failure to provide adequate assistance, whether that is legal aid or, as in this case at least, the kind of support that can be offered by those described in my noble friend’s amendment. I hope that the Government will acknowledge that there is an issue here and that, at the very least, if they are not able to respond firmly and conclusively tonight, that they will give it more urgent attention than was indicated in the letter which was recently sent out.
Lord Ahmad of Wimbledon
My Lords, I must admit that, as I listened to the debate, time stopped for a moment when I saw the annunciator freeze. I do not know whether that was due to the weight of arguments that were presented on the previous amendment. Nevertheless, my attention remains focused on this one. As noble Lords acknowledged—including the noble Lords, Lord Bradley and Lord Beecham—my noble friend Lord McNally, following the last debate, wrote to interested Peers on this amendment.
I have nothing specific to add but certainly I will seek to answer some of the questions that arose. As was said on Report in response to an amendment moved by my noble friend Lady Linklater, there is already a provision in statute for “certain vulnerable defendants” to receive assistance from an intermediary when giving evidence. I shall return to that point in a moment. That is in Section 104 of the Coroners and Justice Act 2009.
The point was made about the Government deferring implementation. It is important to understand that they decided to defer implementation until full consideration could be given to the practical arrangements and resource implications. I reassure the House that we are still looking at these practical and resource issues because they are important.
On the points raised about discrimination, not only does Section 104 provide for intermediaries to be used in support of defendants but the courts already have the power under common law to order such use when they consider it necessary.
The noble Lord, Lord Ramsbotham, referred to vulnerable defendants. As I said, common-law powers exist to appoint an intermediary to assist vulnerable defendants if and when the courts consider it necessary. Guidance, therefore—the Government have moved forward on this—on appointing intermediaries in such circumstances was issued to all courts last year. It is the duty of the courts to ensure that defendants receive a fair trial. In the case of vulnerable defendants, that entails making sure that they fully understand what is taking place and that trials are conducted to timetables that take account of their ability to concentrate.
The noble Baroness, Lady Kennedy, made a point about a fair trial for all vulnerable defendants. To give a couple of examples, the court can make an order allowing a vulnerable defendant, for example, to give evidence over a live link. Much more can also be done by the defendant’s legal representative to aid communication. A vulnerable defendant should always be represented, as one of the criteria in the interests of justice test that is used to determine whether an applicant is entitled to legal aid is that the defendant may not be able to understand the court proceedings.
Coming back to the crux of the point, it is the duty of the courts to ensure that defendants receive a fair trial. The Government are committed to ensuring that vulnerable defendants fully understand what is taking place. I have already alluded to the fact that much can be done in terms of the defendant’s legal representative to aid communication.
In view of the reassurances that I have given, the letter written by my noble friend Lord McNally and the assurance that the Government are looking at this and at the common-law provisions that exist, I hope that the noble Lord will be minded to withdraw his amendment.
Baroness Neuberger
My Lords, as noble Lords know, I chaired the Advisory Panel on Judicial Diversity a couple of years ago. I have had lengthy conversations with the Minister on this subject. I am absolutely delighted—and want to place it on record—that we have Amendment 8 and that this commitment is now on the statute book. This really is a wonderful day.
Lord Beecham
My Lords, the Opposition are delighted to join in this outbreak of consensus and congratulate the Minister on a very statesmanlike response.
Lord McNally
Given those interventions, I wish only to quote somebody who never made it to this House and say that this is not the end of the beginning. I knew that I would get that wrong, but noble Lords know what I mean—it is the end of the beginning. Of course, the person I am quoting rehearsed these things much more than I do. However, I hope that this is the start of a real drive for diversity. Those who have just contributed to the debate have played a major part in that. However, as we sometimes find in other debates in this House, there is battle still to be joined in this area.
Lord Beecham
Perhaps the Minister would care to fortify himself before these debates in the same way that Mr Churchill did.
Crime and Courts Bill [HL]
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Baroness Hamwee
My Lords, it is very rare indeed that I do not wholly agree with the noble Baroness. As for my noble friend, Lord Lester, I do not even stop to assess whether I agree with him because I know that I should. However, as the noble and learned Lord has just mentioned, we in Parliament are used to our proceedings being recorded—we barely notice the cameras now—and edited. I am constantly taken aback by the number of people who watch the Parliament channel and our proceedings at great length—they must be terrible insomniacs, but they do. It may be that they prefer to watch and listen to a large chunk of a particular matter rather than have the proceedings edited by that very respectable and useful programme, “Today in Parliament”, or the print media. I support giving that opportunity with regard to the courts.
I recently attended a sentencing. I was there accompanying somebody who was concerned with the case. Waiting for my friend afterwards, I listened to the quite considerable number of print journalists there, writing up their stories. They had been handed a copy of the judge’s sentencing remarks but barely referred to the copy. They checked one or two comments with each other instead of bothering to go back to what they had been given, and I could hear how they were editing the remarks to make a sensational story.
I am very happy to rely on the Lord Chief Justice and the judges in particular cases where, as I understand it, the ability to make particular restrictions will still continue. Of course, editing—being a camera—is subjective. I have agonised about this quite a lot and I spoke rather in the other direction at the previous stage, but I have come down to believing that this quite cautious move is the right one. Judges are less tempted than politicians to make off-the-cuff remarks about major moves forward. I am therefore very happy that the Lord Chief Justice is so much involved.
Lord Beecham
My Lords, I understand the points made by my noble friend and by the noble Lord, Lord Lester. This is an innovation in English court procedures and we should approach it with a degree of caution. The case for opening up the judicial system to more public information and understanding is well made, and to that extent I concur with the remarks of the noble Lord, Lord Pannick. I was less happy with the second part of his speech, which addressed the amendments in my name. I endorse what the noble Baroness, Lady Hamwee, has just said about discretion on the part of the trial judge to decide whether or not to permit broadcasting. That ought to be a significant safeguard, but it is not quite good enough to rely just on the Lord Chief Justice. I say “just”; although one has every confidence in the holders of that office, this is, as I say, a new departure and there is a wider interest to be considered. The amendments in my name and that of my noble friend Lord Rosser try to establish the principles both in relation to any decision to extend court broadcasting and regarding the matters to be considered when a court gives a direction, precisely to meet some of the objections and difficulties envisaged by my noble friend Lady Kennedy and the noble Lord, Lord Lester.
Amendment 120B requires any statutory instrument to be subject to the affirmative resolution procedure. I am in slight difficulty here because, when these matters were raised in Committee, the noble Baroness, Lady Northover, said that the government amendments would make the provisions under what was then Clause 22 and is now Clause 23 subject to the affirmative procedure, as recommended by the Delegated Powers and Regulatory Reform Committee. She also referred to what was then Clause 29, which again required amendments to primary legislation to be subject to the affirmative procedure. I may have missed them but I cannot actually see those references in the Bill. They may be disguised under some form of words that does not immediately disclose their presence, but I would be grateful if the noble Lord, Lord Ahmad, could confirm that the affirmative procedure would apply so that it would not simply be a matter of a decision by the Lord Chief Justice but, if there were to be significant changes, particularly to extend the range of matters that could be broadcast, then the affirmative procedure would apply. If that were the case, we would certainly be content to support the Bill in its present form. Perhaps, with the assistance of the Box, he may be able to help me and, more importantly, your Lordships, to come to a conclusion about whether the Government’s intentions are currently reflected in the Bill.
Lord Ahmad of Wimbledon
My Lords, it is always interesting to examine such issues. I have listened to the speeches and the arguments, although I was not in your Lordships’ House when the arguments were put forward for the televising of Parliament. I listened, as I always do, to the noble Baroness, Lady Kennedy, who spoke about words being put into people’s mouths and perhaps being interpreted differently. I suppose that every now and again parliamentarians, and politicians in particular, suffer that consequence, which is well understood.
This has been a wide-ranging debate. As we have seen, again there is strong opinion on both sides of the argument. As the noble Baroness, Lady Kennedy, said, her amendment would limit court proceedings to appellate proceedings and, in effect, would require the Government to return to Parliament before broadening court broadcasting to other types of court proceedings, such as those in the Crown Court. I am also aware, as my noble friend Lord Lester of Herne Hill pointed out, that this amendment was specifically recommended by the Joint Committee on Human Rights in its report of the Bill. I would, of course, like to thank the Joint Committee for its report. I am also glad to read that the committee agrees with the Government’s objective of making justice as apparent and as publicly accessible as possible.
We have heard about 18th century judges, although I am minded not to travel back in history to that extent. However, in 1924, the Lord Chief Justice, Viscount Hewart, said:
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
I believe that sentiment underlies the Government’s view.
The noble Baroness, Lady Kennedy, talked about caution. The Government recognise that as regards court broadcasting. It is our view that any order made under Clause 23 will require, as has been mentioned by various noble Lords, the agreement of the Lord Chief Justice. But that is just one lock. It will also require the approval of the Lord Chancellor and will be subject to scrutiny by both Houses of Parliament under the affirmative procedure. Therefore, court broadcasting will be introduced in a safe and proportionate manner. That is akin to putting not one or two locks on the door but to putting three locks. It will take three people to open that door.
However, we can go one step further. We believe that this triple lock, combined with existing reporting restrictions and the additional provision to allow judges to stop the filming and broadcasting of court proceedings to ensure the fairness of proceedings and to prevent any undue prejudice, will ensure that the interests of victims and witnesses, who are most important, as well as jurors, defendants and other parties, are fully protected. I hope that this will address the concerns of not only the noble Baroness but also the noble Lord, Lord Beecham, in relation to the court’s requirement to consider when to allow or to prevent broadcasting.
When the noble Baroness, Lady Kennedy, mentioned that moving cameras changed people’s actions, they certainly changed my action. As she mentioned it, I looked towards the camera and the camera moved. There is some credence and fact behind that statement.
The Government announced plans in September of last year to allow the broadcasting of judgments and advocates’ arguments in cases before the Court of Appeal and, over a longer period, to allow broadcasting from the Crown Court but to limit this to the judge’s sentencing remarks after conclusion of the trial. We believe that this will help to increase the public’s understanding of sentencing, with low risk to the proper administration of justice. Let me assure your Lordships’ House that we have no plans to extend court broadcasting beyond these two sets of circumstances. We believe that, once Parliament has approved the principle of broadcasting selected court proceedings, the details safely can be set out in secondary legislation. I would remind the House that the Delegated Powers and Regulatory Reform Committee did not take issue with this approach as long as the secondary legislation was subject to the affirmative procedure, which it now is. This means that the Lord Chancellor may make an order only under this clause which has been approved by both Houses. That being the case—I refer in particular to the comments made by the noble Lord, Lord Beecham —Amendment 120B is not needed as that ground is covered already by Clause 30(4)(f). As with all primary legislation, these provisions will be subject to post-legislative review three to five years after Royal Assent.
Lord Carswell
My Lords, I support this amendment. I spoke briefly in Committee and I intend to be brief again today, particularly in view of the way in which the House has so far received the amendment and what the Minister has said.
Since that debate in Committee, the Law Commission has published this admirable consultation paper, which contains a full and helpful discussion of the issues, the principles and the possible solutions. My view, which was very direct and brief in Committee, remains unchanged. The special sanction for judges remains unnecessary. My reasons remain the same. Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies.
I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now.
After I read the Law Commission consultation paper, I considered quite seriously whether there was room for the possibility of a new and more specific offence, penalising possibly deliberate and malicious targeting of a judge by making untrue and scandalous allegations into something of a campaign. I am persuaded, however, that it is better not to introduce any such offence into the law but simply to leave it at abolishing the offence of scandalising.
My reasons are three. First, special protection of judges immediately invites criticism from those who are all too ready to give vent to it. Secondly, if a judge had to give evidence in such proceedings, it would create a further and better opportunity for intrusive cross-examination and create a field day for publicity for critics of the judiciary. Thirdly, as I have said before, judges have to put up with these things; they have to be robust, firm and, on occasions, hard-skinned enough.
The Law Commission, in my view, was right in its provisional conclusions and I hope that when the report has been considered, the responses will confirm that. I would certainly support the amendment that the offence should simply be abolished.
Finally, as noble Lords have said, this of course does not apply in Northern Ireland. The authorities there will form their own view and take their own course. I cannot and do not in any way speak for them, nor have they consulted me about such provisions. I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation.
Lord Beecham
My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.
Lord McNally
My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.
