Civil Legal Aid (Merits Criteria) Regulations 2012

Lord Beecham Excerpts

Monday 3rd December 2012 Lords Chamber

[Lord Beecham]

My noble friend is to be congratulated not only on bringing this amendment to the House but also on being elected Peer of the Year. At this rate he may turn into the Hilary Mantel of your Lordships’ House; she of course has won her second Man Booker prize, and it may be that next year my noble friend is awarded with his accolade again. I will speak briefly to his amendment before turning to that of the noble Lord, Lord Pannick.

The Opposition entirely support the case made by my noble friend, particularly because, embedded in the Government’s approach and reflected to some degree in today’s debate, there is some confusion between points of law and errors of law for the purpose of these regulations. The Citizens Advice briefing helpfully makes this distinction clear. It says:

“Furthermore in devising this whole policy Government appears to be confusing ‘points of law’ with ‘errors of law’. Whilst the majority of first tier welfare benefit appeals turn on ‘points of fact’ such as financial and other circumstances … many cases do raise significant legal issues over statutory interpretation (ie social security regulations), legal tests for disability”—

as referred to by the noble Baroness, Lady Doocey—

“or disputed application of … precedents etc. The tribunal making an error of law which may be subject to a right of appeal is a much narrower concept”.

We have to bear that distinction in mind when weighing the strength of the case made by my noble friend. It will be the very exceptional case, as the noble Baroness pointed out, that may qualify for that description of an error in law, which of course has to be self-certified by the tribunal itself—a peculiar process, one might think. We are certainly not in the position that the Minister mentioned in the debate in the House of Commons when he talked about 440,000 cases. That number is inconceivably large and, in my view, can be dismissed. Certainly, though, probably a good deal more than 650 cases could potentially arise if the definition were to deal with points of law. I hope that, bearing in mind the assurances given on the earlier occasion by the former Lord Chancellor, the House will support my noble friend’s amendment.

I also support the amendment moved by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Mackay, as I understand him. Indeed, there is a peculiar relationship between Regulation 53 and Regulation 39, but in my view it goes somewhat beyond the matter identified by the noble and learned Lord. In addition to the potential clash with Regulation 39(d), it strikes me that problems arise in relation to two earlier parts of that regulation, paragraphs (a) and (b). I remind noble Lords that all these matters have to be borne in mind when dealing with Regulation 53. Under Regulation 39(a) the director has to be,

“satisfied that the following criteria are met … the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case”.

That is a fairly open-ended requirement. Regulation 39(b) says that the director has to be satisfied that,

“the case is unsuitable for a conditional fee agreement”.

Suppose, though, that it was suitable for a conditional fee agreement; that of course does not necessarily mean that a conditional fee agreement is available. Suitability and availability are not the same thing. That reinforces the noble and learned Lord’s point that there is an inconsistency between Regulation 39 taken as a whole, not just in relation to Regulation 39(d), and Regulation 53. I hope that noble Lords will be convinced by that element.

There is a further matter that I need to touch on. The thrust of the Government’s proposals is to reduce the reliance on judicial review. We have to be concerned about this in view of recent pronouncements about the Government’s desire to reduce substantially the number of cases that can be advanced by that method, which is of course a principal method of holding the Executive to account. This is just one potential example, but I think that noble Lords will want to pay particular attention to it, having regard to the category of people who will be most affected by it. We should not lose sight of the fact that this may be part of a process of restricting access to judicial review that will go well beyond this particular category. In my submission, that is an additional reason for noble Lords to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Mackay of Clashfern]

My Lords, am I right or wrong in thinking that any appellant who is unhappy with the decision of the First-tier Tribunal can ask it to review the decision?

[Lord Beecham]

Assuming that the appellant has the knowledge of that procedure, he might ask it to review its decision, but the review will amount to nothing unless the tribunal convicts itself, as it were, of an error in law. If it makes that mea culpa then under the Government’s amendment there is a potential for legal aid to be granted, but not otherwise.

[Lord Elystan-Morgan]

My Lords, I support both amendments. I am sure that it is not necessary for me to add my voice to the very distinguished contributions that have already been made in this regard. Both amendments turn upon undertakings that have been solemnly given—and, no doubt, in the best faith—by the right honourable Kenneth Clarke. I accept that completely. If there has been mischief, it has probably been the mischief of mandarins thereafter in trying to release him in some way from an undertaking that he solemnly and sincerely gave.

The other feature that is common to both amendments is that they deal with situations where preliminary machinery is set up before a person can qualify for legal aid. In both cases, in my view, that machinery imposes such a burden upon the potential applicant to make his or her case virtually impossible—in other words, a total denial of what otherwise would be a fair and just application by that person.

In the circumstances, bearing in mind the weight of authority that has been projected towards the Government in this case, it would be a very rash Minister who did not concede the obvious points made in the amendment moved by the noble Lord, Lord Pannick. If the noble and learned Lord, Lord Mackay, is correct about the interaction of Regulations 39 and 53, and if it be that Regulation 53 in this regard is totally and absolutely governed by the relevant provision in Regulation 39, then that is it—the Government do not lose one millimetre advantage, because that situation has already been covered and fully determined. However, if that is not the case, then it seems that the argument put so powerfully by the noble and learned Lord, Lord Goldsmith, must have come into play. That is that the director could come to the conclusion that indeed all reasonable avenues had been pursued but that there were unreasonable avenues that had not been pursued. That would be an absurdity and a miscarriage of justice. It is either one or the other.

As far as the amendment of the noble Lord, Lord Bach, is concerned, it seems to me that there again is an irrefutable case. I am not at all clear what triggers the situation where there would be a review by the first tribunal. Would it be something entirely within the discretion of that tribunal, or would it be on application? If it is within the discretion of the tribunal, it is a very strange situation that a tribunal is invited to consider whether it is in error.

Of course, I draw the distinction that has already been pointed out by the noble Lord, Lord Beecham. There is a world of difference between a point of law and an error of law. When a judge has adjudicated in a civil case and is invited to grant leave to appeal, he is not saying, “I am wrong”, or, “I am sure that I am wrong, please appeal”. What he is saying is that there is a point of law that is properly arguable. That is a very different situation from a tribunal which says, “We are wrong”. In fact, I do not know of any other circumstance where such machinery exists in law, but I am sure I will be corrected with regard to that.

The basic principle that we are concerned with here is that legal advice on a point of law should belong to the beginning of an action, not to the end of it. So much anguish will be saved by a very modest expenditure. I believe that so much money from the public purse will be saved because there are undoubtedly downstream costs which will be massive in scale in relation to this. However, above all it is a question of miscarriage of justice.

We think of miscarriage of justice as a situation where a tribunal has come to an utterly wrong decision. It is not limited to that at all. A miscarriage of justice occurs where a person has a just, meritorious case, and on account of lack of money is unable to have that case properly adjudicated. If you ask any decent citizen of this land, whatever politics or total lack of politics he or she may have, “Do you believe in a miscarriage of justice?”, we all know what the answer would be.

Justice: Legal Advice

Lord Beecham Excerpts

Tuesday 27th November 2012 Lords Chamber

[Lord McNally]

My Lords, I pay tribute to noble Lords on all sides of the House who, during the course of the LASPO Bill, championed the cause of Citizens Advice and other advisory services. The Government are looking at the whole advice sector—the Cabinet Office has taken on that responsibility—and, in the mean time, the Government have put forward an advice service transition fund, worth £65 million over the next two years, to help promote collaboration and best practice in this sector.

[Lord Beecham]

My Lords in 2011-12 the Newcastle CAB advised on 8,000 benefits problems. It has now lost £150,000 of government funding and three and a half posts, including its specialist welfare rights adviser. Gateshead CAB has lost £500,000. What advice can the Minister give these and other hard-pressed bureaux about how they can beat the rising demand for welfare law and welfare rights advice?

[Lord McNally]

I suppose that I can only give those in the voluntary sector the same advice as was given in my own department, which has had to take a 23 per cent cut in services. The reality, which it seems difficult for the Opposition to take in, is that we are all a lot poorer than we thought we were and a lot of organisations are having to reorganise to be effective. As I said, we have set aside £65 million over the next two years—and I have not even mentioned the £25 million to which I used to refer during the course of the LASPO Bill as the £65 million is new money. We appreciate the benefit of Citizens Advice and we want work with it so that it can carry on its useful work.

Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order 2012

Lord Beecham Excerpts

Tuesday 20th November 2012 Grand Committee

[Lord Beecham]

My Lords, I ought to declare an interest as a member of the Law Society and as a virtually non-practising solicitor, who in his professional career has no doubt contributed significantly to the assets of the compensation fund without, as I recall, having to draw down from it, no doubt to the satisfaction of my former clients.

The Solicitors Regulation Authority makes the Circumlocution Office look like a model of efficiency, to judge by the delays in its approach to this matter. It does not seem to have thoroughly mastered the implications of the complex structure that has been created as a result of the formation of alternative business structures, to use the jargon that the Minister referred to. Many of us have reservations about these new bodies but, be that as it may, they are with us and they certainly have to be regulated—in particular, there has to be proper provision for compensation where things go wrong.

