Probation
Lord Beecham Excerpts(9 years, 6 months ago)
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Lord Faulks
My Lords, I do not accept the characterisation given by the noble Lord. The suggestion that Parliament has not had the opportunity to consider this is not borne out by the fact that there were 50 hours of debate in Parliament, including debates on the Bill and a Westminster Hall debate. We have given information to Parliament and the public at every stage of the process, placing key documents in the Libraries of both Houses, including draft contracts, the staff transfer scheme and details of successful bidders. The matter has also been considered by the Justice Select Committee and the Public Accounts Committee. I also do not accept the noble Lord’s characterisation that there are problems. The issue has been carefully monitored. Of course, there may be some difficulties, and we are happy to hear any representations from anybody about how we can respond to these.
Lord Beecham (Lab)
My Lords, it is understood that in the course of court hearings over a challenge to the legality of the Government’s proceeding with the contracts for the 21 community rehabilitation companies, a number of concerns were raised. These related to problems with IT, the management of sensitive victim information, lost records of offender contacts, staff shortages, delays in pre-sentence and standard reports, and more besides. To what extent have these issues been resolved and what arrangements are in place to ensure regular monitoring of the situation?
Lord Faulks
I presume that the noble Lord is referring to the judicial review instituted by NAPO that was withdrawn by NAPO, which was ordered to pay the substantive costs of that judicial review. As to pre-sentence reports, there is a 97% response rate of timely reports. As all those who have had to sentence offenders will appreciate, from time to time before this transformation there were delays in these reports. It is greatly to the credit of the probation service that it has maintained this standard. It is to be congratulated on the hard work that it is doing in coping with this transformation.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(9 years, 7 months ago)
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Lord Beecham (Lab)
My Lords, as we have already heard this afternoon, widespread concern over the proposal to include under-15s—I think the Minister inadvertently referred to under-14s in his opening—and girls in secure colleges has been voiced repeatedly in debates in this House during the Bill’s troubled passage through the legislative process. I will not rehearse the arguments again, save in one important respect. The numbers involved are small, which, as indicated by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howarth, implies that of necessity the group will contain members coming from even greater distances than the majority of young people who will be housed at Glen Parva—which, it will be recalled, will contain about one-third of the national number of children in detention and will already therefore, on present plans, cover a large geographical area. Thus girls and under-15s—the most vulnerable groups—will be even further from the homes and communities to which they will return.
As we have heard, the Government have at last conceded—no doubt thanks to the eloquent advocacy of the Minister, who does listen carefully to debates in your Lordships’ House—that a final decision will be taken on the basis of the affirmative resolution procedure. So far as it goes, that is of course welcome, although we have to recognise that it does not go very far, since such resolutions cannot be amended. Will the Minister at least accept that there should be separate resolutions for each of the two categories—girls in general and those under the age of 15? That would possibly allow separate decisions to be made in the light of evidence at that time, if it was thought to be necessary, rather than treating both in exactly the same way.
The parliamentary procedure that has now been laid down, after the concession for which we are grateful, will follow consultations. I asked a number of questions about the nature of the intended consultations in the debate of 9 December, to which the Minister in his reply—in fairness, he was replying to many things—made no reference. Therefore, I am constrained to repeat some of those questions.
Lord Woolf
I also share the hope expressed by the noble Lord, Lord Horam, that what has been achieved will be worth while. However, I am bound to say that my view originally was that these proposals to restrict the court’s powers in relation to judicial review were unnecessary and misplaced. On the points made by the noble Lord, Lord Horam, I should point out that these amendments would not have assisted in any way whatever. What has assisted is the fact that the courts, aware that there are problems in some areas of judicial review, and of their own motion, put in place a specialist way of dealing with the questions of development to which the noble Lord referred. That is quite independent of these amendments. None the less, the changes that have been achieved to the original proposals enable me, like the noble Lord, Lord Pannick, to accept that this can be accepted, although with reluctance.
Lord Beecham
My Lords, it is a pleasure to follow the noble Lord, Lord Pannick, in his customary forensic and formidable critique of the decisions made, and the manner in which they are made, by the Lord Chancellor. As we have heard, the House has secured an amendment to the “highly likely” test. The courts will be able to allow a case to be brought or to grant relief where they deem there is an exceptional public interest, notwithstanding that it would be highly likely that the defect in procedure would not have affected the outcome.
It is, however, somewhat unclear what is meant by “exceptional public interest”. The Richard III case attracted more public interest than any judicial review case that I can recall, and certainly more interest from the Lord Chancellor, who constantly relies on that one case to justify his assault on judicial review. Would such exceptional interest have allowed the court to deal with that case if it had been demonstrated that it would have failed the “highly likely” test? If not, will the Minister give us some examples, given that the courts are now directed that they must strike down a claim unless such exceptional public interest exists? Further, if judicial discretion remains, it would surely have been better not to substitute “must” for “may” in the injunction to apply the test contained in the amendment.
The final government amendment deals with financial information to be supplied by those contributing to the funding of judicial review applications; and again under pressure from this House, and again, no doubt, with the advice of the Minister, the Government have moved, in this case to promising a consultation on the limits beyond which disclosure would be required. That is, of course, welcome, although it is not clear whether Parliament will have an opportunity to debate the outcome of such a consultation before the rule committee makes its decisions. Perhaps the Minister will give me an indication about that.
I have always acknowledged the need to get behind the facade which can be erected via a shell company or other device, such as was used in the Richard III case, partisan supporter of that much maligned monarch though I am, but it is a pity that the Government have not sought to consult on how to do that, rather than come forward with what originally certainly looked like a device which could have a chilling effect on genuine supporters of a claim for review. Nevertheless the change embodied in the amendment, as far as it goes, is welcome.
It has been striking, as this Bill has gone through both Houses, how little support it has attracted from government Back-Benchers in either Chamber, with the notable exception of the noble Lord, Lord Horam. In the last round of ping-pong in the Commons three Conservative lawyers—Geoffrey Cox QC; the former and widely lamented Attorney-General, Dominic Grieve, and the former Solicitor-General, Sir Edward Garnier—all voiced stringent criticisms. We are, however, where we are, and thanks to deliberations in this House, and, I suspect, to the wise counsels of the Minister, it is a better place than we might have been. I only hope that after the general election we will have, whoever forms the next Government, a Lord Chancellor and Secretary of State for Justice who, if not judicial, will at least be judicious.
