Social Action, Responsibility and Heroism Bill
Lord Beecham Excerpts(10 years ago)
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Lord Hunt of Wirral
I should stop now. However, I want to stress here that we are not talking about Fagin-type organised crime or Bill Sikes’s opportunist crime, but about the inflation of otherwise genuine claims. It has become a huge industry and insurers are now being forced to spend millions of pounds to tackle it. Organised gangs are at the heart of the increase in the number of these induced accidents. “Crash for cash” not only threatens motorists’ safety but also their pockets. It is estimated that it adds about £400 million to the annual cost of car insurance.
It has become an unfortunate fact that as a society we are faced with so many whiplash claims. It would be easy just to blame the claims farmers, and the House has heard my views on them before. However, despite a series of measures, often encouraged in this House, they continue to proliferate. They plague us with nuisance calls and texts about injury claims from accidents in which we have never been involved and that we have never heard of.
On the subject of nuisance calls, although I welcome the recent consultation by the Department for Culture, Media and Sport, I believe that the current threshold of substantial damage or distress is just too high and that the Information Commissioner’s Office needs to lower the test to ensure that it can tackle more effectively those who are abusing the system and bombarding the British public. I beg to move.
Lord Beecham
My Lords, I begin by congratulating the noble Lord, Lord Hunt, on his recent appointment, or on its announcement, as an honorary bencher of an inn of court—I am not quite sure which one. He is to be complimented on that award, whichever one it is. Having said that, I cannot extend that degree of praise to the noble Lord’s amendment. I respectfully adopt much of what the noble Lord, Lord Pannick, has said in that regard.
The amendments seem to elevate insurance companies to the pantheon of heroes—and there may be a degree of heroism involved in that. Alternatively, it characterises them as pillars of social action and responsibility. That is not a view generally taken of insurance companies, for pretty good reasons. We now have a SARAH Bill; the noble Lord seems to want a RIP Bill—a “reduce insurance premiums Bill”. While many of us would want to see insurance premiums being reduced, there may be better ways of achieving that, one of which might be to look at the profits that the insurance companies make.
In any event, as the noble Lord, Lord Pannick, has already demonstrated, there are a number of queries about the provision. One point that he may not have made is that it is open to the NHS when it offers treatment to recover that from the other driver or his insurers. I am not sure what the Bill adds to that provision. While I entirely agree with the noble Lord, Lord Hunt, that it is entirely necessary to deal with the abuses of the present system, this amendment will achieve very little in that respect. The criticisms made by the noble Lord, Lord Pannick, seem to me overwhelmingly persuasive. In particular, the amendments do not lend any substance to an already thin Bill, and I agree with the noble Lord that they are basically out of scope.
I congratulate the noble Lord, Lord Hunt, on his ingenuity in trying to achieve the objectives that he sets out—and he is, of course, entitled to achieve those objectives—but surely this is not the Bill in which to do that. I hope that, when he has heard what the Minister has to say, he will not press the amendment either today or at a later stage, because we will certainly not support it from these Benches.
Lord Walton of Detchant (CB)
My Lords, I had no intention of speaking on this matter when I came to listen to the debate this afternoon but, as a neurologist—a doctor concerned with damage to the nervous system—I have over the years seen a considerable number of patients who were referred to me for an opinion either by a firm of solicitors or by an insurance company. They sought evidence as to whether there was a case to be made out suggesting that the so-called syndrome resulting from whiplash—the sudden flexing and extension of head and neck following a car accident—represented a genuine disability.
I have great sympathy with what the noble Lord, Lord Hunt, had to say as there is clear evidence in some cases that a whiplash has caused significant damage to the spinal cord or to the ligaments of the neck. This evidence can be identified by a number of medical methods. However, there is also clear evidence that a very large number of individuals referred with that type of injury are not suffering from a significant disability. As the noble Lord said, the “crash for cash” issue has arisen in a considerable number of cases over the last year or two, where it is perfectly clear that the symptoms are feigned and are not generally physically realistic. These attempts to obtain compensation are scams. I am persuaded by what my noble friend Lord Pannick and the noble Lord, Lord Beecham, have said. Frankly, I do not believe that this significant issue is properly dealt with by the Bill. Therefore, despite my sympathy with what the noble Lord, Lord Hunt, said, I feel that I cannot support the amendment.
Lord Hunt of Wirral
My Lords, I am very grateful to all those who have spoken in this debate. I am only comforted by the fact that the noble Lord, Lord Pannick, had rather made up his mind before he heard my speech, because I referred to a number of issues which—I hope—cause him considerable concern. I commend the speech of the noble Lord, Lord Walton of Detchant, because there is a serious problem here and we cannot ignore it.
I am grateful to the noble Lord, Lord Beecham, for his kind remarks at the outset of his speech. I readily accept his acknowledgement that there is a problem here. He may or may not recall—but I know that the noble Lord, Lord McKenzie, behind him, will—that the previous Government attempted to introduce a scheme of rehabilitation rather than cash in employers’ liability claims. It was Jane Kennedy, the Minister, who proposed that. Sadly, although I supported it strongly, it did not succeed at the time. The pilot scheme was rejected but I hope that this House will return to the issue of rehabilitation because we have to make sure that people get the treatment they need. I was taught that at the outset, when I had the honour to become solicitor for the Transport and General Workers’ Union. I became one of the legendary Mr Albert Blyghton’s solicitors, and we constantly strived to get employers to introduce a better system of rehabilitation. I am not sure that we have reached that stage yet.
Lord Beecham
That is about right. I am sure that the noble Lord, Lord Hunt, and I, when representing members of that trade union in their claims, would have sought rehabilitation but we would also have sought proper compensation for the injuries that they suffered. The two things are not necessarily in conflict but I would not like to see rehabilitation to the exclusion of proper compensation in the appropriate case.
Lord Hunt of Wirral
In the appropriate case. I hope that the noble Lord will not mind if I look for agreement in his disagreement. However, there is a general view that we cannot go on like this, and I am pleased in particular with the words of my noble friend the Minister. I will go away and ponder carefully the various ideas he put forward on tackling a menace to society. It is harassing a substantial number of people, which is why I want to return to this subject at a later stage but, in the mean time, I beg leave to withdraw the amendment.
Lord Beecham
“( ) Nothing in this Act shall serve to exempt from vicarious liability an employer or other person for any act or omission referred to in sections 1 to 4 of this Act.”
Lord Beecham
My Lords, assuming for the moment and for the purposes of this debate and the scrutiny role of Committee that the Bill makes any significant difference to the law, save in respect of Clause 3, to which we will come in due course, the amendment seeks to address an issue that has hitherto gone unremarked, except for the reference I made to it at Second Reading. That issue is whether it is reasonable for an employer or other person to escape liability to pay compensation for damage inflicted by another for whom he has responsibility in the event—the unlikely event—of the Bill availing a defence to the person who has caused the injury. After all, why should the injured person not recover against such an employer or, more realistically, from the employer’s insurers under the doctrine of vicarious liability, which makes an employer liable for the negligence of his employee?
I raised the issue at Second Reading but answer came there none from the government Benches. The amendment would not affect the position of an individual whose actions caused injury or loss but would merely ensure that his employer did not escape liability by the back door. It is entirely consistent with the declared objectives of the Bill, which, in the words of the Explanatory Notes,
“forms part of the Coalition Government’s wider programme to encourage participation in civil society and the Coalition Agreement contained a specific commitment to ‘take a range of measures to encourage volunteering and involvement in social action’”.
The Explanatory Notes and the muted fanfare given by the Government to the Bill make no reference to what appears to amount, by accident or design, to a covert intention to shield not just those volunteers but their employers and public authorities from legitimate claims by the innocent victims of negligence.
This morning I met some people who were much engaged with the problems of military personnel on active service now or who have returned to civilian life. They expressed concern that the Bill and in particular Clause 3, to which we will come, could offer an escape route for the Ministry of Defence from being required to compensate those sustaining injury as a result of a breach in the duty to take reasonable care, or indeed a breach of statutory duty. In their view, which I share, that would be another breach of the military covenant, to stand alongside the Ministry of Defence’s refusal to augment the staffing required to operate the veterans’ compensation scheme, despite the recently disclosed substantial backlog in dealing with claims under that scheme.
I accept that the Minister will not be able to do this today, but I invite him to confirm whether the Ministry of Defence will be entitled by the provisions of this Bill to avoid paying compensation to members of the Armed Forces or to others that hitherto it might be obliged to pay, not under the voluntary scheme, but under the normal rules of personal injury claims. Perhaps the Minister could indicate whether there is any rationale, which I failed to detect, in what appears to be an exclusion of employers’ liability or other vicarious liability as a means ultimately of reducing the number of claims that might otherwise be validly brought. It that is the case—it is not a declared purpose of the Bill although it may well be achieving that—we need to address this and ensure that it does not occur. I beg to move.
Lord Beecham
I am extremely grateful to the noble Lord for his clarification of his position, and he is now on the record. Obviously, it will be read as the correct interpretation of the Bill if the Bill ends up being enacted in one form or another. I therefore beg leave to withdraw the amendment.
Lord Pannick
My Lords, Amendment 2 seeks to give the Bill some coherent purpose and effect—not an easy task, as we debated at Second Reading.
Amendment 2 draws attention to an important legislative fact, which, surprisingly, is entirely ignored by the content of the Bill; that is, we already have on the statute book a provision which expressly addresses the very issues with which the Bill is concerned. The legislative provision is Section 1 of the Compensation Act 2006. It is a far more tightly and appropriately worded provision than the Bill, which, as we discussed at Second Reading, reads like an edition of the Valiant comic that I used to buy as a schoolboy.
Section 1 of the 2006 Act does the job. It has the title, “Deterrent effect of potential liability”, and states:
“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might … prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or … discourage persons from undertaking functions in connection with a desirable activity”.
Amendment 2 recognises that there is a distinction between Section 1 of the 2006 Act and this Bill. The 2006 Act sets out factors that the judge may take into account. This Bill sets out factors that the judge must consider. If the Government are determined to change the law, all that is needed, even on their arguments, is to amend Section 1 of the 2006 Act so that “may” is replaced by “must”. That is what Amendment 2 would secure.
If Amendment 2 were accepted, we could and should remove Clauses 2 to 4 from the Bill. One of the many puzzling features of the Bill is that it entirely ignores Section 1 of the 2006 Act. It does not repeal Section 1 of the 2006 Act. It does not amend Section 1 of that Act. If, therefore, the Bill were to be enacted in its current form, the law would then state that under Section 1 of the 2006 Act judges “may” take account of the social benefit of the activity, and that under this legislation judges “must” take account of the social benefit of the activity, defined in different language.
According to the Lord Chancellor in the other place, the Bill is designed to send a message to potential volunteers and heroes. If Parliament were, through this Bill, to enact the legislative equivalent of a text message, the only message likely to be received is one of pure confusion. The man or woman thinking of volunteering or thinking of jumping into the lake to save the drowning victim is not—as the Lord Chancellor apparently believes —going to be comforted by their recollection of the contents of Halsbury’s Statutes of England. Once the Bill is enacted, the potential hero will pause while he or she consults leading counsel for advice on the implications of the fact that the statute book now contains both Section 1 of the 2006 Act and this new legislation.
Amendment 2 provides a simple and obvious solution to this problem, which I commend to the Committee. I normally agree with the noble Lord, Lord Beecham, but I cannot share his concern about Parliament in this context telling judges that they must take something into account. I do not share his concern because it will remain a matter for the judges what weight, if any, to give to the social benefit context in the circumstances of the particular case. Amendment 2 provides that the social benefit must be taken into account. It would do so in the very sensible context of the 2006 Act, which has worked very well since it was brought into force. Clauses 2 to 4 can then be removed, as the noble and learned Lord, Lord Lloyd of Berwick, will be proposing.
I hope that the Minister will respond favourably to this amendment, which is designed to be constructive. That is very difficult in the context of the Bill. If he is not able to accept this amendment, will he explain to the Committee whether it is really the Government’s intention to have on the statute book two differently worded sets of provisions that will be addressing precisely the same issue? I beg to move.
Lord Beecham
My Lords, I shall speak to Amendment 2, moved by the noble Lord, Lord Pannick, and to my Amendments 3, 5 and 9, which deal with the issue of judicial discretion in applying to any claim within the province of the Bill the provisions that the Bill sets out.
At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, averred that the change the Bill seeks to make in the provision of the Compensation Act 2006 that the court “may” take into account the factors that the Act spells out, to one which declares it now “must” take such matters into account will, in his words,
“actually make no difference whatever”.—[Official Report, 4/11/14; col. 1559.]
Perhaps that is a suitable epitaph for the whole of the Bill, it might be thought.
The noble Lord, Lord Pannick, from whose company I must unusually and regretfully depart on this occasion, seeks to replace the Compensation Act’s provision of “may” with this Bill’s “must”, presumably therefore reflecting the view of the noble and learned Lord, Lord Brown. The view that the two are the same, however, is not the Government’s view, as the Minister made clear at Second Reading, when he reminded the House that,
“the difference between ‘may’ and ‘must’ … caused the House to be divided on more than one occasion”.—[Official Report, 4/11/14; col. 1576.]
He also reminded us that there is a difference between the provisions in this Bill and the provisions in the Compensation Act.
To the extent that the obliteration of that difference could represent yet another and in this case, given its source, inadvertent legislative attempt to fetter judicial discretion—one of many such attempts made by this Government, some, alas, successfully—the Committee should resist that proposition. The JCHR in one of its more damning and dismissive, albeit characteristically elegantly phrased, reports published in recent years echoed its concerns about similar provisions in relation to judicial review in the Criminal Justice and Courts Bill. We have seen a succession of measures designed to fetter judicial discretion. I fear that, for all the intentions to the contrary, the noble Lord’s amendment might encourage that process. I therefore hope that, on this occasion, he will not object to my taking a different path, but it will be interesting to hear whether the Minister has changed his view since that expressed at Second Reading.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I shall deal briefly with the suggested distinction between “may” in the 2006 Act and “must” in the present Bill which, as the noble Lord, Lord Beecham, has said, I touched on at Second Reading. The Minister submitted then that this was a significant distinction and he compared it to the critical difference between those same two words, “may” and “must”, on which the Government the previous week had been defeated three times when the House divided on three clauses in Part 4 of the Criminal Justice and Courts Bill, all about judicial review. With respect to the Minister, for whom I have the highest regard, this was an uncharacteristically and thoroughly bad point and an inept comparison, because of course there was all the difference in the world between saying in the original Clause 70 of the Criminal Justice and Courts Bill that the High Court “must” refuse in certain specified circumstances to grant judicial review relief and saying, as on amendment to that Bill Clause 70 now does, that the court “may” refuse to grant relief. It is a completely different position in a Bill like the one now before us where the provision is simply about the court having regard to a particular consideration.
It is notable that when the noble Baroness, Lady Ashton, who promoted the 2006 Bill in Committee, resisted what was then a proposed amendment from “may” to “shall”—which is much the same as “must”—she said:
“The reason why we said “may” rather than “shall” is that when a court looks at a negligence claim it takes into account all the circumstances of an individual case; those circumstances, of course, vary dramatically from one case to another, as all those who are members of the legal profession will know far better than I. It would not be appropriate to require the courts to take the factor in Clause 1 into account in all cases, which would be the effect of changing “may” to “shall”. In some cases, it will just not be relevant, so by making that change we would be trying to make the courts do something that in the normal course of their activities we would not expect them to do—which is, to take into account factors that have no relevance at all. So we have said that they may take them into account, but we are not requiring them to, because of the range and variety of cases”.—[Official Report, 15/12/05; col. GC200.]
A little later she contrasted a negligence claim against an accountant, where the concept of a “desirable activity” would of course be irrelevant, with an injury suffered at Girl Guides or on a school trip, where a “desirable activity” becomes a highly relevant concept. Frankly, it would have mattered little, even in the cases where it was quite irrelevant, if the courts had in fact been bound to have regard to this irrelevant consideration before then summarily discarding it. So too here: it can make no material difference to the outcome of any case whether the word used is “may” or “must”. That is the central point, as I made plain at Second Reading. There is no real difference between this Bill, the 2006 Act, and indeed the common law as it was already developing without the need for any statutory intervention at all. Accordingly, for my part I am quite indifferent to both of these competing Amendments 2 and 3. Rather, in common with the noble and learned Lord, Lord Lloyd, I object to the Bill as a whole. If the House eventually divides on Report, I shall vote that none of these provisions should stand part.
Lord Beecham
My Lords, it is interesting that the noble Lord seeks to give carte blanche to any organisation, whether it be a statutory organisation or a voluntary organisation, to preside over a situation in which injuries can be sustained but no compensation paid because the organisation would have difficulty in funding the claim. There are considerable difficulties with that approach. The first is that it entirely removes any incentive to prevent accidents occurring in the first place. This Bill is supposed to encourage people to volunteer. The effect of the noble Lord’s amendment would be to encourage statutory and other authorities to take no precautions whatever because they can always demonstrate that they need more money. It would be more relevant if the noble Lord addressed his colleagues on the government Benches to ensure, for example, that the health service and local authorities are adequately funded to carry out all their responsibilities, whether dealing with potholes or treating people properly in hospital and avoiding clinical negligence claims and the like.
It strikes me as extraordinary that the noble Lord should be making a proposition which would completely exclude compensation for an innocent injured party who proves injury, bearing in mind that all these cases depend on a claimant proving on the balance of probabilities that he or she has been the victim of negligence leading to the injuries for which he or she seeks compensation. Those are quite extraordinary propositions, and I hope the Committee—and in due course, if the noble Lord brings the matter back on Report, the House—will not countenance them. They would remove from compensation a large number of people who are entirely justified in making a claim.
Let us be quite clear: nobody has any sympathy with claims farmers or anybody attempting to make a fraudulent claim, whether or not they are represented by —shall we put it gently?—overambitious solicitors or others in promoting such matters. Many of us regularly report to this House being approached by such organisations on our telephones, computers and Blackberries, let alone through adverts in the press and other media. That is something that is entirely reprehensible. We are at one with the noble Lord in wanting to see those matters regulated. I congratulate the Government on the steps that they are taking in that respect. These proposals go much too far and would have an adverse effect on people with legitimate claims. I hope that, on reflection, the noble Lord will feel able to withdraw them.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I rise briefly to support the amendment of my noble friend Lord Hunt of Wirral, which seems a potentially sensible and proportionate addition to the Bill.
In this group, we have a clause stand part debate in the names of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick. I was wondering if they were going to speak to this because I have an interest in it.
Lord Hunt of Wirral
My Lords, I am very grateful to my noble friend Lord Hodgson for his support. I say to the noble Lord, Lord Beecham, that I should like to return to this subject again at a later stage. In the mean time, if he could reflect on the case of Wilkinson v City of York Council, he would understand that I am not seeking to achieve what he described. I seek merely to respond to the words of the Court of Appeal in that case. I will not go into too much detail, but he will see what I mean if I quote just one sentence:
“A judge, it seems to me, should be slow to reject the evidence given by a responsible council official that resources did not permit a more frequent inspection than that which was given”.
The conclusion in that case was that, whereas the question of manpower resources was able to be considered in relation to other sections in the Highways Act, the particular section—Section 58—did not make reference to this shortage of resources as a factor to be taken into account. Therefore, the Court of Appeal concluded that Parliament had not wanted it to be a relevant factor. I therefore hope that the noble Lord will see that I am seeking to meet a particular problem in a specific way.
Lord Beecham
I understand the point that the noble Lord is making, and I will certainly look at that case. However, his amendment does not seem to be confined to that particular issue; it would apply much more generally, and I invite him perhaps to consider whether it would be better narrowed to the kind of incidents to which he has referred. Having said that, I do not necessarily pledge myself to support him should he come back with something like that. It seems that the way he has put the matter is rather different from how the amendments as presently drafted would be interpreted.
Lord Hunt of Wirral
I am very grateful to the noble Lord, and to the Minister for his comments. I will of course reflect on and consider the points that have been raised. In the mean time, I beg leave to withdraw the amendment.
Lord Beecham
Can the noble Lord explain the relevance of the cases he has just cited to the Bill—or, to put it the other way round, the relevance of the Bill to the cases he has just cited? The Bill is speaking about claims for negligence.
Lord Hodgson of Astley Abbotts
What I am talking about here is the provision that the court,
“must have regard to … the alleged negligence or breach”.
In the case of the Oxford museum, the solicitors were indicating that failure to have CRB checks could render the museum liable for a negligence claim in the event of there being a problem.
Lord Faulks
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, contend that Clause 2, along with Clauses 3 and 4, should be removed from the Bill for a number of reasons, one of which is that it covers the same ground as the Compensation Act 2006. There is a breadth of criticism of this clause, including that it is not well drafted and that there is insufficient evidence to justify the whole Bill, but in particular this clause. The two are, in a sense, not entirely unconnected.
The question is how we deal in legislative terms with a problem that may not be seen as a problem by those who are skilful in the law. The noble Lord, Lord Pannick, will navigate his life secure in his knowledge of the law and the likely outcome of any case. His conduct will be so affected. Others are less knowledgeable about the law and much of their conduct is based on an imperfect understanding of what the legal position is and what it might be in the unhappy event, as my noble friend Lord Hodgson says, of finding themselves in court.
Successive bodies, such as the committee of the Department of Constitutional Affairs, which preceded the Compensation Act, found that there was a perception of a compensation culture, as did my noble friend Lord Young of Graffham, in his report Common Sense, Common Safety. Those outside the law would quite confidently assert that there was a compensation culture. Quite what they meant by that would no doubt vary between individuals, but some of the instances cited by my noble friend Lord Hodgson are instructive. He provided evidence based on what his committee heard. This was not a single assertion. It was not based on one person’s experience. It was an accumulation of evidence.
Those in your Lordships’ House who are not lawyers would, I suggest, recognise the very problem that the Bill seeks to confront. My noble friend Lord Hodgson is absolutely right to say that the Bill is not the answer to that problem. It is just one possible answer to that problem. With respect to the fault in the drafting that the noble and learned Lord, Lord Lloyd, said he found, I just wonder whether someone who is not skilled and learned in the law would have much difficulty in understanding what was meant by Clause 2. It conveys that somebody who is potentially to be sued for being in breach of statutory duty or negligence would have their actions, if acting for the benefit of society or any of its members, taken into account. Is that so difficult a concept? I suggest not. It would provide some reassurance.