It appears that the SRA is to review these compensation arrangements as part of what it calls a root-and-branch review in two years’ time. The Law Society concedes that it would be sensible to extend the time during which the present arrangements continue, but it is far from certain that the SRA has the necessary resources to conduct that review thoroughly and properly. Perhaps the Minister could indicate what assurances he has received about the resources and the timeframe and whether the MoJ will be in regular contact with the SRA to try to ensure that a timetable is agreed and kept to. It is clearly important, given the likely growth of these new structures and the potential for claims to arise in the mean time, that the system is improved as rapidly as possible. As I say, it is not clear—to the Law Society, at any rate—that the SRA is in a position to do that. There are other problems with the SRA, with which the Minister is no doubt familiar, but those are not a matter for discussion today.

In the Law Society’s view, there is also a case for looking at the compensation fund as a whole. The society has for some time been calling for a review to look at the impact of the new structures and whether it is still appropriate for there to be a single fund covering both types of practice—traditional solicitors’ practices and those of the new structures. The new structures will, of course, embrace non-solicitors as well as some solicitors and they may reach out into areas other than traditional legal practice, so there is a question whether the scheme would apply to non-legal activity and so on. All this seems to be somewhat vague at the moment.

The Law Society also points to the need to consider the impact of a recent decision by the authority to transfer the cover for non-applied firms from a risk pool to the compensation fund. That apparently exposes the fund to a new type of claim relating to negligence and negligent actions.

There is also a question of whether the present management arrangements are up to dealing with these complex new positions. I acknowledge that none of this is the direct responsibility of the department, but given that the department, under the previous Government and now under the current Government, is establishing the framework, it is surely necessary for the department to take an active interest to ensure that a satisfactory position is achieved. We do not want a position in which either the legal profession is paid, as it were, for the possible errors of the new structures, or in which people find it difficult to obtain compensation when they should have it. While it is obviously necessary for this extension to take place, I urge the Minister to indicate that his department will be conscious of the need to ensure, as far as it can, that the SRA carries out what is expected of it within that timescale and no later and that it has adequate professional and technical resources to do the job.

[Lord McNally]

My Lords, I thank the noble Lord, Lord Beecham, for that response. I am aware of his long and detailed knowledge of the solicitors’ profession, so I was trembling a little that I was going to be baffled by professional science. He indicated, I must say, a slight irritation on my part that one looks pretty silly when one puts in a sunset clause then has to come back and say, “Please, lift it”. The intention was good—it being thought that the presence of a sunset clause would produce a sense of urgency in the Solicitors Regulation Authority—but that was, perhaps, overoptimistic. Not putting in another sunset clause is common sense—better that we tell them to get on with it—and I fully take his point that my department should take a close interest in the matter. The review is primarily a matter for the SRA and details of the review will be in its strategic plan. However, the Legal Services Board, the oversight regulator of the legal services framework, has indicated that it expects the SRA to report on progress. I assure the noble Lord that I will keep an eye on progress, because I do not want to come back here to tell him that there has been none.

The SRA has assured us that it is now in a better position to complete a fundamental review of its compensation arrangements, which will determine the best solution for the compensation arrangements, not only for ABSs, but for traditional firms. It is therefore too early at this stage to get any views to dictate the outcome of the review. The SRA will note the irritation from all bodies—the Law Society, the LSB, the MoJ and the Official Opposition—and I hope that that, even more than a sunset clause, will spur it to action. Work on the review has started and the detailed scope of the project has been developed. The SRA held a meeting with the LSB to discuss and agree the detailed scope and the project scope and methodology has been approved by the financial protection committee, a sub-committee of the SRA board. A summary of the scope and methodology will be published on the SRA website in December 2012.

The project has now entered a research phase and initial meetings with stakeholders are being held. The SRA is committed to transparency of research in this area and has undertaken to publish information and research findings throughout the project. The SRA was able to dedicate policy resources to the compensation arrangement review from June 2012. However, data-gathering started earlier, in spring 2012. I can assure the Committee that work is now under way, and I and the MoJ will continue to keep a very close interest in progress.

Crime and Courts Bill [HL]

Lord Beecham Excerpts

Tuesday 13th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, Amendment 22 is a very low-key and minor introduction to this important new schedule about deferred prosecution agreements. It deals with the provision of certain persons to be designated as prosecutors who can enter into deferred prosecution agreements. Paragraph 3(2) states:

“A designated prosecutor must exercise personally the power to enter into a DPA”.

If I split an infinitive, it was because I was quoting. Paragraph 3(3) states that,

“if the designated prosecutor is unavailable, the power … may be exercised personally by a person authorised … by the designated prosecutor”.

This is a probing amendment. I seek to understand what is meant by “unavailable”. I assume that it would mean something more than “unavailable because he has gone to the dentist that afternoon”, and would mean unavailable because he or she is having long-term treatment for a medical problem that keeps them away from the office and away from work. The amendment specifies that the unavailability should be,

“for a period of or likely to be of more than 21 days”.

I am by no means wedded to that. As I said, this is a probing amendment, because “unavailable” could be read as meaning a very brief period where it would not be appropriate for power to be delegated. I beg to move.

[Lord Beecham]

My Lords, the noble Baroness raised a perfectly fair and reasonable point, to which no doubt the Minister will be able to reply. Looking again at paragraph 3, it strikes me that perhaps there are one or two other questions to ask. Paragraph 3(1) states that the prosecutor is designated by an order made by the Secretary of State. That is a very high-level appointment. It is emphasised by paragraph 3(2), which states that the designated prosecutor,

“must exercise personally the power to enter into a DPA”.

Again, it follows that this is a serious responsibility for somebody appointed at the highest level relevant to that appointment.

It would appear that the person then has a delegated power, in the circumstances which no doubt the Minister will elucidate of his or her unavailability, to appoint somebody else. There does not seem to be any procedure for that person necessarily to be one of a group approved in advance by the Secretary of State. It may be that a sort of panel system is envisaged, but that is not clear in the Bill. Presumably anybody could be designated—in theory they could be relatively junior—by the original designated prosecutor to carry out this very responsible work.

This thought had not occurred to me until the noble Baroness opened up the issue. However, it strikes me as a matter that the Minister should take back and look at. I would envisage that a panel system would apply, but surely it would be sensible to specify that that would be the case, rather than leave an untrammelled decision to the designated prosecutor in circumstances where he or she is not available to do the job. Perhaps the noble Lord, Lord Ahmad, will take that back and look at it, in order to answer both problems that we have identified this evening.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

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

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

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

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

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

[Lord Beecham]

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

[Baroness Hamwee]

My Lords, of course I will look in any direction that the noble Lord points me to in considering consistency with other legislation. I think that what we are being asked to do is to rely on the good sense, and good sense of responsibility, of those who hold the posts specified in paragraph 3(1)(c). I understand that and take the point seriously but, as the noble Lord, Lord Beecham, said, at least some further thought is required in order that we can be confident that enough constraint is in place. For the moment, I beg leave to withdraw the amendment

Crime and Courts Bill [HL]

Lord Beecham Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Goldsmith]

I am not concerned about that for this reason. There are two very powerful safeguards in the Bill that should prevent that. First, the DPA has to be agreed by a prosecutor and, as the debate on the previous amendment demonstrated, not just any old prosecutor but either the Director of Public Prosecutions or the director of the Serious Fraud Office—or, possibly, a person designated by the Secretary of State. I leave aside the locum tenens that might come in; the Minister will tell us at some point how likely that will be. First, the prosecutor has to decide whether it is appropriate. Having spent, as the Committee will know, a lot of time with prosecutors when I was in office, I had a high regard for their understanding of what the public interest and public reaction is. They know when people need to go to prison, if they are convicted, and they know when it is appropriate for them not to do so. We can rely a great deal on them to decide which cases are appropriate and which are not.

There is then a second safeguard. Under the Bill as it stands, it has to go to court twice, and the court has to be satisfied that it is appropriate and proportionate for such a step to be taken. Those safeguards mean that one can be much more relaxed about the risks to which the noble Lord, Lord Phillips of Sudbury, refers. Of course, I would entirely agree with him that if we had a situation in which the system operated only to the benefit of the rich it would be wholly unsatisfactory. That is one reason why I think that extending the ability of DPAs so that they cover the sort of offence that I have referred to and individuals would meet part of that concern. If anything, I am worried that by limiting this to economic crimes for companies and partnerships one sends the very message that the noble Lord, Lord Phillips of Sudbury, does not want to be sent. I invite the Government to think very hard about that.

Those are the two safeguards. My personal preference would be not to add any other barriers. I would not add the barrier of the offence being likely to carry a sentence of imprisonment. As the noble Lord, Lord Marks, recognised, if this was extended to cover the sort of case with which I have been concerned it would rule those cases out. I would leave it to the good sense, judgment and sense of public interest of the prosecutor and the court to limit the cases. For the same reason, I would leave the ambit of cases that could be covered open. I would not try to cherry pick through the statute book to find other offences that might be appropriate. I would leave that to the prosecutor and then to the court to say whether it was appropriate to use it for this sort of environmental offence or that sort of health and safety offence. I predict that fairly soon we will have a code giving guidance, and no doubt there will be debates in this House and in other places from time to time as well, and we will see the sort of offences that are appropriate. It is a very useful tool. Other dispositions are not normally limited in this way to particular offences, individuals or specified periods in prison. When I move my amendment, I will invite the Government to consider those points very carefully.

[Lord Beecham]

My Lords, at Second Reading I expressed misgivings about the introduction of this new concept which were shared by other Members of your Lordships’ House. However, it is clear that the proposal will go ahead. It is certainly possible for us to live with that and, indeed, to seek to improve the legislation on the way.

