Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015
Lord Beecham Excerpts(9 years, 2 months ago)
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Lord Beecham (Lab)
My Lords, this is one of the rare occasions on which I can congratulate the Government and the Minister on doing something positive in the arena of legal aid. Later this evening we will revert to the more normal discussions that take place between us across the Chamber in another respect. However, this is an important matter, and I very much welcome the Government’s initiative in ensuring that the change in the law can be adequately enforced.
In that connection, with regard to something that we have just discussed at some length concerning other serious matters relating to safety within the home, there is the publicity that is being given about the issue generally, but more particularly about the availability of legal aid for those suffering from abuse in terms of either of the two categories embodied in the order. It may well be the case that the Government are already directing publicity not only at the potential victims but at organisations and others who might be able to assist in disseminating the information that legal aid is available. It may be too early at this stage for the Minister to give an indication of the number of cases that are thought likely to be brought under each category, or it may be that the information is simply not available this afternoon. However, if and when it becomes available, that information would be helpful—and, of course, it would lend some force to any publicity that the Government will no doubt give about the remedies that will be available.
Having said that, the Opposition certainly support the Government’s steps here. We look forward to assistance being given to people who are being ruthlessly exploited and who hitherto have had insufficient protection from the law.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for his support for these regulations, and I look forward to renewing our customary postures later in the day.
As he rightly says, these are early days, and it is difficult to give any figures. I made the very same inquiry of my officials and understandably they were somewhat tentative. I do not suppose that the numbers are going to be very large. What I can say, of course, is that there has been a great deal of publicity generally about both areas that we are concerned with. Therefore, I think that the general public and all those who are likely to encounter these issues will be aware of the situation and will be keen to find out the extent to which there may be legal aid, and I am sure practitioners working in this area will make themselves aware of it.
A guide to the court process was published in July this year, and I understand that it includes the relevant information. I am now being handed a copy, which lays out, in paragraphs 31 to 34, the information which will assist. This is under the female genital mutilation protection orders; it explains their scope and who can apply, and it contains information about the availability of legal aid. Anybody familiarising themselves with these orders—a practitioner or anybody affected by or concerned about them—would find out that legal aid was available. I am not sure whether there is similar information in relation to modern slavery but, if there is, I will undertake to convey it to the noble Lord.
That being, I think, the scope of the inquiry made by the noble Lord, I think we can now proceed to ask noble Lords to approve this amendment. I believe that it is a reasonable one and that it will provide appropriate frameworks for the provision of legal aid for victims of both FGM and modern slavery.
Criminal Justice: Secure College
Lord Beecham Excerpts(9 years, 4 months ago)
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Lord Beecham
To ask Her Majesty’s Government what plans they have to support young people in the criminal justice system in the light of the decision not to go ahead with the building of a secure college.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, in recent years we have seen welcome reductions in proven offending by young people and in the number of young people in custody. However, we have not seen similar success in reducing reoffending by young people. We are carefully considering how the youth justice system can more effectively prevent offending by young people and set them on a path to a better future.
Lord Beecham (Lab)
My Lords, will the Minister convey to the Lord Chancellor the thanks of this House for his abandonment of his predecessor’s misconceived plan to house in a so-called secure college one-third of the young offenders in custody? Can he tell us whether and how the £1.56 million staffing and procurement costs and the £4.04 million of development costs incurred during this sorry saga can be recouped?
Lord Faulks
I am happy to convey the good wishes of your Lordships’ House to the Secretary of State. As to the spend, it will not be recovered. The pathfinder designs could be used or adapted to other forms of youth or adult custody in the future, and alternative provision could be developed on the prepared site at Glen Parva. However, the noble Lord and the House may be relieved to know that we will not be spending £85 million on the secure college.
Office of Lord Chancellor (Constitution Committee Report)
Lord Beecham Excerpts(9 years, 4 months ago)
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Lord Beecham (Lab)
My Lords, Newcastle, in its time, has contributed significantly to our judicial system. Two of its sons have recently held the position of Lord Chief Justice: the late and much lamented Peter Taylor, and the noble and learned Lord, Lord Woolf, whose distinguished career was marked in the recent Birthday Honours by the conferment upon him of the status of a Companion of Honour. I am sure that your Lordships will join me in congratulating him on this significant honour.
Noble Lords
Lord Beecham
However, it was Lord Eldon who could perhaps have laid claim to holding the highest position in our jurisprudence, having served as Lord Chancellor for some 27 years in the 19th century. He was an unrelenting reactionary, whose portrait has followed me like a mobile version of Dorian Gray through my school years in Newcastle, my studies at University College, Oxford and now in your Lordships’ House. I thus have a more personal, if historical, interest in the subject of this debate than would otherwise be the case, and I welcome the opportunity that the noble Lord, Lord Lang, and his Committee have created to discuss the Constitution Committee’s report and what passes for the Government’s response to it.
One of the many reasons for welcoming the timing of this debate is that we no longer have as Lord Chancellor Mr Grayling, whose period of office betrayed not only reactionary tendencies of a kind of which Lord Eldon would no doubt have heartily approved, but also exemplified the problems the Committee sought to address. The new Lord Chancellor, Mr Gove, has the opportunity not only to instruct his department in the use of grammar, but to review the approach to the position and duties which he has inherited. As I said last week in the debate on human rights, Mr Gove’s Legatum lecture has raised hopes in that respect, although he did not address the specific issue of the wider aspects of the Lord Chancellor’s role. I understand, however, that he has already proved more willing than his predecessor to engage on a personal level with key players in the legal world. Provided that he does not lapse into the kind of language he deployed while Secretary of State for Education, this certainly augurs well. After all, we would not wish to read of the legal, still less the judicial, “Blob”.
The committee’s report seem to me to be a balanced, not to say judicious, review of and response to the changes wrought between 2003 and 2007. This is of course to be expected of a committee comprising eminent lawyers, former Ministers and distinguished—if I might be forgiven for putting it this way—ordinary Members of your Lordships’ House. I very much look forward to hearing the contributions to come, not least from those who have held high judicial office. Although we do not have with us the noble and learned Lord, Lord Mackay of Clashfern, we do have my noble and learned friend Lord Irvine, himself a distinguished occupier of the post. Of course, we have my noble and learned friend Lord Falconer, whose presence I cannot omit to mention and who will be winding up for the Opposition at the end of the debate. Many Members will have read my noble and learned friend’s lecture to the Bentham Association. His presence in that body no doubt relegates me to the position of only a second, or perhaps superfluous, Jeremy in his life.