Lord Beecham
My Lords, I hope the Minister can give a positive reply to the noble Baroness. She has made a powerful case in connection with a particularly vulnerable group for whom existing services are perhaps not adequate. I do not know whether the Minister will be inclined to accept the amendment at this stage or whether he will at least be prepared to take it back for consideration before—or rather at—Third Reading. I think that that would satisfy the noble Baroness and most Members of Your Lordships’ House and I hope he feels able to take that course.
Lord Woolf
I also urge the Minister to do what has just been urged by the noble Lord, Lord Beecham. It is the judge’s most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates. Therefore, for the same reason, I ask the Minister to give careful consideration to this.
Lord Beecham
No, I want to speak now if that is all right. Thank you. Burglary is a serious crime and a particularly distressing one. The forced invasion of one’s home adds a further dimension to the effect on its occupiers. I suspect several Members of the House will have shared my experience, at least in part. My home—which, incidentally, was built by the father of the noble and learned Lord, Lord Woolf, to whom I apologise for anticipating in this debate, for reasons that I shall give later—has been burgled and my office has also been burgled once. Fortunately, little damage was done; even more fortunately, no one was present at the time. Where the householder or other occupant is present, the impact of the crime transcends distress and, too often, becomes traumatic.
I say at once that we welcome the extension of the present law to non-residential premises, such as those of shopkeepers, to which the Minister has referred. However, in relation to domestic premises, while absolutely affirming the right of residents to defend themselves and their property, we have doubts about the Government’s proposals. The amendments have been spatchcocked into the Bill at virtually the last minute, almost, it would seem, as an initiation rite performed by the new Lord Chancellor. Unlike the proposals on community sentencing, we have not had the opportunity of a general debate under the recommittal procedure. I propose therefore to treat the debate on these amendments as, in effect, a Second Reading debate, which is why I sought to speak now rather than later.
Burglary is an offence against the person as well as against property, because a break-in destroys the victim’s peace of mind by violating the safe haven of their home. The householder is not in a position to exercise calm, cool judgment. The householder is entitled to use reasonable force to get rid of the burglar; and, in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later:
“You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear”.
These are not my words—although I concur with them—but the words of the Lord Chief Justice, the noble and learned Lord, Lord Judge, commenting on the recent case of two men jailed after raiding a remote cottage, when they were blasted with a shotgun. What is significant is that his words reflect the present state of the law. Although the victims in that case were questioned by police, their Member of Parliament, Alan Duncan MP—not, I think, generally known as a bleeding-heart liberal—said:
“The police did a very good job and investigated as thoroughly as they had to when a firearm is involved”.
The first question is what the government proposal adds to the present state of the law, as enshrined by the Labour Government’s Criminal Justice and Immigration Act 2008 and the present Government’s clarification, embodied in Section 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, passed only a few months ago. In my submission, it adds only confusion. It purports to allow the use of disproportionate force but not grossly disproportionate force. Can the Minister define, or even better exemplify, the difference between the two, especially bearing in mind the words of the Lord Chief Justice? What difference, if any, in his view would the amendment’s wording have had, for example, on the case of Tony Martin, who shot dead a burglar? What does the Minister make of the statement by Michael Wolkind QC, who represented Tony Martin? He said:
“The law already recognises that people react in a certain way in the heat of the moment”,
and argued that the law does not need changing.
The second element that the proposal might add to the Bill is, paradoxically and obviously unintentionally, a heightened risk to home owners. A study in Texas has demonstrated that the notorious “stand your ground” law, promoted by the US gun lobby and enacted in several US states, has led to more injuries and deaths being inflicted on householders and others by criminals, rather than fewer. Anyone who watched the recent TV programme on “stand your ground” would surely hesitate before opening the door to similar unintended consequences here, even allowing for the radically different gun culture that is such a blemish on American society.
There are other questions to be asked. Have the Government consulted the judiciary or the police on the proposed changes? If so, what responses have they received? If they have not consulted them, why not? Have they conducted an impact analysis? Your Lordships might think that a particularly fitting term in this instance for an assessment of the consequences of legislation. What is the evidence that the present state of the law, as defined by the noble and learned Lord, Lord Judge, is inadequate? The Minister has circulated what purports to be a fact sheet. Your Lordships might think that that document contains precious few facts and no evidence on which to base the Government’s proposals.
My right honourable friend Sadiq Khan sought information by means of Parliamentary Question on the number of home owners arrested or charged after defending their property against burglars since 1994. The answer was:
“The information on arrests is not collected centrally … It is not possible to match the arrests data to any subsequent outcomes”.—[Official Report, Commons, 22/10/12; col. 641W.]
The Guardian recently reported, after a review by the CPS, that there were all of seven cases—I repeat, seven cases—between 1990 and 2005 in which a householder was prosecuted. In other words, there is simply no evidence to suggest that the problem the Government purport to be addressing is significant in terms of numbers, whereas it is clear that neither the police nor the courts are going to fall over themselves to prosecute householders who react in the way described by the Lord Chief Justice.
Is the Minister suggesting that where serious injury or death is inflicted on a burglar—or even someone such as the man featured in a recent BBC radio programme who was thought to be a burglar but was apparently just a confused man trying unsuccessfully to enter what he thought was his own home—the police should not investigate the situation in a proper manner, not least in the interests of those whom they interview? I wait to see not only what answers to these and other questions emerge from this debate but what transpires when this Bill goes to the House of Commons.
I have no doubt that the Lord Chancellor will seek to portray himself as the champion of the victims. It is a pretty hollow claim on the part of a Government who are both alienating and cutting the police force; undermining community policing; presiding over the reduction of community support officers, who provide invaluable back-up to front-line policing; and savagely slashing or altogether removing compensation for the victims of crime by their changes to the criminal injuries compensation scheme. Those changes, I might add, were forced through the House of Commons by the process of mugging several Conservative members of the relevant committee, including John Redwood MP, a senior former Minister, and substituting placemen in the form of Parliamentary Private Secretaries—not much consideration for victims of crime in that context.
I repeat that we are at one with the intention to protect the householder and punish the burglar. We remain to be convinced that the Government’s proposals are sound in law and safe, from the perspective of the very people they are supposed to protect.
Lord Pannick
Before the noble Lord sits down, in the light of his very powerful speech, is he going to invite his Benches to enter the Lobbies to oppose this amendment?
Lord Beecham
My Lords, I am treating this as a Second Reading debate, which we could and should have had some time ago, to allow the Government the opportunity to make their case—which, it seems to me, the Minister has failed to do today—either here or in the other place, but we will not be voting on these proposals today.
Lord Woolf
My Lords, I should disclose that I presided over the case of Tony Martin on appeal. I oppose this amendment because I regard it as a very bad example of where statutory interference with the common law is wholly unnecessary. Unfortunately, like the noble Lord, Lord Beecham, my home has been burgled so I am not totally objective on these matters and know the concern that they can cause.
The position here is that nearly every word the Minister used in moving this amendment is the sort of remark that judges up and down the country would make to a jury when dealing with those very few cases in which a householder is prosecuted. I could hear myself making precisely those remarks in those days of longer and longer ago: such as saying that the person whose house was broken into, or who was attacked by a burglar, cannot be expected to draw a fine line between what is permissible and what is not. He has to be judged in the circumstances in which the alleged offence was committed. The great advantage of that situation was that the jury of men and women with their own experiences could set the standard and decide what was reasonable or what was not. Certainly, based on my experience, they always exercised that task in a way that was sympathetic to the defendant whose home was interfered with.
The problem and disadvantage caused by introducing an amendment of this sort is that you will always try to put into language the appropriate circumstances where you think a particular result is desired. However, there will be circumstances that are very similar to those circumstances, but where the language used does not apply. You cannot anticipate all the circumstances. One inevitable difficulty with this sort of amendment is that there will be amendment after amendment to the law, making it more and more complex and difficult to apply. Yet, as the quotation from the present Lord Chief Justice makes clear, a statement of the sort he indicates will achieve justice in the particular case.
I can understand why it is thought to be a good thing to do everything possible to defend victims of a particularly nasty crime from unintended consequences. However it is not desirable when the law itself is satisfactory and changing the long-standing law that upholds the spirit of the common law is sought by reducing it to the kind of language we have here.
Lord Avebury
My Lords, the new clause proposed by the first amendment in this group would remove the restriction whereby an appeal against the refusal of asylum can be brought only where the person has been granted leave to enter or remain for more than 12 months. Noble Lords will be aware that unaccompanied children who are refused asylum are granted humanitarian protection or discretionary leave for periods of three years or until they reach the age of 17, whichever is the shorter, on the basis that they cannot be sent back to their country of origin. Bearing in mind that the UKBA takes months and sometimes years to decide whether to grant humanitarian protection in lieu of asylum, the child might arrive at the age of 15 or even earlier, might be refused asylum at the age of 16 and might still have to apply for discretionary leave to remain for a period that would make the total more than 12 months before appealing against the refusal.
I take it that there are very few refusals of the extension of discretionary leave, as almost all unaccompanied asylum-seeking children will have had no contact with family in their country of origin and therefore will still be ineligible for return when they reach the age of 17. The effect of the provision in the 2002 Act is to delay the permanent settlement of these children in the UK, making it harder for them to access the whole range of public services, including further and higher education, so that their economic and social potential is less than it would be if and ultimately when they become permanent residents of this country.
My noble kinsman said on 4 July 2012, in col. 710, that it was an “unfortunate consequence” of the otherwise very sensible 12-month restriction. He gave an assurance that the policy as it affects children would be reviewed. I was looking forward to hearing the outcome of that review at this stage of the Bill. It seemed to me that the Bill could only confirm the unfortunate consequences, as my noble kinsman called them, and that the Government would explain how they would eliminate them. Instead, my noble friend Lord Taylor told me in a letter of 20 November:
“We have considered this matter very carefully and have concluded that no change in current practice is appropriate”.
He stated, quite inaccurately, as I see it, that the,
“amendment would undermine the intention of the existing appeals framework, namely, to prevent multiple appeals that result in significant cost to the taxpayer”.
Those who are recognised as refugees will not need any second appeal, but the children and trafficked persons in question will get no appeal at all until they face removal—something that, had their case been decided correctly at the outset, they would never have faced. My noble friend says that the young persons affected by Clause 83(1),
“are on the cusp of adulthood, and … the detrimental impact of any delay in an appeal right arising is less severe than it would be for children of a younger age”.
I think the opposite is true, because younger children tend to accept the situations they face as a result of adult decisions, but as they approach maturity they can recognise deliberate unfairness inflicted on them by authority. I would like to know whether my noble friend sought the advice of experts such as the Children’s Society before he expressed that opinion or whether it was ex cathedra.
Does his review cover trafficked persons, who are granted leave for one year following a determination through the national referral mechanism set up by the Government to identify and support victims of trafficking in the UK? That process was established in pursuance of the Government’s obligation to identify victims under the Council of Europe Convention on Action against Human Trafficking. Article 14 of the convention provides that a victim of trafficking shall be granted a residence permit, which will be without prejudice to the right to seek and enjoy asylum. That seems to imply that the 12-month residence permit granted to trafficked persons would not debar them from submitting an asylum claim. I look forward to hearing from the Minister how this can be squared with Section 83(1).
I turn to the second of the new clauses. The purpose is to remove the statutory presumption that a country other than a person’s country of nationality is a safe country to which a person seeking asylum can be removed simply because the Secretary of State asserts that it is a safe country. A safe country is one where the person will not be persecuted and from which he or she will not be refouled in contravention of the refugee convention or the European Convention on Human Rights.
Section 94 of the Nationality, Immigration and Asylum Act 2002 establishes a scheme whereby persons seeking asylum may be precluded from a right of appeal against the refusal of asylum unless and until they have left the UK, including where this may mean returning to their home country or to a third country that the Secretary of State asserts to be safe. Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 limits what the asylum seeker can argue on a judicial review about the safety of the third country.
Section 94(8) creates a statutory presumption that, when the Secretary of State asserts that a country other than the person’s home country is safe, it is presumed that in that country the asylum seeker will not face persecution for a refugee convention reason and will not face being returned to a country in which he or she does face persecution for a refugee convention reason. The statutory presumption seeks to oust the jurisdiction of a court to consider the correctness of the Secretary of State’s opinion as to the safety of such a country.
The provisions of Schedule 3, which the new clause proposes to delete, require a court dealing with a judicial review relating to a removal to make presumptions of safety. For example, paragraph 3(2) states:
“A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place … where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion”.