I listened with great care to the reference of my noble and learned friend Lord Goldsmith to the desirability of extending the DPA process to individuals. However, I am still not quite persuaded about that. I certainly would like to see how the original intentions of the Bill are carried out and what effect they have on what I take to be the basic approach of the Government, whose rationale is that in serious cases, which take an inordinate amount of time and cost an inordinate amount of money to pursue, adopting this measure might achieve a swifter resolution of the problem and, as the noble and learned Lord rightly reminded us, help to pursue the desirable objective of changing behaviour. One particularly looks to that approach being applied in the corporate field. Only today we have seen across the pages of the Guardian an apparent example of the kind of corporate misconduct that could well lead to a massive investigation. One might think that that is an ideal case for the application of this new principle. However, the new principle departs from the traditions of our jurisprudence—as do other things that we shall discuss shortly, but not in connection with this Bill—and is not something to be embarked on lightly. In particular, we need to continue to bear in mind the state of public opinion as it might develop.

I quite take the point that it is not necessary or desirable to confine the scope of this new procedure to economic and financial crime, although I suspect that that is what has triggered it. I am particularly attracted by the references of the noble Lord, Lord Marks, to environmental issues. I think of some of the cases that we have debated in other contexts that involved damage to the environment. Those cases can also be formidably expensive and, almost by definition, difficult to pursue. The noble and learned Lord, Lord Goldsmith, is right. We cannot list every conceivable item. There has to be an element of discretion. It would be sensible for this matter, and its extension, to be the subject of orders and therefore subject to parliamentary approval. I agree with the noble and learned Lord that Amendment 35 in the name of the noble Lord, Lord Marks, probably goes too far.

I want to touch briefly on Amendment 48 in my name which seeks to establish a sunset clause. This is one of three amendments which are partly designed to reassure the public that this measure is not undertaken lightly by the Government and Parliament and that, novel as it is and potentially almost offensive as it could be to some people’s sense of justice, it will be subject to very careful review which is more extensive than the post-legislative scrutiny now available. My amendment would compel a proper parliamentary review of the whole issue if, in the light of experience, it is thought appropriate to renew the provisions. I suggest a five-year period because by definition many of these cases take a long time and it will take time to see how the new system beds down.

The Minister was not oversympathetic to that suggestion on the previous occasion we discussed this matter. However, I hope that it will be given consideration because we cannot lightly embark on this massive change, with the implication that people—corporations rather than individuals—can buy their way out of difficulty. I will return to that thought in relation to other amendments. I hope that the Government will look sympathetically at some of the points that have been made, notably about the extension beyond simply economic and financial crime, and in particular at the possibility of a sunset clause as proposed in my amendment.

[Lord Goldsmith]

The noble Lord referred to someone buying themselves out of trouble, or whatever it may be. It is the same sort of idea that the noble Lord, Lord Phillips of Sudbury, raised. Would the noble Lord agree that as well as a financial penalty, a DPA could well provide an obligation to comply in particular ways in future? That is not the same thing as buying your way out of trouble. It is accepting a form of conduct in future that hopefully would be beneficial to the public and everyone else and is not just a matter of pounds in your back pocket.

[Lord Beecham]

I am talking about public perception, which might well be less grounded in those more fundamental objectives than we might give it credit for when debating it in this environment, dominated as it is—looking around the Chamber—by lawyers. We have to carry the public with us. The noble Earl, Lord Attlee, is aghast: unfortunately for the legal profession, perhaps, the lawyer gene apparently did not pass from his grandfather. We have to take public perception on board and it is in that sense that I use the term.

[Lord Phillips of Sudbury]

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

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

--- Later in debate ---

[Lord Beecham]

My Lords, I broadly sympathise with the amendments of the noble and learned Lord, Lord Goldsmith, on this part of the Bill. In particular, it is important to recognise that there needs to be some incentive—this is the American experience—for potential defendants to come to terms, and the noble and learned Lord’s formulation is in line with that. However, given that the Bill refers to the penalty being broadly comparable to a sum that might be levied by way of a fine on conviction for an alleged offence following a guilty plea, there is an implicit assumption that there will be a one-third discount from what would be the fine after a conviction. That is the way in which the system appears to work, so we are perhaps not terribly far apart in any event.

I am less clear about the attraction of Amendment 26. I do not quite follow why the payment to the prosecutor of a financial penalty should be taken out of the Bill. The prosecutor is not personally going to pocket the money, I assume.

[Lord Marks of Henley-on-Thames]

Perhaps I may help. Amendment 26 is part of a suite of amendments. Amendment 24 provides for the compulsory imposition of a requirement to pay the prosecutor a financial penalty broadly comparable to the fine a court would have imposed. The amendments can only be read together. If you have Amendment 24, you do not need paragraph (3)(a).

[Lord Beecham]

I will not take the time to check that. I shall accept the noble Lord’s remarks and leave it to the Minister to respond.

[Lord Marks of Henley-on-Thames]

On this occasion I am certain that I have got the drafting right.

[Lord Beecham]

Well, there is a first time for everything.

[The Minister of State, Ministry of Justice (Lord McNally)]

Dear, dear, dear. I noticed that my noble friend Lord Ahmad at one point referred to the noble and learned Lord, Lord Goldsmith, as his noble and learned friend. In some ways, both Front Benches are grateful for the noble and learned Lord’s interventions and draw on his experience in this area. In that spirit, I shall take another look at both of his amendments and take advice on them.

Paragraph 5 of Schedule 17 sets out both mandatory elements that every deferred prosecution agreement must include—namely, an agreed statement of facts and an expiry date—and a number of optional elements set out as a non-exhaustive list of potential terms.

As my noble friend Lord Marks has explained, Amendments 24 to 27 would require a financial penalty to be agreed and imposed in every case; whereas, under the Government’s proposals, that is a matter to be agreed by the parties depending on the particular circumstances. The Government have taken the view that, for the purposes of this approach to dealing with alleged criminal wrongdoing by organisations, there must be flexibility to deal with each case individually. As such, our intention has been, as far as possible, to limit the mandatory elements of a deferred prosecution agreement. I defer to the noble and learned Lord, Lord Goldsmith, on whether it is a wholly new approach. As he says, there are at least some areas of our law that are pathfinders for this. However, I think that it is a new approach to economic crime.

It is important to remember that this is a voluntary process and that the outcome will be an agreement between the prosecutor and an organisation, as distinct from court-imposed sanctions. It is essential, therefore, that the parties are able to negotiate terms in an individual case that are tailored to the particular type and extent of the alleged wrongdoing, as well as to the wider circumstances of the case and the organisation, including its financial circumstances. Ultimately, the package of terms will be the subject of judicial scrutiny and the judge will consider whether, taken as a whole, they are fair, reasonable and proportionate. If the judge is not of that view, he or she will not approve the agreement.

A financial penalty is just one of the potential terms of a deferred prosecution agreement, and is one of five of the suggested terms which are monetary in nature. While the illustrative terms in paragraph 5 are not listed in order of priority, it is the view of the Government that any terms of an agreement relating to compensating or making reparation to victims should take priority over the other monetary terms, including any financial penalty. Not all of the suggested monetary terms would be appropriate or desirable in all cases. In addition to, or instead of, monetary terms, an agreement may include obligations to improve corporate governance and compliance and to provide for implementation of the agreement’s terms to be monitored, the cost of which would fall on the organisation, or indeed anything else which the parties can agree is an appropriate response to the alleged wrongdoing. It will be for the parties to negotiate, and ultimately for the courts to approve, a range of terms that are fair, reasonable and proportionate. While a financial penalty is very likely to be imposed in the majority of cases, we do not consider it necessary or desirable to require a financial penalty to be agreed and imposed in every case.

Amendment 28 concerns the level of financial penalty payable under the terms of a deferred prosecution agreement. Where such terms are to be included in an agreement, the sum payable should be broadly based on the fine that would have been imposed for the alleged offence on a conviction following a guilty plea. Where available, the court would follow relevant offence-specific sentencing guidelines, as well as guidelines on general principles of sentencing, including the reductions in sentence for a guilty plea, as the noble Lord, Lord Beecham, pointed out. When considering a financial penalty term of a DPA, it is expected that both the parties and the court would have regard to the same guidelines, as well as the balance of other monetary terms of the DPA. This is to ensure as far as possible that any financial penalty under a deferred prosecution agreement would be broadly comparable to a fine likely to be imposed by a court following a guilty plea.

The effect of Amendment 28 would be to place a cap on the maximum financial penalty that could be negotiated under a deferred prosecution agreement. Given that it will be impossible in any particular case to estimate accurately the likely fine the court would impose, it would in practice be undesirable to seek to limit the freedom of the parties to negotiate the amount of a penalty in this way. In any event, the amount arrived at will have to be agreed by both parties before seeking the court’s approval and the court would need to be satisfied that any financial penalty is fair, reasonable and proportionate, such that we do not think specific further provision is necessary. But as I said to the noble and learned Lord, Lord Goldsmith, I will look at both of his amendments.

Amendment 29 relates to the provisions we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with a deferred prosecution agreement. We have included this provision as a way of dealing with non-compliance capable of being objectively determined by the parties, for example, where the organisation has made a late penalty payment. The aim is for the parties to remedy the non-compliance without recourse to the court, for example, by way of punitive interest in relation to the late payment. Such a term would be negotiated alongside all of the other terms of an agreement and approved by the judge. We do not envisage that such a term will be appropriate in all cases. Whether or not a deferred prosecution agreement includes such a term, paragraph 9 provides a formal procedure for breach and non-compliance which will be the most appropriate way for most instances of non-compliance to be dealt with.