It is said to be rather unworthy of Parliament that we should be sending a message. The noble Lord, Lord Pannick, who shows the breadth of his allusions to popular culture and Shakespeare, relies on the Bee Gees. Sending a message is not, of course, the primary purpose of legislation but, as I said at Second Reading, we legislate in a particular context. We do not live in a hermetically sealed Chamber where we do not take into account what people on the outside think and say. We should indeed not be out of step with those who drink at the Dog and Duck, who are aware of the possibility of a compensation culture. If the Bill chimes in common-sense terms with what ordinary people feel—that we have gone too far—then the Bill is providing a useful purpose.
Lord Beecham
The Minister is not resiling, is he, from the position that Clauses 2 and 4 do not change the existing law?
Lord Faulks
At the moment we are debating Clause 2. I gather that we are to have the delight of a debate on Clause 4 in due course. The position is that, were the Bill to be enacted, a judge would have to have regard to the matters contained in, among others, Clause 2. It has been said, rightly, that judges would normally be expected to pay attention to the matters in Clause 2 in any event, but I suggest that it is sometimes useful for a judge, perhaps faced with a seriously injured claimant, to bear in mind a specific statutory provision when considering what is often an extremely hard task for a judge—to turn down a badly injured person—because the injury was sustained as a result of the act of someone acting for the benefit of society or any of its members. It should not change the law, but it is sometimes useful to put into statutory form what is often difficult to find in the morass of common-law decisions.
The noble and learned Lord, Lord Lloyd, referred to the evidence that was given in Committee in the House of Commons, commented on what my ministerial colleague had said and asked, and pointed to so-called horrific unintended consequences that were not challenged. I am not entirely clear what the horrific unintended consequences were, and although I understand what he meant by saying that they were not challenged, we should be a little careful in drawing an analogy between not challenging something in court, which is often of great significance, and the rather less structured method in which evidence is adduced in committees. None the less, I take his point that the cross-examination was perhaps less than ideal and not particularly illuminating.
I respectfully suggest that there is evidence to support the clause. A survey of volunteering and charitable giving carried out in 2006 and 2007 by the National Centre for Social Research and the Institute for Volunteering Research found that worries about risk and liability were one of the significant reasons cited by 47% of respondents to the survey who volunteered. The National Council for Voluntary Organisations confirmed that these concerns remained a real issue for many voluntary organisations when it gave evidence to the Public Bill Committee following the introduction of the Bill.
In terms of people being deterred from helping others in emergencies, a recent survey, carried out in August 2014 by St John Ambulance, showed that 34% of more than 2,000 adults questioned said that they might be deterred from intervening due to worries about legal repercussions. Evidence also suggests that responsible employers worry about spurious or speculative claims being brought by disgruntled or opportunistic employees. We heard at Second Reading the speech from my noble friend Lord Cotter. Then there is the report by the noble Lord, Lord Young, Common Sense, Common Safety, and the report of the red tape task force under the chairmanship of my noble friend Lord Hodgson, from whom the Committee has heard today. I submit that there is evidence, of a positive sort, of a perception.
We should not underestimate what acceding to the amendment to remove Clause 2 would do: it would emasculate the Bill. At the moment, it is broadly drafted so it would apply in a wide range of situations where people are acting for the benefit of others, whether they are doing so on a voluntary basis or in a paid capacity. For example, it could include organised charitable activities such as running a village fete or informal, individual activities such as helping an elderly neighbour with their shopping. It could also cover workers such as teachers, doctors and members of the emergency services, who are acting for the benefit of society as part of their jobs.
The clause does not tell the court what conclusion it should reach and will not prevent a person engaged in socially beneficial action being found negligent if the circumstances of the case warrant it. It will be for the court to determine whether a person was acting for the benefit of society and, if so, what weight it should give to that factor in all the circumstances of an individual case. I accept what the noble Lord, Lord Blair, said about trying to frame appropriate legislation in the context of health and safety. It is very difficult to cater for the myriad circumstances that arise. However, the idea is that this will give the courts the maximum flexibility to reach fair and just decisions, while sending a strong signal to give reassurance to the public that they will, in all cases, consider the wider context of the defendant’s actions, prior to reaching a conclusion on liability.
I have already addressed the Committee on the difference between the Compensation Act 2006 and this Bill—the use of the word “may” and the requirement that is contained in this Bill. I do not think the Committee would like me to repeat that. There are, of course, similarities, but the Bill requires the court to consider in every case.
Reassurance is important: we want to encourage volunteering. I am glad to say that volunteering is increasing, but it could increase still further. As my noble friend Lord Hodgson said, it is a desirable trend and it is tragic if people are deterred by the fear of litigation. I do not apologise for saying that this is a difficult target to hit. The noble Lord, Lord Pannick, may fire bullets at me all afternoon, but we are trying to identify, through this legislation, matters that it is hoped will reassure, by legislating in a way that is in tune with how the public see the current situation. I respectfully submit that the Bill, which may be unusually short and unusually drafted, in the sense that it uses ordinary language—
Lord Beecham
Lord Beecham
My Lords, Amendment 6 deals with the provisions of Clause 3, which purports to be—and as I understand it, the Government agree to be—the only substantive change in the law that the Bill promotes. That, of course, raises the question of the relevance of the other clauses of this ephemeral legislative concoction, but it is also unacceptable in itself.
Clause 3 requires the court to,
“have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others”.
At Second Reading I asked what was meant by a “generally responsible” approach. The Minister did not vouchsafe a reply. I do not blame him. The Lord Chancellor and the Minister in the Commons were unable to supply a meaningful interpretation: a case of the inscrutable in search of the unintelligible, or perhaps vice versa.
The Government’s obsession with the so-called compensation culture was reflected in the Lord Chancellor’s response to an Oral Question quoted by the Joint Committee on Human Rights at paragraph 2.35 of its report. The Lord Chancellor talked of the need,
“to provide a deterrent to an employee who tries it on in the face of a responsible employer who has done the right thing, when someone in their employment has done something stupid and still tries to sue. As part of our long-term economic plan”—
I note in parenthesis that it is a long-term economic plan which appears to be growing ever more long-term by the day—
“I want to see those responsible employers protected against spurious claims, and that is what the Bill will do”.—[Official Report, Commons, 1/7/14; col. 731.]
There are, to put it mildly, several problems with that argument. The first is the sheer paucity of evidence for the existence of the compensation culture, apart perhaps from the road traffic cases of whiplash and the like about which we have heard so much today. The second is the apparent belief that the courts are unable to detect whether or not a claim is spurious, given that a claimant has to prove it. The third is that, despite its apparent belief that the Bill,
“is not designed to reduce standards of health and safety in the workplace”,
and,
“will not protect negligent employers who do not have a responsible approach to health and safety”,
the Joint Committee concluded that:
“To the extent that Clause 3 of the Bill will lead to some health and safety cases against employers being decided differently, we do not consider that the Government has demonstrated the need to change the law to restrict employees’ right of access to court for personal injury in the workplace”.
Can the Minister give an assurance that the Joint Committee’s fears in that respect are misplaced and that the Bill is not intended to and will not affect such health and safety cases? He gave a general assurance this afternoon, for which I am grateful, about claims for employers’ liability. The JCHR raised a specific point in relation to health and safety, and perhaps he will deal with that aspect.
The fourth problem is that the Bill is not, in any event, confined to personal injury cases, and still less to cases brought by employees against their employer, which seemed to be the burden of the Lord Chancellor’s principal concern. Clause 3 refers not just to injury but to safety and “other interests”. It must be taken to include economic interests, such as claims concerning damage to property or professional negligence by, say, an accountant, a financial adviser or, heaven help me, a solicitor. This much was made clear by Mr Vara in his heroic attempts to make the case for this generally irresponsible measure. At column 693 of Hansard he proudly announced:
“We have deliberately drafted the clause broadly ... This ensures that it will be relevant in a wide range of situations … The clause is not restricted to personal injury claims and 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.]
Presumably, issues of heroism would be equally irrelevant. Note that he assumes that negligence exists in such claims but excuses it in the manner of the old saw about the housemaid’s baby: “It’s only a little one”—a “Downton Abbey” analogy, I suppose. It is a rather curious way to approach legislation.
Perhaps the Minister will tell us the difference between being responsible and being generally responsible, and why the clause extends to a wide variety of claims which have nothing whatever to do with social action, volunteering or heroism. Perhaps he will also comment on the paucity of any evidence provided to the Joint Committee by the Government in answer to its request for examples of what the Lord Chancellor described as,
“a jobsworth culture or a legalistic culture that seems to stop common sense in its tracks”.
It asked for such information but received none. Where, one might ask, is the evidence of a common-sense approach, let alone one grounded in an understanding of the law and the courts that one has the right to expect a Lord Chancellor to display?
The twofold approach that I adopt in moving the amendment and speaking to the clause stand part debate is, first, to endeavour to effect a modest improvement in Clause 3 by removing the word “generally” so that that fairly vague and opaque term disappears; and, secondly, to address the general position in relation to the clause stand part debate—that this is the only substantive change in the Bill, and it is not acceptable. If the Government continue to press for this it will certainly be a matter to which I will return on Report. I hope the Government will concede that it is ill designed and likely to produce effects that are not consistent with the overall theme, however repetitive it might be, of the Compensation Act 2006, and therefore that it contributes nothing but potential difficulty for the future. I beg to move.
Lord Hunt of Wirral
My Lords, in drawing attention to Amendment 7, I am returning to the points I referred to earlier. The first part of the amendment reminds the Committee how society as a whole has become a victim of insurance fraud where organised criminals are now manufacturing situations in which innocent motorists are caused to collide with their vehicles in a manner which indicates negligence on the part of the innocent motorist. That is why I wanted to bring this amendment again to the attention of the House.
The second part of the amendment intends once again to remind your Lordships of the importance of non-monetary offers and, where they have been made by defendants, how they should be considered when the courts come to decide whether to award damages and the extent of the damages payable. I know that rehabilitation treatment is often offered to those injured in accidents but in many cases, because of the action of an intermediary, that treatment is often refused by the injured party and the period of suffering prolonged in an attempt to increase the award of damages in which that intermediary may be interested. If the courts were to be permitted to order that the treatment provided by a defendant and his representatives is a fair reward in compensation for the injury suffered, then the motivation of fraudsters to pursue “crash for cash” accidents should be reduced.
Lord Beecham
I, too, support the amendment from the noble Lord, Lord Pannick. I sympathise with the amendment from the noble Lord, Lord Aberdare, but the whole point of the law of negligence is that it is for a claimant to establish that the defendant did not act reasonably. Some of the cases cited by the noble Lord would be very unlikely indeed to attract any award of damages against somebody acting reasonably in an emergency situation to help somebody with unfortunate consequences. I cannot see that any such claim would succeed but he is right to differ slightly from the amendment tabled by the noble Earl, Lord Attlee. However, the best formulation is that put forward by the noble Lord, Lord Pannick, and I hope the Minister will accept it.
Lord Faulks
My Lords, we have had a very useful debate on this group. The noble Lord, Lord Pannick, said that Clause 4 should be removed from the Bill but has also proposed a specific amendment that would amend the definition of acting heroically, should the clause be retained. The noble Lords, Lord Beecham and Lord Aberdare, and my noble friend Lord Attlee suggested various amendments to the clause, as indeed did my noble friend Lord Hunt of Wirral, who is not in his place.
I will respond to the argument that Clause 4 should be removed and then I will deal with the amendments. As I explained at Second Reading, Clause 4 requires the court to,
“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests”.
Unfortunately, all too often people are unwilling to intervene and step forward in emergencies due to the fear that they might be sued and ordered to pay damages should they attempt to help. This is not to suggest that people do not act spontaneously and positively in such circumstances; many do, assisting others and coming to the aid of distressed individuals without a second thought to their own interests. However, we have heard how other people stand by and do nothing because they feel that it is safer not to get involved and run the risk, however unlikely, of a negligence claim being brought against them. Clause 4 helps to allay these concerns by giving a reassurance to those brave and laudable members of our society that heroic behaviour in emergencies will be taken into account by the courts in the event that a claim for negligence or breach of a relevant statutory duty is brought against them. It will assure those who are in two minds about intervening to assist an individual in distress that doing the right thing is recognised by the law. The noble Lord, Lord Pannick, said that the Compensation Act 2006 covers similar territory but, as I have already explained, we prefer the approach taken in the current Bill for the reasons I have given, and I do not think that it would be helpful if I went over them again.
I now turn to the specific amendments that have been tabled in relation to Clause 4. Amendments 8, 10, 11, 12 and 14 would all amend the wording in the clause which provides clarification as to what is meant by “acting heroically”. The noble Lords, Lord Pannick and Lord Beecham, supported by the noble and learned Lord, Lord Hope, have proposed in Amendment 10 to remove the final words of the clause, which refer to acting,
“without regard to the person’s own safety or other interests.”
I am grateful to them for tabling this amendment because we have been considering this issue carefully following correspondence received from St John Ambulance. I am also mindful of the persuasive points made at Second Reading and again today by the noble Lord, Lord Aberdare, on that organisation’s behalf. As the noble Lord said, St John Ambulance has indicated that the words,
“acting without regard to one’s own safety”,
conflict with first aid practice, which encourages first aiders to do precisely the opposite; namely, to have regard to whether intervening in an emergency might put themselves or others at risk. Although we think that it is unlikely that the courts would misinterpret the clause in that way, we can understand why St John Ambulance has raised concerns about this issue. If its misgivings can be allayed through the omission of the words in question, that is certainly something we would be willing to consider before Report.
I turn to Amendments 8, 11, 12 and 14, tabled by the noble Lord, Lord Aberdare, and my noble friend Lord Attlee. I realise they may seek to address the same issue identified by St John Ambulance but, rather than omitting the final 11 words of the clause, as proposed by the noble Lord, Lord Pannick, they suggest an alternative form of words. The noble Lord, Lord Aberdare, has suggested that,
“without regard to the person’s own safety or other interests”,
should be replaced with a requirement that the defendant acted,
“reasonably and with a public-spirited intention”.
Meanwhile, my noble friend Lord Attlee’s amendments seek to replace them with a requirement that the defendant must not have been acting “perversely”. He defines perversely in Amendment 14 as,
“a course of action that a reasonable person … would not take in the circumstances, irrespective of”,
whether that person was putting his own safety at risk. I suspect that both my noble friend and the noble Lord are thinking about situations in which a person intervenes in an emergency and then does something so risky or careless that it makes the position of the injured person even worse. They would not want the Bill to help defendants who have acted in that way. I am grateful for their attempts to improve the clause, which I know are very well intentioned. I have already mentioned in response to the amendment proposed by the noble Lords, Lord Pannick and Lord Beecham, that we would be prepared to look more closely at whether a government amendment along those lines might be desirable. There is certainly a consensus that the final 11 words of the clause are problematic and we will consider the options carefully before Report.
I turn to the final amendment in this group, tabled by my noble friend Lord Hunt. Amendment 13 would add a further subsection to Clause 4 which would require the courts, when reaching a decision on liability and damages, to consider,
“the circumstances in which the rescuer acted … the eventual outcome and outcome anticipated by the rescuer … and … the risks to which the rescuer was exposed”,
as an effect of his or her actions. I am grateful to my noble friend for tabling this amendment, but I believe that the additional wording would add unnecessary complexity to the clause, the purpose of which is to reassure brave members of the public who act heroically by coming to the aid of someone in danger or distress that the courts will take the context of their actions into account in the event of their being sued.
I gratefully decline the invitation offered to me by the noble Lord, Lord Pannick, to cite examples that would be entirely separate in the various clauses; there is bound to be a degree of overlap—there often is. The scenario that the clause evokes in most people’s imagination is sufficiently clear for it to be worth a clause on its own, but I accept that there will inevitably be instances that might be covered by both clauses. I hope that the undertaking I have given in relation to the final 11 words of the clause, which could either be removed or replaced by a government amendment, will be such that noble Lords who have tabled amendments in this connection will be prepared not to press them.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years ago)
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Lord Woolf (CB)
My Lords, I can be brief because I hope, and have reason to believe, that the Minister will indicate that he can give me the comfort I am seeking and which this amendment is designed to achieve. Noble Lords will recall that the Minister tabled a government amendment on Report that was designed to introduce a new figure into the criminal justice scene. He is to be the recall adjudicator and he will take over the responsibilities of the Parole Board in respect of reviewing those who have been released on licence but are being recalled for reasons such as their committing another offence. This could be of serious importance both to the public and, of course, to the offender who is being returned to prison. His liberty is at stake.
When the Minister introduced the amendment, he was not in a position to provide any details that would enable the quality of what was being proposed to be assessed. The noble Lord, Lord Beecham, who I am pleased to see in his seat, described it—I suggest accurately—as seeking a “blank cheque”. As we all know, it is never wise even to give Governments a blank cheque because you may find that it is not used in precisely the way that was intended. The noble Lord sought those details and, while giving the proposal a general welcome and hoping it would be successful, sought to impose both a sunrise clause and a sunset clause to cover the situation being created by the amendment.
The Government had acted on this so late in the day because of a decision of the Supreme Court in a case which was discussed on Report, and which indicated that it would be possible to have a body that was not necessarily created as a proper judicial body to perform this function—a sort of quasi-judicial body. The interpretation by the Supreme Court of Article 5 of the European Convention on Human Rights indicated that what was determinative was the original court sentencing, not the body reviewing the recall.
The matter was left at that, but I suggested on Report that the position was unsatisfactory and expressed the hope that the Government would consider the situation further. However, in case they did not do so, I tabled the amendment in question. It sets out what I would suggest is the minimum amount of information that needs to be provided before the new body is created. It would give those who are concerned about saving money in the hard-pressed criminal justice system information about cost and would seek information about the quality of those who are to be the new adjudicators on recall applications.
Before the new system is introduced it is important that Parliament should be given information that would enable it to use its powers to scrutinise what is proposed. The Minister accepted that there was an obligation for fairness in that situation, notwithstanding the decision of the Supreme Court in the Whiston case, 1914, UKSC39. That made it clear that he was thinking along the same lines as those who, like me, were concerned about what the quality of this new body would be.
If the Minister is prepared to give an undertaking that he would arrange for a report to be made to Parliament, setting out enough information to enable what was proposed to be evaluated, I need not detain the House further. In order to give the Minister an indication of whether what I have been told is correct, I propose to say no more, but at this stage formally to move my amendment.
Lord Beecham (Lab)
My Lords, I understand that the Minister may accept the amendment of the noble and learned Lord, Lord Woolf, and in that case the noble and learned Lord will have entered the fold, but this time it is the ministerial sheep who will emerge wearing the Woolf’s clothing—and for that I am sure the House will be grateful.
The noble and learned Lord identified some of the potential problems that need clarifying and we look forward to receiving that clarification. I would like to add another issue that was raised in the debate on Report, and that is the possible availability of legal aid for such applications. I dare say that the Minister will confirm that that will at least be considered and that any reference to it will be contained in such a report in due course.
One other matter to touch on is no doubt encompassed within the terms of the amendment. There was an indication at an earlier stage that the Government would possibly be looking to the magistracy as a source of potential recruitment for those who would undertake this responsibility. The matter has aroused some concern. Obviously I am not asking the Minister to give an indication finally one way or the other, but I take it that he would confirm at least that that is not the only possibility that will be looked at—in which case we will await the Government’s response in due course with keen anticipation.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble and learned Lord, Lord Woolf, for his helpful explanation of the amendment to Clause 8 in his name, and for helpfully setting out the concerns that lie behind it. I understand them, and why the noble and learned Lord seeks to make sure that Parliament is given the opportunity to consider a report by the Secretary of State about how the recall adjudicator model will operate before the provisions can be brought into force. I have no objection to the principle of what his amendment is seeking to achieve and am happy to make a commitment that before the recall adjudicator provisions are brought into force, the Government will produce a report for Parliament on matters such as the recruitment process, qualifications, training and costs.
The amendment of the noble and learned Lord is quite specific on some aspects of what the report must contain. I bear in mind what he said, namely that this should be a minimum, as he saw it; we do not indeed anticipate that it would be restricted entirely to those matters. In particular he is specific about the anticipated costs of the recall adjudicator system compared to the costs of recruiting more Parole Board members and case managers.
While the Government would be happy to provide an analysis of the respective costs and benefits of the new model—and indeed we will be publishing a further impact assessment on this—we would not wish to be tied to including in the report such a direct comparison of the sort prescribed in the amendment. This is a constantly evolving area of work, with the Parole Board itself driving forward changes to its process, and new operating models, and we would want our cost-benefit analysis to have the flexibility to take account of those developments rather than tying ourselves in the legislation to making this very specific cost comparison. But we will provide information as to costs.
However, I accept the point and agree that our report should set out the respective costs of the new process and systems compared to carrying on with the Parole Board model. The Government’s position is that we would have no objection to providing a report on the sort of information that the noble and learned Lord asks for, but until we have had more time to consider exactly what that report should contain and how best to present the information, we would not wish to be constrained by the exact requirements of the noble and learned Lord’s amendment.
When the Government introduced the recall adjudicator provisions, I explained that the aim was to introduce greater flexibility in the way that determinate recall sentences are reviewed and to allow the Parole Board to concentrate its resources on indeterminate sentence prisoners. There is a great deal of further work to be done on the detail. The noble and learned Lord was quite right to identify the case of Whiston and the decision of the Supreme Court, which enabled the Government to bring forward this amendment, albeit on Report—but we would not have been able to bring it forward before then because the decision had not been reached. I think that inadvertently the noble and learned Lord suggested that the decision had been reached in 1914. It was a little more recent than that—2014, to be precise—but I am sure nobody misunderstood that. The Government move a little faster than that.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I have given the Minister’s office notice of the point that I am about to raise. It is to do with youth anonymity, which is a slightly different point from that made by the noble Earl.
On Report, the Government introduced amendments which are now Clause 77 of the Bill. Those amendments gave lifetime reporting restrictions in criminal proceedings for witnesses and victims under 18. The amendments clearly give the judge discretion to give lifetime anonymity to witnesses and victims. It is also clear from the Government’s amendments that that discretion of the judge does not extend to the accused.