I found the Government’s response to the committee report, as expressed in Mr Grayling’s letter of 26 February, disappointing. The broad welcome it purported to accord to the report does not really seem to be reflected in his response to the most significant of the committee’s recommendations. The committee made 19 statements, observations and recommendations, some of which the noble Lord, Lord Lang, has referred to today. The Government responded to 10 of them and some of their replies, frankly, give cause for concern. Thus, importantly, the Government reject the invitation in paragraph 25 of the committee’s report,
“to agree that the rule of law extends beyond judicial independence and compliance with domestic and international law”,
and that it,
“includes the tenet that the Government should seek to govern in accordance with constitutional principles, as well as the letter of the law”.
Moreover, it rebuts the dictum of the noble and learned Lord, Lord Hope of Craighead, that,
“the rule of law requires that judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”.
Similarly, it rejects the recommendation at paragraph 51 of the report that the Lord Chancellor’s oath should include a promise to respect and uphold the law—a point made by the noble Lord, Lord Lang. At paragraph 79 it asserts in relation to the proposition that the Attorney-General should attend all Cabinet meetings and be adequately resourced that the law officers are so resourced, which in the light of the experience of the Serious Fraud Office, the Director of Public Prosecutions and the courts service would make them almost unique in the judicial system in this context, if it were true.
The fact that there is no longer a Deputy Prime Minister with responsibility for constitutional matters might allow the Government to change their opposition to the committee’s recommendation at paragraph 101, to which, again, the noble Lord referred, that this responsibility should lie with the Lord Chancellor. Perhaps the Minister could indicate whether this is now under consideration and, if it is not yet, perhaps he would be good enough to raise the matter with the current Lord Chancellor.
Given the committee’s acceptance that the Lord Chancellor need not be a lawyer, it is disappointing that the suggestion, at paragraph 113, that in such an event the Permanent Secretary of the Ministry of Justice should be legally qualified is dismissed, although I welcome the news that in fact the appointment has been made of somebody who is legally qualified. The Government’s response simply indicated that the Lord Chancellor could rely on the Treasury Solicitor’s Department for counsel. That might be thought to be somewhat less than desirable.
Strikingly, the noble and learned Lords, Lord Judge and Lord Woolf, and Sir Hayden Phillips raised concerns, reported at paragraph 68 of the committee’s report, about the level and legal expertise of support for the Lord Chancellor, with Sir Hayden Phillips, as a former Permanent Secretary, referring to the loss of staff to other parts of the justice system. At the very least one might have hoped that the department would have a highly qualified lawyer at, or very near, the top of its structure as a matter of course, it not being determined on the occasion of each separate appointment.
Paragraph 110 noted the concern of Sir Hayden Phillips, echoed by the Bar Council, that the expectation of the 2005 Act was that,
“‘the Lord Chancellor would be a lawyer but his principal official adviser would not’”.
He stressed the need for a balance of experience and expertise, which he affirmed, “has now gone”, and “is potentially damaging”. He went on to propose that the position of legal adviser should be at Second Permanent Secretary level. The Government rejected the committee’s proposal that the Permanent Secretary be legally qualified or, in the alternative, that the top legal adviser should be at Permanent Secretary level. I think that the report may have slightly erred there and that that should have been a reference to Second Permanent Secretary level. However, as I said and as the noble Lord pointed out, for the moment that is not a problem.
Worryingly, the Government airily dismiss concerns, reflected in paragraph 125 of the report, that the person appointed to the position of Lord Chancellor should have,
“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with”,
other colleagues “including the Prime Minister”. Such, as I understand it, was very much the role, for example, played by the noble and learned Lord, Lord Mackay of Clashfern, and no doubt other recent Lord Chancellors under the former regime. What is the evidence that Mr Grayling, as opposed to his predecessor, Mr Clarke, was even remotely interested in so doing? What was the nature of the evidence that Mr Grayling was qualified by experience, as prescribed by the Constitutional Reform Act? The Government responded to that by saying:
“There is a range of evidence that the Prime Minister can take into account when reaching such a conclusion”—
that is to say, that the person is qualified. I remind your Lordships that the letter to the noble Lord, Lord Lang, was signed by Mr Grayling himself—I am tempted to add, QED.
What is striking in reading the committee’s report is the very limited perspective of the former Lord Chancellor in respect of his role—the noble Lord has touched on that, perhaps rather more gently than I am doing. Paragraph 44 of the report states:
“the current Lord Chancellor does not believe that he has a wider guardianship role in Government beyond upholding the independence of the judiciary and the integrity of the justice system”.
Paragraph 49 states:
“It is regrettable that the Ministerial Code and the Cabinet Manual do not address the Lord Chancellor’s role in respect of the rule of law, beyond judicial independence”.
Paragraph 55 reveals that,
“Lord Chancellors since 2010 … have not been members of the Parliamentary Business and Legislation Committee”,
which clears all legislation. The committee noted that this,
“represented an important route through which Lord Chancellors were kept informed about the Government’s legislative and policy agenda”.
To none of these points did the Government condescend to reply, a reprehensible omission, particularly in relation to the reference by the committee to the Lord Chancellor’s role in respect of the rule of law.
Some 60 years ago, Bayard Rustin, one of the leaders of the American civil rights movement, coined the phrase, “speaking truth to power”. It is surely the duty of the Lord Chancellor to speak justice to power, even if—especially if—he is himself an integral component of the system of power. I trust that the new Lord Chancellor will listen further to the representations of the committee, and perhaps what is said in your Lordships’ House today, and seek to emulate the record of some of his most distinguished predecessors in this respect.