I hope that the Committee will agree that it is desirable to ensure that agreements are tailored to individual cases, with judicial scrutiny of all of the proposed terms to ensure that they are fair, reasonable and proportionate, and that it would be inappropriate to make any of the terms of deferred prosecution agreements mandatory in all cases. And as regards setting the amount of a financial penalty term and inclusion of a consequences term, I trust that my explanation has reassured noble Lords. But I shall read in Hansard what the noble and learned Lord, Lord Goldsmith, has said, and perhaps he will look at what I have said. We can see how they match up or where we should move.

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Moved by

[Lord Beecham]

28A: Schedule 17, page 262, line 23, at end insert—
“( ) Prior to the implementation of the provisions under Schedule 17, the Sentencing Council shall lay before Parliament its proposals for the setting of financial penalties, which must be approved by each House of Parliament.”

[Lord Beecham]

My Lords, I am of course short, and I will now be brief. The amendment echoes the concerns that some of us have about the introduction of this new concept and the public reaction to it. It is designed to reassure the public that financial penalties, which as the Minister has just reminded us will not apply in every case, and nor should they, will nevertheless be a salient feature of the new regime and, I suspect, the one that will attract the most media attention. In contrast with subsequent amendments, the suggestion here is that there should be only one occasion on which the proposed financial penalty guidelines should have to be approved by Parliament. In his letter to me the Minister confirmed that guidelines will be laid before Parliament. That does not imply a vote, although it might imply a discussion. But on this first occasion, and only this first occasion, given the novelty of the concept it would be sensible and would help to ease the transition into the new system and reassure the public if there were specific parliamentary approval of the guidelines—not, of course, for specific penalties for particular cases, but the broad parameters of how matters might be taken forward.

In respect of other matters, which we will come on to later, I will be arguing for a more regular system. Parliament does not normally intervene in the workings of the Sentencing Council, and nor should we, but these are special circumstances. On that basis, I beg leave to move the amendment.

[Lord Ahmad of Wimbledon]

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

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

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

[Lord Beecham]

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

Amendment 28A withdrawn.

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[Lord Goldsmith]

I have a short but important point to make on Amendment 31 which stands in my name. As it stands, paragraph 5(2) requires that there should be an expiry date in any DPA but gives no guidance as to what its length should be. There needs to be some end point. This should not hang on for ever—in any event, it is unlikely that it would do so—but it is difficult to specify what that length should be. It could be different depending on the circumstances. The point of my amendment is simply to say that some consideration should be given to how one determines the length of the DPA. The best way of trying to get some guidance about that seemed to be to suggest that it should be included in the proposed code. There may be other ways to do it. I am completely open to what the mechanism is. My concern is that it is undesirable to leave it as it stands with apparently infinite or perpetual DPAs in existence.

[Lord Beecham]

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

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

“the fundamental principle of prosecutorial independence”.

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

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

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

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

[Lord Ahmad of Wimbledon]

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

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

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

“the choice of expiry date for a DPA”.

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

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

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

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

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

I shall speak briefly to Amendments 38 and 41. Amendment 38 is about public final hearings. Just as there are absolutely sound reasons for the preliminary hearing considering a DPA to be in private to avoid prejudicing any subsequent prosecution, if no DPA is entered into, and to avoid prejudicing negotiations for a DPA, so the final hearing should generally be in public unless there is still at that stage a substantial risk of prejudice. I suggest that that is essential for the public administration of justice and to build and maintain public confidence in these new arrangements. That is the point of Amendment 38.

Amendment 41 is on a similar theme. Under paragraph 12, the court may postpone publication of the terms of a DPA or of a decision on a breach, variation or discontinuance of a DPA if it appears to the court that postponement is necessary to avoid a substantial risk of prejudice to the administration of justice in any legal proceedings. This amendment limits any such postponement to the period of such continuing risk, so that as soon as the risk disappeared, publication would follow. Again, I suggest that that must be in the interests of the public administration of justice.

[Lord Beecham]

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

[Lord Ahmad of Wimbledon]

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Baroness Hamwee]

My Lords, a number of requirements may be made under paragraph 5, including imposing a fine or asking for compensation, a donation of money to a charity and reasonable costs. I was particularly concerned that the donation to a charity should not be treated by P as a deductable expense for tax purposes. In normal circumstances it probably would be, but that seemed to me to be offensive.

The HMRC has confirmed on its website that a fine is not,

“incurred wholly and exclusively for the purposes of the trade”,

but I do not think that it would do any harm to confirm this in the legislation. I have not included disgorging profits because, presumably, tax was paid on them in the first instance, so I can see an argument that they should be deductable. But I am interested in particular in hearing what the Minister has to say about payments to charity. I beg to move.

[Lord Beecham]

We wholeheartedly support this amendment.

[Lord Ahmad of Wimbledon]

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

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

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

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

Statute Law (Repeals) Bill [HL]

Lord Beecham Excerpts

Monday 5th November 2012 Lords Chamber

[Lord Beecham]

My Lords, I join the Minister in thanking and commending the Law Commission for the huge amount of work that has gone into bringing forward the Bill. As winter perceptibly draws upon us, the Minister appropriately comes to us in the guise of a sort of Autolycus manqué; in his case disposing rather than snapping up unconsidered legislative trifles accumulated over, as he said, many centuries.

I do not know whether the Minister has read the 365-page report of the Law Commission. I confess that I have not done so, but my eye caught some of the matters to which the noble Lord referred. In particular, I noticed that there were some Acts of Parliament affecting Newcastle, of which, of course, I am a resident and, still, a member of its council. It is striking how much detail has gone into the work of the commission, looking at some rather obscure provisions. For example, in Part 1 group 11 in the report, there is reference to two Acts of Parliament concerning Newcastle hospitals. The first is the Holy Jesus Hospital; the Newcastle-Upon-Tyne Act of 1947 dealt with that. These were hospitals built as alms houses in the 1680s. This one later became a museum and harboured something called the “town hutch”. The town hutch did not in fact contain rabbits; it contained the cash of the city council. The hutch is still preserved. Given the declining resources of the city council, they might well find it easier to accommodate them in the hutch in future, rather than the banks in which we are presently depositing our moneys.

Another Bill affected a different sort of organisation, the Mary Magdalene Hospital, a real feature of the city’s history. It is 900 years since a leper hospital was founded just outside the then city boundaries. Later it changed its character, and a new charter was granted in 1611, to provide housing for,

“three poor single or unmarried brethren”.

Brethren of whom it was not quite clear, but the trust still works. It still provides a very successful sheltered housing scheme, which is very popular and well managed, and resourced by the trust’s substantial landholdings in the city.

On another front, Part 5 of the report contains reference under the rather misleading heading of “Northumberland” to another Newcastle piece of legislation. The Explanatory Notes contained in the Law Commission’s report say:

“In 1688 a sizeable proportion of the population of Newcastle-upon-Tyne were poor artificers and labourers who found it extremely difficult and costly to recover small debts”.

I can assure your Lordships that, unfortunately, still a sizeable proportion of the population of Newcastle is poor. I do not know whether artificers are around, and do not know how many are labourers, but there is certainly a significant proportion of people who are poor and who find it difficult to cope with such legal matters as dealing with their debts. To resolve the situations 300 years go, a local court was created under the wonderful title of the Erecting Newcastle-upon-Tyne Court of Conscience Act 1688; that is a wonderful description. The court was to provide a local recourse because the cost of starting and conducting cases in London was too great. We therefore had effectively a small claims court where creditors could pursue debts of up to all of £2 locally.

The Minister has some responsibilities for courts now. We are seeing something of history repeating itself, given that we now have a single national county court with local branches. However, all proceedings have to be issued not in the locality but through a single court centre in Salford. Huge problems have been engendered by that process. I am not entirely sure that the Minister would countenance the creation of courts of conscience all over the country in order to promote the disposition of claims. But, as history seems to be repeating itself, it may be that some such recourse will have to be held.

These two examples of arcane and interesting legislation clearly have run past their sell-by date. We are certainly happy with the work of the Law Commission. We commend it for its work and commend the Government for bringing forward this Bill. I suppose that we can look forward to receiving another 365-page document in a few years’ time to dispose of many more pieces of legislation. Of course, I hope that much of the present Government’s legislation will be off the statute book before we get another Law Commission report and that a change of Government, as this side of the House certainly hopes, will happen soon.

Crime and Courts Bill [HL]

Lord Beecham Excerpts

Tuesday 30th October 2012 Lords Chamber

[Lord Beecham]

My Lords, in a previous debate, I described the then Lord Chancellor as a practitioner of the John Lewis style of politics—never knowingly understated. It seems that this is now embedded as the Government’s house style on justice issues. Ten days ago the weekend news resonated with talk of the Prime Minister shifting from “hug a hoodie” mode to “mug a hoodie”. We were expecting Dostoyevsky—“Crime and Punishment”, admittedly, rather than “The Brothers Karamazov”, which is presumably confined to the roles of the Prime Minister and the Deputy Prime Minister. But instead we ended up with something rather like a Bow Group pamphlet because, as it turned out, the Prime Minister’s speech and the ensuing long overdue government response to the consultation on community sentences, together with the amendments that they have now brought forward, reflect generally a more nuanced approach to the issues than we were led to believe was coming—as well it might, given the £10 billion a year cost of reoffending and the overcrowding in our prisons. It is a pity that while we have the government amendments before us, we do not as yet have accompanying Explanatory Notes, and I trust they will be available well in advance of consideration in Committee.