What I would like to know—as I said, I have given notice of my question to the noble Lord’s office—is what the status would be of somebody if they had been found not guilty at trial. Clearly, after they have been found not guilty, they are no longer accused, but they may well still be a witness. Would that discretion of the judge extend to those found not guilty at trial?
Lord Beecham
My Lords, I commend and congratulate the noble Earl, Lord Listowel, on the progress that he appears to have been able to promote, and look forward to hearing the Minister confirm what the noble Earl has said after citing those very poignant cases. It seems that a mistake in the system can now be corrected. For that, although it has come late for the families to whom the noble Earl referred, I think everybody will be grateful. I congratulate the Minister in anticipation of his confirming that the Government have accepted that point. It is entirely to their credit that they have listened to the very strong representations made on that matter.
As to the point raised by my noble friend Lord Ponsonby, again, I hope that the Minister will be able to offer him some clarification of the situation along the lines that he has suggested.
Baroness Williams of Crosby (LD)
My Lords, I will make a brief intervention. I very much commend the amendment of the noble Earl, Lord Listowel. Quite simply, the position of 17 year-olds has changed radically since 1984. The proportion of young people staying on in education to 18 or beyond has almost doubled in that time, and many young people continue within their family structures until the age of 18, which was not so much the case in 1984. So it is important that the Government look at this. Schools continue to have responsibility for young people who are at school until the age of 18. It would therefore be rather bitter if that responsibility was recognised as continuing while people are at school, but then ending when they cease to be at school.
There is some very disturbing information about the number of young people who commit self-harm when in detention, as a result, for example, of very serious mental health problems. Without detaining the House of Lords further, it is worth looking at whether the age of 18 is not a more natural bridge to a young person becoming a fully responsible adult than the present age of 17. It might do something to reduce the suffering that some of these young people undergo in detention.
Lord Beecham
My Lords, I certainly endorse the remarks of the noble Lord, who has consistently questioned the detail of the Government’s proposals in respect of secure colleges. I must agree with him that the BMA report, published only last Tuesday, makes for sombre reading. The report emphasises the need for the state,
“to ensure that detained children and young people have access to healthcare that is appropriate for their age and health needs”—
which the EHRC has identified as a critical human rights challenge—given that,
“Custodial detention is the most extreme form of social exclusion that can be imposed by the state”.
That need is likely to be enhanced in the secure college context by the very nature of the institution and its physical remoteness from the family and community whence the offenders have come and to which they will return. After all, the report refers to the average time that offenders will be housed in the college as 85 days, which is not a long period. Clearly, after they move on, there will be a concomitant need for the provision of adequate healthcare and, indeed, educational provision.
It appears, then, that NHS England will have to do more than simply commission healthcare provision within the college. It is welcome that there will be such a physical provision, although the noble Lord has pointed out that, of itself, that will not be enough. NHS England will have to ensure that appropriate provision will be made when the offender returns home, quite conceivably in a different NHS region. How will that work? Will NHS England assume responsibility in a different region, or will it be involved from the outset? How will the commissioning process work, both for the period during which the offender is in the college and afterwards?
What will be the role of the relevant local authorities? Leicestershire, in the first instance, will be the site of the first college. Will the home authority deal with educational and childcare provision on the offender’s return home or return to residential care in the case of looked-after children? Have there been any discussions with local authorities—with Leicestershire in the first instance, which presumably will be able to provide educational and other provision if the project goes ahead within its boundaries—and with the Local Government Association on behalf of other local authorities generally, in respect of the need to follow up when the offender returns home?
The noble Lord has made a robust critique of the proposals this afternoon and throughout the debates on this Bill. When the Bill returns to the House of Commons, it is important that the other place should have a response to the questions that he has raised, the suggestions he has made and those which I have added.
However, at this stage, I join the noble Lord in expressing our thanks to the Minister who has, as ever, argued the Government’s case with great skill and perhaps conviction—but certainly with great skill. We are grateful to him and to the Bill team for the assistance that they have given. In some respects, the Bill has been improved, but this area remains extremely problematic. I hope that the Minister will be able to persuade his colleagues to look again at the questions and issues that have been raised, in which case he will be entitled to even more gratitude than that which I and others now extend to him.
Lord Faulks
My Lords, I am, of course, disappointed that the noble Lord, Lord Ramsbotham, remains concerned about the provisions in the Bill to create secure colleges. With 68% of young people reoffending within a year of leaving custody, the Government have taken the view that it is clear that things must change. As the House knows, secure colleges will put high-quality education at the centre of efforts to rehabilitate young offenders. These provisions in the Bill provide the framework for this approach.
As the noble Lord was good enough to say, the Government have gone to great lengths to engage Peers, stakeholders, practitioners and experts—and, indeed, young offenders themselves—on our plans. Indeed, we are currently consulting on our approach to secure college rules and, in response to concerns voiced in this House, we have amended the Bill to make these rules subject to the affirmative procedure to the extent that they authorise force, which was an area of particular concern.
The noble Lord described my position as being rather like that of a tank commander. I am not sure whether that was a compliment or the opposite. Be that as it may, it would be wrong to suggest that the Government are frozen in a rigid posture in responding to any new knowledge or learning that is available on the best way to treat these particularly vulnerable young people. The report from the BMA published last Tuesday will inform the Government’s approach to this issue and, indeed, to all issues.
Of course, the noble Lord is quite right, as was the noble Lord, Lord Beecham, to focus on the health needs of this cohort. The Government have worked closely with NHS England since the inception of the proposal, and I assure the noble Lord and the House that we have a very constructive and well established relationship with the Department of Health and NHS England on youth justice. I should remind the House that NHS England commissions healthcare for young people in custody. During the debates, I attempted to indicate to the House how the provision of healthcare within the secure college should enable its better delivery to these young people—better, we hope, than in the current youth custody estate.
As I say, we continue to develop these plans. We will, of course, bear in mind all advice from whatever source, particularly any new learning that is available. However, we continue to believe that these secure colleges—whatever anxiety may reasonably be expressed about them—will provide an appropriate means of giving education to young people who, sadly, have often lacked any continuity in their education and, at the same time, help them to rehabilitate and to emerge at the end of their sentence with a much better chance of leading useful lives. I hope that I have gone some way to reassure the noble Lord and ask the House to pass the Bill.
Lord Beecham
My Lords, before the Minister sits down, I would be grateful if he would comment on the role of local authorities through their children’s services departments, in addition to the health aspect. The two cannot be divided.
Lord Faulks
They cannot—but I am not going to comment in detail from the Dispatch Box on those precise roles. Of course, as the noble Lord will be aware, local authorities have statutory functions in relation to all young people in their local authority area. Those duties will continue, depending on the geographical position of the young person—and of course the NHS has its own obligations, wherever that individual may be. If I have any further information to elaborate upon my answer to that question, I will do so in writing.
Bill passed and returned to the Commons with amendments.
Social Action, Responsibility and Heroism Bill
Lord Beecham Excerpts(10 years ago)
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Lord Beecham (Lab)
My Lords, the prisons are in crisis—understaffed, overcrowded, with a rising incidence of self-harm and suicide. The judiciary complains of the difficulty, delay and cost caused by the increase in unrepresented litigants denied legal aid. The magistracy is greatly concerned about the decline of local justice, exacerbated by court closures and the increasing reliance on professional district judges. An untried and risky change in the probation service is under way, beset by the loss of experienced staff and reports of confusion and disorganisation. The Lord Chancellor’s response is what can only be described as another Grayling gimmick.
Two years ago, the Lord Chancellor celebrated his arrival in office by pitchforking unnecessary provisions into the then Crime and Courts Bill, supposedly to protect householders from prosecution if they used force to defend themselves or their property from intruders. It would be interesting to learn in just how many cases that measure has been invoked. This autumn, we have a five-clause, 20-line, one-page Bill—one of the shortest on record—designed to meet another non-existent problem: the unfair or, alternatively, chilling effect of the so-called compensation culture on those who might face a claim for compensation for negligence or breach of statutory duty while,
“acting for the benefit of society or any of its members”.
From bash a burglar to hug a hero in two years.
Such was the significance of the Lord Chancellor’s proposed measure that of the 18 witnesses he invited to give evidence in support of the Bill, only five bothered to turn up. Two of those were fire authorities. The Greater Manchester fire authority was particularly exercised by the fact that it had faced two claims for compensation by people who had tripped over fire hoses in the vicinity of an accident. Quite what difference the Bill would have made to the outcome of such a curious claim is unclear. Perhaps the Minister would care to elucidate.
By contrast, all five witnesses invited by the Opposition attended. One of them, representing the Law Society, was treated to a most discourteous and offensive attack by the Minister, Mr Vara, who is clearly a graduate of the Eric Pickles political charm school. His performance only underlined how fortunate we are to have the Ministry of Justice represented in this House by the noble Lord.
The Second Reading debate occupied all of an hour and a half, with two Back-Bench speeches, one—as we have heard from the noble and learned Lord, Lord Lloyd—by the distinguished former Conservative Solicitor-General, Sir Edward Garnier. The Lord Chancellor did not condescend to stay for any speeches, even Sir Edward’s. He did not even extend the courtesy of staying to hear Sir Edward speak on Report and at Third Reading. Perhaps he anticipated the forensic dissection of this flimsy foray into legislative vote-catching. Not a single government Back-Bencher spoke in the debate in Committee.
The Bill starts with the premise that volunteers are deterred from helping individuals, or society as a whole, for fear that they might be sued if things go wrong because of the alleged compensation culture which insurance companies and the media constantly denounce. There is very little evidence to support that claim. Even the noble Lord, Lord Young of Graffham, who is not in his place—that ermine-clad St George, constantly in search of regulatory dragons to slay—observed that the so-called compensation culture was more a matter of perception rather than reality. As the noble and learned Lord, Lord Lloyd, has pointed out, that view was explicitly shared recently by Lord Dyson, the Master of the Rolls.
The irony is, of course, that banging on about a compensation culture is itself likely to create the very apprehension that the Bill purports to allay. The reality is that anyone seeking compensation has to prove, on the balance of probabilities, that the defendant has been negligent—that is, to have failed to take reasonable care—or in breach of a statutory duty, and that that has caused the damage that is the subject of the claim. Nothing in the Bill displaces that test and nor should it. If, as a result of my careless driving, a third party suffers injury, why should the fact that I may have been engaged in some voluntary service—perhaps taking an overexcited Minister to a therapy session, for example—in any way affect that third party’s right to compensation, even if he was my passenger?
The position was well summarised by the Minister, Mr Vara, in the Public Bill Committee:
“Nothing in the Bill suggests that it gives immunity from civil liability. It also does not change the standard of care that is generally applicable. That is and remains what the ordinary and reasonable person should have done in the circumstances. The Bill simply requires the court to have regard to certain factors in deciding what steps should have been taken to meet that standard of care in a particular case. It does not tell the court what conclusions to draw or prevent a person from being found negligent if the facts of the case warrant it”.
In which case, one might ask, what is the point of the Bill? He went on to muddy the waters:
“In a finely balanced case, if the court’s consideration of these provisions tipped the balance in favour of a defendant who had acted for the benefit of society, demonstrated a generally responsible approach towards the safety of others … or intervened to help somebody in an emergency, we would welcome that outcome”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 9/9/14; col. 63.]
I suspect that the welcome would not be shared by the injured party, particularly if it allowed the insurer of the defendant—if he or his employer was insured—to avoid paying compensation.
Moreover, the courts would have to engage with interpreting the wording of the Bill, which, to put it mildly, is highly problematic. Take Clause 2, which requires the court to,
“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members”.
How would one define “the benefit of society”? Would that proviso protect somebody who negligently inflicted injury while acting for the benefit of a “member of society” who happened to be doing something inappropriate or even criminal?
Clause 3 is similarly opaque, with its reference to its requirement for the court to,
“have regard to whether the person … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.
What on earth constitutes a “generally responsible approach”? As the General Secretary of the Fire Brigades Union—the members of which risk life and limb daily to protect the public—put it,
“the question of how an employer deals with … situations is not a matter of the general perception of their responsibility … The question of the employer’s general responsibility … comes down to the specifics of how they have planned, prepared and resourced the particular incident”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 4/9/14; col. 21.]
To cap it all, we have Clause 4, “Heroism”, which appears to be the stuff of Greek legend or the annals of Boy’s Own Annual. The court is solemnly charged with the duty of having regard to whether,
“the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s … safety or other interests”.
We all salute those who risk life or limb to rescue others, whether they do so as part of their job—as fire or police officers, for example—or simply as courageous citizens, like the recent tragic case of the doctor who died trying to save others from drowning in the seas off Cornwall. But where is the evidence of claims for damages by the subjects of such brave and selfless interventions against those endeavouring to help them? For that matter, where is the evidence that the present state of the law deters such brave responses to emergency situations? And what, after all, constitutes an heroic intervention?
There is another aspect of this defective Bill which causes concern; namely, the possibility that references to breaches of statutory duty imply a potential defence for employers, or perhaps for those with other statutory duties—for example, in the realm of care—for acts which cause damage or loss. Perhaps the Minister could clarify the Government’s intentions in this respect, assuming of course that they are conscious of having any.
If, as I hope, the noble Lord can confirm that the Bill is not intended in any way to diminish the existing protection to employees or others, we are left essentially with a Bill which is designed to send a message to volunteers—a message to counteract the possible, but unproven, effect on volunteering of a reaction to the compensation culture mythology which the Government sedulously peddle on volunteering. This would in effect merely echo, as we have heard from the noble and learned Lord, Lord Lloyd, the provisions of the Compensation Act 2006—a well intentioned but, I have to say, not particularly compelling piece of legislation on somewhat similar lines but without the surrounding hyperbole or loose phraseology. It is hardly surprising that the Delegated Powers Committee says:
“There is nothing in this Bill”—
although, in all fairness, it did go on to say,
“which we wish to draw to the attention of the House”.
The Explanatory Notes to the then Compensation Bill declared that it was intended to,
“contribute to improving awareness … of the law … and to ensuring that normal activities are not prevented because of the fear of litigation and excessively risk-averse behaviour”.
However, importantly, they also went on to stress that the provision did not alter the standard of care or the circumstances in which such a duty is owed, and they explicitly affirmed that it did not extend to cases of breach of statutory duty involving strict liability or where carelessness was not an issue. Moreover, the notes stated that the,
“provision reflects the existing law and approach of the courts as expressed in recent judgments”.
In other words, the legislation was, in effect, otiose, and this proposed legislation is doubly otiose.
Sir Edward Garnier spoke powerfully both at Second Reading and on Report. He detected in the Minister’s speech during the Queen’s Speech debate in your Lordships’ House some lack of enthusiasm in relation to this measure. Is the Minister able, in the light of the vestigial information contained in the impact assessment, to reply to Sir Edward’s inquiry as to how many High Court or county court actions would have been decided differently if this Bill had been in force?
Sir Edward’s speech was a devastating critique of the Bill. He declared:
“I really do think that the courts will treat this Bill with derision … unless we are clear … that we are doing something to improve the situation in an intellectually sustainable and coherent way. I sincerely regret the fact that so far this Bill does not do that ... I am used to bits of Bills sending messages and signals—albeit that that is an improper use of legislation ... We do not think about what is in the legislation; we just think about the flags we are running up the flagpole in order to send a message”.—[Official Report, Commons, 20/10/14; col. 697.]
It will be gathered that the Opposition are not enthusiastic about this Bill. My right honourable friend Sadiq Khan, in winding up the Third Reading debate in the Commons, observed:
“The Bill will change little, but we will not oppose it today. We tried in Committee to make something of it, and it will now fall to the other place to attempt to give it purpose”.—[Official Report, Commons, 20/10/14; col. 705.]
The noble and learned Lord, Lord Lloyd, feels very strongly about the Bill. He regards it as trivial and I have to say that I agree with him. However, when it comes to seeking to defeat a Bill at Second Reading, the House is traditionally cautious. I recall the two Bills that the noble and learned Lord referred to—their passage through this House occurred in the four years that I have been here. In particular, I recall the Health and Social Care Bill—a major piece of legislation affecting a huge swathe of public services and for which neither of the governing parties had made any kind of provision in their manifestos. It did not seem unreasonable on that occasion for the Opposition to move that the Bill be not read a second time.
Frankly, I do not think that a Bill as trivial as this should attract such an amendment and we will not support it. It gives a trivial Bill far too high a profile for its contents, but also it is not, in my submission, necessary to deal with the Bill in that way. If the noble and learned Lord, Lord Lloyd, divides on it, I will advise opposition Members to abstain. We will endeavour to make some modest improvements to this Bill in Committee. Even if we succeed in those, frankly, it will add little to the state of the law, but in my judgment that is a better process for us to follow. Indeed, in his speech, Sir Edward Garnier called on the House of Commons—mainly, as it turned out—to introduce,
“a degree of common sense into … the … Bill before the other place gives it a thorough grilling”.—[Official Report, Commons, 21/7/14; col. 1204.]
Let the grilling commence.
Lord Phillips of Sudbury (LD)
My Lords, I agree word for word with what the noble and learned Lord, Lord Lloyd of Berwick, said in moving his amendment, and indeed with what the noble Lord, Lord Beecham, has just said.
Lord Faulks
Indeed, but the noble and learned Lord is saying in his amendment that this Bill should not get a Second Reading because the matter is covered by Section 1 of the Compensation Act. I am identifying what lay behind the legislation when it was brought in, what it attempted to do and why, if the noble and learned Lord will bear with me, it failed to do so.
Lord Beecham
The noble Lord read out the words of the noble Baroness, Lady Ashton, in the previous Labour Government. I referred to Greek legend, and I concede entirely that the noble Baroness, Lady Ashton, and the previous Labour Government nodded, as did Homer. I would not defend the section of that Act but the noble Lord has to point to any distinction between the effect of that Act and the present Bill.
Lord Faulks
I am entirely aware of the question that the noble Lord asked and I am attempting to answer it.
Perhaps I may go on to refer to what happened following the passing of that Bill. Was there a fundamental change in the compensation culture? What happened? After the coalition Government came to power, my noble friend Lord Young of Graffham produced his report Common Sense, Common Safety, which was widely applauded by all sides of your Lordships’ House. He observed in his report that there was a growing fear among business owners of having to pay out for even the most unreasonable claims. The fear of business owners and small business owners, referred to by my noble friend Lord Cotter, is a reasonable matter to take into account. My noble friend Lord Young also identified a public misconception that,
“we can be liable for the consequences of any voluntary acts on our part”.
He described this belief as “particularly pernicious” because it might,
“deter people from engaging in organised voluntary activities in the mistaken belief that they can be sued should anything go wrong”.
He recommended that people who seek to do good in our society should not fear litigation as a result of their actions. He said:
“It is important to have clarity around this issue and at some point in the future we should legislate to achieve this if we cannot ensure by other means that people are aware of their legal position when undertaking such acts”.
My noble friend Lord Hodgson, whose report Unshackling Good Neighbours has been referred to, led a task force established by Nick Hurd, the son of my noble friend Lord Hurd, who has spoken on this issue. He may have observed that unfortunately his son did not share his lack of enthusiasm for the Bill when speaking in a brief intervention in the House of Commons. Fortunately, the family of Hodgson was more together than the family of Hurd. My noble friend Lord Hodgson said that the fear of becoming involved in litigation was a major preoccupation that deterred people from volunteering. The task force acknowledged the work of various government departments in producing guidance on health and safety, but argued that it was unlikely to provide volunteers with the general reassurance that they seek. The task force took the view that the Government’s efforts seemed,
“‘to fall short’ of Lord Young’s recommendation to clarify through legislation if necessary that people would not be held liable for any consequences due to well-intentioned voluntary acts on their part”.
The response of Dr Davis Smith in his evidence to the Public Bill Committee was also important. His perspective as the executive director of the National Council for Voluntary Organisations was interesting. He said:
“Parliament has a hugely important role in sending out messages about what is valued in society, and I think that sending out the message that volunteering and community and social action has a hugely beneficial role to play in society—recognising that there are barriers and difficulties that must be addressed—is a really important function that Parliament can play. Even the process of having discussions such as this and getting the debates out as part of the passage of legislation is helpful in raising awareness in society more broadly”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 4/9/14; col. 14.]
The noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Beecham, challenge me to say that this Bill effectively adds nothing to the Compensation Act. I respectfully suggest that since the Act we have had an explosion of claims. These have resulted in what I submit to the House is an extremely sensible part of the LASPO Act, which implemented the Jackson reforms and went a considerable way to stopping the explosion of claims by modifying the amount of cost that could be recovered.
We have improved the control of claims management. The question of claims management was touched on in the Compensation Act. It went nothing like far enough. We have reduced the number of claims management companies. We have introduced a successful unit to monitor carefully what claims management companies do. They have halved in number. We now have heavy fines if they transgress in any way. We have introduced in the Criminal Justice Bill, still before your Lordships’ House, provisions that will deter fraudulent claims.
Anyone who watches television or reads newspapers will, I suspect, share with me the feeling of depression and disgust at the vulgar advertising for claims brought, which are often meritless. People resent being telephoned and asked to take part in a fraud, and being told that they have been involved in an accident of which they have no recollection. For those who say that the compensation culture is a mere figment of the Government’s imagination, I say that they are not paying attention to what normal people say.
Lord Beecham
Is the noble Lord able to identify what proportion of these claims relates to the provisions of this Bill? What proportion of them relates to claims for compensation for injuries suffered as the result of voluntary activity or heroic action?
Lord Lloyd of Berwick
My Lords, I tried hard to persuade the Labour Opposition to support this amendment. They attacked all three clauses in the other place. I assumed that they were against the Bill in principle so I thought they would support this amendment: it would have been the logical thing to do. However, I am afraid that the ways of political parties are beyond my understanding. Try as I might, I simply could not persuade them. I was told they would definitely be opposing the amendment. If that is their intention now, it would certainly not be my intention to divide the House. However, as I understand it—and I may be wrong—they have decided at the last moment to abstain. Are they opposing or abstaining?
Lord Beecham
Perhaps I might assist the noble and learned Lord. It has been our formal position, in the discussions we have had over the last few days, that we would not support the amendment but we would not vote against it. We will abstain.