Lord Faulks
My Lords, I am grateful to all noble Lords for their contributions to this debate. I am grateful to the noble Lord, Lord Pannick, for his observations about the rule of law and its importance. I find no difficulty in agreeing with his critique of the rule of law, its role and its importance, and judicial review as a part of that.
There is perhaps one area where I would not wholly agree with him, and that is in his submission in relation to “exceptional”. I say submission because, as he will appreciate, those looking for clarification on what “exceptional public interest” may mean, pursuant to the rule in Pepper v Hart, might be interested in what was said in debates. They might have their attention drawn by the noble Lord, Lord Pannick, or indeed by some other counsel, to what he himself said in the course of the debate. I do not think that that is quite within Pepper v Hart. He referred, for example, to what the noble and learned Lord, Lord Woolf, said in one particular case. I think that different judges have used the word exceptional to mean different things in different contexts. I see the noble and learned Lord nodding. I simply say that “exceptional public interest” will depend on its context, and we are content to leave it to the judges to decide what it means. The noble Lord, Lord Beecham, did his best to tempt me into giving examples—even trailing the Richard III case, which he said was a classic case in which the public were interested. The public can be exceptionally interested in something without it being a matter of exceptional public interest. I trust that judges will be able to make that distinction.
As for the rule committee, it is, as noble Lords will know, separate from the Lord Chancellor, who has been much maligned in the course of this debate. It will decide what is appropriate on the basis, I hope, of a wide consultation on the issues. No doubt it will bear in mind, among other things, observations that have been made during the course of this debate. I am grateful for all the contributions to the many debates that we have had.
Lord Beecham
Will the Minister indicate whether there will be an opportunity for this House, and indeed the other place, to debate the outcome of the consultation before the rule committee makes its mind up?
Lord Faulks
No, I will not give that undertaking. The rule committee will have the basis for consultation and the basis of the debate and it will be subject to the usual parliamentary procedure, meaning that each House will have the option to vote against—so to that extent. That is perhaps an answer.
The debate has been of a very high quality. Indeed, I pay tribute, as other noble Lords have, to the scrutiny that the Bill generally—not just the matters that we are dealing with today—has received from every quarter of the House. There have been different fields of expertise brought to good effect in the course of the consideration of the Bill by your Lordships’ House. There have been a considerable number of amendments to the Bill in many different areas. Today, and in the course of the most recent debates, we have focused on the modification of the reforms of judicial review and in relation to parliamentary oversight of under-15s and girls in secure colleges—and, indeed, on the secure college rules, which will now be subject to an affirmative resolution. However, there have been other important amendments, such as the new offence of revenge pornography; the custody arrangement for 17 year-olds; various provisions to clamp down on dishonest personal injury claims; and extending reporting restrictions to young people, to name but a few.
Social Action, Responsibility and Heroism Bill
Lord Beecham Excerpts(9 years, 7 months ago)
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Lord Hunt of Wirral (Con)
My Lords, I declare my interest as a partner in the global commercial law firm DAC Beachcroft and refer to my other interests in the register.
However, for the purpose of this short debate I add that I have just this morning returned from an expedition to Antarctica, where I must say my boundaries were severely tested. I found myself in the company of adventurers, and I have to tell the Minister that they greeted the Bill with enthusiasm. They took the view that we have achieved the wrong balance, with too much emphasis on health and safety, which, sadly, has led to the cancellation of a lot of trips similar to the one that I went on—I now hold an award and a certificate for following in the steps of Roald Amundsen. I did not go quite as far as he did, but I feel that I have seen the effect of taking risks on the development of one’s own personality and abilities. Younger people certainly benefit from those boundaries being tested. Therefore I bring to the Minister unbridled enthusiasm for the Bill and a slight questioning of why senior lawyers have found fault with it so much.
I speak from my own experience, having dealt with the Compensation Bill, which is generally accepted as a good Bill. At the time, it came under severe attack from some of the most senior lawyers in this House, who tried to explain that it did not add anything and that it should all be left to the judges. They asked why on earth we were repeating the judgment of the very senior noble and learned Lord, Lord Scott of Foscote, who set out the position very clearly indeed, which we repeated in Clause 1 of the Compensation Act 2006. But the general view is that that has done a great deal to calm people down and to stop the cancellation of a lot of adventure holidays.
Finally, I say to my noble friend the Minister how pleased I am that he has decided to delete the word “generally” and insert the word “predominantly”. I thought about all sorts of other words that could be used, as he may have guessed, but I think that the word “predominantly”—for someone to have to demonstrate “a predominantly responsible approach towards protecting the safety or other interests of others”—really clarifies the position brilliantly. I am very grateful to my noble friend for proposing that amendment today.
All that I will say to the other lawyers in the House, who are far more senior than I could ever aspire to be, although I have been in the same firm now for 50 years, is that I bow to their judgments—indeed, I have to observe them and listen to them on many occasions. However, I question for a moment whether it might not be more acceptable for the House to recognise that this Bill will do much to further the opportunities, particularly for younger people, to take the sort of risks that perhaps at my age I should never even have dreamt of, such as traversing the crevasses that I did over the weekend. I think that it did me a lot of good and will do them a lot of good, too.
Lord Beecham (Lab)
My Lords, I was anticipating that the Minister would now move his amendment, but perhaps in the circumstances it would be sensible if I spoke from the Opposition Front Bench.
The literary world is familiar with the concept of vanity publishing; this Bill is an example of its parliamentary equivalent, vanity legislation. Clause 3, with or without the government amendment, or that of the noble Lord, Lord Pannick, is the only clause that even purports to effect a change in the law—and that, in the words of Shakespeare’s Richard III, whose subject Ministers, and this Minister in particular, have so frequently prayed in aid, in a manner so “lamely and unfashionable” as to make it worse, not better.