Human Rights and Civil Liberties
Lord Beecham Excerpts(9 years, 4 months ago)
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Lord Beecham (Lab)
My Lords, the maxim that the safety of the people is the supreme law has been with us for two millennia. It remains an essential obligation of government, not least at a time when the lives of innocent men, women and children are threatened by the brutal, indiscriminate violence of fanatics of whatever religious or political persuasion. But a society which prides itself on pluralism, democracy and freedom of speech and thought must balance the threat to its people and those core values against the impact of the steps it takes to protect them. External circumstances change with growing rapidity. Cicero’s maxim was written, no doubt, with stylus and ink. Today, give or take the odd political headstone, we are in the world of the internet, with social media and video imagery reaching millions within moments and with the capacity to inform or malign, shock, damage or incite. Inevitably, these massive changes raise difficult questions about the relationship between the citizen and the state, and between the state and those who would undermine these cherished values.
Britain’s record in this area has been creditable, and it is a matter of great regret that there are some who, in their anxiety to distance this country from Europe, misrepresent the impact of the European Convention on Human Rights, the European Court of Human Rights and the Universal Declaration of Human Rights. As we have heard, this country played a leading role in the drafting of the convention and the universal declaration, with both major political parties engaged—and, as the noble Lord, Lord Lexden, reminded us, with Sir David Maxwell Fyfe, by no means known for liberal views on most other matters, very much in the forefront.
In recent years there has been a relentless campaign to denigrate both the convention and the court, and to misrepresent their relationship to and impact upon our legal system. The Human Rights Act 1998 does not require our courts to strike down legislation, merely in appropriate cases to declare its incompatibility with the convention. As the Library Note reminds us, Parliament is not obliged to amend the law—a point made by my noble friend Lord Cashman and the noble Lords, Lord Lester and Lord Marks. The campaign against the convention and the ECHR, and the Government’s declared intention to substitute a British Bill of Rights, are rooted in a blinkered, partisan approach to fundamental issues which transcend national boundaries.
Consider the articles of the European convention set out with clarity in chapter 7 of Lord Bingham’s seminal The Rule of Law, a chapter which begins with the rubric:
“The law must afford adequate protection of fundamental human rights”.
He set them out: Article 2, the right to life; Article 3, the prohibition of torture; Article 4, the prohibition of slavery and forced labour; Article 5, the right to liberty and security; Article 6, the right to a fair trial; Article 7, no punishment without law; Article 8, the right to respect for private and family life; Article 9, freedom of thought, conscience and religion; and Articles 10 and 11, freedom of expression and of assembly and association. The noble and learned Lord, Lord Wallace, referred to some of those very important provisions.
Lord Bingham described how,
“the leading nations of Western Europe put their heads together to identify the rights and freedoms which they regarded as the basic and fundamental entitlement of those living in their respective countries”.
Writing five years ago, he said:
“Over the past decade or so, the Human Rights Act and the Convention to which it gave effect in the UK have been attacked in some quarters, and of course there are court decisions, here and in the European Court, with which one may reasonably disagree. But most of the supposed weaknesses of the Convention scheme are attributable to misunderstanding of it, and critics must ultimately answer two questions. Which of the rights discussed above would you discard? Would you rather live in a country in which these rights were not protected?”.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, touched on that theme.
Another dimension, which other noble Lords have referred to this afternoon, is the impact of the UK’s withdrawal on the rest of Europe—a Europe in which nationalism in an ugly form is manifesting itself again. Think of the treatment of Roma in some of the countries of eastern Europe or of the strength of the far right in Hungary. For too long, particularly in the last five years, Britain has failed to give a lead on many issues, including those we are debating today. That departure from the bipartisan traditions of half a century and more is to be deplored. The noble and learned Lord, Lord Wallace, my noble friend Lord Cashman and the noble Baroness, Lady Ludford, referred to this. It would be deplorable if Britain’s influence was not to be available to support those in the rest of Europe who very much need the protections which we are discussing today.
Dominic Grieve, the highly respected former Attorney-General, has pointed out that many of the 47 states contracted to uphold the convention have poor records on human rights and continue to face problems. He said:
“The decisions of the Court of Human Rights regularly centre on these states. They often relate to violations of basic rights, such as being beaten up in police cells, being denied access to a lawyer … in almost all cases the judgments are implemented … It has made the Convention one of the most effective global tools in improving human rights”.
He went on to criticise a Conservative paper advocating repeal of the Human Rights Act and an approach which would invoke human rights laws only in “the most serious cases”. Pointing out that most decisions have been taken by our own courts, he concludes:
“The effect will not be to free our courts from following Strasbourg decisions—something they are already doing … but of reducing their ability to apply Convention principles to individual cases”.
He describes that as “a recipe for chaos”.
To these strictures from such an eminent source must be added some observations from the Joint Committee on Human Rights published on 11 March. The committee drew Parliament’s attention to,
“the strikingly small number of declarations of incompatibility made by UK courts under the Human Rights Act during the lifetime of this Parliament, which confirms the significant downward trend in the number of such declarations since the Human Rights Act came into force in 2000”.
The report also welcomed the process of ECHR reform and the,
“increasing prominence … gradually being given”,
to the role of national parliaments,
“in scrutinising the implementation of Court judgments and … Convention compatibility”.
It went on to assert that the UK Government are,
“in a good position to provide strong leadership on this question”.
That of course would cease to be the case if the UK withdrew from it. Could the Minister indicate when the Government will be responding to the committee’s report containing these and other recommendations and observations?
There are of course matters other than the Government’s important, if deplorable, intentions toward the convention and court, which have been considered in this debate. One is the response to the report of Mr David Anderson, the Independent Reviewer of Terrorism Legislation, and his key calls for judicial oversight of all interception warrants and some communications data—a call backed by my right honourable friend the shadow Home Secretary Yvette Cooper—for a new law to comply with international human rights safeguards and for investigatory powers tribunal rulings to be subject to appeal on matters of law. Many of us will have noticed, with regret, the frigid response of the Home Secretary to the proposal for judicial oversight in particular.
We in your Lordships’ House will be debating the role of the Lord Chancellor next Tuesday. That will perhaps be a more appropriate occasion to welcome the arrival of a successor to Mr Grayling, but many of us will have read Mr Gove’s speech to the Legatum Institute with interest. In fairness, it was about reform of the justice system, but one might have hoped for a reference to some of the issues we are debating today, not least the topic of judicial review, a critical tool in upholding human rights and civil liberties—if I might venture a slightly critical note of the noble and learned Lord, Lord Wallace, I would say that the Liberal Democrats of course supported the late Government’s restrictions on judicial review—but also relevant to such matters as the conditions of our overcrowded prisons and asylum centres. Too often, they are an affront to human dignity and very much raise the issue of civil liberties and human rights. Could the Minister indicate whether the Lord Chancellor will conduct, in addition to the review of legal aid, a review into the changes to judicial review?