Lord Lloyd of Berwick
That makes it much more difficult. It puts me in a quandary. I believe there are very many Members on the Labour Benches who want to support this amendment, if they are allowed to do so. I believe there are Members on all sides who want to support this amendment. The noble Lord, Lord Hurd, wants to support this amendment. So what am I to do?
I will say that I wholly disagree with what the noble Lord, Lord Pannick, said in one aspect of his speech, which was that to oppose the Bill on Second Reading would create a fundamental conflict between this House and the other place. Did the Labour Party’s reasoned amendment in the Health and Social Care Bill create a fundamental disagreement between the two Houses? Did the Conservatives’ reasoned amendment in the fraud Bill create a fundamental conflict between the two Houses? Clearly not. Although the noble Lord, Lord Pannick, was right in every other respect in regarding the Bill as a wretched Bill which should have no support in this House, I cannot agree with the reason he gave that we should not agree the amendment now.
I come back to where I was. I do not want to disappoint Members who are here to vote for this amendment. I feel on the whole that the points that have been made, very forcefully, against the substance of the Bill have probably been enough for my purpose. My guess is that at the end of Committee, on which we will waste more valuable time, we will find that there is nothing we can do with the Bill—which is what I think they suspected in the other place. That is because essentially this is an unamendable Bill. I do not think that there is quite enough support for actually rejecting the Bill at this stage to justify wasting the time of the House in dividing on the amendment. I respectfully beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years ago)
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Lord Pannick (CB)
My Lords, the amendment and some of the other amendments in this group are in my name, that of the noble and learned Lord, Lord Woolf, and those of the noble Lords, Lord Carlile of Berriew and Lord Beecham. Under this group of amendments, your Lordships turn to Part 4, with its provisions relating to judicial review. On Second Reading and in Committee, noble Lords from across the House expressed concern that the provisions in Part 4 would damage judicial review for no good reason. It is very disappointing that, since Committee in July, the Government have not come forward with any amendments of their own to address those concerns. I would be very surprised to be told that the Minister made that decision.
I invite your Lordships to bear two principles in mind when considering all of the Part 4 amendments. First, judicial review is a vital means by which central and local government and other public bodies can be held to account to ensure the legality of their actions before independent judges in public. Secondly, when proposals for amendment of judicial review are brought forward by Ministers—who are, after all, the main defendants in such litigation—the proposals require the most careful scrutiny by the House.
Clause 70 would prevent a judicial review application proceeding to a full hearing and any remedy—I emphasise, any remedy—at the full hearing if the defendant shows that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. I have three main objections to the clause.
First, it ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the Government or other public bodies. If Ministers have applied the wrong rule, or they decided a matter without giving a person a fair hearing, the court will say so and it will give a declaration, even if, on the particular facts, the error made no difference. This surely serves the public interest because the risk of a public hearing before independent judges encourages high standards of administration, and once the court has given its judgment, Ministers and civil servants know that they must change their conduct for the future. That is precisely what they do. Clause 70 would undermine these valuable purposes of judicial review.
My second concern is that Clause 70 ignores the fact that even if the defect did make no difference on the facts of the individual’s case, the individual may have a personal reason to seek a declaration that there was unlawful conduct. Last year Lord Reed emphasised for the Supreme Court in the Osborn case that the law requires public bodies to adopt a fair procedure to ensure not only that the right conclusion is reached on the merits of the case but also that the subject of such a decision is not left with a sense of injustice.
My third and final concern about Clause 70 is that, far from speeding up judicial review procedures, it would require the court at the preliminary stage to conduct a detailed review of what would have happened if the defendant had acted differently. That would be time consuming, expensive and an extremely difficult exercise for the judge. It would promote satellite litigation.
Clause 70 would have very damaging effects—nor is it necessary. Judges have ample powers, which they use, to dismiss hopeless or abusive cases. To those of your Lordships who think that there is too much judicial review and that it takes too long, I say that Clause 70 is a blunt instrument to use in such a sensitive context. It would impose an absolute duty on the court. It would prevent the judge from considering whether, in the particular circumstances of the individual case, there is good reason to allow the claim to proceed or to grant a remedy such as a declaration.
Amendment 146, which I commend to the House, would maintain a judicial discretion to consider the circumstances of the individual case. That is surely appropriate in this context. Amendment 146 is to be read together with Amendments 147, 149, 151, 152 and 154, each of which substitutes judicial discretion for the judicial straitjacket which is proposed by Clause 70.
I have spoken briefly in moving this amendment because there is a great deal of business for the House to get through today on Part 4. I hope that that will not lead your Lordships to doubt the importance of this issue. I beg to move.
Lord Beecham (Lab)
My Lords, the last four years have seen the construction of major roadblocks on access to justice. Some 650,000 claimants a year, and their dependants, can no longer benefit from civil legal aid or advice, resulting in the collapse of law centres, extreme pressure on advice agencies and the expense and delays caused by litigants in person unable to receive legal advice in the preparation or presentation of their case. As we heard just last week, the family courts are often now clogged with litigants in person. The imposition of charges for employment tribunal claims have led to an 80% reduction in applications. Large cuts in fees for criminal legal aid threaten to reduce the chances of a fair trial.
However, as the noble Lord, Lord Pannick, has made clear, Part 4 of the Bill proposes even more insidious changes which would narrow the scope of judicial discretion in cases in which the lawfulness of decisions made by the Government themselves, or by public agencies, is challenged through the process of judicial review. As the Equality and Diversity Forum reminds us in its briefing, the Master of the Rolls, Lord Dyson, has asserted that,
“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.
The Bill seeks deliberately to make it more difficult and potentially more expensive for citizens, either as individuals or whose interests may be represented by a charity, to seek a ruling from the courts as to whether decisions which might have far-reaching effects were properly made. I remind your Lordships that they already have first to obtain the leave of the court to bring such a case, and very often matters can be and are resolved at that stage.
Lord Beecham
Lord Beecham
My Lords, in the interests of making progress with more important matters, I shall not move this amendment.
Lord Beecham
My Lords, the Opposition will support the amendment moved by the noble Lord, Lord Pannick. It seems to me quite possible, within the framework of that amendment, to proceed along the lines mentioned by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Lester.
Lord Faulks
My Lords, Clauses 71 and 72 are about transparency. They require an applicant for judicial review to provide, with their application, information on funding for their case and that the court considers this information when exercising discretion to order costs. It is important to emphasise that, while permission will not be granted until information has been provided, there is no question of preventing permission if the applicant’s funding is insufficient, and the judiciary continue to have complete discretion in relation to the making of costs orders against third parties disclosed in that information.
Requiring the applicant to provide this information to the court will give the court the information necessary to achieve flexibility in apportioning costs fairly, and to prevent a third party from using a front man or shell company to shield themselves from incurring their share of costs. Your Lordships have heard that there is a potential problem, and although it is not always easy to know what the situation is, this provision should enable the courts to make their decision based on evidence. We say that the judges do not always have all the relevant information available or presented to them, which has the potential to hinder their ability to order costs in a just and equitable manner.
Amendments 157 and 158 would stop the provision of information about financial resources being mandatory, allowing for permission to be granted where no information has been provided but permission is “nevertheless appropriate”—which is undefined. The Government consider this unnecessary, as the clause does not stop permission being granted if insufficient finances are available. It requires only that the court should be provided with an accurate picture. The court still has discretion.
The clauses will not require onerous or invasive information from applicants, and the information requested should always be information that the applicant would have, even if they did not have funding at that stage. The clauses are designed to promote transparency in court proceedings, not to provide for a time-consuming forensic examination of an individual’s financial affairs.
The noble Lord, Lord Beecham, has not moved Amendment 156. The amendments tabled by the noble Lord, Lord Marks, and Amendment 162, tabled by the noble Lord, Lord Pannick, seek to change when the court should have regard to funding information, and what that information should be. My understanding is that they rely on Clause 71 being removed from the Bill and set out the power for the court to require the applicant to provide certain information about funding when the court is determining, or intends to determine, costs. They also limit the information to sources of funding that are actually available to the applicant, rather than sources that are likely to be available, and rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.
Amendment 161A would mean that those who are likely to fund and drive litigation could escape the appropriate costs liability simply by not promising to provide the support. Amendments 160 and 161 seek to instate a position where the court need not consider financial information provided by the applicant, even if it considers it appropriate. In my view, these amendments are unnecessary and defeat the point of Clause 71 in making sure that the court has clear and transparent information early in proceedings.
The key to Clauses 71 and 72 is they do not create new cost liabilities for claimants, nor does the sufficiency of funding they demonstrate have an impact on the progression of the case. In answer to the noble Baroness, Lady Lister, the courts would not be expected to make an award against a third party who was simply funding the litigation and not seeking substantially to control, influence or benefit from it. I said words to that effect in Committee; I say them again now, and I hope those words will be useful when anyone comes to interpret this provision should it become law. It is clear that the applicable case law requires more than only funding; as in the case law referred to by my noble friend Lord Lester, the person must be seeking to drive the litigation or to benefit from a potential remedy in the case. I should emphasise that.
Under those principles, costs awards are not prescriptive, nor is it our intention that they should be. We are simply allowing the court to make decisions with the appropriate information available to it. For example, the court will not have to make an award against a parent in a school challenge case and would not be expected to do so. We do not agree with Amendment 162 that prospective funding or the ability of company members to provide financial support can be excluded from this consideration, nor do we agree that the court should consider only those who have promised to provide funding. In our view, that creates an easily avoidable threshold.
We also do not agree that this information should be provided only on the making of an order by the court, as stated in Amendment 159B. There is no reason why the court should not be informed of the parties driving litigation early on in proceedings, as this would enable the judge to make decisions on costs without having to order the parties to provide information. Essentially this amendment seeks to favour the opaque, rather than the transparent. What information an applicant should provide will be set out in court rules. The rules will not require invasive financial information but will require the claimant to be clear about the sources of their funding. It will be perfectly acceptable to update the court if funding does not materialise; that was a point made in Committee and I would like to make that clear. The requirements will not be burdensome for claimants. The Government have on many occasions stated that they wish to see a light-touch approach, and I am sure that any rules will be fair and proportionate to the court’s need for transparency.
The noble and learned Lord, Lord Brown, made reference to the judiciary’s response. I am sure he has read carefully what it is and I am in no position to contradict it. My understanding was that the judiciary had welcomed transparency, although, having revisited what I said in Committee, I did not seek to rely specifically on that as the only basis for this argument. He may well be right that the comments were directed more at non-parties than in the situation of an applicant. If I inadvertently misled Parliament, I make it absolutely clear that that was not my intention.
The requirement for transparency is wholly understandable and wholly consistent with judges making decisions on the best possible information. The question is: is this going to be chilling? I suggest that it will not be chilling to those who have good reasons for bringing claims and who are, as one would expect, open and frank about what, in financial terms, is driving the challenge.
This has been a useful debate and I hope it has enabled me to be clear about what lies behind Clauses 71 and 72 and to allay any remaining concerns. The Government take the view that these clauses do not take away the judge’s discretion. As is always the case, he or she will make the decision on the basis of the facts of each case. These clauses enable the judge to have better information before exercising the discretion. No judge wants to exercise a discretion in the absence of all the information that could reasonably be made available to them. It is not obvious to me why this is as objectionable as it is said. With that reassurance, I hope that the noble Lord will be prepared to withdraw his amendment.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years ago)
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Lord Pannick
My Lords, Amendment 176 raises an issue of some constitutional importance. The proposed new clause would prevent the Lord Chancellor using the powers that he was granted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, to restrict eligibility for legal aid in judicial review proceedings. Your Lordships will recall that during the debates on LASPO Ministers repeatedly assured the House that the restrictions on legal aid contained in the LASPO legislation did not affect judicial review. Had the Bill made express provision restricting legal aid for judicial review, I think that Ministers would have found it difficult to secure the approval of the House for such provisions.
Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation so that such proposals could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. Such subordinate legislation, as your Lordships well know, receives only limited scrutiny in this House. Detailed amendments cannot be tabled and debated, and the convention is that we very rarely indeed table, far less approve, a fatal Motion. To give one example of the problem, on 7 May your Lordships’ House debated a Motion of Regret that I had tabled in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014.
Restrictions on legal aid for judicial review are far too important a matter for secondary legislation. If the Lord Chancellor wants to restrict the scope of legal aid in the context of judicial review, let him bring forward proposals in primary legislation. Those proposals can then be properly scrutinised and amended as appropriate. The purpose and effect of Amendment 176 is to secure that objective, and I commend it to the House.
Amendment 177 would introduce a further new clause to prevent the Lord Chancellor implementing a residence test for legal aid in judicial review proceedings. If I may, I will leave the noble Lord, Lord Beecham, to explain the purpose of that amendment, which I support. I beg to move.
Lord Beecham
Having been given that cue by the noble Lord, Lord Pannick, I cannot resist the temptation to rise now and speak to the amendments. Both of the amendments, as the noble Lord has said, relate to the issue of the availability or otherwise of legal aid in judicial review cases, and the noble Lord’s amendment deals with the broad problems implicit in the Secretary of State’s use of delegated powers to remove funding for applications for legal aid except where permission is granted or subject to an ex gratia scheme. In his characteristic way, the noble Lord has dealt comprehensively, not to say devastatingly, with that general issue.
Amendment 117 focuses exclusively on the Government’s attempt to deny legal aid for applications for judicial review by the imposition of a residence test. Noble Lords will be aware that an order under the provisions of LASPO to implement this approach was laid in the summer and was due to be debated under a Regret Motion in July, but that it was withdrawn in the light of the decision of the Divisional Court, with Sir Alan Moses—then Lord Justice Moses—presiding, which pronounced the provision unlawful.
The order would have imposed a prohibition on anyone over the age of 12 months—I repeat, 12 months—who had not been continuously resident in the UK for 12 months at some time from obtaining legal aid for judicial review cases. In its seventh report of 2013-14 the Joint Committee on Human Rights had criticised the Government’s proposals on a number of grounds, including their reliance on the possible availability of exceptional funding when, as we know, only 2% of applications for exceptional funding are successful. It took exception to the Government proceeding by way of secondary legislation, as the noble Lord has already mentioned, given the important human rights considerations urging that changes should be effected through primary legislation. Of course this Bill could have provided such a legislative vehicle if the Government had not chosen to use it in the way they have by tabling amendments on other, less fundamental, issues.
The Joint Committee was particularly exercised about the position of children, people with problems affecting their mental capacity and detainees seeking a remedy, for example, for abuse inflicted while in detention. It made the obvious point that the Government’s ostensible justification for denying legal aid to non-residents, on the grounds that they do not make a financial contribution to taxation, could not in any event apply to children. In its first report of the present Session, the committee joined the Children’s Commissioner in condemning the application of the residence test to children as a contravention of the UN Convention on the Rights of the Child. How long, one wonders, might it be before UKIP or the Tea Party tendency call for us to withdraw from the UN, on that sort of approach?
Some 30 highly reputable organisations have supplied a briefing which I commend to Members of your Lordships’ House, if you have not already seen it, setting out in clear terms 10 powerful objections to the proposed test. Interestingly, the first of those contained quotations from the noble Lord, Lord McNally, and the former Lord Chancellor, Ken Clarke, in debates on the then LASPO Bill. At that time the noble Lord, Lord McNally, affirmed that,
“the reforms establish an affordable system while ensuring that no one is denied … justice”.—[Official Report, 20/12/11; col. 1717.]
He went on to say that,
“there is no question as to what services might be funded; they are in the Bill for all to see”.—[Official Report, 5/3/12; col. 1569.]
Mr Clarke said that,
“we are continuing legal aid in all cases involving judicial review ... That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice”.—[Official Report, Commons, 17/4/12; col. 227.]
Those remarks are of course entirely consistent with much of the debate that we have heard tonight and the amendments that have been carried already. They would, and should, apply to this proposal to restrict legal aid in cases involving a residence test, even to the extent of applying to children.
However, those assurances given at that time clearly carried no weight with the present Secretary of State; nor did the criticisms to which I have referred, although some of us are, if anything, astonished by their moderation, especially when set alongside the court judgment mentioned earlier and which is now under appeal. That judgment held that the residence test was both ultra vires, because it was not authorised by LASPO, and discriminatory, unlawful both at common law and under the Human Rights Act; but, significantly in the light of the threatened onslaught on the latter to garner votes from UKIP, that it was unlawful with or without the latter. Lord Justice Moses, as he then was, stated that,
“it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not … In the context of a discriminatory provision relating to legal assistance invoking public confidence”—
which, I note in passing, was an ostensible reason for the measure given by Ministers—
“amounts to little more than reliance on public prejudice”.
Sir Alan went on to identify a number of situations described in the large volume of evidence filed in the case which underlined the force of his concerns. Incidentally, it was a case of judicial review, which perhaps demonstrates the merits of that process. He then went on to refer to the extraordinary comments of the Lord Chancellor, who, during the case and pending judgment, went on record as saying,
“most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway … And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court”.
On this Sir Alan remarked that Mr Grayling was:
“Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent”.
That is a perfect depiction, one might think, of the Lord Chancellor as the Luis Suarez of our justice system—which are my words, not Sir Alan’s. Sir Alan went on to quote a 40 year-old judgment of Lord Scarman:
“Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.
It is shameful that while the Government are justifiably promoting the use of our courts and lawyers to wealthy foreigners and overseas corporations, they should seek to deny access to justice to those in dire need of it but without the means to procure it on the grounds that they have not been resident for 12 months. In a previous debate this afternoon I referred to the Minister who advised organisations like those who have supplied briefings for Members on these issues to “stick to their knitting”. I had hoped that Members of your Lordships’ House would not emulate those earlier knitters, the tricoteurs of the French Revolution, but would instead have sought to prevent the guillotine falling on some of the fundamental rights enshrined in and enforced by our system of justice. However, it is apparent that there would not be a majority to achieve that objective, given the late hour and the fact that most Members have now departed. In the circumstances, I will not be asking the House to divide on this issue, but I very much regret that the Government have set their face solidly against doing anything to retract an obnoxious and objectionable proposal which does them no credit whatever and, in fact, given his attitude, demeans the position of the Lord Chancellor.
Lord Faulks
I am sorry that my noble friend is not satisfied with the explanation that I have been rather laboriously making—which is that it all depends on the difference between scope and remuneration. The scope of legal aid has not been altered; we are simply talking about an amendment to remuneration at one stage of the process—a particular regulation which was considered in Committee. It was the subject of a debate on these matters. Admittedly there was opposition to it on the basis that this could stifle people from bringing judicial review, but it was not then suggested that there was some violent inconsistency between the LASPO Bill and what was said during its passage, and the change pursuant to Section 9. Now, however, it is being suggested that there is some bad faith on the part of the Government.
Lord Beecham
Did the Minister really say that the application of a residence test does not—
Lord Faulks
I am not talking about the residence test at all. I shall come to that shortly, but it is a different issue. Noble Lords are perfectly entitled to ask me questions about it at that stage. I am talking about the suggestion that—regardless of the residence test, which is a separate issue that I shall come to later —the provisions on legal aid for judicial review in some way breach an undertaking that was given to Parliament. That seems to be the burden of what is being suggested.
The power to make changes in the future should not be unnecessarily constrained as proposed. Any changes made to scope, under Section 9, and eligibility, under Section 11, are subject to the affirmative procedure, ensuring full parliamentary debate as appropriate. I am sorry that the affirmative procedure is not considered to be as satisfactory as primary legislation. Nevertheless, it remains a proper way to bring such matters before Parliament.
As I said in Committee, making such changes by primary legislation would be a cumbersome process and a disproportionate use of this House’s time. It would stop the Government of the day making necessary changes without primary legislation, even where change was necessary to ensure that the provisions remained up to date. The House may possibly remember—the noble Lord, Lord Pannick, may well remember—that during the passage of the previous Bill, certain noble Lords, of whom I was one, were anxious that the power should include both improving and increasing the scope of legal aid, if it was considered appropriate, and that became part of the LASPO Act.
Lord Beecham
My Lords, it will come as no surprise to noble Lords that I support the amendment of the noble Lord, Lord Pannick, and the observations that both he and the noble and learned Lord, Lord Woolf, have made. It was interesting to reflect on the defence that the Minister made in Committee on these matters. He said:
“In particular, there is the sense, expressed by a number of noble Lords, that this particular Secretary of State and Lord Chancellor does not have sufficient regard for the rule of law and, essentially, there is a lack of confidence that he will exercise his powers in a way that Parliament would find satisfactory”.—[Official Report, 30/7/14; col. 1670.]
I think that summed up the position very well, not merely of your Lordships’ House but of the Joint Committee on Human Rights and many other bodies, not least the Divisional Court in the case about which we have heard and which is currently the subject on appeal.
The Minister, on that occasion, and in dealing with virtually the same amendment as that which we are now debating, described the situation created by the Bill—Clause 73—as “a pretty commonplace provision”. He said that,
“it is commonplace because noble Lords might like to know that Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains”,—[Official Report, 30/7/14; col. 1670.]
a similar provision, as does Section 53 of the Pensions Act 2014, and Section 20 of the Offender Rehabilitation Act 2014.
It is perhaps not surprising that that should be the case, given that it is precisely the same Government who have enacted all those measures. Whether there are antecedents under previous Governments, I do not know. Even if there were, the crucial point is that judicial review relates to the fundamental rights of the citizen. These other matters, important as they are—the noble Lord referred to other items of legislation last time—may well be significant, but there can be nothing more significant than the application of the rule of law and access to justice to test whether decisions have been made lawfully. That is an absolutely fundamental right. Even if there were precedents in respect of other legislation, that does not for a moment justify their extension to this very sensitive and important area.
The noble Lord, Lord Deben, has demolished any case for the robustness of the affirmative procedure as a process that allows effective scrutiny, and other noble Lords are, of course, aware of the limitations of the affirmative procedure. It is simply impermissible to frame legislation in such a way that the Secretary of State could act by secondary legislation without in any way defining what it might be, how far it might go, who might be affected and what it would do to the core principle we have debated for much of today about the right of the citizen to protection against unlawful decision-making by the Executive in any form—not merely the Government but other forms of executive agency. That strikes me as a very poor argument indeed.