It is noteworthy that, time and again, as this essentially trivial measure has made its way through both Houses, Ministers have harped on the alleged need, in the words of the Minister at Report,
“to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued”.
In a remarkable non sequitur, the Minister went on to express the hope that,
“this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side”.—[Official Report, 15/12/14; col. 34.]
That is a reference to the dreaded compensation culture which apparently haunts the sleepless nights of Ministers, potential defendants and their insurers—and now, we understand, possibly penguins in the Antarctic—but whose actual existence is more imaginary, in terms of cases brought, than real.
Social Action, Responsibility and Heroism Bill
Lord Beecham Excerpts(9 years, 8 months ago)
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Lord Beecham (Lab)
My Lords, less than a week ago we debated the Government’s amendments to the Criminal Justice and Courts Bill, and inflicted defeats in relation to proposals affecting young offenders and, even more significantly in terms of their constitutional importance, two changes to the procedures for judicial review.
Today we return to this Bill, a piece of vanity legislation if ever there was one, which, except for Clause 3—as we have heard—adds nothing to the provisions of the Compensation Act 2006, which, by implication, it purports to amend. I concur entirely with the critique of the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Pannick, and others of this muddled attempt to deal with a problem for whose very existence there is a complete lack of evidence—a Bill that is very badly drafted, in any case.
At Second Reading, I acknowledged that the House is properly cautious about declining to give a Second Reading to Bills emanating from the Commons, and there is a similar reluctance totally to destroy Bills in the way in which the amendments of the noble and learned Lord, Lord Lloyd, would achieve if passed, which would leave the Bill consisting of only its title. However, if we were to go so far on a Bill as feeble as this, it would actually strengthen the hand of the Lord Chancellor in relation to the vastly more important and damaging provisions of the Criminal Justice and Courts Bill, which we have sent back to the Commons with our amendments. I fear that he would not hesitate to cast this House as a recalcitrant and obstructive group, placing us alongside the left-wing pressure groups and campaigners which he conjured up as the phantom proponents of judicial review and opponents of his attempts to undermine it. It would, I suggest, make it more unlikely for the Lord Chancellor to exercise political responsibility in relation to the amendments on secure colleges and JR by accepting them, or, should he fail to do so, for MPs on the Government Benches to demonstrate political heroism in a just cause by voting for them.
For those reasons, I regret that I cannot advise opposition Members to support the noble and learned Lord’s amendment to Clause 2, nor his amendment to Clause 4—in any case, the Government have tabled an amendment to it that reflects one moved by the noble Lord, Lord Pannick, in Committee, to which I added my name. I do that with regret because I share entirely the noble and learned Lord’s criticisms of the vacuous nature of the Bill; but it seems to me, for the reasons that I have given, unwise for the House to join him in the Lobbies. I say that with the more trepidation as I understand that he is the chairman of the East Sussex Rifle Association; I fear that I may end up as a target—if not for the noble and learned Lord, then for some of the members of that association.
There is nevertheless a serious issue as to the role of the House in these strange circumstances. However, in relation to Clause 3, I will be asking the House to agree that it should not stand part of the Bill, essentially because that clause seeks to effect a change in the law that is unacceptable for reasons which I will adduce when we come to debate that amendment. However, I fear that I shall not be joining the noble and learned Lord in the Lobby—
Lord Pannick
Is the noble Lord saying that the Opposition are not going to support the noble and learned Lord, Lord Berwick, because, although they think that Clause 2 is absolutely terrible, it is not the worst legislative proposal that Mr Grayling has brought forward in this Session?
Lord Beecham
There is a lot of competition in that respect. I merely say that on this Bill it is not worth the House taking a position that is a departure from its normal practice. I genuinely fear that the Lord Chancellor will use such a vote to muster support against the much more serious amendments that we have sent back for the Commons to consider. That will not help us in sticking to those amendments, should they come back to us. That is why I will not be in either Lobby this evening if the noble and learned Lord decides to test the opinion of the House.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, in speaking against Clause 2 in Committee and in the debate today, the noble and learned Lord, Lord Lloyd of Berwick, has maintained that the clause adds nothing useful to Section 1 of the Compensation Act 2006 or to the existing common law and is therefore unnecessary. I take this opportunity to explain why the Government believe that the clause has an important purpose, which merits the support of the House.
The clause stems from our wish to ensure that people can feel confident about participating in activities that benefit others without worrying about what might happen if something goes wrong and they find themselves defending a negligence claim. Clause 2 sets out to provide valuable reassurance that if that happens, the court will take careful and thorough account of the context of the defendant’s actions when reaching a decision on liability. Rather as the noble Baroness, Lady Ashton, said when introducing the provisions of the Compensation Act, as I have quoted before:
“They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.—[Official Report, 28/11/05; col. 81.]
So two separate Governments have identified a fear.
It is said that there is no solid evidence and that such evidence as there is is anecdotal. I agree with my noble friend Lord Hodgson: it is rather hard to identify and amass solid evidence about this. However, I am not sure that many people would disagree with the proposition that we have a culture where litigation hovers over many activities like a shadow and can genuinely inhibit the sort of things that most people would consider to be desirable.
Lord Lloyd of Berwick
My Lords, I thank noble Lords who have supported this amendment. I want to say a word about the contribution of the noble and learned Lord, Lord Walker of Gestingthorpe. He said that, as the Bill changes the common law, it ought to have been referred in the first instance to the Law Commission. I entirely agree that from time to time it has not been at all easy to discover what the government case has been, but their final position is that it does not change the common law in any way; it merely confirms what was already the common law and what was included as Section 1 of the Compensation Act 2006. I hope that that answers the noble and learned Lord’s difficulty.
So far as the rest is concerned, I shall say nothing more about the arguments put forward by the noble Lord in answer to the debate. They have already been dealt with very fully. However, I want to say a word about the attitude of the Opposition to the amendment. As I understood it until 2.15 pm this afternoon, the Opposition would be supporting the amendment. That was my clear understanding.
Lord Beecham
If the noble and learned Lord understood that, he misunderstood it, and if I have contributed to a misunderstanding, I apologise. It was never the Opposition’s position that we would support the noble and learned Lord. We were considering the position and I tried to contact him unsuccessfully over the weekend. Therefore, we have not resiled from the position that we previously adopted.