The House will be grateful to the noble and learned Lord, Lord Wallace, not only for his very distinguished service to the law—in particular in your Lordships’ House and as a member of the last Government—but for affording us the opportunity for this debate. On behalf of the Opposition, I thank all noble Lords who have contributed to it. I am sure that we are all very much looking forward to the Minister’s reply. I hope that the Government will reflect very carefully before proceeding with very substantial changes to the culture that has been built up in the last few decades, underpinned particularly by the Human Rights Act, in a way that would damage our system but also our reputation.
Prisons: Secure Colleges
Lord Beecham Excerpts(9 years, 5 months ago)
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Lord Beecham (Lab)
My Lords, the Minister’s reply is matched for opacity only by the very similar reply given yesterday by his colleague Mr Selous to my honourable friend Dan Jarvis. That reply said that:
“The Coalition government legislated for secure colleges and we are now considering the next steps. We remain clear that education should be at the very heart of youth custody”.
What next steps are the Government contemplating? Is it a possibility that the Government will resile from their ill-informed and ill-advised policy of establishing a massive secure college on the Glen Parva site in Leicestershire?
Lord Faulks
The difficulties that exist with youth custody are well known, such as reoffending. Of course, as the House will be aware, the good news is that the number of those in youth custody has reduced from 3,000 to 1,000. This means that those in various forms of youth custody present real problems and real challenges. The secure college pathfinder was a solution favoured by the last Government. We have not ruled out using a secure college. It has not yet received approval at Treasury level, but all of the ideas which it incorporated have not been abandoned. They contain many sound approaches to providing the right answer to this difficult problem.
Prisons
Lord Beecham Excerpts(9 years, 8 months ago)
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Lord Faulks
My Lords, when the noble Lord became the Chief Inspector of Prisons in 1995, I am sure that in the course of inspecting prisons, he was anxious to be fair and objective in his inspections regardless of whether they were private prisons or public prisons. These two prisons are private prisons. Unfortunately, the chief executive of the Howard League for Penal Reform, Frances Crook, disapproves of private prisons and has been quoted as saying that,
“making money out of punishing people is both reprehensible and immoral and it is on these grounds that we have opposed the private management of prisons”.
Just before Christmas, she said on “Newsnight” that for a three-week period over Christmas, young offenders would be locked in their cells while there was a 40% reduction in staff numbers. Both these assertions were completely wrong. She was given an opportunity to retract, but she declined to do so. NOMS has to bear in mind the welfare of prisoners, the families who would be concerned about such misinformation, and the morale of prison officers.
Lord Beecham (Lab)
My Lords, last Thursday, the process of appointing a successor to the highly regarded Chief Inspector of Prisons, Nick Hardwick, ground to a halt when Mr Grayling refused to consider the candidate put forward by the appointment panel. Moreover, on the same day the Justice Committee objected to his appointment of two so-called independent members of the selection panel—of four—who just happened to be Conservative Party activists. One of them is an adviser to that paragon of political impartiality, Grant Shapps. Today, the noble Lord, Lord Ramsbotham, has raised serious and legitimate concerns about a ban on visits to prisons by Frances Crook of the Howard League for Penal Reform. Incidentally, I understand that G4S, which runs the prisons, had no objection to her going to them. What reassurance can the Minister provide that during what remains of the Lord Chancellor’s tenure of office, Mr Grayling will desist from pursuing his career as a serial offender against the interests of justice?
Lord Faulks
That is a large question, and perhaps I can answer some of the many sub-questions in it. The Secretary of State had nothing to do with the decision taken by NOMS, but I of course, as a Minister, take responsibility for that decision, which was an operational one. As for the appointment process, this is under way. The noble Lord seems to be very well informed about the process, and an announcement will be made in due course. There is no question that Nick Hardwick has not been allowed to act independently. The Government’s preference is that all public posts are re-competed at the end of the fixed term, with that incumbent free to apply.
Inquiries Act 2005 (Select Committee Report)
Lord Beecham Excerpts(9 years, 8 months ago)
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Lord Beecham (Lab)
My Lords, I add the thanks of the Opposition Front Bench to the noble Viscount, Lord Tenby, for his many years of distinguished service in this House, to which others have referred. My father did not know Lloyd George, but as it happens he was a constituent of the noble Viscount’s father when he was a Member of Parliament for Newcastle North. The by-election that followed the first Viscount’s elevation to this place remains in my memory as the first by-election that I can recall as a very young supporter of the party of which the noble Viscount’s father was not a member.
I also add my tribute to the noble Lord, Lord Shutt, and the members of the committee, 10 of whom have spoken in today’s debate. It is a matter of regret, as he gently hinted, that the report has enjoyed its first birthday before making an appearance in this House for a debate. As I said last week in connection with another long-delayed report, although perhaps with less force in that case, the House needs to look at how it deals with post-legislative scrutiny, because it becomes extremely post if, once reports are published, they do not reach the Chamber for discussion.
Last week I chanced upon my copy of a book which I last consulted 50 years ago, as I, among others, including the noble Baroness, Lady Deech, who is not in her place today, was preparing for the final examinations for my Oxford law degree. The title of the book was Administrative Law and its author was the eminent legal academic, the Professor of English Law at Oxford, HWR Wade. In those days administrative law could be said to have been in its infancy. Indeed, the Lord Chancellor would be delighted to know that the words “judicial review” do not appear in the index or, indeed, in any other part of the book.
However, there is a chapter on statutory inquiries, which makes instructive reading. Of its 29 pages, 26 are essentially confined to planning inquiries, two to accident inquiries and one to what Professor Wade described as, “a type of public enquiry which from time to time attracts much attention: the special inquiry which Parliament may at any time constitute under the Tribunals of Inquiry (Evidence) Act”. He cited, as examples of the latter, premature disclosures of Budget details by Ministers, allegations that a change in bank rate was prematurely divulged, accusations of brutality by the police and other matters of public importance.