In the case of NS, the claimant asylum-seeker had sought judicial review of his third country return to Greece. Whereas the Administrative Court in England and Wales had been concerned as to the conditions in Greece, it considered itself bound by previous authority to uphold the UK Border Agency decision to return NS to Greece. The Court of Appeal referred the matter to the Court of Justice of the European Union. That Court concluded, in the context of European Union arrangements for safe third country returns within the European Union, under what are often referred to as the Dublin Regulations, that,
“to require a conclusive presumption of compliance with fundamental rights … could be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘safe countries’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary”.
The presumptions in Section 94(8) and the paragraphs of Schedule 3 seek to be such provisions, and accordingly ought to be removed.
Greece is not the only safe country where these presumptions may be unfounded. Section 94 allows the Secretary of State to list not only countries that are safe, but countries that are safe for a given description of persons. Thus a number of African countries are designated as safe for men, so that women threatened with return to those countries still have an in-country right of appeal. However, lesbian, gay, bisexual and transsexual people, who suffer relentless cultural, social and even legal pressures and persecution in more or less the same list plus Jamaica, have no such right.
In the case of HJ (Iran) and HT (Cameroon), which was dealt with in the Supreme Court in 2010, the noble and learned Lord, Lord Hope, spoke about the,
“rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”.
It was lucky for HT that he did not come from one of the countries designated as safe such as Malawi where, as the noble and learned Lord, Lord Hope, pointed out, two gay men who celebrated their engagement had recently been sentenced to 14 years in prison. If those men had sought asylum in the UK, their claim would have been treated as unfounded and they would have had no right of appeal. Curiously enough, two lesbians in the same circumstances would have had a right of appeal, since Malawi is treated as a safe country for men only in Section 94.
If the Government are not prepared to accept this amendment, the least they could do is to make the list in Section 94(4) correspond with the reality of persecution on account of sexual orientation as well as gender, which can be done by order. My noble kinsman replying to a similar amendment at Committee, claimed that an appeal after removal was a satisfactory remedy for those removed to a “safe country”. Could the Minister tell your Lordships how many people who were removed after claiming asylum from a supposedly safe country on the basis of their sexual orientation managed to appeal from abroad, and in how many of those cases they were successful? I know that the Government are very well aware of the widespread persecution of LGBT people, so I assume that they will have kept records of these cases, although I do not expect the Minister to be able to produce them on the spot.
I turn to the third new clause. The purpose is to ensure that an appeal is not treated as abandoned when leave to remain is granted to the appellant. The situation at the moment is that under the provisions sought to be left out of Section 104 of the 2002 Act, this happens automatically, and the result is that the tribunal is prevented from reaching judgments on points of principle that are dealt with in the case. It can happen that a series of cases, all turning on the same principle, are aborted by the Secretary of State in this way, contrary to the interests of justice.
In the case of Osman Omar, the judgment handed down on 29 November 2012 by Mr Justice Beatson addressed this issue. He resisted attempts by the Secretary of State to argue that the claim was redundant in that she had already granted the claimant further leave to remain. He ruled, in effect, that the Secretary of State cannot keep knocking cases out by settling them on the facts and refusing to litigate on the point of principle. As Mr Justice Beatson said:
“The substantive issue raised by the claimant is an issue which arises regularly. It arose in Francis. It will arise in the case of Ahmed ... which, as I have stated, is listed for hearing at the end of January 2013”.
Therefore, the challenge in these particular cases is to the vires of the regulations, which provide for a fee to be payable for an extension of discretionary leave, but with no discretion for the Secretary of State to waive it in the case of an applicant who seeks leave on human rights grounds but cannot afford the fee because he is either destitute or in receipt only of NASS support. I hope the Minister will agree that it is important for this question to be determined, and that in cases of this kind, it is common sense to leave the matter to the tribunal. I beg to move.
Lord Beecham
My Lords, I have a good deal of sympathy with the noble Lord’s first amendment, but am not perhaps quite as persuaded by the subsequent amendments. However, in any event I pay tribute to the noble Lord, Lord Avebury, for his consistent concern with the problems of a particularly vulnerable group in our society and his very powerful advocacy on their behalf. He has obviously seized the opportunity to bring that concern into this Bill. I object less to that spatchcocking than I did to the previous amendment moved by the Minister in relation to burglary, but perhaps it is not the best forum in which to take these matters forward. I hope that the Minister can go a little further than he appears to have done in correspondence with the noble Lord and at least indicate that this whole area should be reviewed. It is some time since we have had a proper debate around the particularly delicate issues to which the noble Lord referred. While it is probably the case that this is not a matter to be voted on today, it should not be neglected indefinitely and ought to be considered.
Perhaps the Minister could indicate that discussions, not in respect of Third Reading but more generally, could take place around these and allied issues in connection with asylum and immigration matters where they impinge on the presence or otherwise in our country of people who have fled persecution and danger elsewhere, in a context that is outside the legislative framework for the time being. That might be a way forward in which a broad consensus could be reached across the House rather than dealing with it in terms of the amendments that are before us today. Again, I pay tribute to the noble Lord for raising these matters. I hope that can be seen as a first step and not the last step in a process of looking at the issue.
Baroness Hamwee
My Lords, I support my noble friend and add one further thought. In terms of public awareness, I have heard it said that these issues are now at about the same stage that domestic violence was about 20 years ago. I think that there would be a good deal more public understanding and sympathy for the sorts of changes that my noble friend has advocated even than there might have been four or five years ago. I think that the public mood is moving somewhat on this. It would be nice for the Government to be ahead of the public mood.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(11 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
“Requirement for review
(1) The provisions under section 25 and Schedule 17 shall cease to have effect at the end of a five year period beginning with the day the provisions come into force.
(2) Before the end of the five year period, the Secretary of State must—
(a) provide for a review of these provisions, in consultation with the Director of Public Prosecutions and the Director of the Serious Fraud Office,(b) set out the conclusions of the review, and(c) lay the Report before both Houses of Parliament.”
Lord Beecham
My Lords, knowing the Government’s inveterate enthusiasm for sunset clauses, I am not sufficiently naive to believe that the part of the amendment that deals with the sunset clause will command their agreement. However, the amendment is tabled partly to reflect a potentially dangerous underestimate of how the public might regard this major change in proceedings that we have collectively endorsed, albeit with varying degrees of enthusiasm. The objective of the amendment is to reinforce the need for a review of the operation of the provision which, in fairness, the Minister has previously indicated would take place as part of the normal post-legislative review process. It is particularly important in this case that we carry public support for this change because there is still a danger that there may be a suspicion on the part of the public that large companies are able to—I use the phrase I used in the recommitment debate—buy their way out of a prosecution. That is not the intention and we subscribe to the view that this is a sensible way of dealing with some matters, particularly in the light of the failure of the existing system and organisations to manage successful prosecutions.
The important part of the amendment is that which looks to the review as being a joint exercise with the Director of Public Prosecutions and the director of the SFO, and to the laying of a report before Parliament. There will certainly be a review and I see no difficulty in a report being laid before and discussed by Parliament although, as with other amendments which I shall be moving later, I resile from the position that affirmative resolutions and the like would be required to approve them. It is important that there is an opportunity for proper parliamentary debate to help carry public opinion with us as we move in the novel direction of deferred prosecution agreements. That will apply to other amendments as well as this one. Last week the Minister kindly organised a meeting at which four of us who are in the Chamber tonight, apart from the Ministers, were present and I rather thought he was sensitive to that view. Therefore, I hope he can give the assurance that any discussion of a review would be in consultation with the directors of the two relevant departments.
My noble and learned friend Lord Goldsmith will speak to his amendment. I shall await what he says with interest and comment on it if necessary at the end. I reserve my position on that but I hope the Minister will look with some degree of acceptance on the point about having a proper consultation as part of the review and in discussion in Parliament. I beg to move.
Lord Ahmad of Wimbledon
My Lords, the amendments in this group relate to issues raised and debated in Committee. I assure the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Goldsmith, that they have been considered in the intervening time. However, as the noble and learned Lord expected, the Government’s position on both issues is unchanged for the reasons that I will reiterate.
Amendment 116ZA seeks to introduce a sunset clause—I am always conscious that the noble Lord, Lord Beecham, often talks of sunset clauses after the sun has set; I am sure there is no direct relevance—for the DPA scheme. The Government still consider that to be unnecessary at present. Let me be clear: our approach to these proposals allows us to test the water, as my noble friend Lord Marks, said, by dipping a toe in to this novel approach. Our proposals have been designed to deal with the particular issue of bringing organisations to justice for economic crime.
However, let me reassure the noble and learned Lord, Lord Goldsmith, that the introduction of the DPA scheme is not a pilot. The Government are committed to DPAs becoming a permanent fixture in the fight against corporate economic and financial crime. For this reason, we do not consider the proposed sunset clause to be appropriate. Additionally, this provision could have a number of prejudicial consequences for any DPA under negotiation, in force or expired. The inclusion of such a clause would introduce uncertainty that might deter prosecutors and organisations entering into a DPA.
Let me assure the noble Lord, Lord Beecham, that the Government will review the operation of the scheme following its introduction, and I am content to reiterate that undertaking here. Pursuant to the Government’s policy on post-legislative scrutiny, of which noble Lords are aware, all new primary legislation is reviewed within five years of Royal Assent. We consider that there is no need to provide a statutory basis for the review of the DPA legislation and consider, on this occasion, that the undertaking we have given on post-legislative scrutiny conducted in the usual way is sufficient.
Amendment 116E, which was tabled by the noble and learned Lord, Lord Goldsmith, broadens the scope of the Secretary of State’s power to specify by order further offences in relation to which DPAs may be entered. As has been stated already, the amendment would extend its scope to the addition of any offence whatever that could be committed by an organisation. We discussed this issue in Committee and have considered with great care the potential to extend the scope of the DPA scheme to cover a broader range of offences. The Government remain of the view that the scope of the scheme should be limited to financial and economic wrongdoing and that it should not be extended beyond this by way of secondary legislation for the following reasons.
First, 77% of the respondents to our consultation agreed that corporate economic crime is the right focus for these proposals, at least initially. Fewer than half of respondents supported the broader availability of DPAs. As we made clear in Committee, the proposals set out in Schedule 17 have been designed as a response to the particular problems of prosecuting organisations alleged to have been involved in financial or economic wrongdoing. Too few organisations are being held to account for economic wrongdoing owing to the particular challenges in investigating and prosecuting the conduct. These challenges are not as acute for other types of corporate offending, including—and I know other noble Lords have mentioned this—environmental offending, where successful prosecutions have been made and where there is already a range of effective alternatives to prosecution. Those responsible for prosecuting offences other than economic and financial crimes have not identified a broader need for DPAs.
The introduction of DPAs, as I have already said, is very much a toe-dipping exercise. We need to ensure that the benefits of DPAs are proven, that there are no unintended consequences and that the right cases are still being prosecuted before considering broadening the scope. The Government are therefore opposed at this stage to removing the restriction on the offences that might be brought within the scope of these proposals. We remain firmly of the view that the current draft of the schedule draws the scope of the DPA scheme appropriately.
However, I would like to reassure the noble and learned Lord, Lord Goldsmith, that the Government will keep this matter under review. If DPAs prove effective in tackling corporate economic crime, and the case is made for extending their availability for other types of offending, then we will reconsider this issue in the future. However, we consider that such a significant change in the scope of the scheme should be made only following appropriate consultation, and by way of primary legislation, with the more rigorous scrutiny that that entails, compared with the affirmative resolution procedure.
I therefore ask noble Lords to wait until these proposals have been fully tested in relation to economic crime in England and Wales, have been shown to be effective and, most importantly, have gained public confidence, before pressing for an extension in their scope. This is an important step forward. It is a new area and therefore it is right that we focus for the time being on economic crime. In light of these points and with the assurance that we will keep the scope of the DPA scheme under review I would be grateful if the noble Lord, Lord Beecham, would agree to withdraw his amendment and the noble and learned Lord, Lord Goldsmith, would agree not to move his amendment.
Lord Beecham
My Lords, I am slightly disappointed by that response. It is not clear to me what form the review will take. Leaving aside the sunset clause—which I virtually left aside in moving the amendment—the amendment really talked about the consultation between the Government and the Director of Public Prosecution and the Director of the SFO and producing a joint report, as it were, for Parliament to discuss. It is not clear to me that that follows from what the Minister has described as the usual post-legislative scrutiny. I would be glad to be corrected if it is intended to bring effectively a joint report to be debated as part of that process.
In relation to the reluctance to envisage bringing forward other areas of law—environmental law was debated at some length at an earlier stage but not necessarily just that area—if we have a five-year review it will be at least six years before primary legislation is likely to be enacted, given that it would have to take its place in the queue, as it were, at that time. That strikes me as rather too long a period to wait, given the general acceptance that this offers a way forward, particularly in the field of something like the environment where you are not just looking at a financial penalty but at different ways, which we will touch on later in the amendments of my noble and learned friend, of corporations recognising their responsibilities in practical rather than purely monetary terms.