Lord Lloyd of Berwick
I am quite happy to accept that there must have been a misunderstanding. However, that was certainly my understanding of the position, just as my understanding of the position at Second Reading was that they would be supporting my amendment. I was wrong about that and I am wrong again. However, that still leaves the question of why on earth the Opposition are not supporting the amendment. After all, on the whole, it is the duty of the Opposition to oppose. If they found that they were against something—and I understood them to be against Clauses 2 and 4, just as they are against Clause 3—in the ordinary way they would oppose it.
However, I am wrong about that. The reason given for this seems to me to be entirely incomprehensible. The reason why the Opposition now do not want to oppose Clauses 2 and 4 is that if they did so while opposing Clause 3, that would then have some effect—which I really did not understand—on the attitude of the Lord Chancellor in relation to some other Bill; namely, the Criminal Justice and Courts Bill. That is a wholly irrational ground for an Opposition to act on. I would have thought it their duty, if they are against Clauses 2 and 4, to oppose them. They say, however, that, for reasons which I do not understand, they do not intend to take that view officially. I hope that at least some members of the party which is represented by those on the Opposition Front Bench who take that view will think differently.
Lord Hodgson of Astley Abbotts
My Lords, Amendment 1A may be less controversial than the matter that we have just finished discussing, although in matters of the law you never quite know. The amendment was originally tabled in the name of my noble friend Lord Hunt of Wirral, and I added my name to it. My noble friend has had to travel to northern England today on business, so is unable to be here in time to move this amendment. I am moving it on his behalf.
The amendment is very simple: a one-word change to Clause 3, the clause entitled “Responsibility”, to which the noble Lord, Lord Beecham, referred earlier. It replaces “generally” with “predominantly”, so that the clause will read:
“The court must have regard to whether the person”,
demonstrated a “predominantly”,
“responsible approach towards protecting the safety or other interests of others”.
The question was whether the use of “generally” was sufficiently focused to achieve the appropriate balance in individual cases. The adverb “generally” has three definitions in the Collins English Dictionary. The first is “usually; as a rule”. The second is “commonly or widely”. The final one is,
“without reference to specific details or facts; broadly”.
I suspect that what your Lordships’ House will wish the courts to consider, if this Bill passes into law, is whether the defendant will first claim that he was demonstrating an approach which on that occasion was in the main responsible in protecting the safety of others as opposed to the approach which usually, but not necessarily on that occasion, was responsible. Replacing “generally” with “predominantly”—we return to the Collins English Dictionary definition, which is,
“for the most part mostly and mainly”—
should provide the courts with the power to examine the approach of the defendant at the material time and avoid them having to consider the approach demonstrated at other times or taking the matter even wider, enabling them to take into account the approach followed other than that at the material time.
This Bill has an important role to play in reassuring potential volunteers, but equally it should not encourage behaviour which is thoughtless or irresponsible and thus puts others at risk. This change of word may better balance the two aspects, and I hope that the amendment will find favour with my noble friend. I beg to move.
Lord Beecham
My Lords, Clause 3 is the one clause in the Bill which the Government acknowledge embodies a substantive change in the law. In Committee, I moved an amendment to remove “generally” from the requirement on the court to consider whether,
“the alleged negligence or breach of statutory duty … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.
Neither at Second Reading nor in Committee did the Minister define the meaning of “a generally responsible approach”, and in replying to the debate in Committee he acknowledged that the term was “unusual” in statutory terms. Indeed, he indicated that he would,
“consider carefully whether and to what extent it adds anything to what is in the clause at the moment and whether, on balance, it takes the matter any further”.—[Official Report, 18/11/14; col. 414.]
We await with bated breath the outcome of the Minister’s deliberations along with his response to the amendment tabled by his noble friend, who is seeking to ratchet up “generally” to “predominantly” in the proposed clause.
I have to say that neither term is satisfactory in terms of either definition, which is entirely lacking, or effect. Why should someone suffering damage through an act of negligence or breach of statutory duty be denied compensation on the grounds that the act or omission was in effect a first offence, or at any rate a rare offence? What, for that matter, constitutes a “responsible” approach? How does the Minister define those terms? Moreover, and crucially, the clause is not limited to social action, responsibility or heroism, terms which are in themselves undefined and undefinable, or to personal injury cases. We are dealing not just with safety but, in terms of the clause, with other interests. As I reported in Committee, the Minister in the House of Commons, Mr Vara, affirmed that the clause,
“could in principle be applicable in relation to other instances of negligence such as damage to property or economic loss where issues of safety may not necessarily be relevant”.—[Official Report, Commons, 20/10/14; col. 693.]
Why should a negligent builder, medical practitioner, accountant, surveyor or even solicitor—I declare my interest—escape liability for what might even be catastrophic damage because he has been hitherto “predominantly” responsible? Negligence can lead to large losses outside the realm of personal injury. Is not the reality that this badly drafted clause is yet another concession to the insurance lobby, which ordinarily would of course stand behind the defendant in such claims?
Many Members of your Lordships’ House will have received an e-mail today from one of those pressure groups which so exercise the Lord Chancellor in relation to judicial review. In this case, the pressure group is one which we can be confident he entirely approves of: it is the CBI. Its curiously worded communication supports Clause 3 on the grounds that it,
“provides better protection against accidents for those firms—particularly the small and medium sized companies that already have good health and safety processes in place”.
Of course, it does nothing of the sort. It provides “better protection” against claims for negligence arising from accidents and it extends, of course, to large employers as well as medium-sized and small employers.
The e-mail goes on to suggest that,
“this clause will encourage the courts to recognise that safety is a shared responsibility”,
as if the courts do not already do so, and do not make findings of contributory negligence when a claimant fails to take proper precautions, or dismiss a claim when he is wholly responsible. Of course, again, the CBI ignores the fact that the clause extends to all types of negligence, including by small and medium-sized businesses which might well find themselves a victim of negligence other than of the kind leading to personal injury.