In the first 40 years of the Tribunals of Inquiry (Evidence) Act 1921 only 14 inquiries were established by a vote of both Houses to investigate such matters of urgent public importance, and the following 44 years saw only another 10. It is this Act that was replaced by the 2005 Act, which is the subject of the Select Committee report. Any discussion of inquiries has long since seen matters of urgent public importance overtake planning inquiries and the like as a subject of concern and debate.
Very often, of course, the demands for the establishment of a statutory inquiry arise from questions about the conduct of the Executive in one or other of its various manifestations. It is the role of Ministers in any Government in setting up inquiries, appointing the chair, controlling the disclosure of evidence and publication that not surprisingly provokes scepticism about the process.
It is striking that most of the 2005 Act inquiries arose from deaths in which the role of the police, military or health services came under scrutiny, in addition to the Leveson inquiry and some others. There are others, such as the inquiry into undercover policing, where the inquiry is a 2005 Act inquiry, but as the noble Lord, Lord Shutt, elucidated in a Question last year, the inquiry into the so-called “on the runs” in Northern Ireland is not. That was described as “an administrative review”, despite the issue stemming from a political decision, albeit one that many would say—I would be one of them—was the right one in the circumstances and which contributed to the successful outcome of the protracted negotiations that brought peace to Northern Ireland.
The indefatigable noble Lord, Lord Shutt, who Ministers, one senses, might have wished to have lived up to his name, was told in answer to another Question concerning the inquiry into the death of young people in prison—being conducted, I am absolutely confident, in exemplary fashion by my noble friend Lord Harris of Haringey—that the terms of the 2005 Act did not apply. Yet, as I have indicated, deaths in prisons and hospitals were the subject of 2005 Act inquiries. There are, as we have heard, crucial differences between 2005 Act and other inquiries, especially about such matters as the compellability of witnesses, the production of documents, and the public nature of the proceedings being subject to restrictions on grounds specified in the Act. But it is difficult to understand the decision-making processes that lead, for example in the case of the Hillsborough tragedy, to there being one inquest, followed by a major inquiry conducted by the late and much lamented Lord Taylor of Gosforth, and then a second inquest, on the face of it now being properly conducted, as opposed to the first. My noble friend Lord Soley referred to some misgivings, which many would perhaps share, about the way the Litvinenko matter has been handled—first possibly by an inquiry and now by an inquest.
The lack of a consistent approach is surely a matter of concern. It lends force to the Select Committee’s suggestion of central support for inquiries based in Her Majesty’s Courts and Tribunals Service, although in my view there might be other options for its location. However, the principle of having such a unit seems to be very appropriate. The Government’s response, relying on the roles of the Ministry of Justice and, heaven help us, the Cabinet Office, is not very appealing, particularly when it proclaims that the latter,
“offers advice and acts as a conduit for any interaction between the inquiry and Parliament”.
The response goes on to state that:
“In our experience, inquiry chairs and ministers have worked well together in agreeing the details of how an inquiry is to be established”.
It might be thought that the views of the parties to an inquiry, for example, or an independent source would offer more reassurance than this exercise in self-assessment and self-approval. Then there is the equally complacent, if not to say patronising, assertion, which the noble Baroness, Lady Stern, referred to, that:
“Ministers are best placed to understand the full significance of considerations such as national security and international relations and they make decisions accordingly in a way which cannot be expected of the inquiry chair”.
Of course such considerations have to be given due weight, but would it not be possible to involve others in the process, perhaps from the judiciary or Parliament?
It is disappointing that the Government have rejected out of hand recommendation 11 to give interested parties, particularly victims or their families, an opportunity to comment on the terms of reference for an inquiry, although perhaps such a procedure should be qualified by the words “wherever practical”; it may not be practical in all cases. However, there may well be some where it would be.
The Government have also rejected recommendation 19: that a notice,
“restricting access to an inquiry, should be abrogated”,
leaving that decision to the chair, and recommendation 20, giving,
“only the chair … the power to withhold material from publication”.
Again, if there is some doubt in the Government’s mind, could there not be recourse to some third-party involvement, at the very least on a trial basis?
I also have difficulty with the response to recommendation 23, referred to by the noble and learned Lord, Lord Cullen, that “only the chair” may appoint counsel to the inquiry because—I repeat his quotation:
“Ministers will want to retain control of such issues which affect departmental budgets and the terms of reference of an inquiry”.
Those are legitimate considerations, no doubt, but again is there not at the very least scope for some third-party involvement in the appointment of counsel, perhaps from the judiciary in this instance?
The noble Lord, Lord Shutt, explained the delay in bringing the committee’s report to the House when he asked a Question of the Leader in January saying that the delay was occasioned by the unsatisfactory nature of the response, about which we have heard a good deal in the debate today. Perhaps in replying to the debate the Minister will refer to the attempts made to secure a better response, which do not appear to have been startlingly successful, if I heard the noble Lord correctly. Why have the Government remained, as it would appear, pretty obdurate in respect of some of the recommendations and requests for a further and better response? Perhaps the Minister, not least in the light of the child abuse inquiry fiasco, could indicate whether any thought is being given to an enhanced role for Parliament in this whole area.
Another issue has been raised with me by the eminent QC, Stephen Hockman: namely, the responsibility for writing the report to be published by the inquiry. This is not covered by the rules or the committee report. I understand that Lord Leveson delegated the drafting of much of his landmark report to counsel to the inquiry, now Sir Robert Jay, whereas the noble and learned Lord, Lord Saville, wrote the entire report on Bloody Sunday himself after a prolonged 12-year inquiry. Another approach was apparently adopted by the noble and learned Lord, Phillips of Worth Matravers, who in the course of conducting the BSE inquiry published online a section of his report after each week of evidence. That is an interesting technique, and I am not saying for a moment that it would apply to all cases, but perhaps it is worth considering.
Is there not a case for providing inquiries with professional assistance in report drafting and a framework within which a draft report can be submitted for comment by interested parties on a more systematic basis than appears to be present at this time? After all, we are dealing with matters of great public interest in which it is vital to sustain public confidence in the independence of the process and its capacity to discover the truth, uncomfortable though that will sometimes be. Governments must go further if the public are to be reassured of the integrity and capacity of the system to meet these objectives, and they should recognise the role of Parliament as an indispensable element in the system.