We welcome the decision to drop some of the more eye-catching proposals which aroused significant opposition in the consultation, such as driving bans, new powers to confiscate assets and fixed penalties for certain breaches of community orders. Equally, we support the proposals on restorative justice, building on some of the pioneering work already being done in different parts of the country. We also approve of raising the limit on compensation orders, which can be made in the magistrates’ courts. But there are questions, which some of your Lordships have raised already, to be answered about how proposals on restorative justice will work. What support will be offered to victims, who, as the noble and learned Lord, Lord Woolf, pointed out, should be at the centre of the restorative justice process? Equally, it will not be enough to say, as the Minister was quoted as saying, that offenders will be just saying sorry—although I suspect that the report did not do full justice to what he was talking about to the Guardian reporter. I do not think that that is by any means sufficient, and I do not believe that the Minister believes it, but perhaps he would like to go on the record and correct the impression given in his interview in the Guardian. In recognising that using restorative justice in appropriate cases could and, indeed, should, be cost-effective, have the Government estimated the cost of the process in terms both of cash and personnel, including the issue of training, to which the noble Lord, Lord Marks, referred?

The Government have laid great stress on the need for community sentences to contain a punitive element, although it is estimated that between 60% and 80% of such sentences already do so. The Government’s proposal that every community order must include one punitive element, a fine or both, has been the subject of concern around the House today. My noble friend Lord Rosser has already referred to concerns about offenders with mental health problems or learning difficulties. It would be helpful if the Minister could indicate that such matters could fall within the “exceptional circumstances” disapplying these provisions referred to in the amendment which would insert in the Criminal Justice Act 2003 new subsections (2A) and (2B). The noble Lord, Lord Marks, raised a series of questions about that. It would be unfortunate if his deduction was correct that exceptional circumstances might mean precisely that and there would be very few cases in which the courts would be able to depart from the provisions of new subsection (2A). We look forward to hearing from the Minister about his perception of what is intended by that phrase.

One such punitive measure could be electronic monitoring, which could certainly be useful in a number of cases. But given the recent critical report into the cost of the present scheme, what assurances can the Minister give that the costs would be much closer to those apparently charged in the US for the technology that is used there? Policy Exchange, not exactly the think tank of choice for bleeding heart liberals, has pointed out that around £883 million could have been saved by adopting the US practice of the scheme being applied by the judicial system rather than relying, as we have in this country, on three very expensive contracts with private sector contractors. What would be the process for any new contracts, using the new technology as it is developed?

The Government also propose to issue a code of practice in relation to electronic monitoring. Will this be subject to parliamentary approval, and will the data collected be available to government and other agencies in dealing with the consequences of offences? In any event, as the noble Lord, Lord Reid, and others have indicated, it will be important not to fetter the court’s discretion as to sentencing, and to give full weight to the rehabilitative element to address the issues which often will underlie the criminal behaviour that brings people before the court in the first place. These can, of course, range widely from alcohol or substance abuse to health, particularly mental health problems, to which reference has already been made, and low literacy and numeracy skills or lack of parental support. In dealing with all these matters there is clearly an important role for probation. Many of your Lordships, including the noble Lord, Lord Ramsbotham, have expressed great concern about the uncertainty around the future of the probation service. That is a matter which, although it is not formally part of the Bill, must be in all our minds as we debate its progress through this House.

Equally, we ought to know something about the proposed payment-by-results scheme. There have been pilots but apparently they have been abandoned, held up or deferred. Surely, if we are going to look at this concept, we need a proper evaluation of the pilots that have already taken place. It will not be good enough to proceed with a policy without an evidential basis.

The role of the skilled probation officer is key not merely in the sense of supervising the offender in terms of compliance with the provisions of the order but more generally in helping to identify areas in which the offender can be helped to address his or her problems, if necessary in co-operation with other agencies and services. We know that a home and a job are the key elements in reducing the propensity for prisoners to reoffend. The same must surely be true for many offenders given community sentences. Proposals to reduce access to housing benefits are not likely to assist, particularly in the case of the 18 to 24 year-olds to whom the noble Lord, Lord Ponsonby, referred.

By definition we are dealing with people who are, as it were, at the end of the process. Last week a question was asked in your Lordships’ House about London’s black cabs, which apparently suffer from severe steering problems—rather like the Government, you might think. However, the faults seem to be systemic and incapable of rectification. Much the same can be said in relation to the problems of those who end up in custody. The likelihood of their becoming offenders is closely related to factors apparent from an early age. Compared with the general population, prisoners are 13 times more likely to have been in care, 10 times more likely to have been a regular truant, six times more likely to have been a younger father and 13 times more likely to have been unemployed. Half of all adult male prisoners have been excluded from school and have no qualifications and 75% of female prisoners are in that category. Half of all prisoners have the reading skills of an 11 year-old or less, two-thirds have the numeracy skills of an 11 year-old or less and four-fifths have writing skills at or below that level. A very high proportion has drug and alcohol problems and the great majority have one or more mental health disorders, especially among young offenders. Around 20% of men and 30% of women prisoners have previously attempted suicide.

We are therefore dealing with a highly damaged group of people. To help prevent them inflict damage on the rest of us or, indeed, on themselves, we need all relevant agencies, not merely those involved in the criminal justice system, to engage with the problems of poverty, mental illness, substance abuse and addiction, lack of skills and work or a decent home—the milestones on the road to a prison cell trodden by such a high proportion of the prison population. That means the relevant arms of government and local government, including the health service, the Department for Work and Pensions, education and adult services joining together, as advocated by my right honourable friend Sadiq Khan, both at the early preventive stage and wherever necessary as part of the sentencing and custodial processes where crimes have been committed but also in the rehabilitative process and in the programme of community sentences which the Bill addresses.

In his foreword to the response to the consultation the Lord Chancellor describes the most serious weakness of our prisons as their doing,

“too little properly to challenge the individuals who end up inside them”.

That may be so but their capacity to challenge must surely be limited by the very numbers incarcerated and the overcrowding and consequent pressure on staff and facilities. He goes on to say that he is,

“determined to deliver a rehabilitation revolution: ensuring that more of the right people are inside prison”.

It is not entirely clear whether that means there should be greater numbers overall or fewer of what might be thought of as the wrong people inside. Perhaps the Minister can enlighten us on that.

However, the other principal objective must surely be that fewer who are in prison return to prison. Does the Minister agree that rehabilitation is not just relevant to those who receive custodial sentences? I assume that he does. Ought not that to be a priority for those receiving community sentences? Should not the Government be looking more closely at short prison sentences in terms of their effectiveness or otherwise and the need for follow-up after release?

There are two more issues on which I wish to touch briefly. The first relates to female offenders. The consultation response makes some reference to the relevance of community sentences to women but does not address the question of whether we simply have too many women in prison. Will the Government look again at this issue? Some years ago the number of women incarcerated had gone up threefold as against a twofold increase in the number of male prisoners and 50% of female prisoners had previously been admitted to mental hospitals. That is a staggeringly high proportion.

Will the Government also look at the position of BME offenders who are more often refused bail and who, if convicted, receive longer custodial sentences than others for comparable offences and with comparable records?

The noble Baroness, Lady Linklater, referred to the public’s attitude to sentencing. I think she was a little inclined to assume that it is rather more vengeful than is often the case. An opinion poll conducted some years ago showed that two-thirds of respondents expressed an interest in deciding what work should be carried out under the remit of community sentences. There was a recognition that prison is not a sufficient answer to the problem. Many people expressed a willingness to participate with youth offending teams in deciding what should happen to young offenders. I think we can underestimate the electorate’s intelligence. However, the noble Baroness is right to point out that we need to make the facts clear. Faced with the facts as opposed to the tabloid headlines, people would be more sympathetic to that approach and more sympathetic generally.

I commend the Government for their approach in the amendments they have brought forward and in their response to the Bill. However, a number of significant questions need to be addressed. I do not expect the noble Lord to deal with them all today. We will have an opportunity to go further into these matters in Committee. This part of the Bill is clearly on the right lines in most respects. We have to make sure that where it is not, it gets on the right lines. We also need to make sure that resources will be available to back the aspirations so that the Government’s intentions, many of which are shared by Members all around the House, can be carried out.

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Beecham, for that response. As is often the case with his contributions, it contains a great deal with which I agree. I am also grateful to him for putting on the record statistics about the nature of people who come into our criminal justice system.

I am pleased that the noble Lord emphasised the prize of rehabilitation. I have never hidden the fact that I am not pleased with a 50% reoffending rate in mainstream prisons and a 75% reoffending rate among youth offenders. Fortunately, a very small core of youth offenders are now in custody. Even the most hard-nosed of criminal justice practitioners must see the common sense of cutting into reoffending rates which has the threefold benefit of saving the taxpayer the £40,000 or so a year it costs to keep the reoffender in prison, saving victims the trauma of future crimes and giving society a law-abiding member. So the prize for getting rehabilitation onto the agenda is extremely important. I am very grateful for some of the comments —here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on.

I wish to comment on two of the points made by the noble Lord, Lord Beecham. I would like us to achieve with women offenders some of the success that we have had with young offenders. As the noble Lord rightly said, you do not have to look in too many women’s prisons to see those who have no place there. I am glad to say that my colleague in the other place, Helen Grant, has taken responsibility for our women’s strategy and will be publishing shortly an update of that strategy, which I freely admit will build on the pioneering work of the Corston report in relation to women prisoners. The noble Lord is also right about the 18 to 25 age group where criminality becomes embedded. We should be looking at how we try to identify some of the specific issues there.