I have, as I have previously expressed, some reservations about extending the doctrine to individuals, although I take my noble and learned friend’s point about drugs, which is made on a day on which the Government seem to have been much too quick to reject a call from the Home Affairs Select Committee for a Royal Commission to look into what is not a noticeably successful policy on drugs and their impact on society and the courts. However, clearly, the Government are not minded to move things in the direction that either I or my noble and learned friend would wish tonight. In the circumstances, I beg leave to withdraw the amendment.
The Lord Speaker (Baroness D'Souza)
My Lords, I should warn your Lordships that if this amendment is agreed to, I cannot call Amendment 116B by reason of pre-emption.
Lord Beecham
My Lords, I respectfully adopt and support most of my noble and learned friend’s comments and indeed most of his amendments. If I had a preference between Amendments 116A and 116B, I think it would be Amendment 116B, but it would be interesting to hear which way, if either, the Minister inclines on that particular aspect.
It seems very sensible that other possible consequences of a failure to comply should be incorporated, so I endorse Amendments 116C and 116D. As to the amendment in my name and that of my noble friend Lord Rosser, we return again to the principle of having these novel matters debated openly before the new process is set in motion. In this particular case, it is a matter of having the financial penalties and parameters that would be proposed by the Sentencing Council subjected to scrutiny and debate but not, as I suggested in Committee, to an affirmative procedure. In retrospect, I think that was going too far and perhaps trespassing on the role of the Sentencing Council in an unacceptable way, although I note that there seem to be some judicial misgivings about the operation of the council. Be that as it may, it does not relate specifically to this point.
Again, bearing in mind the need to carry public opinion with us on this new process, it would be helpful to have that debate before the Sentencing Council’s proposals became adopted. The novelty of the process is such that not only would that be justified but it would actually assist in securing public acceptance. I can anticipate the next amendment, which is very much on the same line; again, having it debated should inform both public opinion and possibly the final decision-makers in a way that can only contribute to the success of the experiment, if that is what it is. I suspect that it will be a successful experiment on which we are embarking.
On the question of incentives, my noble and learned friend is right. It is quite clear from the American example—I repeat for the second or third time that very much larger sums are secured under the American system—that an incentive has to be provided. Whether that is a maximum of one-third or not is another matter. I am not entirely surprised that most respondents disagreed with a maximum of one-third; no doubt they would prefer it to be larger, which underlines my point, but there needs to be some open debate about this before a final decision is made.
In these circumstances I hope that the Government will, even at this late stage, acknowledge that there is substance in my noble and learned friend’s amendments, and I hope that they will also agree that my proposal would actually assist in gaining acceptance for this new process, both by the public at large and by those who will potentially be the subject of its operation. In that spirit, I beg leave to move the amendment in my name.
Lord Marks of Henley-on-Thames
My Lords, I will be brief. In relation to Amendments 116A and 116B, after two debates in Committee and our meeting, I am still entirely unclear why the Bill as drafted contains only the all-or-nothing choice in relation to financial penalties. As the noble and learned Lord, Lord Goldsmith, pointed out, the arrangements proposed are that the financial penalty should be optional only, but if there is a financial penalty then it must be broadly comparable to the fine that would be imposed on a guilty plea. I suggest that that is illogical because there is no room for such a reduced financial penalty, and there is no reason why there should be no room for one.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(11 years, 8 months ago)
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Lord Ahmad of Wimbledon
My Lords, the amendments in this group will make a change to how the court system deals with gang injunction applications for those under 18 years of age. It will transfer the jurisdiction of gang injunction applications from the county court or High Court to the youth courts, sitting in their civil capacity.
As noble Lords may be aware, gang injunctions are a civil injunction introduced in the Policing and Crime Act 2009. They were subsequently extended to 14 to 17 year-olds in the Crime and Security Act 2010. Gang injunctions allow the police or local authority to apply for an injunction to prevent gang members engaging in, or to protect them from, gang-related violence. Injunctions can both prohibit and require certain activities or actions.
When gang injunctions were originally established, it was felt that the civil courts were best placed to hear the applications due to their expertise in handling civil injunctions, and this remains the case for adults. However, following discussions with practitioners, we have come to the conclusion that the youth courts are best placed to deal with gang injunctions for 14 to 17 year-olds. It is our belief that youth courts have the appropriate facilities and expertise to deal with young people and that they will thus be able to handle these cases more efficiently and effectively for all those involved.
To facilitate this jurisdictional transfer, Amendments 79 and 82 also make a change to what can be done by the rules of court governing the injunction process, as well as making a small amendment which applies to all injunctions. I beg to move.
Lord Beecham
My Lords, we certainly commend the Government for this very sensible amendment. It is clearly right that defendants under the age of 18 who are members of gangs should be dealt with by the juvenile court in the normal way. It is some reassurance that 18 is the limit, so that, for example, the activities of the Bullingdon Club, should they get out of hand, would not be dealt with in a juvenile court but properly in the adult court. This is an amendment that we support.
Lord Beecham
“Review into the Courts and Tribunal Service
The Lord Chancellor shall conduct a periodic review into the courts and tribunal service, including the public guardianship office, and the impact of section 17 and Schedules 9 to 11, including reports on its efficiency, cost, ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice, and shall publish a report on the review to both Houses of Parliament.”
Lord Beecham
My Lords, this amendment echoes an amendment which I moved and which was debated in Committee requiring a review into the Courts and Tribunals Service. At that time, the amendment suggested that an annual review should take place. In supporting the thrust of the amendment, the noble and learned Baroness, Lady Butler-Sloss, queried whether an annual review was sensible, given the scope of the proposed review, and this amendment recognises that she indeed made a very good point. It now merely suggests a periodic review rather than an annual review into the Courts and Tribunals Service in its widest sense.
The noble Lord, Lord McNally, who replied to that debate, indicated that there was already a duty on the Lord Chancellor to ensure the efficiency of the courts service and to report annually thereon, and indeed that the Courts and Tribunals Service and the Office of the Public Guardian also issued annual reports. That of course is true, but that answer really ignores the fact that the whole system is undergoing seismic change as a result of legislation already passed and currently under discussion in this House and, shortly, in the other place.
In my view and that of the Opposition, what is required is a systematic and regular, although periodic rather than annual, review of the whole system, not a series of separate, unconnected reports dealing with different parts of the system. The amendment clearly envisages not merely a report on the efficiency of the system but matters that are coming to the fore in the light of the Government’s policy, as enacted and as are being enacted in relation to,
“ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice”.
Those matters affect various parts of the system and, in my submission, it is essential, particularly in the light of changes to the legal aid system, to measure the impact, to review the possible difficulties, some of which are already beginning to emerge, and, if necessary, to correct them.
Various parts of the system have slightly different track records. In Committee, I mentioned concerns about the Office of the Public Guardianship and the Court of Protection. The noble Lord, Lord McNally, will recall that when we were discussing the matter—he and the Bill team were good enough to afford me some time to do that—he said that he had only recently been approached by someone else with a concern about the Court of Protection. In Committee, I referred to some publicity about the court: a patient at the court complained that it had cost him £50,000 due to poor investment control.
Perhaps I should renew my declaration of interest: I am now an unpaid consultant with my former firm of solicitors, where I was senior partner. I had there the conduct of a long-running case in the Court of Protection—long-running in the sense that the case arose out of clinical negligence and birth defects. The young patient is now 18 years of age. From time to time, I have had difficulty in obtaining responses from the Court of Protection; difficulty over the regularity and utility of supervision of the case in relation to financial and other matters; and a general feeling that many practitioners with wider experience of the Court of Protection felt that the move of staff to centres in Nottingham and Birmingham has not assisted the efficiency of the court.
Here, by definition, we are dealing with the problems of vulnerable children and adults and those who are appointed to look after them as deputies under the general supervision of the court. That is one important example where, in my view, there needs to be a periodic review linked to other issues. As I have already mentioned, there has been a change to the legal aid system. The noble and learned Baroness, Lady Butler-Sloss, referred in Committee to the problems that she envisaged in the family court with unrepresented litigants having to appear on their own behalf. There is widespread concern among the judiciary at all levels that that may well result in a clogging up of the court system as people struggle with presenting their own cases and having to be assisted by the court in the absence of proper advice.
In addition, a wide-ranging closure programme of magistrates’ courts in various parts of the country has led to difficulties with witnesses and parties attending a more distant court. It seems to me that it would be proper to measure the impact of that in terms of access to justice.
Another area of concern relates to some of the processes involved under the single court that now exists. We have county court buildings and we have a single county court. In principle, there is nothing wrong with that but, as I pointed out in Committee, the Government have not really followed the recommendations of Lord Justice Jackson, whose report, as we have noted on previous occasions, has been cherry picked in a variety of instances. In this case, the concern arises out of the problems of litigants and their legal representatives issuing proceedings. Lord Justice Jackson proposed that there should be regional court centres but, as he said clearly, it would,
“be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so”.
That does not happen, which has serious consequences.
Lord Beecham
My Lords, I am grateful to the Minister for a very full reply. In particular, I am pleased to hear his assurances in respect of the most recent performance of the Court of Protection. We will have to see whether that trend continues in the future.
However, the Minister said that it is all part of a single approach—and that, of course, is the thrust basically of the amendment. The whole system should be reviewed periodically—I repeat, periodically, not annually, as the noble Lord twice said in his reply—so that we can see exactly the balance across the system of changes that have been made both under and apart from legislation. Court closures and magistrates’ court closures do not require legislation and other issues, such as the performance of the Court of Protection, are not affected by current legislation. An holistic approach is necessary so that Parliament, on behalf of those who seek access to justice, can determine the efficacy of the system, its openness and whether it is working properly in a way which is not designed—because it would not be an annual review—to be costly and elaborate.
Most other departments look at policies across the piece and it seems sensible for the Ministry of Justice to do so. Under those circumstances, I beg leave to test the opinion of the House.
Lord Beecham
“Requirement for consultation
The Secretary of State shall publish and consult on a strategy for the delivery of legal information, support and dispute resolution services to the public by Her Majesty’s Courts and Tribunals Service.”
Lord Beecham
My Lords, this amendment deals with the provision of information at the courts. In the previous debate the Minister referred to a grant of £350,000, which was to assist advice agencies in providing advice and support for litigants; modest as that amount certainly is, it is no doubt welcome. There is a significant problem in the courts, as outlined by Citizens Advice nationally, to which I referred in Committee. There are a significant number of courts where the reception staff are only now available for two hours a day and many in which they are not available at all. There is a significant potential problem with helping people who arrive at court not knowing what to do or in need of advice. In Committee, the Minister referred to the availability of online and telephone advice, and that is certainly the case, but, as we have said in this context and other contexts, not everybody finds online facilities or, indeed, the telephone all that familiar and useful.
In any event, in the earlier debate, the Minister said that he would be willing to talk with the voluntary sector to see whether and to what extent it could help and, as he put it, “short of committing money”, he was very willing to talk to it and hoped that he would be able to report back on Report—perhaps not with an amendment from me. He said that his good will was certainly there, and I have no doubt about that. I understand that there have been discussions. The Minister wrote to me about these matters but, at the moment, it does not seem that a conclusion has been reached. Will the Minister say whether he has met the voluntary sector and to what extent progress has been made in providing additional resources from that sector for this purpose? I recall that the noble and learned Lord, Lord Woolf, was very supportive of the original amendment in Committee, and from that most respected source I hope that the Minister would derive impetus for securing a resolution of a potential problem. It is now five months since we debated this in Committee, and I hope that the Minister has found it possible to advance discussions with the voluntary sector and will give an indication of the position now, and of where the Government hope to take this issue. I beg to move.
Lord McNally
My Lords, it is a given that we all have an interest in the smooth and efficient running of the courts. Clear, relevant and accessible information is critical for members of the public who will not always have the benefit of dedicated legal advice. I understand that the noble Lord, Lord Beecham, is attempting to ensure that there is support for the public in navigating the legal system and that where alternatives to resolving disputes through the courts are available, they are sufficiently visible.
While I support the notion behind the amendment, it is unnecessary to place an obligation on the Secretary of State for Justice to act as the custodian for this type of information. The Government’s digital strategy, published last month, set out how the Government will ensure that the GOV.UK website becomes the primary portal for information and guidance on all government services. Later this month, the Ministry of Justice will publish its own digital strategy which outlines how we will make our information available through GOV.UK.