Finally, I will conclude, if I may, by saying a word or two about the Minister. He and I have had the pleasure of confronting each other across the Dispatch Box for the last 15 months. I have always found him to be an extremely courteous and effective debater, and somebody who has done a valiant job in defending the Government—pursuing my ancestral career of making bricks without straw—but doing so with great charm and to great effect. Who knows what the forthcoming election will bring about in terms of our respective positions on the Front Benches or elsewhere in the Chamber, but I would like to put on the record something which I believe many members of the committee would share: our gratitude to the noble Lord for the way he responds to debates both in the Chamber and outside. I wish him well, whatever the outcome of the election and wherever that leads or leaves him.
Mental Capacity Act 2005 (Select Committee Report)
Lord Beecham Excerpts(9 years, 8 months ago)
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Lord Beecham (Lab)
My Lords, this is one of those perhaps rare occasions on which we debate a significant issue in a manner transcending the usual political perspectives which, perfectly properly, often characterise our proceedings. I am grateful to the noble and learned Lord and the four members of his committee who have spoken today, but mention particularly the noble Baroness, Lady Warnock, who I understand has given notice of her intention to retire from the House on 1 June. Her contribution today was interesting, as always, and the whole House will in due course want to pay tribute to the very significant contribution she has made to our proceedings over very many years.
As we have heard, and as the Select Committee itself proclaimed, the 2005 Act was both important and visionary, and it commanded support not only across the political spectrum but from a wide range of interests, both professional and among organisations and individuals concerned with the problems facing those suffering from mental health issues or learning disabilities impinging on their capacity to make decisions about their lives. It is clear that the potential of the Act is yet to be fully realised, as both the Select Committee report and the Government’s response confirmed.
A lesson that we as part of the legislature should perhaps learn is that post-legislative scrutiny in such sensitive areas of public policy should not be deferred for long periods. The committee report was published nearly nine years after the legislation was enacted. The Government responded with commendable expedition within four months. It has taken a further nine months for the House to have the opportunity to debate the matter. As the noble and learned Lord rightly pointed out, in this particular case, that may have been to the general advantage because the Government have responded and accepted a large number of the committee’s suggestions.
It was not any fault of the committee or, perhaps, the Government, that that time has been taken, but it is something that those responsible for the business of the House should consider. If post-legislative scrutiny is to be generally effective, it should surely be timely, arguably ranking somewhat higher among the priorities for debate—other, of course, than for legislation itself.
Having said that, I congratulate the noble and learned Lord the chairman and the committee members for a thorough and constructive analysis of what has happened and, perhaps more importantly, what has not happened, to fulfil the aspirations of the Act. I also welcome the helpful information supplied by the Minister describing what has been done in pursuance of the fairly long list of topics identified in the Government’s response. Items 32 and 34 of the information we received on Monday dealing with legal aid are disappointing. Reliance on the exceptional funding scheme, especially when we are considering this area of law and given the dismally low rate of successful applications under that scheme, is unacceptable.
Members with greater and longer knowledge of the topic than I could claim to possess have identified many of the areas of concern. I will not reiterate the matters that they have raised, but will emphasise some broad issues which need to be addressed if the intentions of the Act are to be fulfilled. My professional experience in this field of law as a solicitor was fairly limited, confined effectively to dealing with the Office of the Public Guardian and the Court of Protection in personal injury cases and in the area of wills and probate. I found both bodies difficult to deal with. There were long delays in dealing with both correspondence and process, failures to involve deputies—for example, under powers of attorney—or ensure timely visits to check on the position of patients led me at one stage to write to my noble and learned friend Lord Falconer about the problems that were being occasioned.
The move of staff to Nottingham seemed to precipitate a distinct deterioration in the service. In fairness, I gather that there has been a marked improvement in the performance of both bodies in the past two or three years, with correspondence and turnaround times for registration of lasting powers of attorney, for example, having been much improved, and the fees for the latter actually reduced. I mention the latter with some hesitation, lest the Lord Chancellor be tempted to consider full cost or more than full cost recovery in that respect.
The two main worrying areas identified by the committee and acknowledged by the Government are the failure to ensure that the aspirations of the Act are recognised not only by members of the public, including those suffering from incapacity, but, critically, by professional and other carers, including family and friends, and the important but discrete issue of deprivation of liberty safeguards.
As many have stressed, it is essential that the five principles of the Act, beginning with the assertion that capacity is to be assumed unless the contrary is established, and the other principles which flow from that starting point, be more widely understood and applied. It is clear that that objective has not yet been achieved. Moreover, it is also clear that it will often be achieved only if all the relevant partners and agencies are aware of their responsibilities and work effectively together. We are becoming increasingly aware as a society that increasing numbers of us are likely to need not just physical care but help when it becomes questionable whether we can make decisions for ourselves, and perhaps ultimately necessary for some to be made on our behalf. Nor is this something confined to the elderly; advances in medical science mean that younger people are living longer with conditions that impair their capacity than used to be the case. In this context, we need to ensure that there is effective cross-sectoral collaboration in planning and financing relevant support services, and oversight and evaluation of need and the effectiveness of provision. Thus far, the Care Quality Commission appears to have some way to go to achieve this but more is needed, too, from other agencies.
The first port of call will in many cases be the general practitioner, but hospitals, and NHS England generally, local government and the voluntary and community sector need to be jointly engaged. Within local government, this area cannot be confined to social care services as housing, leisure, public health and perhaps transport may well have a role. In two-tier areas, that will require collaboration between the county and district tiers. The police and emergency services also need to be alert to the issues so that they can, if necessary, refer cases to the appropriate agency.
Local oversight should take place within the health and well-being boards and the health scrutiny committees of councils. I declare my interest as a member of the relevant committee in Newcastle. The financial implications for local authorities in dealing with what will be a rising need will have to be examined. I will return to this aspect when I deal with the deprivation of liberty issue. I welcome the initiatives of the Local Government Association and the Association of Directors of Adult Social Services in developing a self-assessment tool and peer challenge for local authorities, along with a commissioning guide and the appointment and training of Mental Health Act leads in councils and the National Health Service.