The Minister is no doubt unable to depart from the stance that he has hitherto adopted. I, frankly, cannot believe that his heart is in it, whatever he will say at the Dispatch Box. It is a blot on the Government’s bona fides in this area to proceed with legislation in this form. Clearly, there is no way we can take it further tonight, but I hope that the Minister will report back to the Secretary of State and encourage him to redeem his reputation.
Lord Faulks
My Lords, the final speeches at this stage of our scrutiny of the Bill have very much echoed what was said in Committee. As I explained then, it is often necessary to give full effect to the provisions of an Act by making further provision in secondary legislation. Indeed, the noble Lord, Lord Pannick, acknowledged as much in his remarks in that debate. However, he and other noble Lords questioned, as they seek again to do in Amendment 178, the inclusion of a power to make supplementary provision.
Concern was expressed in Committee that the drafting would permit the power to be exercised to make provision about anything which the Lord Chancellor considered fell within the scope of the general area or subject matter of the Bill. This evening, the focus has been on judicial review. The noble and learned Lord, Lord Woolf, rightly stressed its importance and that of the independence of the judiciary. Of course I entirely accept that, and I hope that nothing I have said during the course of our debates has sought in any way to undermine those core principles of our system. However, Clause 79 refers to any provision of the Bill. As noble Lords will be aware, that is a final provision to deal with all the various provisions, which cover quite a wide field, it has to be said. Our debates have ranged over many areas of law and many provisions.
Lord Faulks
No, I am simply saying that it is not exclusively directed at Part 4. It is to do with any provision in the Bill; it is a general provision for implementation. It would include it, but it would include anything else that came within the scope of Clause 79.
I explained in Committee the narrow construction given to such powers. The noble Lord, Lord Pannick, said that this was an extraordinary provision. The noble Lord, Lord Beecham, however, acknowledged that it found its way into other Acts of Parliament—apparently without demur from the Opposition, including the Coroners and Justice Act 2009, which, as the noble Lord will appreciate, was before this Government came to power. The suggestion that it is somehow the Conservatives or this Conservative-led coalition who have form for introducing such provisions is simply not correct. The Legal Aid, Sentencing and Punishment of Offenders Act and the Offender Rehabilitation Act contain powers to make supplementary as well as consequential and incidental provision. There are recent similar examples within the responsibility of other departments. Those cannot be levelled against the Lord Chancellor, who has been demonised in our debates. They include the Pensions Act, the Local Audit and Accountability Act and the Infrastructure Bill currently before Parliament.
Since Committee, we have considered carefully whether it would be sufficient to rely on that part of the power which is undisturbed by the amendment. Of course, the power is quite wide even without the supplementary provision. It is right to acknowledge, as I did in Committee, that there is a degree of overlap between the various concepts used and adjectives deployed. The fact that the existing powers agreed by Parliament included the power to make supplementary provision suggests that the overlap is not complete. For that reason, we think that the right course is not to amend the provision—with the reassurance as to the possible use of the power, which I mentioned. In other words, this will not be construed as giving any Minister the opportunity to make provisions which are not in the Bill—what he might have liked to have been in the Bill in retrospect—but construed very much in the way that such provisions are customarily construed.
Lord Beecham
In that event, is the noble Lord prepared to say that the supplementary power will not be applied to the judicial review provisions of the Bill?
Lord Faulks
I am not going to give any such undertaking from the Dispatch Box. It will be construed as a matter of statutory construction, and Parliament will view it if there is a change, but I am not going to limit any future Minister or future Parliament on what they want to do in any part of this legislation. This is a standard measure which the noble Lord’s colleague on the Labour Benches, the noble Lord, Lord Davies, though harshly critical of almost every provision in the Bill, said was absolutely standard in all legislation. He contrasted this with other provisions in the Bill which he found more offensive. He is unfortunately not in his place today to expand on his views.
Noble Lords have been concerned that such powers could be used unchecked. I accept, of course, that it can be difficult to determine whether a particular instrument falls within the power under which it is made, but that is the function of the Joint Committee on Statutory Instruments—which, as I am sure noble Lords will agree, is assiduous in reviewing secondary legislation, and, as part of its remit, specifically considers whether the power to make an instrument is wide enough to cover all that is in it.
I turn now to Amendment 179, which seeks to remove the power for any implementing provision to amend primary or secondary legislation in any way whatever, whether it falls within the category of “supplementary” or within any of the other categories mentioned in Clause 78. The noble and learned Lord, Lord Woolf, previously expressed some concerns about the meaning of this provision. In particular he asked why the drafting referred to both the repeal and revocation of legislation and why Clause 79(5) applied only to repeals but not revocations. I am happy to provide clarification on that score. Proper drafting practice is to refer to the repeal of primary legislation but to the revocation of secondary legislation. There is no practical difference between the two. Subsection (5) refers to repeals and not revocations because that provision is only about the enhanced parliamentary scrutiny for instruments which amend or repeal primary legislation, which I alluded to in Committee.
As I explained before, the removal of this provision from the legislation would be a serious constraint on the implementation of the Bill. It would, for example, prevent consequential amendments being made to primary legislation for provisions which have, despite the department’s best efforts, been missed. It may also impede the consequential amendment of existing secondary legislation, something which it is not normally appropriate to do in the Bill itself. Without such amendments it may not be possible to bring provisions of the Bill into force.
Amendments to existing legislation can of course only be made if they fall within the scope of the power. That means that they can only be made for the purpose of implementing what is already in the Bill. I would remind the House that any instrument which amended primary legislation would require approval both in your Lordships’ House and in the other place. I hope that the reassurance that I have already given about that will also go some way to alleviating concerns about the commonplace power in subsection(2), without which it may not be possible to properly give effect to parliamentary intentions.
I am sorry that my noble friend Lord Deben feels that there has been a lack of transparency in the way that the Government have approached this Bill, if that was what he was suggesting. I have endeavoured to assist the House in Committee and on Report. I am sorry that he, as a supporter, feels that we have not assisted him or the House sufficiently. It is a matter which I very much regret and I hope that it is not a view shared around the House by supporters of the Government. I hope that, with the further reassurance that I have given in this respect, the noble Lord will withdraw his amendment.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 1 month ago)
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Lord Kennedy of Southwark (Lab)
My Lords, the noble Lord, Lord Hunt of Wirral, raised some very important issues, and mentioned claims management companies. Since I came to the House I have raised the issue many times; the more dubious end of the industry is a problem. I know that he mentioned it before, but the claims management regulation unit at the MoJ, run by Mr Kevin Roussell, does a good job on that. I pay tribute to the work that it does and say to the Government that if it had a few more resources it would be able to do an even better job. Pointless, vexatious claims waste our time and cost us money, and the more help we can give to that unit at the MoJ, the better.
Lord Beecham (Lab)
My Lords, I expect that other Members of your Lordships’ House will have had my experience of being called about accidents or insurance policies that I have never had, and I entirely sympathise with my noble friend’s last observations. Clearly, no one would wish dishonesty in the presentation of a claim to go without penalty. However, there are some questions to be asked about this provision. The first of those is, why should any change in the law, which we are now progressing, apply only to PI cases? The noble Lord, Lord Hunt, has broadened that somewhat, and is in a sense making my case for me, because he cited a case in which there is both an alleged personal injury and an accident. However, the driver who sues for a personal injury and is deemed to have been fundamentally dishonest will of course be penalised, and rightly so—although how the penalty is levied is perhaps debatable. However, if the claim is only for the damage to the vehicle, he will not be caught by the present clause, and nor, of course, would somebody fundamentally dishonest—whatever that means; that is perhaps another issue, but let us take it as a given at the moment—in a whole variety of other claims. Why should not somebody making a claim—for example, as regards breach of contract, professional negligence or any number of claims that have a monetary element in them for some breach of duty other than involving personal injury—also be brought within the framework? It seems odd to single out this group, albeit there clearly are cases where claims management companies and the like deliberately promote false claims.
Having listened to the noble Lord, Lord Marks, I am not entirely sure that this binary system of small claims and larger claims is appropriate. What might be a small claim to me and some other Members of your Lordships’ House is not necessarily a small claim to the individual claiming £25,000. One needs to have the same approach overall. However, there is then an issue about what constitutes substantial justice, and that is also unclear.
The major issue to which my amendment is addressed is why the courts should have to strike out a claim—an argument made, up to a point, by the noble Lord, Lord Marks—in its entirety on the balance of probabilities, as opposed to the criminal standard of proof. After all, we are talking about essentially criminal behaviour—it is essentially fraud. That is unsatisfactory, particularly if a claim is to be dismissed on that basis, hence my amendment. Of course, as I informed the House in Committee, in the case of Fairclough Homes v Summers in the Supreme Court, the noble and learned Lord, Lord Clarke, said:
“It is for the court, not for Parliament, to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process”.
He said that the existing power to strike out should,
“only be exercised where it is just and proportionate to do so, which is likely to be only in very exceptional circumstances”.
One has to take that judgment into account in determining how to apply the test. I invite the Minister to reconsider whether the balance of probabilities is not a safer and better test to apply before further draconian action—which must in part be justified by fraudulent behaviour—is taken.
Lord Faulks
The noble Lord’s arguments do not deserve lesser consideration for their recent arrival in our debate. He asked, for instance, why personal injuries, rather than other fields, should be singled out for attention. The answer is simply this. Of course fraud has a role in the law of contract, the law of property and other areas of the law. But this is a provision to deal with a particular mischief, of which we are all aware in one form or another. Unfortunately, the explosion of claims, with dishonest claims and people calling others to invite them to participate in dishonest claims, has become widespread, and the Government are responding in a variety of different ways, including by regulating claims management companies—I am glad to see the reduction in the number of such companies—and by introducing this provision.
Amendment 128 was tabled by my noble friend Lord Hunt of Wirral, to whom the House listens very carefully on all things, but perhaps particularly in areas such as this. It would extend the scope of Clause 49 to cover claims for items linked to the personal injury claim. As he has indicated, this could typically include items such as damage to property and the cost of credit hire. The effect of the amendment would be that where the court was satisfied that the claimant had been fundamentally dishonest, its order would dismiss any such related elements, as well as the claim for personal injury—when, for example, a claim for personal injury is used as a vehicle for other fraud.
I understand precisely what my noble friend says, and I have considerable sympathy for what lies behind the amendment, which is to make the clause as strong a deterrent as possible. However, after careful consideration by my officials and myself, I believe, on balance, that it would unnecessarily complicate the clause, and could have unintended consequences that would not be desirable.
The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the claimant’s insurer, and are then recovered by them from the defendant’s insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the claimant’s insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.
The complexity of the law on subrogated rights means that the potential for this type of unintended consequence would be high. In any event, I do not consider the amendment necessary. The existing focus of the clause on personal injury claims avoids complexities of this nature, and ensures that the core matter in relation to which the claimant has actually been dishonest, and where the main scope for dishonest behaviour arises—the personal injury claim—will be dismissed whenever the court considers it appropriate. We are confident that this should provide a sufficiently powerful deterrent to discourage claimants from seeking to bring fraudulent and exaggerated claims, and believe that the amendment could on balance run the risk of creating uncertainty in the law and would make the clause unnecessarily complex in practice.
On Amendment 128A, the noble Lord, Lord Beecham, said that it would be more appropriate to have not the civil standard of proof but the criminal standard of proof. I think that he refers—if not explicitly, implicitly—to a recommendation of the Joint Committee on Human Rights on this, which based its recommendation on the view that the inclusion of the relevant measure is indicative of the quasi-criminal nature of the sanction imposed by the dismissal of the claim. The Government strongly disagree that that is the case. Subsection (7) simply ensures that the order for dismissal can be taken into account by a court hearing any proceedings against the claimant in relation to the same dishonest behaviour, whether they be civil or criminal proceedings for contempt or a criminal prosecution. This is to ensure that the claimant is dealt with fairly and that any punishment imposed in those proceedings is proportionate given the overall effect of the consequences of the claimant’s dishonest behaviour upon him or her. This approach is also reflected in other aspects of the clause—in particular, subsection (5) in relation to costs sanctions.
As we have set out in the ECHR memorandum accompanying the Bill, we consider that the adoption of a civil standard of proof can be fully justified. The sanction of deprivation of property involved in the dismissal of the claim would occur in the context of civil proceedings in relation to civil compensation, proceedings which are brought by the claimant, not the state. No criminal conviction could arise from the dismissal process itself, and it does not involve anything that could be said to be a criminal charge. We consider that the analogy drawn in the ECHR memorandum with the approach of the European Court of Human Rights and the domestic courts to confiscation proceedings under the Proceeds of Crime Act 2002, in which a civil standard of proof has been upheld, is a valid one, and that the adoption of the civil standard of proof in Clause 49 is both fair and appropriate.
Amendments 128B, 128C, 128D, 128E, 130A and 130B tabled by my noble friend Lord Marks are similar but not identical to those tabled by him in Committee, save that the court is given a discretion to reduce the award of damages rather than dismiss the claim entirely, or, it would seem, take no action at all, in circumstances where the genuine part of the award is £25,000 or more. We do not believe that it is appropriate to impose a financial limit of this nature. I endorse what the noble Lord, Lord Beecham, said about this. Although the widening of the court’s discretion not to dismiss the claim is of a lesser extent to that which the noble Lord previously suggested, the amendments would still weaken the effect of the clause and interfere with its effective operation by imposing what is inevitably an arbitrary dividing line.
As I explained in Committee, the sanction imposed by this clause—the denial of compensation—is a serious one, and will be imposed only where the claimant’s dishonest behaviour goes to the heart of the claim. If the court, having heard all the evidence, is satisfied that that is the case, I believe that it is right that it should be required to dismiss the entire claim unless doing so would cause substantial injustice to the claimant. People who behave in such a way should not be able to get compensation regardless, whatever the amount involved.
The amount of compensation which the claimant would otherwise have been awarded, and the proportion of the overall claim which that represents, will, of course, be matters that the court may wish to take into consideration in deciding whether the claimant has been fundamentally dishonest and, if so, whether its discretion not to dismiss the claim should be exercised. Where the effect on the claimant might be particularly harsh or unfair on the facts of the case, the substantial injustice test will provide sufficient protection. The addition of a further discretion simply waters down the deterrent effect of this provision.
On Amendment 129, during the debate in Committee some uncertainty was expressed about the policy intention underlying subsection (5) of Clause 49, and whether the existing drafting of the subsection clearly and accurately captured that intention. In the light of those concerns, we have tabled government Amendment 129, which clarifies the position by replacing the existing subsection with a new subsection. This provides that when assessing costs in the proceedings, a court which dismisses a claim because of the claimant’s fundamental dishonesty must deduct the amount of damages that it would have awarded to the claimant from the amount of costs which it would otherwise order the claimant to pay in respect of the defendant’s costs. The intention underlying this provision is, as I have previously explained, to ensure that claimants are not excessively sanctioned by both losing the genuine element of the award of damages and having to pay the defendant’s costs without any credit for what the defendant has saved by avoiding payment of the genuine element of the award. I should add that one of the main intentions behind this provision is to deter people from bringing these claims at all, or at least deter them from being dishonest when advancing them.
Beyond that, it is not our intention to interfere more generally with the court’s discretion on whether to make a costs order and, if so, in what terms. We believe that the court should be able to make whatever orders it considers appropriate. In many cases the court will doubtless decide to award the defendant’s costs in full, apart from the sum deducted under this subsection. However, in some cases, it may decide only to award the defendant some of its costs in circumstances where it considers that certain costs have been unnecessarily incurred—for example, where the defendant had spent money pursuing an irrelevant issue.
Amendment 129 preserves the court’s discretion to do this, or indeed to decide, in the circumstances of a particular case, to make no award of costs at all. We believe that it is important for a provision on this issue to remain in the clause to ensure that it operates in a fair and proportionate way, and I am therefore—although I do not think my noble friend is pursuing it with any vigour—unable to accept Amendment 128F, which would remove it altogether.
My noble friend Lord Hunt has indicated that he remains concerned that Amendment 129, the government amendment, may still create some confusion, and has proposed Amendment 130 instead. While I share my noble friend’s concern to ensure that the provision is as clear as possible, on careful consideration, we do not believe that his fears about our amendment are justified.
In particular, I should point out that, even if the actual assessment of the amount of costs payable is undertaken by a different judge or officer at a later date, as would normally be the case in a detailed assessment of costs, assessment is still being undertaken by the same court that has dismissed the claim, and so the requirement to deduct the amount recorded in subsection (4) from the ultimate costs “bill” that the claimant may have to pay applies regardless of the point of time at which, or judge by which, the costs payable are determined. I am also concerned that my noble friend’s amendment simply restates the existing law confirming the discretion of the court to award costs. On balance, we feel that it is unnecessary to restate this in legislation, and it might be taken to imply that this was not already the position, or that special rules regarding the court’s discretion as to costs are required in these cases. That would be contrary to the policy, which is not intended to make any changes to the rules on costs themselves.
On reflection, I consider that government Amendment 129 makes it amply clear that if the court decides to order costs against the claimant, it must deduct the amount of the damages it would have awarded but for the effect of Clause 49, so that the claimant has to pay whatever costs, if any, that are ordered net of that amount. I believe that the Government’s amendment clarifies this policy intention in a way that removes any ambiguity that might have arisen from the previous text of the subsection. However, I remain extremely grateful to my noble friend for drawing that to the attention of the House. I am sorry that I detained the House a little longer than might be desirable at this time but these are complex provisions, and it may be helpful if I provide a little detail about this.
I conclude by dealing with the question of where parts of a claim may be involved. The noble and learned Lord, Lord Hope, pointed out a possible ambiguity. It may be that this is what he has in mind. I shall answer the question: why does the court have a discretion not to dismiss the claim when the claimant would suffer a substantial injustice? We believe that an element of discretion is necessary because difficult cases may arise where depriving the claimant entirely of damages may cause substantial injustice. This might be the case, for example, where a claimant had genuinely been very seriously injured through another person’s negligence, perhaps requiring substantial ongoing future care and support as a result, but stupidly colluded in a bogus minor injury claim by a family member in relation to the same accident. We do not, however, think there is any need to amend the provisions. We think that judges will be able to work with these provisions and that the Government’s intention and, I hope, that of noble Lords from all around the House, will be achieved by these important provisions. I hope that all noble Lords who have tabled amendments will agree to withdraw or not move them.
Lord Beecham
I am afraid I cannot beat the brevity of that. I would like a little guidance from the Minister about the nature of the regulation. Can he give any indication of how effective whatever the regulatory body is—I confess that I do not know which it is—in overseeing this practice? I am entirely with the Government in wishing to ensure that such practices are limited as much as possible, for precisely the reasons that were mentioned by the noble Lord, Lord Hunt, and with which we all concur: the promulgation of false claims, which is wrong in itself and, of course, a drain on the economy generally. I am not clear what the regulatory system currently is, or how effective it is. While supporting the Government’s intentions in the amendment, it would be helpful to have an impression of that.
Lord Faulks
I am happy to write to the noble Lord with as much detail as we have. In the mean time, I can tell him and the House that anecdotal evidence shows that the practice is more prevalent among solicitors than non-regulated persons. However, once there is a ban in place preventing legal services providers from offering an incentive to issue claims, there is a possibility that non-regulated persons offering inducements to issue claims with legal services providers will be used as a way around the ban.
As to what types of third party rather than regulated persons might offer a benefit, these are likely to be but not restricted to those working in what are described as “first notification of loss teams”. The teams are used by insurers and are the central point that clients contact when they wish to make a claim on their insurance policy. The intention is to ban any inducement which encourages or might have the effect of encouraging a person to make a claim or seek advice about making a claim, including so-called welcome payments, free gifts and cash advances.
The noble Lord will know that there is far too much by way of unsolicited phone calls going on in relation to personal injury claims, which is another matter we take seriously. It is a complex issue that requires action on a number of fronts, both legislative and non-legislative. We have taken a number of measures as set out in our nuisance calls action plan of 30 March. I can give the website address if necessary. It includes increasing the fines that Ofcom can issue from £50,000 to £2 million, enabling the Information Commissioner’s Office to issue fines of up to £500,000, and providing simple and consistent information to consumers on preventive action that they can take and how they can complain about unsolicited phone calls via Ofcom.
If the noble Lord is having particular difficulty with being asked to make fraudulent claims, which I am sure we have all encountered, he may wish to know that he can register with the Telephone Preference Service, which should result in his avoiding such claims. I hope that that provides some further information, but I undertake to give more information in due course.
Lord Beecham
I thank the noble Lord for providing further information, but it is not terribly helpful because the Telephone Preference Service seems to be totally useless. Apart from anything else, it does not seem to work with a BlackBerry these days. It is quite extraordinary. Having appreciated that regulated persons include members of my profession and that of the noble Lord, Lord Hunt, I am sure that he will agree that it is a very sad commentary on the current state of what was a profession and is now increasingly descending, if I may put it that way, into a rather unscrupulous business —which is a matter I think we would both deplore.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 1 month ago)
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Lord Beecham
“(d) secure children’s homes.”
Lord Beecham (Lab)
My Lords, this amendment is an appetiser for the main course that awaits us in the form of secure colleges, about which we will hear a good deal.
Secure children’s homes care for some of the most damaged children, necessitating intensive and, it has to be said, expensive care. The numbers have been reduced in recent years. There are now 138 places in secure children’s homes. In Committee, I suggested adding them to the facilities that might be provided by the Secretary of State alongside existing young offender institutions and secure training colleges and the secure colleges that the Bill seeks to establish.
In his reply, the Minister explained the failure to include secure children’s homes, on the list, on the basis that local authorities had the power to provide such homes, and the Secretary of State does not and never has had that power. He went on to say that it is for local authorities to provide sufficient places as are required in secure children’s homes, and we think it right that they retain responsibility for this.
However, the amendment does not require the Secretary of State to provide secure children’s homes; it gives him the power to do so. In any event, it is surely desirable that such provision is seen as part of a range of different facilities. Given the pressure on local authority budgets and the concerns that secure colleges, if they are to be included under this legislation, might reduce the demand for such places, it is surely reasonable for the Secretary of State to have some involvement—potential, if not immediately actual—with this part of what should be seen as essentially one service aimed at providing for these children of varying degrees of vulnerability and difficulty, albeit in different ways.