As part of this, the Ministry of Justice and its agencies will ensure that appropriate information and support is provided to assist the public to navigate its systems. A new online signposting service, currently being developed in conjunction with key partners, including those from the not-for-profit sector, will be a primary access point for any client or organisation looking for assistance to resolve a problem.
The new service will lead clients through eligibility tests for legal aid and direct people to the appropriate sources of assistance, including contracted legal aid providers where relevant. Where clients are not eligible for legal aid, they will be signposted to alternative sources of assistance and information. This online service is scheduled to go live on 1 April 2013.
We recognise that not everyone who uses government services is online, and that not everyone will be able to use digital services independently. The Government have to ensure fair access to services for those who are entitled to them. People who are offline will be supported to access digital services; for example, through intermediaries. As set out in the Government’s digital strategy, how this “assisted digital” will work in practice will depend on the services delivered and be developed by individual departments.
I also understand that there is concern that there will be an increase in self-represented parties—those navigating the legal system without representation—particularly following implementation next April of the legal aid reforms. The longer-term sustainability of the advice sector is a matter that goes beyond the Ministry of Justice and work in this area has consequently been led by the Cabinet Office. Its recently published review on advice services acknowledged that the Government have a role to play in supporting the advice sector in adapting to the new funding realities, but it also makes clear that advice providers will need to take the initiative and change the way they work in order to ensure a long-term sustainability of supply.
I spoke last Friday at the launch event for the implementation of the Civil Justice Council’s recommendations regarding self-represented parties. I was greatly encouraged by the positive attitude of the not-for-profit sector in seeking ways to work in partnership with Government to support greater numbers of self-represented parties in the future. At that meeting there were representatives of the not-for-profit sector, the judiciary, my own department and various parts of the legal profession. I was very encouraged by the positive attitude taken as to how we make the new system work.
For our part, the Government are providing additional funding for these organisations. The Ministry of Justice has already funded a number of actions recommended by the Civil Justice Council and the new Advice Services Transition Fund of £65 million launched this October will be key to supporting advice providers to adapt and transform over the next two years. This funding will allow them to establish strong collaborative networks, more effective relationships with public agencies and a more cost-effective approach to providing their help to clients in need.
Given the existing commitment to create a single portal for advice and support from the Government, through GOV.UK and the support we are putting into advice services, an obligation to create a parallel service would be administratively burdensome and unnecessary. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I find myself rather disappointed with the noble Lord’s reply. He said in June that he was very willing to talk to the sector about this particular issue, look at it and report back on Report. That does not seem to have happened. I have no doubt that the noble Lord spoke at this meeting in the sense that he has described. It is certainly true that some funds—
Lord McNally
If I have not made it clear, I have now had the opportunity, as I said in my letter to the noble Lord of 25 October, to meet the National Association of Citizens Advice Bureaux and representatives from the Advice Services Alliance and the Personal Support Unit. I also referred to the meeting I went to last Friday. I have had widespread discussions, money has gone into this sector and I am hopeful that CAB and others will move now from campaigning against LASPO, which is now an Act, and work constructively with us to see how we can work on this new settlement. Certainly, the idea that I have not reported back to the House is one that I deny.
Lord Beecham
I am grateful that the Minister has amplified on what he said in his initial reply. Of course, I accept that he has had those discussions, as he now says, although they did not, perhaps, quite take the course that he foreshadowed earlier in the year. However, I make the point that the advice sector is struggling at the moment in a very considerable way to deal with significant cuts. I referred to the experience in the north-east, but it is true over many parts of the country. I hope that it will be possible for the advice sector to respond in the way that the noble Lord has indicated that he wishes to see it go. But again, it will surely be necessary to keep that situation under review, because there will be a substantial increase in demand for that advice and it is far from clear that the sector on its own will be able to sustain it.
I do not propose to press the amendment. We will see how matters develop, and possibly interrogate the noble Lord in future as to what is happening on the ground. I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, this amendment deals with the proposal in the Bill to delegate some decisions in the family court to legal advisers. The amendment seeks to define those duties in a way that would avoid legal advisers assuming the role of the court itself in making effectively legal decisions. It is quite a different matter if they were to make effectively administrative or case management decisions on matters of that kind. There is a concern, among the magistracy as well as more generally, that powers to adjudicate should be conferred on legal advisers.
The Minister wrote to me in some detail about this, and I am grateful for that letter, but I understand that discussions are going ahead and have not yet reached a conclusion about the precise form of regulations that are to come to both Houses. It is unfortunate that once again we are in a position of enacting legislation without a clear view of how it is to be implemented. Your Lordships may think that that is happening rather too regularly. Clearly, however, the Government are taking this matter seriously, and I look forward to seeing the draft regulations and ultimately the statutory instruments, which I understand will be subject to affirmative procedure. That being the case, I do not know whether the noble Lord is in a position to give an indication of the scope of the proposed delegation, without going into too much detail, because the regulations have not yet been drafted and consultations are still taking place. It might be helpful if he were able to give an indication that there will be some kind of limitation perhaps not precisely along the lines of the amendment but avoiding too much of a judicial role being assumed by legal assistants as opposed to judges—and, for the purposes of the family court, magistrates become judges.
It would be helpful to have that information, although if it is not available we will simply have to wait. But while waiting to hear what the Minister says, I make it clear that I do not propose to press the amendment. We will have a parliamentary opportunity at some point, although not one that would allow us to amend anything. Even so, in those circumstances I will not be pressing the amendment, but it would be interesting to hear whether the noble Lord can update us to any degree.
Baroness Hamwee
My Lords, could I ask my noble friend a question? He may not be able to answer at this point, but I am afraid that it has only just occurred to me—it is with regard to assistant legal advisers. I can well understand that a person should be able to act as a legal adviser only if that person is a justices’ clerk, but why should a justices’ clerk, as distinct from an assistant to a justice’s clerk, not be able to act as an assistant legal adviser? It may be that the requirements on any given day, or because of the complexity of the matter or whatever, would make it more convenient for a justices’ clerk to act as an assistant legal adviser. It may be that I do not understand enough about how the magistracy works with its clerks at the moment. However, the points raised by the noble Lord, Lord Beecham, caused me to look back to see who these individuals might be, because I share his concern about what they would be expected to do. It is an odd little restriction.
Lord McNally
My heart always sinks when my noble friend says that she does not understand some particular point of law, because I think then that the odds of my being able to understand it are infinitely less. On that particular point, I will have to write to her on the nuances between magistrates’ clerks and assistant magistrates’ clerks. However, may I say to the noble Lord, Lord Beecham, that I understand and, to a certain extent—as much as I am allowed to as a Minister—share his irritation that sometimes the legislation and the various Explanatory Notes and schedules do not come in the right order? As he says, however, there will be a chance for Parliament to look at these matters in due course. I also pray in aid the fact that, as my noble friend Lady Hamwee indicated, the aim of these changes is to try to get greater efficiency in justice into our courts. I will take up the invitation of the noble Lord, Lord Beecham, to update the House on where we are.
We are all keen to ensure the smooth running and efficient nature of our courts. Indeed, the single family court will ensure a more efficient, user-friendly system that enables cases to be processed quickly and with minimum distress to any children involved. In order to achieve this it is essential that our courts operate to maximum effectiveness. One of the ways that the Government will be able to encourage this is to allow legal advisers and assistant legal advisers to carry out procedural and administrative functions. By doing so they will ensure that the wheels of justice continue to turn, while freeing up judicial time to make the difficult decisions and determine rights.
The amendment proposed by the noble Lord, Lord Beecham, seeks to restrict the delegation of powers to legal advisers. The noble Lord has pointed to the report of the Joint Committee on Human Rights, which observed that the power awarded to legal advisers could be used quite widely. It also expressed concerns that there may be an appearance of lack of independence or impartiality if legal advisers are allowed to make decisions other than administrative decisions, such as case management. However, the provisions in the Bill for the delegation of powers to legal advisers largely mirror the provisions made in the Courts Act 2003—legislation passed by the previous Administration. I always find it a comfort when I am able to draw the attention of the Opposition to the fact that we are using one of their Acts to do something. I am sure that it is also a great comfort to the Opposition.
These amendments would mean that legal advisers and assistant legal advisers in the family court would be able to exercise fewer functions than they can potentially already exercise in magistrates’ courts. The Justices’ Clerks Rules 2005, made under the powers in the Courts Act 2003, already delegate a number of functions in family proceedings to justices’ clerks and assistant justices’ clerks. Only those who are currently justices’ clerks and assistants to justices’ clerks in the magistrates’ court will be able to be legal advisers and assistant legal advisers in the family court. I should also stress that justices’ clerks and their assistants are all legally trained, and so we are not proposing to delegate functions to those who are not legally trained. While I understand noble Lords’ reservations about the delegation of powers to legal advisers, I am not persuaded that the delegation of powers should be restricted as the amendment proposes. If legal advisers were restricted to working solely in administrative functions, as the noble Lord suggests, it would be a step backwards, removing powers that they already have, and would lead to increased delay and less efficient family court procedures. In particular, Amendment 81B seems to suggest that legal advisers should not be able to perform the function of giving legal advice to lay magistrates in the family court, even though this is a key part of their role now in the magistrates’ court.
Lord Beecham
If it would be helpful to the noble Lord, I have already indicated—I am sorry that this information does not seem to have reached him—that I was not proposing to speak to or move Amendments 81B or 81C.
Lord McNally
That is why I glanced up at the annunciator. I was hoping to get guidance. I had received that message, for which I thank the noble Lord.
This Bill provides the Lord Chancellor with the power to make rules enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser, and to delegate the functions that a legal adviser may perform to an assistant legal adviser. The Government wish to emphasise that the intention is that legal advisers and assistant legal advisers to the family court will not make decisions which are final or conclusive to the parties’ rights save for one proposed exception on which I will touch in a moment.
Ministry of Justice officials are still in discussion with the judiciary and with Her Majesty’s Courts and Tribunals Service over which powers should be delegated to legal advisers and assistant legal advisers. They are working closely with the Family Procedure Rule Committee to finalise details of the powers that will be contained in the secondary legislation which will be put before Parliament. I should remind the House that the first exercise of this rule-making power will be subject to the affirmative procedure, as the noble Lord said.
As a starting point, we are intending to replicate for the family court the existing functions which a justices’ clerk can perform in place of a single justice of the peace in family proceedings in the magistrates’ court. There are also a number of other functions which we envisage could be carried out by a legal adviser or assistant legal adviser in the new family court. Examples of the type of functions which we are considering delegating include allocation decisions, review hearings in private law applications and case management hearings in public law cases. We also envisage that legal advisers and assistant legal advisers to the family court will play an important role in the gatekeeping teams who will determine the allocation of cases to different levels of the judiciary in the new family court. Clearly, in the world of the family court there will be an extension of current powers as currently only functions which can be done by a single justice of the peace are to be delegated to legal advisers, whereas in the family court the legal adviser may be exercising functions of any level of judge. However, I note that such an extension is perhaps inevitable given the nature of the family court, and the Family Justice Review recommended that there should be flexibility for a legal adviser to conduct work to support judges across the family court.
I also want to reassure noble Lords that this rule-making power can be exercised only with the consent of the Lord Chief Justice and after consulting with the Family Procedure Rule Committee. The proposed exception to the rule that legal advisers will not make decisions which are final or conclusive to the parties’ rights was developed from the Government’s response to the Family Justice Review. The Government responded to that review, accepting the recommendation to allow uncontested divorce applications to be dealt with administratively. The proposal to delegate functions in uncontested divorce cases to legal advisers will ensure that the case is considered by someone who is legally qualified and trained.
I stress that I understand that this proposal in relation to uncontested divorces has the general support of the judiciary, subject to working through points of detail and ensuring that there is access to district judges to discuss any concerns. We are working with the judiciary to ensure that they are content with the system. The implementation of this proposal will be facilitated by further changes to primary legislation, which will be taken forward in the children and families Bill. There will therefore be further opportunities for the House to debate this issue.
We want legal advisers and assistant legal advisers to be able to carry out these functions in order to free up the judiciary to deal with more complex cases. This should achieve increased judicial continuity, reduce the time taken to deal with non-complex cases, and will, we hope, cause less distress for children involved.
I hope that that brings the House up to date with where we are. Some of it is work in progress, but the ultimate aim, as I have indicated to the noble Lord, Lord Beecham, my noble friend Lady Hamwee and the House is to get a more efficient system which uses judicial time more effectively. I am grateful for the noble Lord’s assurance that he will not divide the House on this matter.