I also welcome the Government’s decision to appoint a mental capacity advisory board to oversee and report annually on the implementation of the Act, at least pending the review to which the noble and learned Lord referred and which the Government are going to undertake. It may be that that initial step will be superseded by a return to the committee’s original proposal. I will certainly be interested to see how things develop over the next two or three years, while the Law Commission considers the matter, and whether the Government of the day keep an open mind as to an eventual outcome.
I hope, too, that the remit of any such body will extend to oversight of the Court of Protection and the Office of the Public Guardian in the exercise of their responsibilities, both to those suffering from a lack of capacity and those who assume responsibility for them. However, an understanding of the issues and knowledge about how they impact on individuals needs to extend well beyond the statutory services. Those who have to deal with people whose mental capacity is an issue need education, training and oversight in how they carry out their responsibilities—especially, perhaps, those dealing with the personal and financial affairs of clients who may have problems. Lawyers, accountants, banks, insurance companies and those engaged in financial services must also be equipped to recognise possible problems and be alert to the necessary responses.
Some Members of your Lordships’ House will have seen the briefing from Compassion in Dying, which identifies issues with advance decisions in relation to medical treatment and the need to reflect these in the training and support of professionals, volunteers and others concerned with end-of-life rights. A number of your Lordships have referred to that issue today.
Lastly, I turn to perhaps the most difficult and sensitive issue, that of the deprivation of liberty safeguards. As the report makes clear, this has been an area of great concern. Members may have seen the very troubling accounts of some cases supplied in briefings for this debate. The committee was critical of the way that the existing safeguards have been applied by the professionals whose responsibility it is to implement them, and sceptical about what it regarded as the low number of DoLS applications: just under 12,000, when there were 200,000 people with dementia living in care homes and only 1,600 authorisations in place at any one time. Witnesses suggested that thousands—perhaps tens of thousands—were being detained without the protection of the law and the means to challenge their deprivation. Their scepticism is borne out by the latest information provided by the Minister, and referred to by the noble and learned Lord, showing as many as 90,000 applications for the first nine months of 2014-15—a startling increase with potentially massive implications for resourcing in terms of process and services.
Mencap has reported continuing complaints from families excluded from best interest decisions. It is extremely disturbing that 55% of the 3,000 patients with learning disabilities in in-patient units experienced self-harm, accidents, assaults, restraint or seclusion last year. Can the Minister advise us on what progress is being made in involving families in best interest decisions, particularly in that category? What is being done to ensure that professionals involved in the transforming care programme are being equipped effectively to implement the Act?
The Supreme Court decision in the Cheshire case last year, about which we have heard, has led very properly to a significant increase in applications requiring assessment and the application of safeguards, the cost of which is estimated by the Local Government Association and the Association of Directors of Adult Social Services as £96.8 million a year more than the existing funding of £35.2 million. This is in effect a new burden and the Government need to bridge the gap.
Today I have received some disturbing information from Newcastle City Council, of which I am a member. Currently the council has received 847 requests, 696—that is 80% of them—from care homes and 151—the other 20%—from hospitals. The council estimates that the cost of dealing with these cases will amount to £1.2 million this year just for this authority. That has to be found from within the council’s own budget, which is already suffering a 48% cut. In the absence of government funding for this significant new need there is a clear risk of further cuts to already stretched services, and that will apply, I suspect, to many other local authorities. I hope that the matter can be addressed urgently by the relevant government departments—the Ministry of Justice, the Department of Health, and the Department for Communities and Local Government. Of course, I do not ask the Minister tonight to write any cheques, as it were, but the matter needs to be considered across the relevant government departments with some urgency. It is clear that demand is far outstripping what was originally envisaged.
The potential scale of the challenge is huge. Up to 670,000 people in England are living with dementia and are potential beneficiaries of the Act and over a million have learning disabilities, some at least of whom may also need its protection. We owe it as a society to ensure that they and their families and carers are properly supported, that their dignity and their interests are sustained, and that the intentions of the Act are realised. The committee’s report and the Government’s welcome response should facilitate this process and ensure that the situation is kept regularly under review and that these critical needs are met by society on behalf of those who are among the most vulnerable.
Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015
Lord Beecham Excerpts(9 years, 8 months ago)
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Lord Beecham (Lab)
My Lords, last Thursday, my noble friend Lord Howarth asked a Question about the subject of the Order and the Motion of Regret that we are debating tonight. In my follow-up question, I asked why, in the light of the 80% decline in the number of employment tribunal cases since the imposition of charges—quite contrary to the Government’s predictions—we should accept the Government’s assurances that there would be little or no effect on access to justice from this measure. The Minister’s reply, apart from the mantra which all Ministers are programmed to repeat about the Government’s so-called “long-term economic plan”, was interesting. He conceded that:
“As a result of a relatively modest fee”—
in employment cases—
“there has been a significant decline in the number of claims brought”.—[Official Report, 26/2/15; col.1763.]
Perhaps he could tell us just how much money it was predicted would be raised by those fees, and how much has actually been raised. Then perhaps he could explain why increases in fees of up to some 600% in the civil courts, which could not conceivably be described as “relatively modest”, will have little or no effect on the number of cases brought there.
How do the Government respond to the withering criticism by the senior judiciary in its response to the initial consultation in February 2014, which described,
“the research so far undertaken”,
as,
“clearly inadequate to assess the … consequences … on the ability of parties to afford access to the courts and on their willingness to do so”.
The Government’s response to part 2 of the consultation on their proposals, published in January this year, is instructive. At paragraph 38, they noted that:
“A number of respondents … disagreed with the proposal”.
Is it too much to ask the Minister how many? How many did agree with the proposal?
I should note and welcome in parenthesis that, as the Minister has pointed out, the Government did at least change their position on family law and commercial cases. However, the response contains one paragraph that merits a Nobel prize for circularity. Paragraph 46 recognises that,
“some respondents were concerned that the fees bore little resemblance to the cost of proceedings. However, under the powers contained section 180 of the Anti-social Behaviour, Crime and Policing Act 2014, court fees are not limited by the cost of proceedings”.
So that is all right then.
As we have heard, the Government airily dismiss the suggestion that the proposed fees,
“could lead to difficulties in some people being able to access the courts”.