As the CBI’s response eloquently exemplifies, this whole Bill has all the hallmarks of being drafted by the Lord Chancellor on the back of a small envelope. This clause, in particular, is deeply objectionable. Unless the Minister is prepared to abandon the clause, I shall invite the House to divide and consign the envelope to the parliamentary waste bin.
Lord Pannick
My Lords, I add my support to what has been said by the noble Lord, Lord Beecham. Clause 3 is very troubling for two reasons. First, the defendant may have shown a partially irresponsible approach towards protecting the safety or other interests of others, that partially irresponsible approach may be the cause of the accident and it may be entirely inexcusable. Why, then, is the generally responsible approach of the defendant in other respects of any relevance whatever? The amendment in the name of the noble Lord, Lord Hodgson of Astley Abbotts, would not cure this defect.
The second troubling aspect of Clause 3 is that it does not appear to be confined to the subject matter of the Bill, social action and heroism. I would be very grateful if the Minister would explain whether Clause 3 was intended to be confined to the subject matter of the Bill, or whether, as its wording suggests, it is to have a broader aspect. For these reasons, if the noble Lord, Lord Beecham, divides the House, he will have my support.
Lord Faulks
With great respect to the noble Lord, considering the activity in question focuses the judge on the activity that is said to have caused the particular injury, or tort, which has eventuated.
Lord Faulks
Perhaps I could finish answering this question before I answer the next one. That would necessitate a judge looking at the activity in question and deciding whether, in relation to the activity in question that is being examined by the court, a generally responsible approach was exhibited by the defendant. What that would not involve would be going through his or her safety record for the previous 10 years, if that is what is being suggested. In fact, as the noble Lord may or may not know from personal injuries claims, very often disclosure of the history of accidents in a factory or documents on previous injuries is done in conventional personal injury claims, as the law is now—there is nothing different about that. So with great respect I do not accept the noble Lord’s suggestion that there would be a lengthening of trial or a greater complication in those terms.
Lord Beecham
The Minister must forgive my impatience again. He has concentrated on personal injury claims, but he would concede that the clause does not restrict itself to such claims. Could he identify some of the other sorts of cases, as his ministerial colleague did in the House of Commons, the non-personal injury cases—contract cases and matters of that kind? Would he say that, if a defendant had demonstrated an approach towards protecting the safety of his staff, that suffices to let him escape from damage to other interests of others? What sort of other interests do the Government intend to be covered by the provisions of the clause?
Lord Faulks
The Bill is described in its preamble as being to make,
“provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.
I do not see any reference to breach of contract there. But the noble Lord is right in the sense that Clause 3 refers to,
“a generally responsible approach towards protecting the safety or other interests of others”.
That would open the door to the possibility of other interests being considered. Having regard to the general structure of the Bill, I would not wish to add anything to what was said in the House of Commons. I imagine that it is going to be focused primarily on conventional personal injury cases.
Lord Beecham
I have another question. The Minister’s colleague, Mr Vara, said:
“Narrowing the clause … would mean that … bodies such as voluntary organisations, religious groups or social clubs which demonstrate a generally responsible approach towards protecting the safety or other interests of their clients or members would not be able to benefit from its provisions. That cannot be right”.—[Official Report, Commons, 20/10/14; col. 693.]
That is the argument that he made in opposing an amendment which had been tabled. That seems to suggest that the Government were contemplating situations in which such organisations would be protected in the course of their general functions in the event of a claim arising—rather than, as the noble Lord implied, only in relation to a particular case in which they failed, as it were, to have sufficient regard to the safety or other interests of a client. Surely the noble Lord is in error in advancing the argument that we are looking only at the particular individual who might be involved in such a claim. That seems to me much too narrow an approach to the terms set out in the Bill.
Lord Faulks
I do not have the full context of what my ministerial colleague said in the House of Commons, but I do not believe that I am in error when I give the reasons for my answers to the various questions that have been posed. As I say, these words are not mere surplusage; they are put in to clarify and limit the extent to which “generally responsible” has an application.
I suggest that this provision is an important but modest reflection of what many people would say was a sensible encouragement of employers to adopt a predominantly or generally responsible attitude to the safety or other interests of others—but which, in appropriate circumstances and subject to the court’s overall discretion, allows these matters to be taken into consideration. That is as far as it goes. It is a modest but, I suggest, sensible addition to the law—and it is an addition to the law, as I think is accepted. Given the clarification I have attempted to give the noble Lord on the limit of the measure’s scope, I invite him to withdraw his amendment.
Lord Beecham
Lord Beecham
My Lords, on this occasion I will not follow the precedent of the noble Lord, Lord Hodgson. The Minister has not satisfactorily explained the real purpose or the workings of this clause, although the two things may not coincide in the minds of those who drafted it. It represents a substantive change and, in his noble efforts to minimise the extent of that change, I fear that he has failed to address the new concerns raised by several Members of this House who are much more learned in the law than I would ever profess to be. In these circumstances, I wish to test the opinion of the House.
Lord Hodgson of Astley Abbotts
My Lords, I, too, congratulate the Government on leaving out the 11 words at the end of this clause. Particularly following our debate in Committee, it appeared to me that a “person’s own safety” is not necessarily a part of heroism, so it is a useful removal.
The noble and learned Lord, Lord Lloyd, in speaking to his amendment to leave out the clause, said that his reasons for wishing to do that were broadly the same as his reasons for tabling Amendment 1, which concerned Clause 2. I understand that, and therefore draw the conclusion that I drew a couple of hours ago. I hope that my noble friend will resist that amendment.
Lord Beecham
My Lords, the noble and learned Lord, Lord Brown, asked what was added by the reference to heroism in the Bill. The answer is that it allows the Government to bestow an acronym on the Bill; otherwise, it would simply be the “Social Action Responsibility Bill”. Now, we have the words “and Heroism”, which make a convenient acronym. That is an interesting way of proceeding with the drafting of legislation and I concur with the noble and learned Lord’s criticisms of that process.