Lord Beecham
I am grateful to the Minister for that very full reply, which is to a large extent reassuring. I hope that consultations with practitioners, particularly, for example, with the Family Law Practitioners’ Association, will be part of the exercise that he has just described. I look forward very much, as I am sure others do, to seeing the proposals in more detail in the manner that the Minister has described. In the circumstances, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I very much agree with the noble Baroness, Lady Neuberger. I, too, feel a great sense of trepidation, also being a “mere” solicitor, non-practising.
It is very rare that I agree with those who have spoken on the other side of this argument but I want to respond to the point that has been made about the perception of women who wish to work flexibly. My own experience has been that those who work to a slightly different pattern almost invariably turn themselves inside-out to work harder than is humanly possible in order to make it quite clear that they are not taking advantage of the arrangements that have been made for them.
In this walk of life, as in any, if we deny that cohort of people the opportunity, we are not only denying them, we are denying the whole of society the opportunity to use their life experience as well as their professional experience.
Lord Beecham
My Lords, I join my two fellow members of the junior branch of the profession with equal trepidation. We have heard from four most distinguished noble and learned Lords, all of whom support the amendment.
Last night I was lobbied, perfectly properly, by the noble and learned Lord, Lord Lloyd, who drew my attention to the constant use of the word “flexibility” in the debate which took place some five months ago. It is true that the word was used but I am not sure that it was used in the sense that the noble and learned Lord perhaps implies, contrasting with the word “part-time”. When we discussed the matter I said that I was not quite sure what the difference meant in practice. I am still not sure what difference the noble and learned Lord would construct between the two.
The noble and learned Lord quoted two or three Members of your Lordships’ House as using the term “flexibility”. He mentioned, for example, my noble friend Lady Kennedy. She did use that word. At one point in the debate, at col. 92, he asked my noble friend a question. He said:
“Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility … The real question is whether flexibility demands part-time judges. The view of some of us is that it does not”.
We have heard this today most eloquently from the noble and learned Lord and from other noble and learned Lords. My noble friend replied:
“If I may respond to the noble and learned Lord, it seems to me that it has to be one of the possibilities in the whole panoply open to those making appointments”.
That “it”, of course, is the question of part-time service. She continued:
“I do not imagine that it would happen very often but it might be that someone exceptional could be appointed who would say, ‘I will sit during these parts of the year and will be available to you then’”.
This was precisely the point made by the noble Baroness, Lady Neuberger. My noble friend went on:
“I do not believe that that would bring about resentment from other colleagues once they saw the quality of the work done by people of real ability”.—[Official Report, 25/6/12; col. 92.]
That is perhaps an answer to my noble friend Lord Clinton-Davis.
The noble and learned Lord also referred to my noble and learned friend Lord Falconer—who made but a fleeting appearance, unfortunately, in the Chamber this afternoon. I would have been delighted to give way to him for the purposes of this debate and, indeed, possibly to some others. My noble and learned friend Lord Falconer spoke in some detail and also rather deprecated the use of the term “part-time”. In the conclusion to his remarks, he said:
“So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court … there would be two benefits. First, it would increase the pool of people who would be able to apply. Secondly, it would lead to a sense that we thought that flexible working was available from the top to the bottom of our judicial system”.
My noble and learned friend treated “part-time” and “flexible” working as much the same thing. In the real world, surely that must be right. He concluded:
“I cannot think of a better message for us to send—and it would be one that was not just a gesture but would have an effect on increasing merit”.—[Official Report, 25/6/12; col. 101.]
My noble and learned friend said that the Opposition endorsed the proposals in the Bill, and we do again tonight.
Having never appeared before a tribunal higher than the county court I speak with some trepidation. However, I take some comfort from the experience of my noble and learned friend Lord Falconer, my noble friend Lady Kennedy and, in particular, the noble Lord, Lord Pannick, who has again eloquently made the case.
We are looking at flexible working that would necessarily involve—to avoid the use of the dreaded phrase “part-time”—less than full-time working. It seems to me that that is consistent with the objectives that have been outlined by noble and learned Lords who have supported the Government’s position. If it is of any comfort to the Minister, that will be the position should a Division be called: we would support the Government. We think that this is an imaginative forward step in the judicial system. We have every confidence that the people who are appointed to that very senior position will discharge it to the best of their obviously very considerable ability and with the utmost conscientiousness. I have no fears about that or about the capacity of the system to cope with what would inevitably be a relatively modest number of people occupying senior positions of that kind in the Court of Appeal and the Supreme Court.
On this occasion, the Minister and I are at one —which is perhaps, subsequently, a matter for some modest celebration.
Lord Beecham
My Lords, I very much welcome the Government’s changes to their original plans, in particular in relation to the role of the Lord Chancellor, dealing with points that have been raised in Committee and by the Constitution Committee. I am glad that the Government have seen sense on those matters, if I may say so, and adopted the recommendations, and equally that they have responded to the points made by my noble and learned friend Lord Falconer in relation to the composition of the Judicial Appointments Commission. In all fairness to the Government, I think that it was a slip rather than a deliberate drafting decision that gave rise to that issue.
In relation to the judicial appointments magistrates, I am very happy that the Government have delegated this responsibility to the Lord Chief Justice, thereby removing any shadow of political or executive responsibility for that appointment. At a later point this evening, we will discuss further the issue of magistrates’ courts, although not in that context of the question of appointments. But to foreshadow some elements of that debate, there is a concern about the composition of the magistracy to which the later amendment refers, and I hope that the Lord Chief Justice will be in a position to respond to those concerns. The Opposition certainly welcome the delegation of that responsibility to him.
Equally, we support the minor amendments to which the Minister referred. On this occasion, having complained earlier about the lack of sight of draft regulations, I ought to thank and congratulate the Government on producing such documents, although it has to be noted that they are pretty anodyne, and perhaps the more difficult things are not as likely to appear in as timely a fashion. Nevertheless, it is a precedent that we welcome and very much hope to see followed, as we come on to perhaps rather more difficult matters. Having said that, we support these amendments and thank the Government for proposing them.
Lord Mackay of Clashfern
My Lords, I had some experience of trying to push this agenda forward rather a long time ago but I wonder about, for example, creating a duty on the present Lord Chancellor to do this. What does this amount to? I have a feeling that the argument that has been presented suggests that you should make the duty incumbent on all the judiciary at all levels, so that they welcome diversity. That is my answer to the noble Baroness, Lady Kennedy of The Shaws. There is a limit to what the Lord Chancellor can do to change the culture now, with his present powers. There is also some question as to what the Lord Chief Justice can do, though he can be welcoming and so on. The logic of it is for the whole judiciary to be required to welcome diversity and all the benefits that it brings.
Lord Beecham
My Lords, I am fascinated, not to say a little distracted, by the zoological references to pregnant snails. I am not quite sure how one could tell, unless one was another snail. Perhaps I ought to address myself to the amendments rather than to this curious analogy.
I certainly support the thrust of the amendment of the noble Lord, Lord Pannick. Amendment 86DA, which is in my name, sets out a process; I should indicate to the noble Lord that perhaps the drafting is not quite as it should be. However, subsection (4) in my proposed new section 64A, which states:
“These duties shall continue for five years, but may be extended for five year terms by order”,
relates to its subsection (3) on the question of annual reports, rather than the principal objectives of that amendment, which are set out in subsections (1) and (2).
Several of your Lordships have pointed out the importance of making progress in this critical area. The noble and learned Lord, Lord Mackay of Clashfern, suggests that the duty should be spread wider, but it is difficult to envisage a duty on the holder of a judicial office to promote diversity in that capacity. It is surely a matter for those with greater responsibility at the top of the pyramid, both politically and judicially—the Lord Chancellor and the Lord Chief Justice, in addition to the commission—to have that duty. It is presumably easier to hold them to account in a less informal way than it would be to hold the whole judiciary to account.
I hope that the Government will accede to the arguments made by noble Lords and noble Baronesses. This is not a dramatic amendment, but it underpins the process that your Lordships have clearly adopted and wish to see implemented. It is a matter on which I should have thought the Government could concede without any kind of embarrassment because it carries out effectively the thrust of the policy on which the majority of the House are clearly agreed. I therefore hope that the Minister can agree to that or, at the very least, give it some further thought and come back at Third Reading. It would be better not to have to vote on this matter, given that there is a great deal of common ground. I am looking to the noble Lord to be as co- operative on this occasion as I was on a previous occasion.
Lord McNally
The noble Lord, Lord Beecham, can be very seductive at times, but let me try to respond to an extremely thought-provoking debate. I was interested in the mention by the noble Lord, Lord Deben, of girls going into boys’ schools and vice versa, because I have just had experience of this. My daughter has just moved from an all-girls’ school into the sixth form of an all-boys’ school. After a few weeks, I asked her, “How is it going?”. She said, “It’s wonderful, daddy, all the boys open the door for me”. That is an illustration of how a little change can bring behavioural changes, and that is probably what the noble Lord, Lord Deben, was suggesting, whereby perhaps a few girls in the all-boys’ school of the upper judiciary might produce similar changes in attitude.
I was very grateful for the intervention of the noble and learned Lord, Lord Mackay, because this debate turns on an issue that I explained in Committee. There is no doubt that both the Lord Chancellor and the Lord Chief Justice have a duty under the Equality Act to promote diversity. On the point made by the noble Lord, Lord Marks, that this does not apply to the Supreme Court and therefore implies some sort of ceiling in this, that is not true. We think that the tipping point in the Equality Act already applies to Supreme Court appointments and, therefore, that his amendment is not necessary.
I can put before noble Lords the standard brief that the Lord Chief Justice and the Lord Chancellor already have these duties enshrined, and that the Equality Act takes care of the problems that the noble Lord, Lord Marks, mentioned. However, that would not be the right response to a debate that has contained most of the people whom I count as allies in what I still think is a battle to get greater diversity into our judiciary. I was told earlier that I was being pejorative when I talked about this being a trickle-up. However, the figures quoted by a number of speakers illustrate that there is still a need for leadership, as the noble Baroness, Lady Jay, said. I applaud the leadership that her committee has given in this area, just as I applaud the leadership given by the noble Baronesses, Lady Prashar, Lady Neuberger and Lady Kennedy. However, we need that leadership elsewhere in the judiciary. I am almost tempted, as the noble and learned Lord, Lord Mackay, said, to make it applicable to all the judiciary.
I am willing to be seduced here by the noble Lord, Lord Beecham, as it would be an insult to the House and the opinions of people whom I respect immensely on this matter if I were simply to call a Division and bring in people who have not heard this debate to vote these amendments down. If noble Lords who have amendments in this group would withdraw or not move them, I will take this matter back to the Lord Chancellor. That will also give time for discussions with the Lord Chief Justice to see whether we can, in some way, meet the points that have been made.
I shall tell noble Lords where I am coming from. Recently, a very senior member of the judiciary pinned me in the corner and said, “If you do what you are trying to do to the judiciary, can you guarantee me that in 20 years we will still have a judiciary that is the envy of the world?”. I said, “Yes, but half of them will be women”. That may be overambitious but it is a lot better than a 50-year timescale or a “sometime, never” timescale. I therefore believe, as the noble Lord, Lord Deben, said, that sometimes gesture politics is important.
Tonight, I want to take this debate back to the Lord Chancellor and let him ponder on it. It may be that I will have to resist when we return to the issue on Third Reading, but I do not want to resist tonight because the quality of the debate and the persuasiveness of the argument deserve another look at this matter. In that spirit, I ask noble Lords to withdraw or not move their amendments.
Lord Beecham
“36A The Lord Chancellor shall lay before Parliament within twelve months, and thereafter periodically, a report on the composition of the magistracy, including the numbers of lay magistrates and the numbers of full time district judges sitting in magistrates’ courts.”
Lord Beecham
My Lords, we have talked a great deal about judicial diversity in the upper courts, and there is a concern about both the composition of the Bench and its current functioning at the level of the magistracy. The concern is perhaps twofold.
First, I know that there is growing anxiety among lay magistrates about the increasing numbers of full-time district judges who are being appointed, thereby diminishing the role of lay magistrates. This matter has certainly been reported to me from places as far apart as Newcastle, Birmingham and Brighton, and it has also surfaced in a number of other areas. Notably, as I understand it, there is concern among lords-lieutenant —who obviously have close working relationships with the magistracy in their areas—at the apparent drift away from the hitherto prominent role of the lay magistracy in the operation of the courts. That is the reason, in particular, for the part of the amendment which seeks a report on the composition of the magistracy, including the number of lay magistrates and the number of full-time district judges. I asked a Written Question about this issue and the reply, slightly surprisingly, was that the Government simply did not know what the numbers were. This has obviously gone on for a very long time. However, if we are serious about looking at the function of the magistracy and its composition, it is surely incumbent on the Government to produce the data.