I hope the noble Lord will acknowledge that this is meant to be a constructive amendment, which does not impose a duty but opens up the possibility of having a whole-system approach to this group of young people. I beg to move.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this has been a short debate about the place of secure children’s homes in the youth custodial estate. As the noble Lord, Lord Beecham, said, it is something of an appetiser for what I know is to come during the course of this afternoon and evening.
I recognise on behalf of the Government that much good work is done in secure children’s homes, and that they often accommodate some of the most vulnerable young people in custody. The Government are clear that we will continue to provide separate specialist accommodation for those who need it. We have also made clear that, while we believe the secure college model could cater for the majority of young people in custody—that is, a secure college rather than a secure children’s home—it will not be suitable for 10 and 11 year-olds or for some young people with the most acute needs or vulnerability.
This year, we have demonstrated our commitment by continuing to provide places in secure children’s homes by entering new contracts with nine homes to provide 138 places. I know that many noble Lords will have observed the decline in the number of places in secure children’s homes that the Government contract, but that, as was acknowledged on Monday in your Lordships’ House, reflects a substantial and welcome reduction in the number of young people in custody overall in recent years.
The current arrangement is that the Secretary of State may provide places in young offender institutions and secure training centres; the Bill seeks to give him the power also to provide secure colleges. In addition, he has the ability to enter into contracts for the provision of youth detention accommodation in secure children’s homes. Amendment 107 would change this by giving the Secretary of State the power to provide secure children’s homes directly. The power to provide these homes rests with local authorities, not the Secretary of State, and we think it right that this should remain the position. Secure children’s homes are created by different legislation with the purpose of ensuring that there is provision for children whose welfare needs are so acute that a court decides they must be accommodated securely. Meeting the needs of this particular group of children is the important distinction between secure children’s homes and other forms of custodial provision.
The Secretary of State has a duty to ensure that there are sufficient places in youth detention accommodation for young people remanded in or sentenced to custody, and in discharging this duty he continues to contract places in secure children’s homes for those young people who require them. We think that that is the right arrangement, rather than the Secretary of State providing secure children’s homes, which are intended to serve a greater purpose than simply accommodating convicted or remanded young people.
I recognise the concern about the future of secure children’s homes and we will no doubt come back to that when we consider the substantial group of amendments that follows this debate. The Government are clear that there continues to be a place for them in the youth custodial estate, but we consider that the position is adequately catered for by the current arrangements. Therefore, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Beecham
My Lords, as I hinted when moving the amendment, I shall not divide the House on this issue. However, the Minister overlooks a key element in the case that I put, which is that local authority budgets are extremely hard pressed and it will be increasingly difficult for them to sustain the level of investment needed in this provision. Having said that, I shall not press the amendment, but I invite the Government, or perhaps the Minister, to talk to the Department for Education and the Department for Communities and Local Government about the financial implications of continuing provision in, I think, only nine local authority areas now, for which funding is under great pressure. I beg leave to withdraw the amendment.
Baroness Linklater of Butterstone (LD)
My Lords, this amendment contains two aspects which cause concern. One is the use of force—a matter of grave concern when dealing with young offenders—and the other is secure colleges, a new idea from the Government that fills us with despair and gloom.
This is one of the most sensitive and difficult areas of all offender management. The secure college rules sanction the use of “reasonable force” in three circumstances, and proposes a fourth. These are: to prevent injury to the young person or others; to prevent escape from custody; to prevent damage to property; and, lastly and worryingly, to maintain good order and discipline—otherwise known as GOAD.
Noble Lords have listed their own versions of such circumstances, including the last resort of,
“maintaining a safe and stable environment”.—[Official Report, 21/07/14; col.1046]
A comprehensive list was given by my noble friend Lord Marks, with such conditions as minimum force, minimum duration, minimum necessary and no techniques involving pain. All are agreed that force must not be used as a punishment, although it will most likely feel and seem a punishment to any young person who has the misfortune to experience it. It is highly undesirable and unjustifiable in almost every imaginable case that young people should experience this.
The acid test of really good management of young people who are characterised as being among the most damaged, the most difficult and often the most disturbed in their age group is that situations should not be allowed to reach such a point where force becomes an issue at all. Adolescent units in psychiatric hospitals present parallel situations, just as they often do in secure prisons, and control depends on very skilled management by well trained professionals. I have seen such examples in both situations—in prisons and in hospitals—where professionals do not need to have recourse to restraint because violent situations are anticipated and pre-empted. Once the possibility of force is accepted, it will be used.
The GOAD sanction seems the most concerning, partly because of the type of language used, including what is described as MMPR—managing and minimising physical restraint according to approved restraint techniques. GOAD—good order and discipline—is much broader, open to subjective interpretation and likely to be most widely used for that very reason. It is extremely worrying.
We do know that the JCHR recommended that only the first three circumstances of the college rules should apply, and that good order and discipline should not be included. It said categorically that secure children’s homes do not use force to maintain a safe and secure environment, and they have the same clientele. However, the MoJ has announced that it intends to allow the use of “reasonable force” to,
“maintain good order and discipline”—
which begs the question, of course, of what is “reasonable” where a young person is perceived to be posing a risk to,
“maintaining a safe and stable environment”.
The criteria are going to be so important.
Also, the MoJ does not consider it “necessary or appropriate” to set out in the Bill the circumstances in which custody officers are authorised to use force in secure colleges, and states categorically that,
“the Bill is clear ... a custody officer must be permitted by the rules to use force”.
This must be clarified further if the Government are to have some idea of the sort of regime they are sanctioning and for there to be confidence and trust in how these difficult and vulnerable children are being managed.
The JCHR’s most recent report on the Bill concluded that:
“We are concerned by the vagueness of the Government’s references to ‘maintaining a stable environment’ and protecting the ‘welfare’ of the child and others as permissible justifications for the use of force. The law is clear that the use of force on children … can never be justified for the purposes of good order and discipline”.
So there is a clear and currently unresolved difference of view, with each side apparently absolutely clear on the rightness of its position. However, what is clear is that the children and young people being dealt with here are recognised as being particularly troubled and vulnerable. If force is used on them, it confirms to them that violence is acceptable because that is what is being used by the authorities. Different standards and criteria are being used when it is deemed fit. I sincerely hope that such double standards will be rejected out of hand by the Government.
Lord Beecham
My Lords, the Government’s plans for the largest children’s prison in Europe are,
“bad for children, bad for justice and bad for the taxpayer”.
Those are not my words but, as the noble Lord, Lord Ramsbotham, pointed out, those of 29 signatories to a letter in the Daily Telegraph, which of course is affectionately known as the house journal of the Conservative Party. One would therefore expect the Government to pay particular attention to views expressed in it and by it. The signatories include the chief executives of leading children’s charities, the president of the Royal College of Psychiatrists and the chair of the Association of Youth Offending Team Managers, among other experts in the field. Today, the Daily Telegraph contains an article by Mary Riddell supporting the position of those who wrote that letter.
No one would argue with the intention to improve the education and thereby the life chances of young offenders, but the Government’s proposals for a secure college housing one-third of young offenders in custody bear all the hallmarks of yet another rush to misjudgment. With a site in Leicestershire planned for a young offender institution going begging, the Lord Chancellor’s latest notion was to engage a building firm to design a college housing boys and girls aged 12 to 17 and then to start a tendering process which would lead to potential operators effectively writing their own job description, with precious little information as to costs or the precise way in which the institution would be managed. As we have heard, last week the Government published their consultation on the rules that will govern the establishment, containing such revolutionary and transformative suggestions that inmates should be entitled to at least one hot shower a day. But, as the noble Lord, Lord Ramsbotham, has pointed out, the consultation will be concluded after the legislation is enacted, so Parliament will have no opportunity to consider the outcome or the Government’s response. That is a clear case of premature legislation for which no medical treatment can be prescribed.
Amendment 108 is designed to ensure proper scrutiny of this critically important part of the process. The amendment refers to the,
“mental or physical health needs”,
of young persons in secure colleges. As we have been informed by the noble Baroness, Lady Finlay, a report by the BMA on the detention of children is due to be published after the Bill has left this House. Given the seriousness of the issue, the novelty and controversial nature of the plans and the lack of detail as to how the college will operate in practice in terms of who will operate it and at what cost, why are the Government in such an unseemly hurry?
There are, as we have heard, serious problems about the proposals. Among the most worrying, is the notion of housing all 44 girls now in custody in England in one place, necessarily, potentially far from their homes, something which will also be true of many male inmates, and also remote from the local authority services with which they should be in contact. There will be no overnight residential visitor accommodation on the site.
The prospect of having 12 to 15 year-old boys in the same institution as 15 to 17 year-olds is also a matter of grave concern, even though they will apparently be housed in separate units on the site. The former vice-chairman of the Youth Justice Board expressed his misgivings about security with a high concentration of the latter age group. Today, the Chief Inspector of Prisons is reported as expressing concerns about a more concentrated mix of vulnerable, challenging and sometimes very violent boys, in the light of the fact that the number of children going into care is decreasing. It is becoming a more concentrated and a more problematic group. The older boys will potentially be in the same institution as these younger children.
Amendments 109 in my name and 117A in the name of the noble Lord, Lord Marks, in the next group, seek to deal with this matter. In Committee, the Minister indicated that no final decision had been taken on these sensitive issues, but, of course, that simply underlines the undesirability of giving the Secretary of State carte blanche to determine them without parliamentary scrutiny. It is also entirely unclear how the educational component, which is the ostensible justification for the scheme, will work, given that the population will be constantly changing. In Committee, the Minister said that,
“a sufficient bank of time in a secure college would be intended, with an individually tailored plan”.—[Official Report, 21/7/14; col. 1035.]
He failed to reply to my questions as to what sort of time we were talking about and who determined what sort of time would be ultimately allocated.
We are a country that criminalises children at a much younger age than most. We appear reluctant to inquire into, let alone learn from, the experience of other countries such as Finland, Spain—where, as the noble Lord, Lord Ramsbotham, pointed out, Diagrama runs the best children’s custody centres in Europe—or even the US, where the Missouri model, with facilities containing no more than 50 beds, is becoming widely adopted. Has the Government even examined these or other models? Yet here the Minister described the measure in the Bill as providing a,
“framework for the creation of secure colleges so that the Government can trial a new approach to youth custody”.—[Official Report, 23/7/14; col. 1185.]
If they have not examined other people’s trials, then the notion of a trial here is somewhat limited. In any event, it is an odd sort of trial that encompasses a third of the total potential number of relevant young offenders and one that perhaps threatens the viability of existing facilities, including secure children’s homes, run, as we heard earlier, by local authorities.
The proposals contained in the Bill have attracted very little support. They embody the Government’s usual attachment to outsourcing. They are being pushed through with scant regard to the proper processes of parliamentary scrutiny. I entirely echo the words of the noble Lord, Lord Deben, in strongly suggesting that the Government would be wise to extend the period and allow such scrutiny to take place.
Amendment 111 would require secure college rules to be approved, should the plans go ahead. Amendment 111A in my name would ensure that no second college could be provided without a proper assessment of the first, should that go ahead. I urge the House to support these amendments in order to ensure that proper consideration is given to these and other issues before launching what is, at present, an ill-defined and untested project. In addition, Amendments 120A, 120B, 121 and 122 deal with the use of force. The Joint Committee on Human Rights has expressed its views forcefully, as have a wide range of organisations. The amendment in my name and in the name of the noble Lord, Lord Ramsbotham, embodies the committee’s formulation.
In Committee, I pointed out that Schedule 5 to the Bill contains a wide power under paragraph 10 for a custody officer to use “reasonable force” not only to,
“ensure good order and discipline”,
but to prevent escape and,
“to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts”—
unspecified—and,
“to attend to their well-being”,
under paragraphs 8(c), 8(a), 8(b) and 8(d) respectively. In addition, paragraph 9 extends the possible application of force to the searching of detainees and anyone who is in the college or seeking entry. Those are very far-reaching powers, on which the Minister did not specifically comment. They will be entrusted to people whose training, qualifications and supervision we know nothing about.
The position is utterly reprehensible and I hope that, having listened to Members on all sides of your Lordships’ House, the Government will take time to think again. I repeat: we are all entirely with the Government on wishing to make the best provision in educational and other terms for these damaged youngsters, but we are heading down a road with no clear indication of the destination or, indeed, how we will reach it. The Government should take the time, look at other people’s experience, engage with those most involved with the service and with these young people, and come back with some revised proposals.
Lord Faulks
My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments and to all those in the Chamber and beyond who have engaged with and helped to shape our proposals for secure colleges. It has been said during the debate that our proposals are rushed and ill thought out, and that there has been a failure to engage.
We have made considerable efforts to engage with a wide range of stakeholders and experts right the way through, from the gestation of this idea to bringing legislation before Parliament and developing plans for a pathfinder secure college. In our Transforming Youth Custody consultation, published in February 2013, the Government engaged with a wide range of organisations in the education, custody and voluntary sectors. Uniquely, we asked them to submit outline proposals for how a secure college might tackle the problems of poor education and reoffending outcomes. What I think there is complete agreement on in your Lordships’ House is that there is far too high an instance of reoffending by young offenders and that education is insufficiently catered for within the secure youth estate.
Those responses directly informed the Government’s response to the consultation, published in January this year. After the Bill was introduced in this House, I hosted an open event in July to outline our proposals, to share our latest plans for the design of the pathfinder secure college—the clue is in the name: pathfinder—and to listen to the views of those with interests and expertise in this area. Peers were assisted by iPads that gave a design and indication of the precise configuration of the secure college and how the various parts would work together. It proved a fruitful exercise, I believe, and the discussion that day with Peers led to substantial changes to our design for the pathfinder secure college.
Following that meeting, we secured additional land for the site, increasing its size by two acres and extending the range of sporting facilities and outdoor space. We also reconfigured the layout of the site to ensure that groups of the more vulnerable young offenders, whom we had already planned to accommodate separately, could access education and health facilities via a different route from older children at the site and would have separate sporting facilities. I was pleased to share those revised plans at yet another open meeting with Peers last week.
Noble Lords will also be aware that, following my commitment in Committee, last week the Government published a public consultation on our plans for secure college rules. It is a substantial document with a considerable amount of detail. I hope that those noble Lords who have felt it appropriate to comment on the inadequacy of the consultation will at least take the trouble to read carefully this consultation and realise the amount of detail that has been provided in order to come to the right final conclusion as to the rules.
The secure college rules set out the proposed policies which will inform those rules, and in respect of the use of force—clearly a matter of considerable importance to the House—set out draft indicative rules to facilitate greater scrutiny of our proposals. Noble Lords will also be aware that the Government have brought forward an amendment to make rules authorising the use of force subject to the affirmative, rather than the negative, procedure.
Throughout the process, Ministers have written to and met with a wide range of stakeholders to keep them apprised of our plans. Only yesterday the Prisons Minister, Andrew Selous, met a range of children’s charities and groups with an interest in youth justice. We also have been working closely with NHS England, the Department for Education and experts in education and custodial provision to test our designs for the secure college pathfinder. Our revised plans are now publicly available and are being scrutinised by Blaby District Council as part of the planning application for the pathfinder.
I hope, therefore, that noble Lords will recognise that considerable efforts have been gone into and opportunities provided for the views of others to inform our thinking. I have to say I was very disappointed to hear the noble Lord, Lord Ramsbotham, whom the House of course greatly respects on this area, suggest in Committee that, notwithstanding our engagement, it was,
“both unreasonable and irresponsible of the Government to expect Parliament to rubber-stamp it until it knows more”.—[Official Report, 23/7/14; col. 1173]
The Ministry of Justice and my officials have worked extremely hard to provide information about secure colleges. There were also lengthy debates in the House of Commons. I hope noble Lords have had a chance to see them. I have read all of them. A great deal of detail was provided at that stage and then in your Lordships’ House in the lengthy Committee stage. The Government have attempted to give answers to all the various points that have been given to them. It is, therefore, with great disappointment, that we are accused of being in contempt of Parliament.
I will now turn to the amendments. They cover the use of force, secure college rules and the powers of the Secretary of State to contract out the running of secure colleges. I will start by addressing the amendment on the use of force, as this is relevant to the government amendment in respect of the secure college rules. Amendment 121 seeks to restrict the circumstances in which a custody officer may be authorised to use force in a secure college. I am aware that a similar amendment was recommended in the recent report on the Bill by the Joint Committee on Human Rights. While the Government share the view that force must only ever be used as a last resort, and that only the minimum force required should be used, we believe it is right that force be available in a wider range of circumstances than the amendment permits.
In addition to preventing harm, we believe that force must also be available to prevent escape, to prevent damage to property and for the purpose of maintaining good order and discipline. I recognise that it is the final category which has attracted most debate. During a constructive debate in Committee, I set out the Government’s view that custody officers in secure colleges should be able to use force for the purpose of maintaining good order and discipline, but that this use would be subject to stringent controls.
In our consultation document on our plans for secure college rules, we have gone into a great deal of detail about our approach to the use of force. I am glad that my noble friend Lord Marks made reference to the instances given on page 23 of that document of particular examples which he, I think, accepted were instances where there would, in exceptional circumstances, have to be force used in circumstances where one would not normally want it to be used.
We have clarified that force, in these circumstances, may be used only where a young person poses a risk to maintaining a safe and stable environment and where there is also a risk to the safety or welfare of the young person against whom the restraint is used or that of another young person. We have set out examples in the document of the types of circumstances in which we believe the use of force for these purposes would be justified. We are clear that force can never be used as a punishment.
The consultation document makes clear our position that the use of force for good order and discipline would be authorised only to the extent that it was strictly necessary and proportionate; that only authorised restraint techniques could be applied; that the use of pain-inducing techniques for reasons of maintaining good order and discipline will be prohibited; that only the minimum restraint necessary for the shortest possible time must be used; that the young person’s dignity and physical integrity must be respected at all times; and that the best interests of the young person against whom the force is used must be a primary consideration. We have also set out safeguards and procedures to be followed before, during and after any use of restraint for maintaining a safe and stable environment.
The Government recognise the sensitivity and importance of provisions relating to the use of force with young people. That is why we are consulting publicly and in great detail, and we will consider the responses that we receive. However, for the reasons that I have set out, we do not agree with the restrictions that the amendment would place on the circumstances in which force could be used in secure colleges.
As a further commitment to ensuring scrutiny of our proposals on the use of force, we are bringing forward an amendment to the process for approving secure college rules. In its third report of the Session, the Delegated Powers and Regulatory Reform Committee recommended that if the Bill is to enable secure college rules to authorise the use of force for the purpose of ensuring good order and discipline, then such rules should, to the extent that they authorise, be subject to the affirmative procedure. We have accepted that recommendation and brought forward Amendment 122.
This amendment will make the entire first set of secure college rules subject to the affirmative procedure, as they will contain provisions authorising the use of force. This will give Parliament additional oversight of the secure college rules, although I cannot agree to Amendment 111, which would require the rules always to be subject to the affirmative procedure—a requirement which does not apply to prison or young offender institution rules, for example.
Lord Beecham
I am grateful to the Minister for giving way. I ascribed the wrong number to the schedule to which I referred earlier. It is Schedule 6 which is about the use of force. The Minister has referred to a number of instances which are certainly in that schedule, but he did not refer to paragraph 8(b), which talks about the use of force being permissible,
“to prevent, or detect and report on, the commission or attempted commission by them”—
that is, prisoners—
“of other unlawful acts”.
That seems an extremely wide definition. Nor did the Minister refer to paragraph 9, which relates to use of force in connection with searches.
Lord Faulks
I could go through the entire section, which is very lengthy, and deal with all the various aspects seriatim, but I am not sure that that would be a particularly useful process at Report stage, given that I am sure that all those who have been listening to this debate will have had the chance to see the entire detail of the relevant section of the secure college rules. I think that I have summarised fairly the Government’s approach in the rules. I also referred to those two specific examples to which reference was made by the noble Lord, Lord Marks. There have been discussions at the various meetings that we have had. So I would rather not be tied down to specific examples of when force should be used. We believe that the structure is there. We are of course listening to the consultation carefully and we encourage all those who are concerned, of whom there are many in your Lordships’ House, to take part in that consultation to assist us further in arriving at a satisfactory position, which I am sure we will be able to do.
The publication of the Government’s consultation will also reassure the noble Lords and noble Baroness who tabled Amendment 108 that we will certainly make secure college rules before such an institution opens. These rules will be essential to ensuring that young people are detained safely and securely in these colleges, and that they are educated and rehabilitated effectively. However, I strongly believe that this does not need to be placed in the Bill.
It is in the context of creating secure college rules that I turn to Amendments 120A and 120B, which would set out in primary legislation the conditions governing the authorisation of the use of force. I welcome the noble Lord’s amendment, which adopts much of the approach taken in the consultation document. However, I believe that this is a case for the rules rather than for primary legislation. I have provided assurances on how they will come into effect.
Lord Beecham
“( ) No female, nor any male under the age of fifteen, may be placed in a secure college.”
Lord Beecham
My Lords, I have effectively spoken to this amendment in dealing with the issue of girls and boys being housed together. I will not therefore take the time of the House for very long but will just report that today the Women’s Resource Centre and Women’s Breakout have issued a statement concerning this matter. It says:
“Government plans to allay the … safeguarding concerns … by fencing-off girls and vulnerable children are inadequate. Girls will still be held alongside boys in the separated area, so safeguarding risks remain. The proposed fenced-off area will be a ‘prison within a prison’, likely to be reminiscent of the claustrophobic … units in Young Offenders Institutions, which have … been closed down … Girls in custody are an immensely vulnerable group. A Prison Inspectorate survey found that 61% of girls in young offender institutions had been in local authority care, compared to 33% of boys. A Youth Justice Board report found that one in three girls had experience of sexual abuse, and one in five had experienced violence in the home. There are so few girls in custody that they can easily be accommodated in the smaller, and far more appropriate, Secure Children’s Homes. There is no need to hold them in a secure college”.
I adopt that view and invite the House to do so. I beg to move.