As always with debates in your Lordships’ House, I am left with a pile of notes that either I have made myself or the Box has supplied, which would keep me here until well after the dinner hour. I would therefore ask that I and noble Lords are spared a response to every question, and I hope that we can raise them again in Committee.

Of course I do not see restorative justice being simply about saying sorry, although, interestingly, it is sometimes the most difficult thing to say. However, restorative justice also forces the offender to face the consequences of their actions and the impact that they have had upon others. In this way, it can help rehabilitate offenders and enable them to stop offending. It can help motivate them to change and become responsible, law-abiding and productive members of society.

In the examples of restorative justice that I have seen, its importance for victims should not be underestimated. The victims said on many occasions, “That enabled me to have closure” on what had been a very traumatic experience. I was therefore grateful for the comments made about our proposals on restorative justice, although I should say to all my colleagues who said that it is a big commitment that I do not underestimate the fact that it will have to be prepared with the proper training and rollout. I pay tribute to the noble and learned Lord, Lord Woolf, because it was his constant harrying on restorative justice that made it a priority for me. While I take on board the fact that it is a tough ask, perhaps I may quote Mao Tse-Tung, who said,

“The journey of a thousand miles begins with a single step”.

I hope that this is the single step that takes us towards restorative justice.

I was slightly disappointed that the noble Lord, Lord Reid, did not ride to my rescue because, again, I agreed with much of what he said. I agree that there are people in our prisons who should not be there. One of the things that I hope we are developing in this policy is the twin track, which will make sure that the people who should be in prison are put there because of the nature of their offences or for public protection, but those who should not be in prison are managed safely out of the system.

I was glad of the references to one of my other standby quotations—Jimmy Maxton’s comment about riding two horses at once. That is precisely and unashamedly what we are trying to do. We are trying to make sure that the public have a confidence in community sentencing that will allow us to implant rehabilitation into the community sentencing process, which we hope will provide the impact on reoffending that I have said is so desirable. I agree that there is a certain element of riding two horses at once. We need public confidence in community sentencing if we are going to give it the traffic that we want it to bear.

[Lord Beecham]

Does the Minister agree that it is essential that the horses run in the same direction?

[Lord McNally]

Absolutely. We might get on to troikas in a few minutes, but we will wait for that.

I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.

Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.

--- Later in debate ---

[Lord McNally]

Yes, and I think that some of the people who have been quoted as pleading exception could well be asked to work in some of those areas. The noble Lord, Lord Elystan-Morgan, shakes his head but, for me, the big danger is there being public contempt for a system where we need public respect. I am talking about somebody whose life is totally dysfunctional, who has never been used to getting up in the morning and who has no idea of time-keeping. We have heard about a number of programmes where half a dozen people are invited to participate but within a week the number is down to two because the others have not bothered to attend. We have to get credibility into the system to make it work. Because we are putting flexibility and trust in the judiciary, I hope that it will see what Parliament is looking for and help us to that end.

[Lord Beecham]

This is not on the substance but perhaps I may ask for clarification on what the Minister is moving. Presumably he is not moving the amendments, because we will be doing that when the clauses are recommitted to Committee.

[Earl Attlee]

If I may assist the Committee, we are speaking to Amendment 155ZA.

[Lord Beecham]

I know what we are speaking to but we are not voting on it. We are not agreeing these amendments. Perhaps the clerks might advise. Are we not recommitting today’s business at the end of the next debate? I am not sure precisely what the procedure is. I suggest that the amendment be not moved and that we just leave it.

[Lord McNally]

All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.

[Lord McNally]

I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.

[Lord Beecham]

These seem exceptional circumstances and, in that light, I am sure that we will accept the ruling.

Amendment 155ZA agreed.

--- Later in debate ---

I am conscious that I have spent a little time setting out the key elements of the deferred prosecution agreements, but it is important that there is a common understanding of how this new procedure will operate. Once implemented, the Government will keep this area of the law under review and formal post-legislative scrutiny will also take place in April 2018. I firmly believe that deferred prosecution agreements can make an important contribution in the fight against economic crime, bring more wrongdoers to justice and provide redress to the victims of such crimes. I commend these amendments to the Committee and beg to move.

[Lord Beecham]

My Lords, the Minister may not have noticed but during his speech the clock stopped after seven minutes so we had “007” on the clock. Having seen “Skyfall” the other night, I do not quite see the noble Lord as Daniel Craig mark II, but I am sure that he would do very well in that capacity.

[Lord McNally]

The noble Lord should see me in my swimming trunks before making that judgment.

[Lord Beecham]

I am too young to appreciate that offer.

It is ironic that notice of the Government’s intention to proceed with amendments to the Bill to legislate for deferred prosecution agreements should itself have been deferred until barely a week before today’s debate. It is quite unacceptable for material to be made available—indeed, its very existence to be revealed—only five days ago. I appreciate that this is by way of a Second Reading debate but Ministers must have formed the intention of bringing these measures forward months ago, presumably at a time when the expected debate on community sentencing had been scheduled to take place very soon after the end of the Summer Recess. I assume that the date was altered to accommodate the change of Lord Chancellor. It is reasonable to seek to accommodate Ministers in such circumstances but entirely unreasonable to make so little effort to accommodate Members of your Lordships’ House. For the record, can we know whether the new Lord Chancellor is to be in charge of this part of the Bill or whether Mr Clarke will be responsible for it in the time he now has to spare without an attachment to a portfolio? Can the Minister also say when the Explanatory Notes for this part of the Bill will be available to Members of your Lordships’ House?

It is not as if the Government’s proposals are unimportant, breaking new ground as they do, in our system of justice. I acknowledge immediately that consideration was given to and work undertaken around the issues raised in this belated addition to the Bill by the previous Government. Indeed, it might be argued that they are, in a way, an extension of the conditional cautions introduced by the previous Government, although, as my noble and learned friend Lord Goldsmith—who might claim paternity of that policy—has pointed out to me, they are at the other end of the offending scale.

We are, after all, apparently seeking to emulate the American system, under which what are often described as aggressive prosecutors drive hard bargains with offending corporations resulting in huge payments—five times as much, or sometimes much more than that, according to the impact statement, as is likely to be yielded under what we are now contemplating.

I confess to an initial reluctance to embrace a situation in which, in the area of economic crime—for that, as the Minister has made clear, is the area to which the proposals are addressed—one class of defendants should have the opportunity of buying off a prosecution for a one-third discount or, to be more precise, an up to one-third discount, of the fine they might otherwise have to pay. The Committee will need to be convinced that such an approach is acceptable in all the circumstances, and the public will need to be convinced that we are not creating a privileged class of potential defendants without achieving a significant benefit, not only in cash terms but also in terms of corporate behaviour. Hugging a hoodie was never an attractive notion to many people. Hugging a bent bank or crooked company is even less likely to appeal.

Is not the reality that these proposals stem essentially from the failure of the Serious Fraud Office to tackle economic crime effectively? It brings few cases and, all too often, as in the recent Tchenguiz case, fails lamentably to prove them after devoting years to the task. That case evinced a warning from the High Court that the Serious Fraud Office did not have the,

“proper resources, both human and financial”,

to investigate it and, by implication, others like it.

The question arises as to whether Ministers believe that the SFO has the resources to do its job effectively, not least in the light of budget cuts already amounting to £7 million, or 19%, since 2009-10, and planned to fall by a further £3 million, or 7%, by 2015.

Noble Lords may be surprised to learn, as I was, that top salaries in the Serious Fraud Office are in the range of £70,000 to £80,000 per annum, roughly what an assistant solicitor in a City firm acting for corporate clients might expect to earn soon after qualifying.

Unsurprisingly, the SFO has tended to use civil recovery orders under the Proceeds of Crime Act, a process which has aroused the concern of the OECD, not least because such a procedure does not lead to a disclosure of the nature of the wrongdoing or the basis of the settlement. I appreciate that the Minister has made it clear that these proposals would, in the event of matters being concluded, lead to such a disclosure and also, presumably, the basis of the settlement. The whole scenario hitherto smacks of recent concerns about the manner in which Her Majesty’s Revenue and Customs have apparently settled claims on terms appearing too generous to some major companies.

Will the new proposals be better resourced than the present system under the SFO which is signally prone to failure, as it has proved? Will the relevant agencies have the,

“proper resources, both human and financial”

to emulate its American counterparts? Will the Government look again at the issue of vicarious liability for the dishonesty of corporate employees rather than relying on the present, if archaic, doctrine of the directing mind, under which there is no such liability on behalf of the corporation unless a director or senior manager is involved?

In their response to the consultation document the Government indicated that they would,

“limit the application of DPAs to economic crimes, but provide for the list of economic crimes for which a DPA is available to be amended”.

Will this be by regulation or primary legislation and, if the former, by the affirmative or negative procedure?

--- Later in debate ---

On the point made by my noble friend Lady Hamwee, I really do not think that this is the slippery slope to plea bargaining and the other dark practices that she fears. The point made by the noble and learned Lord, Lord Woolf, was that if we get the code and safeguards right, we will be on safe ground. Having said that, I am immensely grateful to noble Lords for their contributions. I will study Hansard carefully and try to make sure that the House is well prepared for 13 November. Perhaps I may make one last point. Individual directors of companies will not be immune from prosecution if their company is part of a plea bargain. We will return to this on 13 November. However, if we could go through the process again, I am now asked—

[Lord Beecham]

I am not asking the Minister to reply now because noble Lords are waiting for the next debate, but I remind him that I raised two questions about Parliament’s role in relation to the Bill; first, in relation to the code which the Director of Public Prosecutions and the director of the Serious Fraud Office will produce and, secondly, in relation to penalties which the Sentencing Council will propose. We are concerned about that area, as will be other Members of your Lordships’ House. A reply about that would be helpful before we get to the next stage.