Having said that, the Minister has at least made a concession by, in effect, accepting the amendment moved by the noble Lord, Lord Pannick, to which I subscribed, as I said before. It was of some comfort that St John Ambulance, which was certainly in touch with me and, I suspect, other noble Lords, welcomed that change. The clause does not substantially affect anything, as we have already heard. However, in so far as this modest change makes it marginally more palatable, I welcome the Minister’s concession. He has not been able to offer too many concessions, but I am glad that he has prevailed on the Lord Chancellor on this occasion to make a gesture of an unfamiliarly generous kind to this House. I support the amendment.
Criminal Justice and Courts Bill
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Lord Beecham (Lab)
My Lords, unlike the Minister and the noble Lord, Lord Ramsbotham, whose vast experience of the custodial system in this country we all acknowledge, I will confine my remarks to the issue of under-15s and girls. I do not in any way depart from the criticisms of the general principle, but that has now been settled and we must accept that secure colleges will go ahead, provided the Government manage to enter into suitable contracts to build and operate them.
The Government’s proposal now to consult on and publish a report on this specific issue perhaps raises more questions than it answers. There are questions, going back to the original process, about which organisations or experts have supported the proposal to house under-15s and girls in an establishment of this kind. I am not aware of any. Perhaps the Minister can identify some. There is also the question, raised before by the noble Lord, Lord Ramsbotham, about whether the Government have considered similar schemes in, for example, Spain and the United States—similar in the sense that they are addressing the problems of this young age group but conducted on very different principles from that which the Government propose to put forward in the context of the secure colleges envisaged by the Bill. Moreover, there have been representations from a wide range of major, national bodies, such as the Children’s Rights Alliance, the Prison Reform Trust, the Standing Committee for Youth Justice, the Howard League for Penal Reform and, in a recent briefing, which some of your Lordships will no doubt have received, eight national women’s organisations concerned particularly with the problem of girl offenders in these institutions.
There are also questions about the proposed consultations that the Government will enter into. Will they take place after the go-ahead is given for the construction of that part of the college that would house these young people or is that element of the proposed building contract to be deferred until the process is completed by the consultation to which the Minister refers? If it is not, I fear that it will become pretty much a fait accompli. Once the provision is made it is hard to envisage that the Government would fail to use it in the way that is currently envisaged.
There are also questions about the nature of the consultation. The Minister has circulated documents saying that the Secretary of State will consult the Youth Justice Board, Her Majesty’s Inspectorate of Prisons and Ofsted. The Minister has said it this afternoon. One would expect that and it is welcome, although I note in passing that the Chief Inspector of Prisons has, in what unfortunately will be his last few months in office, just published a response to the questions about the rules of the proposed college. In that response he is clearly expressing concern about the provision for under-15s and girls as well. So one potential respondent to the consultation is already expressing those concerns, although the chief inspector will no longer be with us as he is leaving his office in the new year before the final decision is made.
Will that consultation be confined to those three important institutions or will it go wider? Will it, for example, embrace the British Medical Association, which published a report this year called Young Lives Behind Bars, dealing with the provision of custodial facilities and the treatment of young offenders, which raised a great number of concerns? Will it embrace the local authorities to whose areas these young people will go back? It would seem to be essential that the social services—children’s services departments in particular but perhaps also other departments; one thinks of housing and the like—should be consulted about the provisions that are to be made for their young citizens who will be for a period incarcerated in the new college. The question also arises as to whether the other bodies—for example, the probation service, however it is to function under the new regime—will be separately involved. Again, one might have thought that that would be a given but it is not explicit in the Minister’s paper that outlines the consultation process.
It seems to me that there are significant questions to be asked even about the limited process that the noble Lord has outlined. I concur with the views of the noble Lord, Lord Ramsbotham, that it is an inadequate response. I take the point that was raised in the intervention by the noble Lord from the government Benches, who—if I may respectfully say so—perhaps rather naively thought that the Government might have contemplated that the report would require parliamentary approval. I agree with him, it would have made a significant difference, but that is not, apparently, on the agenda. One has to ask again why the Government are so reluctant to put their report on this hugely sensitive area to the test of the support of both Houses in the event that the consultation concludes that it is desirable to proceed with this very controversial measure.
I join the noble Lord, Lord Ramsbotham, in hoping that Members will look at this one, now limited aspect of what has been a very controversial proposal and conclude that the Government have not made their case to proceed in the way that they propose to do, even with the very limited concessional gesture that the Minister has outlined. If the noble Lord seeks to divide the House, I will ask my colleagues on these Benches to support him but I hope, as he does, that that support will not be confined or indeed even governed by a political stance as much as a genuine concern for these young, vulnerable people, and doubts about the rationale for and the potential problems that might be caused by the Government’s proposals, if implemented.
The Earl of Listowel (CB)
My Lords, I wish I could support the Minister. I am most grateful to him for all he has done recently for 17 year-olds in police custody and for acting promptly on the concerns of parents for their 17 year-olds in custody. However, I fear I must support my noble friend, to whom I pay tribute for his campaigning and determination in pursuing the welfare interests of these young people—girls and boys.
I have consulted with the experts whom I trust the most and their view is identical to those of the many other experts who have responded on this issue: it is far better to keep girls and boys under 15 in small local units. In large part that is because family relationships can be better sustained and strengthened. In some cases these relationships are unhelpful. In general, however, one has to try to support them.
I recall visiting Dr Camila Batmanghelidjh at Kids Company. One of her young people was my guide. He showed me the scar on his back from a bullet and spoke of his time inside prison. We also talked of the great pains Dr Batmanghelidjh took in helping to reunite him with his mother. He spoke movingly of the experience of the renewal of his relationship with his mother and the importance to him in his rehabilitation.
The noble Lord, Lord Farmer, and another Conservative Peer, recently spoke about the importance of fathers—the “dad deficit”, as it is called. According to the OECD in its data on family formation, from memory, 15% of children in Germany live without a father in the home; 18% in France; 22% in the UK; and 25% in the US. The OECD predicts, however, that we will overtake the US in the next 10 to 20 years.
We cannot continue to overlook the value of sustaining family relationships. It is vital that girls and boys under 15 are housed in local, small units, where those relationships can be fostered and supported. I urge your Lordships to support my noble friend Lord Ramsbotham.