Lord Faulks
I am perfectly happy to accept the costs from the noble Lord. As regards the offending rate, one needs to look over a long period. He tells me those rates but I have not had a chance to see those specific rates or for how long a period. However, I am sure that there are variations within the secure college estate. It would cost around £100 million each year to do what seems to be suggested, which is not a viable solution. It is, as we know, easy to forget the deficit, but this Government do not do so.
Although the secure college pathfinder will have a capacity of 320, the site is composed of seven distinct accommodation buildings, with some broken down into smaller living units. Young people can be accommodated in distinct groups, a sense of community can be fostered in each, and the younger and more vulnerable groups can be kept separately if that is considered appropriate. Our plans demonstrate that big does not mean imposing and impersonal. The size will enable a breadth of services and opportunities to be offered.
It is a consequence of the welcome and significant reduction in the number of young people in custody that there are fewer custodial establishments and that some young people inevitably will be detained further from home. This is not a new problem and, for the reasons I have outlined, a network of small, local facilities is not, sadly, a viable alternative. However, distance from home remains one of the factors taken into account by the Youth Justice Board when placing young people in custody. I am sure that that will be very much a factor. Furthermore, there will be visits as well as technology.
I recognise what lies behind these amendments. I acknowledge the very real concern of noble Lords about young people, whether they are under-15s, girls or more widely, but we genuinely believe that we have sufficient flexibility in the system. We do not think that these requirements should find themselves into law. I ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I shall be brief. If the proposal goes ahead, which it might, we will end up with two groups of about 40 young people, boys and girls, from all over the country, in one central location and in an establishment where the vast majority of young offenders, as we have heard from the chief inspector, will be extremely vulnerable and very difficult. The whole atmosphere of the place cannot be compartmentalised in the way in which the noble Lord describes. It is not a satisfactory outcome and I wish to test the opinion of the House.
Lord Ramsbotham
My Lords, I will be brief because much of what I am going to say has already been said, particularly in relation to the criteria. I would like to raise two points. First, I am concerned about the criteria, about which we know nothing, relating to the selection of application for contractors. I remind the House that there used to be in the Ministry of Defence every year an exercise called “basket weaving”. The Secretary of State laid down precisely what was to be done, and then the Treasury produced the money. Then the staffs had to look at the money that had been provided and see whether it allowed the Secretary of State’s direction to be delivered. Invariably, there was not enough money, so people listed in different baskets what was essential to have to carry out the task, what would be desirable to have and what would be nice to have. Those three baskets were then presented to Ministers, who were invited to decide what should not be done because the funding was not available, or to go and ask for more money. That was the decision that they had to take.
The reason I tabled this amendment is that we do not know what it is that the Secretary of State is requiring the contractors to provide, not least in the provision of the specialist staff, whom many noble Lords have mentioned today in connection with looking after this group of younger people. Therefore, my reason for putting down the amendment was to encourage the Government to release these criteria so that we know, and the taxpayer then knows, and can therefore judge, what is actually missing when the contractor puts in their bid. We will not have any say over the bid, but it would be very interesting to know what parts of the original intention could not be provided for these young people because of funding.
My second point relates to a practicality of the delivery of the sort of thing that I know the Minister intends in the secure college. In 1966, the Army’s secondary school in Hohne, in Germany, was achieving remarkable results with children who came or left throughout the term, to and from schools almost anywhere in the world because of the movement of their fathers. When I asked the headmaster the secret of his success, he said that he ran a comprehensive school: every pupil was assessed for their ability in different subjects, and their daily programme was dictated by their ability: top form in maths, bottom in English and so on. When I told him that if that was comprehensive education, I was all for it, he warned me not to hold my breath because streaming by talent was frowned on in England. It worked, because motivated, compliant children got themselves to and from their programmed classes—a total impossibility both in security and in practical terms with the cohort that is likely to be in custody in a secure college. Has anyone thought through the practicalities of limited staff numbers trying to conduct 320 difficult, disruptive and damaged children with fragile motivation and questionable compliance to and from 30 hours of unspecified education, plus myriad other health and social care requirements on this cramped site?
I include that, first of all, as an example of what might be done with all of these children with different needs and problems, as to how to get them to go to where it is most appropriate; but also because I am concerned that this House has not yet had the criteria on which the judgment should be based as to which bid is going to be able to meet them. I strongly support the amendment in the name of the noble Lord, Lord Beecham, about limiting the contract to five, rather than 10, years because I believe that to tie future Governments for 10 years to this proposal—with all that has been said about it around the House today—is several years too long. I beg to move.
Lord Beecham
My Lords, I support the amendment of the noble Lord, Lord Ramsbotham. My amendment is designed to avoid the situation that appears to be arising in relation to the awarding of contracts for the probation service. I do not know whether the Minister is in a position to confirm this or not, but it is said that the Government are deliberately proceeding with 10-year contracts for the outsourcing of that service, on the basis that, should a future Government decide to change the system, they would have, in effect, to pay up for the whole of the 10 years. In other words, it is really binding the hands of a future Government—in financial terms, if not necessarily in legal ones—in a way that is quite unacceptable. It would be quite wrong—perhaps, one could argue, even more wrong—to do so in this case, with a completely untried institution being set up. Whether or not that ultimately proves successful, in principle it would be entirely wrong. Five years is a perfectly adequate period within which to assess the merits of the proposal; that is, five years of operation, not just five years in chronological time, because the Minister has indicated that if the matter goes ahead, it will not be built until 2017. I hope that the Minister will accept both amendments, particularly the one in my name.
Lord Beecham
“10 Secure college rules may only authorise the use of reasonable force on children—
(a) as a last resort;(b) for the purposes of preventing harm to the child or others; and(c) to the extent that the minimum force necessary should be used.”
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
“(13) Before this section comes into force, the Secretary of State shall—
(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and(b) lay a report before Parliament containing—(i) his assessment of the resources required for additional hearings; and(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”
Lord Beecham (Lab)
My Lords, I shall speak also to Amendment 8. Amendment 1 is by way of a sunrise clause that would require the Secretary of State to consult the Parole Board about the resources required for additional hearings resulting from the implementation of this clause of the Bill, which deals with the arrangements for the Parole Board, and lay a report before Parliament containing his assessment of the resources required for additional hearings and his plans to ensure that the board has sufficient resources to fulfil the requirements of the proposed section.
The amendment was the subject of debate in Committee. It was prompted by the growing pressures on the Parole Board and the impact that they were having on the timely discharge of its responsibilities. In that debate I expressed concern about the effect on the board’s workload of a number of provisions in the Bill as a result of the number of categories of offender being made subject to the decision of the board in relation to release instead of being eligible for automatic release after serving two-thirds of their term. These cases include prisoners convicted of terrorist and explosives offences, who would be subject to the enhanced dangerous offenders scheme, all offenders serving extended determinate sentences, and others who would be subject to discretionary, rather than automatic, release after serving half their term. In addition, the Bill prescribes a new release test for recalled prisoners.
All these factors threaten a substantial increase in workload, with a potential requirement, on the Government’s own estimate, eventually, of 1,000 extra prison places. The situation is certain to be made worse by a substantial anticipated rise in oral hearings consequent on the decision of the Supreme Court in the case of Osborn. Given the department’s track record in forecasting the effect of IPPs on prison numbers, there must be some doubt, to put it mildly, as to the robustness of its estimate. As it is, the board is anticipating holding an additional 4,500 oral hearings a year.
The Minister wrote to me on 29 July in reassuring terms, saying that the experience of the first few months after the judgment showed that the board’s predictions about the caseload were too pessimistic, and that in any case, it was,
“developing significant changes to its operating model and these were being tested”.
The Minister affirmed that the resources question would be kept under review and, of course, I welcome that. It would, however, be interesting to know what the projected caseload in that respect now looks like and what the anticipated cost is and to receive an assurance that any extra work for the board, and its already reduced staff, will not be at the expense of its basic caseload and the times in which it can deal with hearings. Will the Minister provide his assessment of the cost of the additional hearings and how and when this will be met? In particular, will he tell us what consultations have taken place with members of the board and others over the proposal for one-member panels for determinate sentence reviews and two, instead of three, members for indeterminate case reviews?
The Minister hinted somewhat coyly that the Government were,
“considering a number of options”
to address the situation. Three months after the relevant debate in Committee, and all of six days before the first day on Report, the Government unveiled their proposal to create an entirely new service, recall adjudication, which is the subject of the Government’s amendments in this group and of my further amendment. The Government’s proposals are based on the judgment of the Supreme Court in the Whiston case, which the Government interpret as giving a green light in terms of compatibility with human rights obligations—assuming that these are not to be abrogated as the Tory Party attempts to fend off the threat from UKIP. Justice, however, the legal organisation, questioned the robustness of that interpretation.
The Minister organised a briefing meeting at short notice and will, of course, describe the proposal in the course of this debate as he speaks to the amendments in his name. In essence, however, the Government propose to allow the Secretary of State to refer determinate sentence recall cases to a recall adjudicator, which may, in a somewhat circular fashion, turn out to be the Parole Board. Consultations have apparently been held with the board and the judiciary. The Minister told those of us who attended the meeting that they had apparently approved the change, although, for some reason, there has been no public consultation nor, until now, any parliamentary involvement. Such parliamentary involvement, of course, in terms of this Bill, is at virtually the last gasp.
In his letter of 13 October, the Minister indicated that the department would be working with the Parole Board and other unidentified stakeholders on,
“the drafting of the rule”—
in the singular, strangely—
“the design of adjudicator model and the guidance underpinning this”.
That is all very well, but Parliament is not being consulted, nor will it have any opportunity to exercise any judgment about the proposals. It is simply being expected to sign a blank cheque with the promise that the resources aspect will be the subject of a report to Parliament—eventually—but with no apparent intention to seek parliamentary approval of this or any other aspect of what is, after all, a radical change. This is happening at a time when the Parole Board is in the middle of a triennial review which these proposals will clearly pre-empt.
As the Prison Reform Trust points out, even if it were proposed and acceptable for determinate sentence recall prisoners to be denied an oral hearing, why, at the £60 cost of a paper hearing, is it necessary to create a wholly new and untested structure? How sensible is it, when the whole system is caught up in a maelstrom of change and acute pressures which affect all the statutory players—the Prison Service, NOMS, probation, the police and the courts—to add another ingredient to the mix?
In the event the proposal may prove to be acceptable, but at this stage we have very little information to go on; for example, on the criteria on which the Secretary of State will rely, the qualifications, training and job description of those who will be employed, or, of course, the cost. Given the plethora of as yet unanswered questions, it would clearly be desirable for change of this magnitude to be the subject of a proper parliamentary process before what may, it is to be hoped, be a positive change. It is equally desirable, if not more so, to review the outcome of this untested change and secure parliamentary approval after a period in which its efficacy can be judged—hence the second amendment in my name, which is a sunset clause, as opposed to the original sunrise clause in Amendment 1.
I submit that it is not unreasonable to ask the Government to bring forward a report on the workings of this new arrangement, with details of full costs and the like, and then after a modest period to seek approval for its continuation. This habit of last-minute amendments, one with which we are becoming too familiar, not merely from this department but from others, impedes the proper functioning of parliamentary scrutiny and of your Lordships’ House in particular. The Minister is not personally responsible for that, but his political master is, and it is time that the Lord Chancellor and Secretary of State bore in mind the role of this House and of Parliament as a whole in considering matters of great public moment such as those that affect the Prison Service, those who work in the Prison Service and, of course, those in their custody. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to make one very small point about the Government’s proposals, which is mainly to do with the name “recall adjudicator”. I understand that when a district judge goes to prison and hears cases and then gives an additional period in custody to prisoners who offended while in custody they are referred to as adjudicators. We will have adjudicators turning up at the prison gates, plus recall adjudicators. I wonder whether that is a sensible way to proceed. I raise that as a small point.
Lord Beecham
My Lords, I am grateful to the Minister for his typically clear exposition of the Government’s position—or some of the Government’s position. I thought there were some omissions in how he put matters. He adopted the Candide style of defending the Government, where everything is the best of all possible judicial worlds, but that might be a slightly flawed approach in the circumstances. He did not, for example, deal with the point of the Government’s own estimate of 1,000 extra prison places being required as a result of the changes in category. That was before the Osborn case, which will clearly increase the load further. It may be that the board’s original estimates were on the high side, but there can be no gainsaying the fact that the board would be required to conduct a great many more oral hearings than at present.
There may well be merit in the Government’s proposals for recall adjudicators, but I do not know why the Minister should be so hesitant about reviewing the position in a couple of years. If, indeed, he is confident that the system will work, there would be no problem. If, on the other hand, the system presents problems, it is as well to deal with them before too long a period of time passes. I should have thought that the sunset position in respect of the new organisation would be worth considering. The problem that the Government and the Parole Board face is, of course, the huge number of matters to be dealt with. The noble and learned Lord, Lord Lloyd of Berwick, will hopefully be making his contribution to reducing those numbers, shortly, perhaps. We will see what happens.
At the moment, what we seem to end up with is a two-tier system and it is not quite clear to me how the two organisations will be managed. The Parole Board exists as a board. Will the adjudicators, for example, be directly a board or will there be a separate board for that? All of this is up in the air. It is, frankly, not good enough for the Government to say that they have to rush this legislation through because of the Whiston case. That is not the case at all. They could have taken the time to consult, not only with those within the system but with those outside it, and not simply—though necessarily—with the House of Commons and your Lordships’ House, but with other interested parties. None has been given an opportunity to be consulted on a major change of this kind. I do not blame the Minister, but it is regrettable that the Government have acted in this rather typical way under the aegis of the present Lord Chancellor.
I will not divide the House on this matter. We hope that the system works. We would like the Government to consult widely, even now, on how the matters are to be taken forward, and to keep the matter under review. It may be that, for example, the Justice Select Committee will want to look at the operation of the new system after a period. However, that does not excuse the Government for bringing legislation to us at short notice, in a matter as important as this, without allowing for a proper examination. Having said that, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I welcome the noble Lord, Lord Ashton of Hyde—more Jekyll than Hyde, I would have thought—to the Dispatch Box on what I think is his first occasion and congratulate him on the way in which he has presented the amendments. I look forward to working with him until he starts speaking from this Dispatch Box next May.
There is nothing much more to be said because, on these amendments, there is no great concern on the part of the Opposition or anybody else. Nevertheless, I am sure that the House will join me in congratulating the noble Lord and echoing my anticipation of listening to many more contributions from him on this Bill. I dare say that the noble Lord, Lord Faulks, would welcome some help from him during the next few days, and I am sure that he will get that.
Lord Ponsonby of Shulbrede
My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.
Lord Beecham
My Lords, the Bill extends electric monitoring, a procedure which thus far has proved problematic and extremely expensive, when you think of the problems with G4S and I think Serco in the contracts that they had. It extends the principle into new territory—namely, that of prisoners on licence. The policy in that respect has been criticised by the Chief Inspector of Prisons on the grounds that there is little evidence of absconding or committing further offences while prisoners are on licence. It would be interesting to hear the Minister’s comments on that. In passing, I hope that he is in a position to deny current rumours that the highly respected chief inspector is unlikely to be reappointed. He has a deserved reputation for the job that he has been carrying out in difficult circumstances for the last few years.
The impact assessment in support of this provision is somewhat feeble. It states:
“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage, as ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact”.
In other words, this is an impact assessment with no impact whatever. As the following further statement confirms, the number of additional prison places cannot be accurately estimated. Let us reflect on the terrible overcrowding in our prisons now, with a shocking rise in the number of suicides, as we read at the weekend. What is the Government’s estimate of the likely impact of the implication of this new technology, in terms of both cost and of increasing the prison population?
The way in which the Government intend to progress the matter is, as usual, equally unsatisfactory, with the Secretary of State empowered to impose a code of practice without parliamentary scrutiny or approval—hence Amendment 8, which would require such parliamentary approval for the code of practice that the Government envisage. Perhaps the Minister could tell us what is happening about the code. In Committee, the then Minister, the noble Lord, Lord Ahmad, who has escaped or is on licence to another department, said that a revised code would be issued to promote transparency in relation to outsourced services. What is happening about this? What consultations have taken place, and with whom? Will there be reports on the outcome of those consultations?
Amendment 7 would make contractors subject to the provisions of the Freedom of Information Act in the same way as public authorities. It seems absurd that, in the world of the Ministry of Justice alone, Her Majesty’s prisons are subject to FOI requirements while private prisons are not. Given that we are talking about encroachments on the liberty of the individual—and they may well be justified in many cases—it is surely necessary to extend the protection of the FOI regime to this area. I should make it clear that we are not against electronic monitoring, as it clearly has a place, but it must be technically effective and cost effective, especially in the light of the previous experience, with the contracts that went so badly awry and led to large sums of money having to be reclaimed from the contractors, and applied sensibly. We have very little to go on at the moment in terms of how the new scheme would work.
Lord Faulks
My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I should begin by suggesting that Amendment 6 is, perhaps, not as well conceived as it might be, because it would provide for the court to decline to impose an electronic monitoring condition in certain cases. However, the court has no role in setting conditions for offenders released from custody on to licence after serving the required part of their sentence. This is a matter for the Secretary of State, through the governor. The parole board also makes recommendations as to licence conditions when the offender is subject to discretionary release.
In the case of an electronic monitoring condition imposed by virtue of an order made under proposed new Section 62A of the Criminal Justice and Court Services Act 2000, as inserted by Clause 7, this is solely a matter for the Secretary of State, through the governor. The amendment would actually have no effect. However, I understand the concern behind the amendment, which is that offenders should not be made subject to compulsory electronic monitoring when this is unsuitable for some reason, or when it is impractical. We recognise that there will be offenders who are unsuitable for compulsory electronic monitoring. For example, this may be because of physical or mental health issues, or because of a practical problem, such as not being able to make arrangements for the offender to recharge the battery in the tag.
These issues are, we suggest, already dealt with by the clause. The order-making power specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply. I appreciate that this may not be immediately obvious from a reading of the clause, but the Explanatory Notes—although I take the comments of the noble Lord, Lord Beecham, about their inadequacy in some respects, and I shall come on to deal with that—are helpful in this regard, as indeed was my noble friend Lord Ahmad when he spoke on the matter in Committee.
Lord Beecham
Could the Minister indicate whether there will be consultation on those proposals, and with whom?
Lord Faulks
I hope to come to that in a moment.
As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.
We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.
I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.
I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ, and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.
On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.
I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I join other noble Lords in paying particular tribute to the noble and learned Lord, Lord Lloyd, who has been indefatigable in pursuit of correcting an injustice. I will say at the outset that while I agree from these Benches that action needs to be taken to redress the situation, I will not be going through the Lobby with him, but nor will I, if the Government resist this amendment, go through the government Lobby. The problem is that the amendment may extend to people within the category, most of whom should certainly by now have been released, but who nevertheless remain, on proper assessment, people with whom there would be a risk if they were released. I submit that the correct procedure is for the Lord Chancellor and Secretary of State to exercise the power that is clearly given to him in the legislation.
One of the issues that has so troubled Members of this House and many outside is the failure of successive Governments—and I am afraid that it was true of the Labour Government—to provide the necessary resources which would enable people in serving these sentences to qualify for release. I am minded to refer to a letter which I received a month ago—one which other Members of your Lordships’ House may also have received. It is not from somebody who has actually been imprisoned for as long as those who are the subject of the amendment, but it is nevertheless a very telling example of what is still happening as a result of that failure to provide the resources, and shows the need for the system to be robust in examining the cases. I am not sure whether the writer of this letter would want me to quote their name or indeed the name of the prisoner on whose behalf the letter was written, but it will give a flavour of the situation, which is much worse for those who have been inside prison for a longer period.
The person in question, the correspondent tells me, was charged with attempted actual bodily harm and grievous bodily harm with intent, and was given a three-year IPP. He is now a year and a half over tariff, which is much less than those who would be covered by the amendment. In addition to the stress of not knowing how long his sentence will continue, during his incarceration he has suffered the loss of his wife and mother, and has been diagnosed with lupus and is obviously on medication for this. He has been an enhanced prisoner virtually throughout his sentence, with no reprimands, sanctions or IEP warnings. He is the healthcare representative for his wing as well as the violence reduction and older persons’ representative. He has undertaken every course advised by the authorities and completed his sentence plan. Together with fellow IPP prisoners, he now needs to know what further action they can take to secure their release date. Just knowing their official release date would give both them and their families something on which to focus. Having a definite date when their future will start will enable them to put their past troubles behind them. To have no end to their sentence is surely unacceptable in this day and age, and in fact is the reason that this whole system was deemed out of date and not viable.
That is a very clear illustration and telling indictment of the present situation. It has to be corrected. For the reasons already given, I do not believe that the noble and learned Lord’s formulation quite meets those requirements or deals with—
Lord Wigley
If this formulation does not meet the requirements, why has the Labour Party not put forward its own amendment to do so?
Lord Beecham
Because the Act to which we have already referred gives the Secretary of State the power to do exactly what is required. He should be exercising that power, and that is what we would expect him to do.
We share the concern of all Members of your Lordships’ House, and the deep anxiety voiced about what is happening to people who serve much longer sentences than the person whose plight is laid out in this correspondence. We call upon the Government to use the power that they rightly conferred upon themselves just two years ago. In that way the matter can be resolved. Of the 650 prisoners, while some are still deemed to be at high risk, many are already deemed to be at low risk and on that account very likely to be released. As other noble Lords have pointed out, that will free up prison spaces and potentially reduce the cost to the public purse, both of which are highly desirable objectives. Therefore I hope the Minister can give an indication that action will be taken—if not necessarily strictly along the lines that the noble and learned Lord, Lord Lloyd, has proposed then in some other way—to deal with the appalling situation affecting too many people which has accumulated over the years.
Lord Faulks
My Lords, this has been an excellent and very well informed debate, with contributions from sources well versed in the law and experienced in criminal law, and sources who had occasion to come into contact with the law and its implications. I am grateful for all those contributions, many of which were extremely economical—I congratulate noble Lords on their restraint in allowing the House to proceed—but powerful.