[Lord McNally]

I am grateful to the noble Lord. I could try and busk it now but it would be far more sensible to write to him and share that with the Committee. To make us entirely in order for our debate on 13 November, when amendments will be acceptable and we will be back on course as a normal Committee day, I must now move Amendment 155EZC.

Data Protection (Processing of Sensitive Personal Data) Order 2012

Lord Beecham Excerpts

Wednesday 18th July 2012 Grand Committee

[Lord Beecham]

My Lords, as the Minister reminded us, it is now close to a quarter of a century since this terrible event occurred. The pain has yet to be assuaged and many questions have yet to be answered. I commend the Government on proceeding to facilitate the work of the independent panel.

I have one or two questions, beginning with the point made by the Secondary Legislation Scrutiny Committee about the title of the order. In paragraph 26 of its report, the committee says that it is disappointed that the title of the legislation does not make the Hillsborough connection clear, and that those with an interest in the investigation of the disaster should be able to find related information easily. It makes the perhaps general point that the titles of instruments should be clear and transparent. I wonder whether it is possible, even at this late stage, for the title to be changed so that anyone who wishes to refer to the instrument in due course can track it down with ease. Maybe there will not be many but there may well be some who wish to do that. In replying, perhaps the Minister will also indicate whether he and his ministerial colleagues will look at the more general point made by the committee about the titling of such documents.

One or two questions arise on the detail of the order, based on the Explanatory Notes, which are, as ever, very helpful. In particular, they say that the panel’s secretariat will discuss the implications of the order with the disclosing organisations and the Hillsborough families. I am not sure about the timing of that; perhaps the Minister will enlighten us. Have those discussions begun in advance of the order? In other words, has the draft order been discussed or is the intention to discuss it only when it is finally confirmed? I hope that discussions have already taken place. It would seem a little odd if they have not but I assume that they have. It would be very helpful to know about that.

A couple of other questions arise from the detail, particularly on the panel’s terms of reference and how the protocol that it seeks to adopt, and which the order facilitates, will work in practice. The Minister referred to exceptions to public disclosure, particularly information that indicates the views of Ministers. In the normal course of events that would be sensible. However, will Ministers’ views be particularly relevant? After all, they would be discussing any events after they happened, so their views would not materially contribute to the work of the panel in seeking finally to ascertain the causes of the tragedy.

As the noble Lord said, it is also indicated that individuals’ identities may well be protected. The notes indicate that certain categories of individual will be redacted from the information. I wonder about this in respect of two particular categories: police officers who were constables or other ranks up to and including sergeant at the time the document was produced, and the fourth category listed—although I will confine myself to two—of junior public employees who were not in a position to determine their agency’s response. In relation to the first category, I wonder what the rationale for that restriction might be. It may be that people at the rank of sergeant were not in a position to influence, one way or another, the outcome on the day. On the other hand, it is possible, I suppose, that they might have been and the difficulty of redacting means that perhaps people who are definitely not in a position to do anything might find themselves potentially under some kind of cloud or question as to what their role had been. This is a difficult area but can the Minister give an indication of the rationale of that and whether he is confident that in redacting all names of those ranks and below, and of the other category to which I referred, justice is being done to those who are in no way culpable on any view.

We welcome the progress that is being made. We welcome the way the working of the panel will now be facilitated but I would be grateful if the noble Lord could respond to the questions I have raised.

[Lord McNally]

My Lords, I am very grateful to the noble Lord, Lord Beecham, for that intervention. The Hillsborough disaster is one of those events where you know where you were on the day. I was in Rochdale and I can remember hearing the tragedy unfurl on the radio. As an avid soccer fan I thought then, “Never again”. To be fair, much has changed in the way that football treats its fans in terms of ground safety so perhaps we can say never again. Also, successive Governments have realised that there are still open wounds in Liverpool and there are questions that need to be answered. Again, successive Governments have responded to that fact by the determination to carry through this very thorough inquiry under the very distinguished and trusted leadership of the Bishop of Liverpool.

On the question of the title, it is probably true to say that it would have been better to have had a title that stated the intention exactly. However, there were contrasting opinions on whether the panel and the bodies giving evidence to the panel were protected under existing legislation. In a way, this order is a little bit of belt and braces in terms of giving assurance so that the panel could do its work. Could it have been better described in the Data Protection (Processing of Sensitive Personal Data) Order 2012? In hindsight, perhaps it could and it could have made a specific reference to the specific case that it was there to address. However, we considered the views of the committee carefully and concluded that to deal effectively with its concerns might have brought potentially damaging delay into bringing this order forward. We have taken such action as possible with local media and others to make it clear that people will be able to locate this order. I would ask noble Lords to bear in mind that to have accepted the committee’s recommendations would have meant that the order would have had to have been withdrawn, re-laid and to have gone through the scrutiny process again. That might have pushed the House’s approval for the draft order—if it is forthcoming—back past the Summer Recess and would have had a knock-on effect on the expected delivery time of the panel’s findings.

The fact that there is no specific reference to Hillsborough in the title is not, I think, a catastrophic error. We have taken measures to try and guide people who wonder what it is and what it is for. I hope this explanation clarifies that.

[Lord Beecham]

I understand that and am grateful to the noble Lord. I am just wondering whether the pathway will be signalled on the website and so on, so that people looking at the Hillsborough website will be directed to it rather than having to comb down through long lists of statutory instruments. I have not looked at the website myself and so do not know how it is set up at the moment, but I assume there will be a website for the independent panel. If it is clear from there what this document is about and where it can be found, that would be sufficient. I assume that is what is happening but I would be grateful if the Minister could confirm that.

[Lord McNally]

I think I can confirm that that is what is happening and that anybody who goes to the Hillsborough website will be directed to it. The draft order has been discussed with the families at all stages and those discussions will continue. I note the point that the noble Lord made about Ministers but the Government have taken the decision that all material, including Cabinet minutes, will be published. I can understand that, as it is not just an inquiry into what happened in or around the ground—people will want to know about a range of issues. Over these 25 years, I have taken an interest in the follow-up to Hillsborough and, as such, one of the statements that I found most reassuring was the one by my right honourable friend the Home Secretary, when she made clear that the Government’s attitude would be full disclosure, within the limits that I referred to about due care and not putting the families through the trauma again by careless or unneeded disclosure.

One has to make a judgment about the protection of junior officers and lower-rank officials. It is a judgment call and if the panel brought forward events or findings that meant that a particular individual warranted being named for some action or lack of action, that would be a matter the panel would have to take into account. I also think that, if you are publishing, it is fair in terms of responsibility to have a certain redaction policy. We have made the judgment that it is, in fairness, right not to publish all the names concerned. I think those were the points that the noble Lord raised and I ask the Committee to approve the Motion.

Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012

Lord Beecham Excerpts

Wednesday 18th July 2012 Grand Committee

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the purpose of this order is to abolish two of the Ministry of Justice’s public bodies: Her Majesty’s Inspectorate of Court Administration, which I shall hereafter refer to as HMICA, and the Public Guardian Board, which I shall hereafter refer to as the PGB. This omnibus order provides for abolition of these bodies, with no transfer of functions in the case of the PGB and, in the case of HMICA, with a transfer of certain functions which I will outline shortly.

The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies, which had as its overriding aims to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked, first, to address the overarching questions of whether a body needed to exist and whether its functions should be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case both HMICA and PGB, the Ministry of Justice felt that retention was not justified. They were therefore included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.

I will now give some background on each body in turn, beginning with HMICA. It was set up in 2003 and was given two main statutory duties—first, to inspect and report on the system that supports the business of the Crown Court, county and magistrates’ courts and, secondly, to carry out joint inspection, along with other criminal justice inspectorates, of the criminal justice system. However, the situation in which HMICA was working changed greatly after it was created. Her Majesty’s Courts and Tribunals Service, previously HM Courts Service, has since that time developed and put in place more sophisticated and robust ways of carrying out audits, which has mitigated the need for independent inspection of court administration systems.

The outcome of this was a decision by the previous Administration to close HMICA administratively. It was felt, given the more robust audit and monitoring processes then in place, that continuing to fund the body was unjustified and it was closed at the end of December 2010 with the full support of the Lord Chancellor and inspectorate’s senior management. This order, therefore, merely puts on a legislative footing that which has already been administratively achieved. Closing HMICA will save around £6.4 million against the Ministry of Justice baseline for this spending review period.

The Government remain committed to joint inspection of the criminal justice system, and this order includes a transfer of functions to the other criminal justice inspectorates, which will enable them to inspect HMCTS for the purposes of joint criminal justice inspections. This will ensure that no necessary functions previously carried out by HMICA will be left without a statutory basis.

The legislative abolition of HMICA also formed part of a Ministry of Justice consultation that took place in October 2011. Eighteen responses were received, of which seven were opposed to abolition, three expressed some concerns, six stated their support for abolition and two did not express a view either way. Among those who supported abolition, the overriding feeling was that there was no need for an independent inspection of the courts in the current climate, and that HMICA’s function could be adequately carried out elsewhere. Those who opposed abolition were generally concerned that a key government body would be left without independent scrutiny, and that the inspectorate’s specific functions would be left in jeopardy. These concerns have been addressed in the transfer of functions that have been written into the order, and the Ministry of Justice therefore finds no compelling argument within the consultation responses to change its proposal to abolish.