Lord Beecham
My Lords, it is a measure of the importance of the matters that we are now debating, and upon which we will have to vote, that the noble Lord, Lord Pannick, made special arrangements to fly back this morning from Moscow at 5.45 am, Russian time. I do not know whether the Lord Chancellor has ever been to Moscow, but I suspect that Mr Putin’s views about holding government and other public bodies to account for the lawfulness of their decision-making would be closer to the Lord Chancellor’s than to the noble Lord’s.
After all, Mr Grayling has proclaimed that judicial review is,
“not a promotional tool for countless Left-wing campaigners”,
or, as he put it in the course of the 58 minutes that the House of Commons devoted to debating the amendments passed by your Lordships’ House:
“Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country”.
He went on to claim that,
“in far too many examples, that is precisely what it has become”.—[Official Report, Commons, 1/12/14; col. 70.]
Oddly enough, the Lord Chancellor failed to provide any examples of these malign abuses of the system, the essential interests of the country that he felt were under threat or indeed the identity of the so-called abusers. On Report, the noble Lord, Lord Faulks, at least condescended to cite an example. Members may recall shuddering with horror at the revelation that the building of a supermarket in Yorkshire was delayed by all of six months due to an application for judicial review—brought, incidentally, not by a left-wing or other pressure group but by a commercial rival of the developer. I do not blame the Minister at all for relying on this underwhelmingly persuasive case. He was struggling with a grossly inadequate brief—something that I suspect from time to time he has had to deal with over the years, though perhaps in less important contexts.
The Secretary of State for Justice, moreover, whose title looks increasingly like one coined by George Orwell, gives the game away in presuming that, “perfectly lawful decision making” is what is at stake. The implication is clear: what the Government legislate is ipso facto lawful. In the fantasy world in which the courts are besieged by meddlesome litigants pursuing left-wing causes—litigants such as the Countryside Alliance and the Daily Mail—the courts are deemed to be wholly incapable of sorting out the legal wheat from the campaigning chaff. Typically, though, Mr Grayling, in the amendments that he has produced, which were never spelled out or indeed debated in the Commons, ignores the basic requirements, already enshrined in law and practice, that permission from the courts is required both to bring a case to hearing and for third parties to intervene. The Government, themselves a possible defendant in these cases, seek to restrict the exercise of judicial discretion in their own interests, and on the basis of the flimsiest evidence of the abuses that they affect to detect in the working of the system and the decisions of the courts. In the unlikely event of Mr Putin becoming aware of the Government’s approach, he would be lost in admiration.
The Opposition support the amendments from the noble Lord, Lord Pannick, Motion B1 and Amendment 102B to Clause 64, which would preserve the court’s discretion to grant judicial review where the court considers it in the public interest to do so. I invite my colleagues and others to join the noble Lord in the Content Lobby.
It would be convenient if at this stage I indicated the Opposition’s position in relation to the other amendments. We support the noble Lord’s amendment to Motion C, dealing with Clauses 65 and 66, and his amendment to Motion D, which sets out in Amendments 107A to 107E what purport to be the Government’s concession in relation to the financial position of interveners. I remind the House again that interveners must obtain permission before taking part in any application. The Government’s amendments would oblige the court to order an intervener who has been granted permission to pay costs to any other party in any one or more of four instances. The instances are: under subsection (4A)(a) of Amendment 107B, where they act as a party, although the court already has a discretion in such a case; under subsection (4A)(b), where the intervention has not provided significant assistance taken as a whole, whatever that is supposed to mean; under subsection (4A)(c), where the intervention relates to matters not necessary to resolve the issue—although, again, if they did not, permission would presumably not be granted in the first place; and under subsection (4A)(d), where the intervener has behaved “unreasonably”, whatever that means in a context in which the court already has a discretion.
The potential for mandatory awards of large costs against interveners is self-evident and self-evidently chilling. In addition, I understand that the question of financial resources and the extent of any liability would be left to the Rule Committee to determine, subject only to a negative resolution. In this context, it might be thought that this is a highly debatable procedure for dealing with such an important issue in such an important area.
I do not need to enlarge on the weight of opinion opposed to these measures in the senior judiciary, past and present, or the wide range of opinion, including that of the Joint Committee on Human Rights and the Equality and Human Rights Commission, not to mention such subversive organisations as Age UK—I declare my interest as honorary president of Newcastle Age UK —Mencap, Mind, the National Autistic Society and many other highly esteemed and reputable organisations in the voluntary sector.
I conclude with a particular appeal to Liberal Democrat Members of this House, several of whom voted for the amendments in your Lordships’ House when we last debated this matter on Report, and several of whom joined some of us—from the Cross Benches and these Benches—in the Division Lobby in the vote just taken. Sadly, very few of their colleagues voted in support of this House’s amendments in the House of Commons. If anything has distinguished the Liberal Democrats—and particularly the former Liberal Party—it has been a sincere attachment to civil liberties and the rule of law. They have been vigilant in questioning, and, from time to time, opposing, policies of different Governments that were perceived to be in conflict with those legitimate concerns. I believe that many are troubled by what this part of the Bill seeks to achieve and by the Government’s amendments. There is nothing, of course, in the coalition agreement that refers to the measures we are now debating. If ever there was a case—with a general election only six months away—for this House to exercise its role in scrutinising and amending important legislation, and in making a judgment on the merits rather than according to political calculation, this is such an example. My appeal to Liberal Democrat Members—
Lord Carlile of Berriew
I am grateful to the noble Lord for giving way, and I know that what he is saying is being said in a constructive spirit, but he might like to bear in mind that lectures from the Labour Party on civil liberties are not popular in the Liberal Democrats. He might possibly just leave it to our own consciences to determine how we vote on this matter.
Lord Beecham
It is, of course, entirely a matter of conscience for the noble Lord and others, and I would not defend everything that Labour Governments have done in this area either. That is why I referred to the stance that Members of the noble Lord’s party took on proposals made by more than one Government. It is a perfectly fair point.