Who, upon what evidence, supports that view? Not the Lord Chief Justice, on behalf of the senior judiciary, who, in his letter of 19 December, which the noble Lord, Lord Pannick, has already mentioned, refers to the two exercises purporting to constitute research into the proposals and which are reflected in what passes for the impact assessment. He draws particular attention to the effect on SMEs and litigants in person. The Lord Chief Justice reiterated that the 2013 research was based on only “18 telephone interviews”—presumably carried out in similar fashion to the cold calls with which we are increasingly and irritatingly familiar. The latest research involved 31 users, of whom all of 12 related to claims for more than £10,000, which is the level at which the fees are levied at 5%, which amounts, as we have heard, to £10,000 for large claims of £200,000. That represents an exponential increase of something around 600%.
Other bodies have made their strong views known, as the Minister acknowledged and as was referred to by the noble Lord, Lord Pannick. The Civil Justice Council, in its response in December, identified,
“a disproportionately adverse effect on some groups e.g. small and medium enterprises, low income individuals … thereby undermining equality before the law”.
As we heard from the noble Lord, Lord Pannick, an application has been made for a judicial review of the order by nine institutional claimants, equally expressing their great concerns. Eleven different professional organisations draw particular attention to the potential impact on individuals with clinical negligence or personal injury claims; on small unincorporated businesses, where they forecast a drop of 35% in claims; and on SME companies—that is, limited companies—a drop of 49% in claims. They also draw attention to the possible impact on actions for recovery and insolvency cases, which could, ironically, rebound indirectly on the taxpayer.
The leading solicitors firm Fieldfisher, which acts in high-value, usually personal injury and medical negligence claims, supplied an interesting perspective on the implications of the order. I ought to declare an avuncular interest, as my nephew is a tax partner in that firm. It points out that whereas after the Woolf reforms solicitors usually funded disbursements, including court fees, that cost would rise to millions of pounds per annum. Few people could afford a £10,000 payment and most solicitors will be unable to fund their clients’ actions. They point to fears of a negative impact on mesothelioma claims, where speed is of the essence. They conclude that the proposal,
“tips the balance further in favour of the Government and corporate interests in whose interests it is to delay, frustrate and deter access to justice and access to compensation. It encourages Defendants to make early low offers before proper investigation of the case and to continue to unreasonably deny liability”—
their split infinitive, not mine. This comes not from a niche, left-wing human rights firm of the kind so abhorrent to the Lord Chancellor, but from one of the City’s leading firms, which proclaims itself,
“more than just a European law firm, specialising in providing commercial solutions across industries and sectors”.
Members may also have had sight of three letters sent to the Law Society by three different people seeking to recover, for them, substantial sums and facing under these proposals fee costs of £5,000 in two cases, and between £2,600 and £3,200 in the third, which they simply cannot afford precisely because of the losses incurred which are the subject of their claims. One also has to ask what consideration has been given to the possibility of claimants resorting to alternative methods of dispute resolution at a potentially lower cost to them, with a consequent impact on the income for the Courts Service?
There may be a case for full cost recovery. The Minister, in opening, referred to that as if it were the main point at issue, but of course it is not. The real issue here is the fact that the Government are going for more than full cost recovery. It is perhaps arguable that there may be some categories of cases where that might be justified, but might the Government be contemplating other such approaches by analogy, for example in relation to criminal cases or to damages in road traffic and personal injury cases, where defendants can already be required to meet the cost of NHS treatment afforded to the claimant? If more than full cost recovery is legitimate in the court area, might it not be argued that to help with the growing cost of the National Health Service and the demands for extra funding, more than full cost recovery from those who injure people who therefore have to undergo NHS treatment should be levied in those areas? Will the Government disavow any such intention, or is it perhaps in their mind to expand this principle of more than full cost recovery to other areas than those that are the subject of these regulations?
Tonight we will doubtless hear from noble and learned Lords, although not too many—there are only about a couple now present in the Chamber—and we look forward to it. They have a lifetime’s experience of the operations of the courts and a profound attachment to access to justice. We have already heard from one distinguished practitioner, and I dare say we will hear from two more before the evening ends, also troubled by the potential implications of this ill thought out measure. It is not too late for the Government to pause, reflect upon and reconsider these proposals, even if the order is affirmed today, as undoubtedly it will be. It would surely be appropriate to do so in any event when such a controversial measure comes so close to the end of a Parliament.
I urge the Government, before implementing the order, to commission further work in conjunction with the Civil Justice Council to examine in greater detail the implications of their proposals as presently cast and the impact that is likely to ensue, and to listen with care to the advice of those whose wisdom and experience should guide any decisions with the potential significantly to impact on access to justice, the very cornerstone of our legal system.
Court Fees
Lord Beecham Excerpts(9 years, 8 months ago)
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Lord Faulks
My noble and learned friend will know that there were two consultations regarding these proposed enhanced fees, in which the judiciary’s comments were fully taken on board by the Government and certain modifications were made to the original proposals. However, ultimately, the question of fees and the cost of the courts is a matter for the Government to decide.
Lord Beecham (Lab)
My Lords, I refer to my interest as an unpaid consultant in my former solicitor’s practice. On 15 February, the Observer reported Vince Cable’s request for information about the overall decline of 80% in employment appeal tribunal applications and 90% in sex discrimination cases since the imposition of substantial fees for those applications. Can the Minister tell us what reply the Lord Chancellor has made to Vince Cable’s request for information, and to his question about the Lord Chancellor’s failure to implement a promised review? In the light of this experience, why should we accept the Government’s assurances that increasing fees by up to 600% in the civil courts will not lead to fewer claims being brought there?
Lord Faulks
The question of employment tribunal fees is very different. There were, in fact, no fees at all. As a result of a relatively modest fee, there has been a significant decline in the number of claims brought. I am sure the noble Lord would accept that some of the claims brought hitherto were somewhat on the speculative side. That no longer takes place. Furthermore, the intervention of ACAS, as from May 2014, has resulted in a significant reduction in the number of these cases getting to employment tribunals, and surely it is better that tribunals should, on the whole, be avoided. What is more, as a result of our long-term economic plan there has been a significant increase in the number of people in employment. This Government are about hiring, not firing.