The problem of the composition of the Bench is perhaps also exacerbated not merely by the question of professional and lay magistrates or judges but by other issues, including diversity issues of gender, ethnicity and, I have to say, class in the local magistrates’ courts. The problem may be made more difficult by the closure of magistrates’ courts, to which I have referred. In addition to the difficulties that some people may have in getting sufficient time off work to serve as magistrates, it will now often be the case that they have to travel to a court which is no longer in the town where they might previously have sat or might seek to sit, and this will clearly compound the problems. It is already difficult enough for working people, whether they are well paid or not, to get time off to attend to these responsibilities, and I suspect that all these matters will continue the push towards having full-time appointments.
There is of course a place for full-time appointments and they have served for many years—formerly in the guise of stipendiary magistrates and now district judges—dealing particularly, but not exclusively, with criminal matters, yet the feeling now within the magistracy is that the role of the lay magistrate is being diminished. Magistrates’ clerks are effectively no longer answerable to their local court committee but answerable upwards, as it were, to the ministry. In many places, what was local justice is apparently coming to be seen as simply another arm of a national department—that is, the ministry—and, as with local policing, that is something that one would regret. One can apply Sir Robert Peel’s definition of policing by the people to local justice—by people from the community, knowing the locality and, to a degree, representing that locality. This is not just a recent matter—it has been going on for some time—and it is not by any means a matter to be laid entirely at the door of this Government. However, it seems to me a process which is to be regretted.
Therefore, this amendment seeks to establish a system in which there can at least be consideration of the facts. I hope that that will lead to the kind of debate and the kind of decisions that we are moving towards in respect of judicial diversity at the other level, but in this case I hope that it will also lead to a reconsideration of the role of lay magistrates. There is a danger—as I said, as reported by magistrates and lords-lieutenant—that the system may be dying on its feet because of this change to the professional local judiciary.
I am not anticipating that the Government will necessarily accept or support this. Again, it might be a matter that the noble Lord will be willing to take back and reconsider. It might be thought over-prescriptive but it will potentially open the door to the kind of developments to which I have referred.
I see that the noble Baroness, Lady Seccombe, is in the Chamber tonight. I think that in Committee she voiced similar concerns from her own very practical experience as a magistrate. My noble friend Lord Ponsonby is not here tonight but I know that he also shares these concerns. I think that it would fit very well with the laudable efforts that the Government are making in the upper echelons of the judiciary if this matter were given some consideration and the topics to which I have alluded could be addressed over time, basically with the same intention but with the added dimension of locality, as well as diversity, in relation to the amateur or part-time lay justice as well as the professional justice. I beg to move.
Lord McNally
My Lords, I am grateful for the contributions from the noble Lord, Lord Beecham, and the noble Baroness, Lady Seccombe. Both have made important points about the concept of local justice and the massive boon that comes from a magistracy rooted in its locality and with a knowledge of the problems of an area and, indeed, of the people of an area. In previous debates I have given a run-out to the names Tommy Croft and Billy Quinn. They both worked in the local ICI works near to where I was born and they were both local magistrates. Everybody knew them and everyone, particularly the youth of the locality, dreaded appearing before them. That is the kind of benefit that we get from a magistracy which is rooted in its locality. But, alas, that was 50 years ago. Both my noble friend Lady Seccombe and the noble Lord, Lord Beecham, are right to say that, in our drive for various efficiencies and for uniform high quality, we must ensure that we do not squeeze out the benefit that we get from a lay magistracy. The magistracy performs a vital role in our justice system and the Government are highly supportive of both lay magistrates and full-time district judges sitting in magistrates’ courts.
In our White Paper, Swift and Sure Justice, we restated our view that the lay magistracy is one of our most important assets. The White Paper also sets out proposals to give magistrates new roles and responsibilities. We are currently working through the responses that we received and we will confirm our plans in due course.
I fully understand the request by the noble Lord, Lord Beecham, for information on the composition of this crucial element of our judicial system. I am delighted to confirm that official data from the Judicial Office are already publicly available on the judiciary website. That includes not only information on the number of lay magistrates in each of the 47 advisory committee areas and the name and number of district judges sitting in magistrates’ courts but also detailed information on gender, age, ethnicity and disability. Those data are published annually on 1 April. The number of lay magistrates in post as of 1 April 2012 was 25,155; the number of district judges sitting in magistrates’ courts was 141, with 134 deputy district judges. Perhaps I can illustrate the level of detail to which this information goes: 51.3% of lay magistrates and 29.1% of district judges were female; 53.9% of lay magistrates and 35.4% of district judges were 60 or over; 4.5% of lay magistrates identified themselves as having a disability; and 8.1% of lay magistrates and 2.8% of district judges were from black and minority ethnic groups. There is even more detail on the website, should noble Lords wish to visit the relevant links.
Given the extensive amount of official information on the composition of the magistracy already in the public domain, I suggest that a requirement for the Lord Chancellor to lay a periodic report before Parliament is unnecessary. On that basis, I ask the noble Lord to withdraw his amendment.
Lord Beecham
I am very much obliged to the Minister for that information. I am a little surprised that it did not find its way into the Answer to my parliamentary Question some time ago. It is reassuring that that information is available. I shall withdraw the amendment, but I would like to ask whether there is any indication of, for example, employment categories or, frankly, class, although that may be asking too much; it may be difficult to get. I take it that the Minister would wish to promote diversity and look into the concerns that the noble Baroness and I both raised about the role of the lay magistrate in general. I gather that he is sympathetic to that. Therefore, without seeking to incorporate this into the Bill, perhaps he could undertake to have a look at that departmentally and perhaps in conjunction with, say, the Magistrates’ Association and the Magistrates’ Clerks Association, if that still exists, as a matter of government policy rather than legislation. In the circumstances, I beg leave to withdraw the amendment.
Lord Mackay of Clashfern
I wonder whether it is worth mentioning that, of course, the Supreme Court is of interest in jurisdictions other than those in which the Lord Chancellor has authority now, and there may be a question about the balance of that. Admittedly, other jurisdictions have representation on the selection committee, but it may be worth while keeping in place that balance.
Lord Beecham
My Lords, I endorse everything that the noble Lord, Lord Pannick, said, as a surrogate for my noble and learned friend Lord Falconer. Had he been here I am sure that he would have enthusiastically congratulated the Government on their change of heart. Again, I rather tiresomely congratulate the Minister on accepting the wisdom of the House as previously expressed. We welcome this change and reversion to what is essentially the current situation. We look forward to more of the same as we go through the Bill.
The Earl of Listowel
My Lords, I am grateful to the Minister for intervening in that helpful way and for giving that information. I have put my name to the amendment because I share the concerns expressed so eloquently by the noble Lord, Lord Touhig.
It is a naughty time, particularly for the most vulnerable and impoverished families. It is a very hard time and children need enduring and reliable relationships above all. We would want that for all children. The difficulty is that when families are pushed to the very edge it becomes more and more difficult for them to be in reliable and enduring relationships with their children. Pressures are put on the parental relationship and on the attention that parents can give to their children. We heard from the noble Lord, Lord Touhig, about concerns that parents are so short of money that they cannot afford to heat the home and put food on the table. What sort of pressure does that put on the family when parents cannot look after their family in that way? I am aware of this from meeting parents, mostly mothers, of families in temporary accommodation provided by Barnardo’s and also from going out on visits with health visitors and speaking to mothers. It certainly helped me to understand how, in the past, parents have really struggled on the edge of society. Today, in these circumstances and in the financial conditions we are in, it is hard to conceive how difficult it must be for some families to care for their children as they need to.
I am worried about this and am very grateful for the care that the Minister has taken in taking this forward. I was pleased that he could meet the noble Lord and I was sorry I was not able to join that meeting. What he said is certainly helpful, although I am looking at my notes of what he said to see whether there is anything I can come back on now. I do not think there is. I will finish at this point and look forward perhaps to hearing a little more reassurance in his final comments.
I share the concern of noble Lords that we must do everything possible to protect the most vulnerable families at this very difficult financial time. Many of these families are quite chaotic. They may not open their letters and may be in all sorts of messes. There are also people who prey upon them. Just last week I was speaking to a care leaver in her second year at university. She came from an estate in Stockport where she said there were no expectations—she was expected to have children in her teenage years and that would be her life. However, she has gone on from care to university, where she is now in her second year reading law. She says that when she goes back home, there are three predatory loan sharks on her estate. They will lend money—£250 for Christmas but if you do not pay it back by June next year you have to pay £500. There are all sorts of people who prey on these vulnerable families so, as far as possible, we need to protect them as we legislate here today.
Lord Beecham
My Lords, I also strongly sympathise with my noble friend’s amendment, in particular in connection with his reference to the cost of collection. I suspect we will return to that issue when the noble Baroness, Lady Meacher, moves her amendment in relation to bailiffs, because, as was mentioned in Committee and no doubt will be mentioned again today, the cost of collection is often wholly disproportionate to the amount of the fines, particularly when it is in the hands of private firms contracted to either local authorities or the courts. It is quite a different matter when the courts have their own collection services run by their own staff.
There will be considerable concern about the potential direct costs, and the indirect costs, if families are driven further into poverty and we have the problems of homelessness, children being taken into care and the like. It seems that the Government’s intention to outsource this work is likely to aggravate what might be a difficult problem in any event. Clearly, the Government are not going to make any further move on this. That is a matter for regret and certainly something that we will have to keep a collective eye on in future, particularly the likely impact on local authorities if things go wrong and families are unable to maintain the costs.
It is perfectly true that those who receive a financial penalty are obliged to pay it, but the likelihood is that it will not just be them who suffer but their dependants. That has financial as well as social implications. I had hoped that the Government would react rather more positively to my noble friend’s amendment but it does not look as if that is likely to happen. That is a matter of regret and it will be for my noble friend to decide whether he tests the opinion of the House at this very late stage. I suspect he may well not do so, but the issue will not go away. We will undoubtedly want to probe whatever arrangements are ultimately made with those who will be responsible for making these collections.
Lord McNally
My Lords, I am grateful for those interventions. The points made by the noble Lord, Lord Touhig, the noble Earl, Lord Listowel, and the noble Lord, Lord Beecham, are undeniable. There are people whose lives are so dysfunctional and chaotic that they can get into a complete downward spiral in how they manage their lives. It is extremely important that we try to make sure that what happens to them does not make that downward spiral worse.
I am pleased that the noble Lords, Lord Beecham and Lord Touhig, acknowledge that we are dealing with people who have offended, who have been before a court and who have been given a fine. As I said in my opening remarks, if they follow the instructions of the court, they should be able to avoid the worst of the kind of downward spirals that both the noble Earl, Lord Listowel, and the noble Lord, Lord Touhig, referred to. As a former Member of Parliament for Stockport, I could take a rough guess at the estate from which the young lady who was mentioned came. Her story is the other side of the penny to what can sometimes be the bleakest of stories. I have a great-niece who works for Blackpool social services and the stories that she tells me of the sheer dysfunctionality of the some of the families that she has to deal with are out of the range of most of our normal lives.
I do not underestimate this and although I will ask the noble Lord, Lord Touhig, to withdraw his amendment, I emphasise again that, in cases where the most vulnerable are sentenced to pay a fine, it may be deemed appropriate for the court to issue a deduction from benefits order, where a maximum level, which is currently set at £5 a week, can be automatically deducted from the person’s benefits to pay their financial penalty. This is capped at a level so that it does not significantly impact on the person or cause further hardship. This maximum weekly deduction from benefits will not be increased by the introduction of the collection costs, so there is some safety net there.
As I said in opening, the costs will be set at a level that is proportionate to the actual costs of collecting the fine. We are trying and we will be returning to this when we debate the amendment of the noble Baroness, Lady Meacher. On the one hand, we have to be aware of these dysfunctional individuals and families who come into the justice system. However, we have to operate that system and try to get the balance right between the instilling of proper responsibility when it comes to fines imposed by the court and the collection of those fines, so that they do not become a kind of option but are real and we have the means of making sure that they are enforced. At the same time, we must try to ensure that a just punishment of the court does not spiral into unjust impacts on other individuals associated with the person who has to pay the fine.