I hope that, in addition to Members of those Benches, there may be other Members—from the Conservative Benches, perhaps—who will follow the example not only of some Conservative Members of Parliament who voted for this House’s amendments in the Commons, but even, much to my surprise, of the two UKIP MPs. I would not normally be encouraging people to follow where UKIP has led, but in this particular case, they were for once on the side of the angels. I hope, therefore, that this House can support the noble Lord’s amendments and, in so doing, encourage the Government to rethink their direction of travel in this very sensitive area of the rule of law and of the way in which government in this country—not just central government, but local government and other executive agencies—carries out its important responsibilities.
Prisoners: Work
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Lord Faulks
My Lords, I do not accept the noble Lord’s characterisation of what is happening in prisons. We have increased the number of working hours. Our aim is to replicate as far as possible the normal working week in the community, real work experience and the acquisition of skills, which support effective rehabilitation. As to deaths in custody, any death is a tragedy. We have a number of different ways of investigating them. A review chaired by the noble Lord, Lord Harris, is looking into the deaths in custody of 18 to 24 year-olds and we are expecting its report in April next year. We have a number of measures in place to ensure that those unfortunate incidents can be reduced.
Lord Beecham (Lab)
On 27 November I asked about prison overcrowding and staff shortages. In an uncharacteristically peremptory tone the Minister replied that he did not share my gloom, that the work done in prisons is of a very high standard and that we have a dedicated body of prison officers. What is the ratio of officers to prisoners now compared to 2010? What is the Government’s response to the worrying report on work-related stress among prison officers and the well-being of prison officers produced by the occupational health and occupational psychology departments of the University of Bedfordshire?
Lord Faulks
We are always concerned for the welfare of prison officers, who do a very fine job indeed. Benchmark reports incorporate staffing resources for escorting and patrolling activity areas. We are satisfied that prison officers are enabling people to do the work, which was the subject of the original Question. We are recruiting more prison officers but we are satisfied that they are doing an excellent job.
Legal Aid
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Lord Faulks
The noble Lord has frequently, before this House and elsewhere, helpfully advanced suggestions for providing legal assistance other than through legal aid. The Government are grateful for those suggestions and they continue to consider the report that he provided.
Lord Beecham (Lab)
My Lords, the Lord Chancellor’s fig leaf to conceal the damage he has wrought to the legal aid system was the exceptional funding scheme, which he estimated would attract 6,000 applications a year—in itself, only around 1% of the former case load. In the event, applications are running at only around 1,000 a year, of which only some 14% are granted. Will the Government urgently review that scheme, and if not, why not?
Lord Faulks
My Lords, in fact, the number of applications in 2013-14 was 1,520. It is extremely difficult to anticipate precisely in what circumstances exceptional funding might or might not be appropriate. A considerable number of judicial reviews are taking place with regard to the exceptional funding scheme generally and on specific cases. The noble Lord of course objects to any cuts in legal aid. It must be remembered that despite what was in the manifesto of the party opposite, it has objected to every single cut to both criminal and civil legal aid. I look forward to hearing how it will justify an additional spending of half a billion pounds; that did not feature in the debate on the Autumn Statement.
Public Protection Sentences
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Lord Faulks
That ignores the particular judgment exercised by a judge when sentencing an individual. We do not know precisely what the sentence would have been with the current sentencing powers. Of course, the party opposite introduced IPP sentences. There are now different sentences. These individuals were sentenced to IPP sentences because the judges considered that they represented a potential danger to the public. The Government have to bear that in mind.
Lord Beecham (Lab)
My Lords, the Government’s response to the judgment is welcome in that they are now providing resources for sex offenders, but what has happened in relation to other offenders for whom courses have also been unavailable? How many such prisoners are awaiting courses? What would be the cost of dealing with the backlog and what is the cost of failing to do so in terms of having to continue to house these people in Her Majesty’s prisons?
Lord Faulks
The Government have increased the number of commissioned completions of courses in relation to the core sexual offenders course and in relation to the healthy sex course. The party opposite has adopted a surprising posture. We are doing our best to clear up some of the mess caused by the IPP sentence. We are clearing it up in a responsible way. We are making sure that courses are made available where they can be, where there are suitably qualified people to provide them, but not releasing dangerous prisoners into the population.
Offenders: Rehabilitation
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Lord Faulks
My Lords, I am grateful to my noble friend for acknowledging that we have made progress. We hope to continue to make progress. Of course, he is quite right: we must learn from experience elsewhere, in Sweden or wherever else there is good practice.
Lord Beecham (Lab)
My Lords, will the Minister explain how the crucial process of rehabilitation is assisted by the present state of our prisons, suffering as they do from overcrowding, staff shortages and a rising tide of self-harm and suicide?
Lord Faulks
The noble Lord makes a number of allegations about the unsatisfactory nature of our prisons. There are different reports for different prisons. I cannot possibly deal with all prisons at the Dispatch Box. I do not share his gloomy view of the state of our prisons, having visited a number of them. The work done in our prisons is of a very high standard and we have a dedicated body of prison officers who take great satisfaction in their work. I do not accept his description.
Divorce: Effect on Children
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Lord Faulks
The noble Baroness is, of course, taking through this House her own Private Member’s Bill, which makes various recommendations for giving greater clarity to the arrangements on divorce. The Government are considering that, together with the Law Commission’s report on prenuptial agreements and financial arrangements after divorce. Certainty is of course desirable, but at the same time flexibility may be necessary to deal with difficult cases. The Government have already made it clear that they do not propose to bring forward legislation in this Session. The next Parliament will have an opportunity to consider not only the Law Commission’s thorough consultation but all the good work that the noble Baroness is doing in respect of her Bill.
Lord Beecham (Lab)
My Lords, what assessment have the Government made of the Family Matters project, currently being piloted in Oxford, Crewe and Newcastle, which addresses the problems faced by families and children in these circumstances? What guidance and resources are they giving to schools and the National Health Service to detect and support children who are suffering from the effects of marital or relationship breakdown?
Lord Faulks
I am afraid that I am not briefed on the precise matters that the noble Lord has referred me to. Of course, the Resolution report referred to by the noble Baroness emphasises the various problems that are occasioned to children on divorce; they are well known, but they are helpfully emphasised in that report, and the Government are considering its consequences very carefully.