I turn now to the Public Guardian Board, the second body addressed in this omnibus order. The PGB was set up in 2007 to scrutinise and review the way in which the Public Guardian discharges his or her functions and to make such recommendations about the matter to the Lord Chancellor as it thinks appropriate. While this is a worthwhile role, the Government believe that it can now be more effectively and efficiently delivered through new governance arrangements within the Office of the Public Guardian, which I shall hereafter refer to as the OPG, the executive agency which supports the Public Guardian’s work. The Ministry of Justice feels that a separate body for this purpose is no longer needed. As a result, the board was found not to meet the key tests for retention as part of the 2010 government-wide review of public bodies, and was listed for abolition in the Public Bodies Bill.

Following the abolition of the PGB, governance of the Public Guardian and his office will be provided, in line with usual government arrangements for executive agencies, through a management board within the OPG. This will be chaired by the OPG’s chief executive, with executive membership from the OPG and the Ministry of Justice as well as three non-executive directors. The presence of non-executive directors will provide independent scrutiny and challenge of the discharge of the Public Guardian’s functions and those of his office. Collectively, they will have relevant experience such as business and performance management, financial management and dealing with those who lack capacity. I must emphasise that the board itself has also accepted the proposal to abolish, and held its last meeting in June.

As well as fulfilling a key aim of the public bodies review of discontinuing activities that are no longer needed, the abolition of the PGB will provide savings in the region of £400,000 over the current spending review period. Implementation of the new governance arrangements for the OPG will incur some costs that will offset these savings, for which our best estimate is no more than £187,000 over the same spending review period. As with HMICA, the proposal to abolish the PGB was included in a full public consultation which ran from July to October 2011. There were a total of 12 responses, of which 10 did not oppose abolition as long as alternative governance structures for the OPG were put in place. Two were opposed to abolition due to concerns that the PGB’s functions would not be adequately carried out by other means. As we have ensured that the board’s functions will indeed be adequately replaced by the OPG’s management board, the Ministry of Justice finds no compelling reason to change the proposal to abolish.

I turn now to the scrutiny given to this order, which was laid before Parliament on 10 May. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if that is felt necessary. This order been scrutinised by several Select Committees: in this House, the Secondary Legislation Scrutiny Committee; in another place, the Justice Select Committee; and, collectively, the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period. The Secondary Legislation Scrutiny Committee reported on this order on 24 May, having requested a few points of clarification from officials. The committee was satisfied that the order met the tests set out in the Public Bodies Act, but specifically asked the Minister to address two key points during this debate, and I will now address these.

First, the report stated that public reassurance would be enhanced by the results of Her Majesty’s Courts and Tribunals Service’s scrutiny of court administration being published on an annual basis. I can confirm that Her Majesty’s Inspectorate of Prisons provides a full report of each inspection, and recommendations to improve outcomes are submitted to the relevant Secretary of State. Moreover, all these reports are published and publicly available.

Secondly, the report suggested that the Ministry of Justice should publish the outcome of the new governance arrangements for the Office of the Public Guardian. I can confirm that the Office of the Public Guardian publishes, and will continue to publish, an annual report, and that this will indeed cover governance arrangements as well as key performance indicators and monitoring outcomes. In fact, the latest OPG annual report was laid before Parliament only last week. Key stakeholders were also sent letters outlining the new governance arrangements before they came into effect, as outlined in the consultation response. The Ministry of Justice has taken on board the views of the Secondary Legislation Scrutiny Committee, and thanks it for its thorough reporting.

HMICA and the PGB are two public bodies that were created to carry out particular functions, but their roles have either been superseded by other bodies or can be carried out more efficiently and effectively through other means. HMICA is already closed administratively, and the Ministry of Justice has taken the opportunity within this order to put its residual functions on a statutory footing, ensuring ongoing scrutiny of court administration and the wider criminal justice system. The functions of the PGB have not been formally transferred but we have put robust governance mechanisms in place in the OPG that will ensure continued oversight of the work of the Public Guardian.

The Ministry of Justice remains committed to close scrutiny of the courts and tribunals system, and to continuing the excellent work of the Public Guardian. In the current financial climate, however, it is right that unnecessary activities and bodies across government should be removed; abolishing these two bodies will save the public purse several million pounds. I therefore commend this draft order to the Committee and beg to move.

[Lord Beecham]

My Lords, as the Minister has said, HMICA was effectively abolished last December. It is now, seven months later, that we have the interment in statutory form. Some sort of inquest might be thought appropriate.

This is another example of what I would call pre-legislative implementation, as I have done in respect of several other measures the Government have brought forward in the past two years. It is unfortunate that the decision has been implemented even before the relevant secondary legislation has been brought forward. Having said that, I do not dissent from the view that change is, if not necessary, then certainly not damaging, subject to the observations of the Secondary Legislation Scrutiny Committee about adequate reporting and annual reports to the public.

By sheer coincidence, I received a copy of the annual report of Her Majesty’s Courts and Tribunals Service just this week—a rather glossy document. There was very little in it about the actual operation of the courts and tribunals. There is a lot of financial information. I do not have the document with me, but my recollection is that there is only about a page or so of detailed reporting—in fairly minimal fashion—of the work of the service. Given the extra responsibilities, and while acknowledging that custodial arrangements will be dealt with separately, there ought to be a fuller report than has evidently been the practice thus far.

--- Later in debate ---

[Lord McNally]

My Lords, again, I thank the noble Lord, Lord Beecham, for his constructive response. I am not sure that it was pre-legislative implementation; perhaps it was pre-legislative anticipation, but I take the point. I also accept his point about annual reporting. I am sure that the relevant bodies will note his comments that annual reports should be just that. There should be full coverage of all areas of responsibility, particularly when the body concerned has taken on new responsibilities.

I also take on board the point about the Public Guardian. There is concern and we must be sure that oversight is proper and full. One aspect that we now hear about in relation to our ageing population is the need to make sure that those whose mental capacities may be diminished have proper protection. It is important that that is assured. We believe that the presence of non-executive directors will provide independent scrutiny and challenge to the discharge of the Public Guardian’s functions and those of his office. Collectively, the directors will have the relevant experience, including in business, performance management, financial management and dealing with those who lack capacity. There will also be non-executive director representation in the Public Guardian’s two existing stakeholder groups, which meet four times a year. There will be continued liaison between the OPG, the MoJ’s sponsor team and relevant policy officials, including those who led on the Mental Capacity Act 2005. I hope that the noble Lord will accept those assurances that his very valid questioning on this is being addressed.

I do not think that any other points were raised. I emphasise again that each report and recommendation arising from all inspections of the courts will be published for public scrutiny.

[Lord Beecham]

I am very grateful to the Minister, who has answered fully. I am stretching the purpose of today a little wider than I should, but I wonder whether it is the Lord Chancellor’s intention to reply to the letter that he received from the outgoing chairman and whether that reply will be placed in the public domain.

[Lord McNally]

Knowing the Lord Chancellor’s courtesy in all such matters, I am sure that a full reply will be sent. I will see that it is also copied to the noble Lord, Lord Beecham.

When I saw that the title of the order included “public bodies” and I saw the noble Lord, Lord Beecham, come in, I was petrified. I thought that I would be grilled, so I was even more pleased than usual to see him take his place at the Dispatch Box, rather than as a Back-Bencher. Having made that confession, I commend the Motion.

Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012

Lord Beecham Excerpts

Wednesday 18th July 2012 Grand Committee

I am therefore satisfied that, for both committees, the necessary remaining functions will continue to be carried out after abolition, with no loss of expertise in the making of court rules. Closing these two committees is consistent with cutting out unnecessary bureaucracy and making the carrying out of public functions simpler and more efficient. I therefore commend the order to your Lordships and beg to move.

[Lord Beecham]

My Lords, I have no problem with the substance of this order. However, the Secondary Legislation Scrutiny Committee does have a problem with the form; indeed, it had a problem with the form of the order we have just discussed, and they are not unrelated. The report on the previous order stated that:

“The content of the ED was adequate to explain the draft order but the Committee found its presentation confusing. The ED, like the draft Order, covers the abolition of two evidently unrelated public bodies, and rather than dealing with them separately and sequentially, it jumps between the two throughout. This presentation did not aid clarity when considering the draft Order. We recommend that in future the Explanatory Document laid with any omnibus Order that contains provisions about unrelated public bodies deals with each body separately and sequentially”.

The committee made much the same point in relation to this order, saying:

“The content of the Explanatory Document was adequate to explain the draft Order but the Committee found its presentation confusing and repetitive”.

Of course, I am being repetitive at the moment but that is because it is necessary to be so.

The committee does not have any quibble with the substance, but will the Minister ask those involved in the preparation of these documents to bear these strictures in mind so that clarity is served and what are potentially somewhat different bodies are dealt with separately rather than run together in a rather confusing way? However, we have no objections to the order itself.

[Lord McNally]

I am very grateful to the noble Lord, Lord Beecham, for drawing that to my attention. I am sure that the officials responsible for the drafting are not outraged by the suggestion. I can assure him that we always take note of such strictures, and if we can make orders clearer and less repetitive, that will be to the benefit of all concerned.