These are difficult and complex decisions. We hope that we have got them right. I certainly do not object to the noble Lord, Lord Touhig, bringing this matter before the House and his continuing interest in this area. I assure the House that the Government will continue to examine this carefully to see what reforms we can bring forward. The noble Earl, Lord Listowel, referred to the operation of loan sharks. That is something that we need to look at with some urgency as well. In the mean time, I ask the noble Lord, Lord Touhig, to withdraw his amendment.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(11 years, 8 months ago)
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Lord Beecham
“75B Minimum size of charging order
The Secretary of State shall by regulation prescribe the minimum amount above which a charging order may be granted in respect of a judgment debt, which shall be laid before, and approved by a resolution of, each House of Parliament.”
Lord Beecham
My Lords, this amendment relates to yet another matter affecting very often the poorest in our society and certainly those facing acute financial difficulties. Some time ago, the Government launched a consultation about the financial threshold below which charging orders on property would not be available to enforce debts. The previous Government made some legislative provision potentially allowing for this and they consulted on the matter. The intention was to legislate subsequently but the consultation ended in February 2010, which did not leave that Government very much time.
A month later, the Office of Fair Trading issued a guidance document on irresponsible lending and recommended that creditors should make it clear to borrowers at the time of entering into any loan agreement that there was a possibility of a charging order being made against their property. I am afraid that subsequently nothing happened about that. Time went by and the Government then launched their own consultation, having indicated in the coalition agreement that there would be a threshold of £25,000 below which enforcement action could not take the form of a charging order against property. That was in the coalition agreement but it would appear that, as a result of the consultation, the industry persuaded the Government that this was insufficient. Consequently, the policy is now apparently that the threshold will be only £1,000. We are talking here not about mortgages but about unsecured debts. Therefore, with only £1,000 owing, it would be open to a creditor to seek a charging order, which could lead to the loss of a home and, for that matter, to a great deal of anxiety and stress for the debtor.
In the debate in Committee, the noble Baroness, Lady Northover, did not really give an answer as to why the Government had changed their position from that outlined in the coalition agreement, which seemed a perfectly sensible provision. She made some reference to the fact that an alternative might be worse, inasmuch as creditors might go for bankruptcy proceedings, although of course a creditor has that possibility in any event. The protection of the family home must surely be a major consideration, particularly where there are children, as there very often will be in these cases.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, as explained by the noble Lord, Lord Beecham, this amendment raises the issue of charging orders. Noble Lords will be aware from the debate in Committee that the power to prescribe the minimum amount above which a charging order may be made already exists in Section 94 of the Tribunals, Courts and Enforcement Act 2007. It makes provision for the Lord Chancellor to make regulations that a charging order may not be made to secure a sum of money below a certain amount. It remains the Government’s intention not to exercise this power. There are several reasons for that.
The Government are committed to providing the right level of protection to genuinely vulnerable debtors. However, we must not do that at the expense of the effectiveness of the civil justice system. We have a duty to ensure that creditors have reliable methods available to them to enforce their debts and charging orders are a legitimate and proportionate option for them to pursue. It is essential to remember that a charging order does not compel a debtor to sell their property. That can be achieved only through an order for sale. Most creditors never apply for orders for sale; only 0.5% of the creditors who have applied for a charging order go on to place an application for an order for sale. Nevertheless, the Government have ensured that there are effective safeguards in place for debtors who are subject to such an order.
In November this year, following a public consultation on this subject, we laid before Parliament draft regulations which set a £1,000 financial threshold for orders for sale relating to Consumer Credit Act cases. These regulations are subject to the affirmative procedure so there will be a separate opportunity for your Lordships’ House to consider those. Responses to the Ministry of Justice consultation on solving disputes in the county court in 2010 indicated that £1,000 was the most appropriate threshold. Respondents to the consultation felt that a higher threshold would risk pushing creditors to seek more draconian methods of recovering their money, such as bankruptcy proceedings, which would expose debtors to a significantly increased likelihood of losing their homes, an outcome that none of us would wish to see.
We must also remember that orders for sale are subject to judicial discretion. The court must take into account all the circumstances of the case before deciding whether to make an order. That provides essential protection against disproportionate action. The consultation showed that a high financial threshold for the making of an order for sale would restrict judges’ discretion in individual cases—for example where a debtor has all their assets tied up in property including investment properties or stocks and yet owes a number of small debts to multiple creditors. It may be equitable to grant an order for sale to release some of that capital.
With the new order for sale regulations in place, creditors have the assurance that they can recover what is owed to them while debtors are not in danger of disproportionate enforcement action. The Government believe that these regulations are proportionate and an effective approach to achieving the necessary delicate balance between creditors and debtors. They therefore do not plan to introduce a financial limit on charging orders. In the light of that explanation I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Beecham
My Lords, that is a very disappointing response, which echoes the response given by the noble Baroness, Lady Northover, in Committee in July. Neither she nor the noble Lord have explained why the coalition agreement, which is very explicit in terms of laying down a £25,000 threshold for an order for sale, which of course follows on from a charging order, has been abandoned. The noble Baroness said:
“In terms of the coalition's commitment to a threshold for orders for sale at £25,000, evidence in the consultation did not support a £25,000 limit”.—[Official Report, 2/7/12; col. 542.]
But we do not know—at least I do not know—what that evidence was and from where it was derived. It was presumably from the creditors. I cannot imagine that there would be significant evidence from those who owed money or those who advise those who entered into consumer credit arrangements who were in difficulties suggesting that £25,000 was too high a limit.
Furthermore, at the last count, the Government were at least contemplating a £1,000 limit. That is much too low in my submission but even that has been abandoned without any explanation. The Government are falling over backwards to help creditors in this position—many of them are not the most desirable organisations operating in the financial services world—at the expense of the worry and disturbance that can be caused to borrowers and their families and ultimately to the taxpayer, because in so far as these orders are enforced, homelessness and all the other social consequences will follow which will be a burden for the taxpayer.
It is extremely disappointing that the Government have caved in to pressure from the industry at the expense, I repeat, of very vulnerable people and the taxpayer at large. But as it is clear that the Government are not disposed to make any move consistent with their original policy, I feel obliged to beg leave to withdraw the amendment.
The Earl of Listowel
I rise to speak briefly because I am moved by what my noble friend has just said. No doubt the Minister will want to reassure her as far as possible, but of course we recognise that people will owe money and that that money needs to be reclaimed, if that is possible. I would appreciate some information about how these bailiffs are recruited and how they are trained. These are matters that my noble friend raised. In particular, what happens when there are children in the home? What responsibilities do these practitioners have in terms of families? What if the mother is pregnant or has a child aged under 12 months? Perhaps these are details that will be worked out further down the line, but I would certainly appreciate any information that the Minister can provide. I imagine the Minister has had opportunities to meet with the charities which serve these families and I would be interested to hear what discussions have been had in that regard.
I share the concerns of my noble friend Lady Meacher. She helpfully highlighted the impact of various factors, including the welfare cuts which will take place next year. I was speaking to the chief executive of Action for Children last week and, if I remember correctly what she said, she described a mother she had met who had been obliged to move out of central London because of the housing benefit cuts but wanted to keep her daughter in the school she was used to. So she travelled into London each day to take her daughter to school but then had to spend the rest of the day on the streets in London, with her young infant child, because she could not afford to make the journey home and then back out again.
There are real challenges to families in the current climate and I would appreciate all the reassurance and information that the Minister can provide so that, whatever is done here, any risk to families is minimised.
Lord Beecham
My Lords, this topic has a long history. It is five years since the Tribunals, Courts and Enforcement Act 2007 envisaged a code which would cover the powers of bailiffs, the fees they could charge and the processes they would be allowed to undertake. Part 3 of that Act contained the notion of a system of independent regulation—a phrase which we hear in another context at the present time. Subsequently, nothing much has happened. It is fair to say that the present Government, in January of this year, introduced some national standards, on a voluntary basis, to be adopted by local authorities and those working for them, presumably in connection with council tax and matters of that kind. However, beyond that, there has been very little.
When this House debated an amendment in my name in July, we were told by the Minister—again, the noble Baroness, Lady Northover—that, as we had already understood, the consultation period on the Government’s proposals in respect of Part 3 of the Act had ended on 14 May and we would receive the Government’s response by the autumn. I asked a subsequent Parliamentary Question in the autumn and was told that there would be a response in the autumn. Autumn is indeed a season of mists and mellow fruitfulness but we have, on the face of it, more mist than fruitfulness when it comes to an outcome of the Government’s deliberations. The Minister indicated that the response would be coming soon but we are now out of autumn and into winter—as the temperature in this Chamber clearly affirms—and we do not yet see the Government’s direction of travel. Having regard to the disappointment that I voiced over the last issue, I am not over-confident that we will get a resolution that will meet the requirements of the case.
In Committee, I cited a number of instances of what can only be described as appalling behaviour by bailiffs; I am referring to private bailiffs as opposed to the enforcement officers employed directly by the courts. I can update your Lordships’ House with a few more cases. One case involved a company which had a distress warrant and threatened that the defendant would go to prison. In another case, the same company was issued with a distress warrant and the defendant tried to make an arrangement to pay. The defendant received texts, notices through their door and, on one occasion, the bailiff banged on the door. The defendant and her partner were out and two children aged 6 to 8 and a 14-16 year-old were at home. They explained that their parents were out and the bailiff threatened these children that they would take all their possessions and toys and that their mother would go to prison if the monies were not paid.
Lord Bach
My Lords, in bringing up the rear, as it were, on this point, I will be very brief. I was the junior Minister with some responsibility for the Supreme Court while the building was being refurbished and finished. It was exciting to see noble and learned Lords in their hard hats going around the building as it was being refurbished. It has developed into an extraordinarily effective court which is a great credit to all those involved in it and is now a natural part of our constitutional settlement. I was also a Minister when the Supreme Court was actually opened. That, too, was an exciting time. I have a lasting interest in how the Supreme Court functions. I strongly support the amendment moved by the noble Lord, Lord Pannick, as it seems to me to go to an issue of independence. The independence of that court is of supreme importance, if I may use the expression. It is very important that the general public and the world outside understand that that court is at the very top of the British judicial system and is independent of the Executive in every way. That is why I support the amendment.
Lord Beecham
My Lords, I rise briefly to place on record the full support of the Opposition for this amendment. I hope that the Government will accept its spirit, if not the precise wording, today. It seems to set the final stone in the arch, as it were, of the construction of the Supreme Court. It clearly makes sense and I endorse entirely the observations of noble and learned Lords, the noble Lord, Lord Pannick, and my noble friend Lord Bach.
Lord Ahmad of Wimbledon
My Lords, I am minded of the fact that during the dinner break one of my noble friends remarked how cold the House had become given that we are in the winter months. I hope that some of my words may warm the temperature spiritually if not physically. Before I deal with the substance of what has been laid in front of us, I assure the House that Her Majesty’s Government fully and utterly respect the independence of the judiciary, and that there is no question of our duty to uphold that independence.
As the noble Lord, Lord Pannick, has alluded to, and as many noble Lords will recall, this House considered what are now Sections 48 to 50 of the Constitutional Reform Act 2005. Then, as now, the concern was how the court’s independence might be maintained following the Appellate Committee of the House of Lords transition into the UK Supreme Court. Several noble Lords have already made strong arguments as regards the current situation. I am not here to revisit arguments that have been raised historically. However, the Government retain a fundamental concern with regard to accountability and proper lines of accountability which need to be established so that the elected Government are responsible for the proper fiscal and managerial operation of the court.
The noble Lord, Lord Pannick, my noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Goldsmith, who was the Attorney-General, made very specific points about the challenges faced by the Lord Chancellor in appointing the chief executive, and the fact that a chief executive appointed by the Lord Chancellor has two masters in effect—one judicial and the other ministerial—and, as was argued, this breaches the principle of the separation of the Executive and the judiciary.
As I have said, the Government will listen to the arguments and have an open mind on the issue. As the noble Lord, Lord Pannick, alluded to, we are indeed engaging with the Supreme Court in order to consider the impact of this arrangement and of the amendment as tabled, and to resolve any concerns it may have about its independence and how this might best be preserved. However, it is our considered view that this constitutional change should not be rushed and that the Government and the Supreme Court should continue to discuss and consider together how any reform may be taken forward.
Reference has been made to Third Reading. I cannot at this time give an absolute concrete assurance from the Despatch Box, which I am sure noble Lords will appreciate, as to whether we will have concluded our consultation with the president of the Supreme Court, but these discussions are of course ongoing.
In lieu of these comments, I hope that the noble Lord, Lord Pannick, will be content to withdraw Amendment 112A on the understanding that this is a live issue which is being looked at, and which has been raised directly with the president of the court.