We return to this subject of IPP prisoners who remain in prison despite the fact that the sentence has now been abolished and may not be imposed on offenders convicted after December 2012. We debated a very similar amendment at length in Committee so I do not intend to rehearse the entire debate we had then. Noble Lords are well aware of the Government’s position and we do not think it would be right or appropriate retrospectively to alter IPP sentences that had been lawfully imposed prior to the sentence’s abolition, particularly because these sentences were imposed with public protection issues in mind. However, I recognise, as many noble Lords have said, that fairness—an elusive concept though that is—should be at the forefront in considering these issues, as should the equally elusive concept of justice that is vital in considering issues of this sort. I am also painfully aware of the implications of keeping any prisoner one day longer than he or she ought to be kept in prison because of the expense involved, expense that we can ill afford, but the Secretary of State has to balance concepts of fairness and justice with his duty to protect the public.
Perhaps I may make one or two observations about the history, which has been summarised by noble Lords in the course of this debate. While echoing the worthwhile tributes paid to the noble and learned Lord, Lord Lloyd, for his tenacity in this area, I cannot quite agree with his assessment of the disparity in position between short-tariff IPP offenders sentenced before the 2008 reforms and those sentenced afterwards. It is not the case that, prior to 2008, courts were without any discretion in imposing IPP sentences. It was in the court’s discretion to judge whether the offender met the high risk threshold set out in the 2003 Act—did he present a significant risk of serious harm? The presumption that he presented such a risk if he had committed a previous Schedule 15 offence was a rebuttable presumption, and the court was free to disregard it if it was not a reasonable view in the individual case. I do not deny that, where they found the offender to meet the dangerousness threshold, courts were indeed obliged to impose IPPs on eligible offenders, and that was plainly Parliament’s intention.
I should also stress that it remained possible to receive an IPP with a lower tariff than two years until IPPs were abolished by this Conservative-led Government by the LASPO Act 2012 where the offender had a serious previous conviction, and in fact a number continued to get short-tariff IPPs. It is likely that some of those sentenced to IPPs with short tariffs between 2005 and 2008 would have remained eligible for an IPP, and perhaps received an IPP after the 2008 reforms. I cannot agree, therefore, that this group of IPP prisoners can be presumed to be less dangerous than other IPP prisoners.
As I have said before, it is right that offenders serving indeterminate sentences of imprisonment for public protection—a species of preventive detention, as the noble and learned Lord, Lord Brown, said—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. The noble and learned Lord, Lord Lloyd, and a few others have seen an analysis of management information, prepared last year, relating to the situation of IPP prisoners who were sentenced prior to July 2008 with tariffs of under two years, who remained in prison and whose tariff had expired.
It is true that initially the cost of providing the information, which has been accurately summarised by the noble and learned Lord, was considered too high but, such was his tenacity and, as I understand it, such was the respect that the Ministry of Justice had for him, the information was provided and has been summarised by the noble and learned Lord. The position is that my colleague the Prisons Minister, Andrews Selous, has agreed with the House authorities that the information can be lodged in the House Library. It will take one week for this to appear but I confirm that he has requested that it be put in the Library. However, I can also confirm that the figures that the noble and learned Lord announced were accurate, so they have informed the debate in terms of the numbers and the periods in prison.
Lord Beecham
“Stop and search of children below the age of 10
In section 1 of the Police and Criminal Evidence Act 1984 (power of constable to stop and search persons, vehicles etc.), after subsection (2) insert—“(2A) Where the person is below 10 years of age, an appropriate adult must be present before the search may be undertaken.””
Lord Beecham
My Lords, this amendment addresses the problem of stopping and searching children below the age of 10 and requires an appropriate adult to be present before the search is undertaken.
As I said in Committee, the amendment stems from the report of the All-Party Parliamentary Group on Children chaired by my noble friend Lady Massey. In reply to a request for information about stop and search, the group was told that between 2009 and 2013, 1,136 children under the age of 10 were subjected to the process in 22 police force areas. The figures are something of an underestimate because the Met’s record did not include 2009 and 2011, and other forces did not supply information. It is noteworthy and somewhat surprising that the Sussex police force apparently conducted 454 of those searches, which is a high proportion of the total number. That suggests either that there are some particular problems in that force’s area, or, perhaps more probably, that recording elsewhere is not reliable, so the national figure is probably understated.
It is regrettably apparent that there is no complete picture of the number of children under 10 who have been subjected to this procedure, such that the scale of its use can really only be estimated. In Scotland, 72 children of seven years or under were stopped and searched. Some forces make an effort to take a child home before searching, but they were unable to say how many looked-after children were subject to the procedure, and only 20 police forces—around half—had separate custody facilities for children in the police stations.
The all-party group very reasonably suggested that data should be collected in relation to ethnicity and on other aspects, noting that among the forces that supplied data on the ethnicity of under-18s, 41% were black and Asian—a disproportionately high quotient. It was noted that some forces do not even record the names and addresses of these children or their dates of birth.
The Home Office has reviewed stop and search powers in general. I congratulate the Home Secretary on the steps taken in that respect, but specific guidance on this issue appears to be lacking. In his reply in Committee the Minister appeared to be somewhat complacent, if I may say so, when he stated that existing provisions were adequate. He referred to the safeguards already in place for stop and search powers, stating that the police were obliged,
“to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure”.—[Official Report, 14/7/14; col. 471.]
We are talking about children under the age of 10. How realistic is that assurance in the circumstances? As I said, in Scotland and possibly other force areas, children under seven were subjected to the procedure.
The all-party group made a number of recommendations, including that an annual review of stop and search powers should assess the proportionality of stop and searches in relation to age, including the stopping and searching of children under 10. It recommends that the PACE code should be revised to require the recording of the date of birth of children and young people on stop-and-search forms and central recording systems, with specific guidance on carrying out the procedure, including advice on safeguarding and child protection, and that steps should be taken to protect vulnerable children—for example, those in care or at risk of abuse.
It said that the annual review should assess the proportionality of stop and searches of under-18s in relation to ethnicity; that the Home Office and the DfE should work with police to consider how best to monitor the rates of search of looked-after children; and that all newly built custody suites should have a separate area for children and young people, with the Home Office directing forces to consider the allocation of areas to be used separately for children and young people within existing facilities. Finally, it suggested that the Home Office should work with ACPO to share good practice in developing juvenile custody facilities.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for setting out his amendment so clearly. What lies behind it is wholly understandable. However, it must be put in the context of the significant programme of reforms that the Government have introduced on the police use of stop and search, to which the noble Lord did make reference.
Noble Lords will be aware that on 30 April, the Home Secretary announced a comprehensive package of measures to reform the way that stop and search is used. The measures, some of which were launched on 26 August, will ensure that the powers are used fairly, effectively, and in a way that encourages community confidence. These measures will impact positively on all sections of the community, including children. The Government are highly sensitive to the need to ensure that sufficient safeguards are in place so that the public can trust the police to use all their powers appropriately. The Police and Criminal Evidence Act and its codes of practice have robust safeguards that ensure consistency, transparency and rigour in the way in which stop and search is used by the police.
The use of stop and search has reduced significantly under this Government. However, these powers are vital in the fight against crime and the police must be able to act promptly should they have a reasonable suspicion that a person is carrying an unlawful item. It is a sad fact that in some areas it is quite common for children under the age of criminal responsibility to be used by older children and adults to carry drugs and weapons and, in some cases, firearms for the criminal benefit of others, either in the hope that police may not suspect that they are being used to carry the items or in the knowledge that if they are suspected of being couriers or are stopped and searched, they cannot be arrested or prosecuted for any criminal offence because they are below the age of criminal responsibility.
There are also operational difficulties. How does a police officer judge a child’s age with any precision? What do the police do while waiting for the “appropriate adult” referred to in the amendment to arrive? There are safety issues, too. What if the child has been given a gun or a knife by older gang members? One knows how easy it is for older gang members to manipulate younger ones.
These issues need mature consideration. That is why I maintain what I said in Committee, that although we remain open to revising or improving—if appropriate—the very considerable steps we have taken to improve stop and search powers, we will await the final report at the end of this month and take notice of any recommendation to change the operational procedures. However, I am sure the noble Lord and the House will bear in mind the significant reform package that we have already brought before the House.
I will me give a further example of the operational difficulties that might be caused if this amendment were to find its way on to the statute book. Imagine that a fight breaks out between two gangs of youths and the police have reasonable suspicions that weapons have been concealed. If the police were then required to wait, this could prevent them from acting in a case where there is an immediate issue of public safety involved. That could be difficult, as I am sure the House will understand.
There are already important safeguards attached to Section 1 stop and searches, which were outlined when the amendment was last debated on 14 July. They apply to anyone who is stopped and searched, regardless of age. Furthermore—this is worth stressing—Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions.
This is stop and search—which is, one hopes, a fleeting encounter to, if necessary, disable somebody who the police reasonably think has something that they need to have removed from their possession. However, in response to the noble Lord’s understandable concern, let me stress that the Government have made a priority of ensuring that stop and search should be used fairly, so that the police target this power when they have reasonable suspicions that a person is carrying an unlawful item. In those situations, where there is a risk to public safety, we suggest that it is right that the power to stop and search an individual is not unduly restricted, regardless of age.
Unfortunately, it is not entirely a creature of a bygone age, as the noble Lord suggests, in harking back to Oliver Twist or something of that sort. There is a case that, unfortunately, young children are used in the way that I have described. The requirement to wait until an “appropriate adult” turns up is difficult, and unnecessary in light of the safeguards that exist to protect the welfare of children under the age of criminal responsibility.
While I understand the noble Lord’s concern, and the initial hesitation that anybody would have with a child under 10 being involved in the criminal justice system, we suggest that there is reason for this power to exist, appropriately circumscribed in the way that I have attempted to describe. For those reasons I ask the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I am grateful for the Minister’s response. I shall not ask the House to divide on the amendment but I will make a couple of suggestions to him. First, in the mean time, the proper recording of events—ascertaining names, addresses and dates of birth—should become pro forma. It is surprising that it is not yet universal. It would be a relatively straightforward matter. I presume that it would be for the Home Office to direct the police authorities, but no doubt words ought to be had with ministerial colleagues about that. Secondly, given that Scotland has now changed the law, I suggest that in a year or 18 months, whichever Government are in office at that time—I hope that it might be a different one—could look at the Scottish experience. I take the Minister’s point but it is more relevant to the stopping than to the searching. We agree that it necessary for the police to stop, but the question is about the search part of it. Given that Scotland has made a change in respect of the age of 12, I would have thought that its experience, within a relatively short period, would be relevant here. If the Minister would be good enough to give an undertaking—if he or his party are still in office at that point—that that would be put into force, it would be a welcome concession. I hope that an incoming Government from our party would take the same position. In the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
“Identity theft
After section 9 of the Fraud Act 2006 (possession etc. of articles for use in frauds) insert—“9A Identity theft
(1) A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person.
(2) A person who is guilty of identity theft is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both).
(3) The Secretary of State may by regulations set out what constitutes a defence under this section.””
Lord Beecham
My Lords, Amendment 51 relates to identity theft, which is a growing problem, particularly in this age of cybercrime. It is rising rapidly and is estimated to cost more than £3 billion a year. It is usually referred to in the context of fraud and economic crime but, as I said in Committee, a number of offences could apply to the use of someone else’s identity; for example, those under the Fraud Act 2006, the Forgery and Counterfeiting Act 1981, the Criminal Justice Act 1987 and the Theft Act. As the Minister said in Committee, these relate to the use of a false identity for fraud purposes. For example, Section 2 of the 2006 Act deals with the crime of fraud by false representation. In the Minister’s words, this would,
“cover a person pretending to be someone else for the purposes of making a gain for himself or another”.—[Official Report, 14/7/14; col. 485.]
However, the motive might not be economic gain; it might be to obtain information for personal reasons or in the course of undercover activities, such as some of those that have featured in industrial disputes or civil liberties and environmental campaigns. There is also the kind that I saw demonstrated in a remarkable one-man show at the Edinburgh Festival by the stand-up comedian—if that is not too limited a description—Mark Thomas. He had been working for an environmental campaign and someone attached himself to it—not an undercover policeman in this case but an undercover person employed by someone else. It took a long time for this chap to be exposed but exposed he was. He had used a false identity to become involved in the organisation.
In Committee, the Minister criticised the amendment on the grounds that it would also apply to innocent persons; for example, people who collect a parcel from the post office using a relative’s identification. That is a little far-fetched. It ignores the unlikelihood of anyone being charged with an offence in such circumstances and, perhaps more relevantly, the explicit provision contained in the amendment empowering the Secretary of State to set out in regulations what would constitute a defence to a charge under the proposed new section.
In fairness, the Minister outlined a range of initiatives being pursued by a variety of bodies and this is welcome, although it is unclear how co-ordinated the activity is. However, given the very serious concerns about fraud and infractions of privacy, it is surely time to consolidate and update the legislation. I suggested that it would be helpful to hear a report on progress in this area before Report, and it is disappointing that this has not occurred. I request that the Minister takes another look at the issue to see whether he can come back at Third Reading with a more helpful resolution to the problem. For the avoidance of doubt, I assure him that the amendment is not designed to protect Nigel Farage and UKIP from identity theft at the hands of David Cameron and the Conservative Party. I beg to move.
Lord Faulks
My Lords, the Government recognise that there are significant challenges in dealing with the many consequences of identity theft. However, as I explained in Committee, these challenges relate to the difficulty of identifying and catching offenders, rather than to any lack in the criminal law.
The proposed amendment suggests:
“A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person”.
It omits any reference to the consent of that other person and proposed new subsection (3) leaves the defence to be made by regulations set out by the Secretary of State. That is a fairly novel proposal: a Secretary of State who does not enjoy the undivided confidence of the party opposite is being asked to set out in regulations the nature of the defence.
Lord Faulks
I am flattered by the suggestion. However, whether it is done by me, an official or anyone else, it is a slightly strange way of formulating an offence.
I respectfully ask: where is the gap? The Fraud Act 2006 already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purpose of making a gain for himself or another.
While identity theft is not in itself a criminal offence, the use of a false identity for the purposes of fraud is. As drafted, the amendment would apply to innocent persons who were able to represent a relative or partner when conducting financial or domestic affairs on their behalf with permission from the identity-holder. The noble Lord cast some scorn on the example I gave in Committee of collecting a parcel on behalf of someone else. I accept that no sane prosecutor or police officer would take that matter further. None the less, it is alarming to think that that could constitute a criminal offence, albeit one that one would not expect the police or the prosecution to pursue.
I assure the House that the Government take identity crime extremely seriously. I should like to remind the House of some of the initiatives being pursued to prevent identity crime. We are working with banks and credit card companies to promote technical solutions to identity theft to help the victims of such crimes. We are also working with credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Call Credit. The Home Office is also leading a multi-agency strategic group formed to reduce the threat to the UK. The group is engaged in a range of activities to tackle the problem, such as strengthening the issuing process for government documents, tackling the supply of specialist printing equipment for criminal purposes, improving data-sharing of false identities and taking down websites offering false documents for sale.
Lord Lexden (Con)
My Lords, I am glad to support this amendment, just as I was very glad to support the previous version that my noble friend Lord Sharkey put forward in Committee. As my noble friend reminded us again this evening, in 2012 Parliament made a decision of major importance to the gay community. It made provision in law that all living persons who had been convicted of sexual offences that have subsequently been swept away should have the absolute right to apply to have those unfair convictions disregarded. The statute book was disfigured in 1885 by the Criminal Law Amendment Act, which contained a notorious provision, smuggled into the legislation late at night, which criminalised gay men—not gay women—for the first time for consensual sexual acts in private. That provision should never have been passed. It, and other discriminatory laws were repealed some 80 years later, after they had wrecked the lives of thousands of fine gay men. The majority of them are now dead and it must surely be right that the arrangements introduced in 2012 in respect of living persons should be extended so that the families of those no longer alive can seek true justice for their forebears, and so gain satisfaction and peace of mind that such belated justice can bring.
On behalf of the gay community I thank my noble friend for the care with which, since Committee, he has discussed his amendment, as he has told us, with Ministers and officials, and modified it in the light of their comments. This amendment is needed to complete a laudable rectification of great injustice. But it will do something else of great importance, as my noble friend Lord Black of Brentwood, who cannot be here this evening, made clear in Committee. It would signal to the many countries in the Commonwealth which maintain oppressive anti-gay laws for which this country was originally responsible that Britain now wholly rejects unjust and oppressive treatment of gay people and, so far as is possible, has made amends for terrible, terrible past errors. I hope that the Government will look favourably on this amendment.
Lord Beecham
My Lords, I join the noble Lord, Lord Lexden, in supporting this amendment. I hope the Government will look at it sympathetically. In previous debates, the Minister had some reservations about costs and the like, which have now been addressed by the amendment of the noble Lord, Lord Sharkey. I very much hope that the Minister will indicate that the Government are prepared to accept that.
If there remain any areas of doubt, then perhaps he would undertake to bring the matter back at Third Reading so that any potential difficulties or shortcomings might be addressed. It is clearly not easy to do that after 10 pm on the first day on Report. I hope we can resolve any remaining doubts at Third Reading, though if the Minister is able to accept the amendment this evening then so much the better.
Lord Faulks
My Lords, I thank the noble Lord, Lord Sharkey, for his continued concern and interest in this matter, and for his elegant and accurate summary of the progress of the amendment and the resultant meetings that took place with me, my noble friend Lord Bates and Home Office officials. I hope that the noble Lord is reassured that the Government now recognise his concerns, which have been eloquently supported this evening by my noble friend Lord Lexden, as they were in Committee.
The Protection of Freedoms Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people over 16. However, where someone has died, these provisions would not have the same effect. The Government accept that, as well as removing obstacles for the living to find work, there is a recognition that a disregard puts right a historic wrong, and that this would apply to the deceased as well as the living.
Following the helpful discussions the noble Lord, Lord Sharkey, had with me, my noble friend Lord Bates and Home Office officials, the Government are willing to explore ways of achieving disregards for the deceased, over a longer timescale. What I mean by “over a longer timescale” is not while this Bill is going through its process and not by Third Reading, as I understand my noble friend was indicating. He may ask why not. We have made some progress, but officials would want to carry out a full and proper assessment. Some issues that require attention include a precise definition of who could apply on behalf of the deceased. We have made progress in that. There is an assumption that the amount of applications will be manageable, but we want to carry out more work to obtain greater confidence on this, as each application does place a significant burden of work on the police in tracing local records. On documentary evidence, the effect of a disregard is not clear, as there are no police records to delete, and we would not want to destroy historic records from the National Archives.
These points were touched on in our meetings, but officials are most anxious that all those matters should be completely resolved before proceeding to legislate rather than to impose too heavy a burden, when we ask them to focus on so many other issues. We want to ensure that the decision to disregard maintains the current exacting standard to ensure that only the deserving are granted a disregard. Of course, there are very deserving cases.
While I cannot accept this amendment and I am not committing to introduce such a change in this Bill, the Home Office repeats its commitment to consider this matter and would be happy to include the noble Lord, Lord Sharkey, in any further discussions. He has done the House a great service by bringing this to our attention but I hope the assurances that I have given will allow him to withdraw his amendment.
Lord Beecham
My Lords, were any other Members present, they might share my bewilderment at being faced at a very late stage, not only today but in the process of the Bill, with a series of amendments of what can only be described as some complexity for those of us—and I suspect that is most of us—who are not familiar with the territory to which the noble Lord has introduced us this evening at some length. As he has said, it is not possible—it is simply laughable—to endeavour to take these amendments to a vote tonight, but it may also be difficult to do this in time for Third Reading. The Minister may be able to comment on that.
Among these puzzling amendments I am puzzled most by Amendment 106C, with its reference in particular to a defence of there being a view to publication of journalistic, literary or artistic material. I do not see how that meets the more substantive case that I can well see in relation to what might be called the Leveson issues in 106A. These are matters that clearly need to be investigated further. I do not know whether the noble Lord envisages having these matters dealt with at Third Reading, but frankly I should have thought that that was unrealistic at this stage of the Bill. There may be another opportunity with other Bills for these matters to be taken forward. They are of such complexity that it is unreasonable to expect them to be dealt with in the course of this Bill. If that sounds a bit too ministerial, I apologise. I apprehend that the Minister might for once think that I am on the right track. We shall find out shortly.
Lord Faulks
My Lords, the noble Lord, Lord Beecham, often sounds ministerial, and from comments that he may have made earlier this afternoon he is clearly anticipating events in May when he will be able to perform that task. I do find myself in the rare position of agreeing with his comments generally about these amendments, in that they have appeared very late—late even among the amendments that have appeared in the course of this Bill, and there has been no shortage of amendments and no shortage of complexity in amendments. Indeed, I pay tribute to Members of the House for managing to get through so many amendments of such complexity today. It has taken a great deal of restraint by Members to enable the arguments to be deployed, often by others. No doubt those Members who restrained themselves may have thought they would have made better arguments or expressed the arguments with more clarity than those who did speak, but admirable restraint was shown.
We come to consider these amendments. My noble friend Lord Marks will appreciate that the pressures of time on myself and my officials has limited my ability to respond adequately to what are plainly serious issues, as he has outlined. I intend to speak to Amendments 106C and 106D in this group first. Sections 77 and 78 of the Criminal Justice and Immigration Act 2008 already provide for the changes that have been proposed for the Data Protection Act. Section 77 provides for an order-making power permitting the Secretary of State to introduce a custodial sentence for breaches of the offence in Section 55 of the Data Protection Act 1998. The penalty will apply irrespective of who has committed the offence. Given that people’s liberty is at stake and the seriousness of the offence, it is vital that proper thought is given to the introduction of such a change. That is why Parliament also provided that there must be a properly undertaken and detailed consultation with the Information Commissioner, the media and other potentially affected parties before that penalty applies. Therefore, such a change in the law now would be premature.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 3 months ago)
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Lord Beecham
Lord Beecham (Lab)
My Lords, one of the most objectionable provisions in Part 4 of the Bill, which deals with judicial review, is embodied in Clauses 65 and 66, dealing with the provision of information about financial resources. Amendments 73G, 73H, 73M, 73Q, 73T, 73U and 73X in my name deal with this issue, alongside those in the previous group, which dealt with the procedural aspects covered in the Delegated Powers and Regulatory Reform Committee report and which we debated in somewhat curious fashion on Monday. Then, it will be recalled, we broke shortly before the dinner break business and the Minister had the unusual job of making a very short reply after the dinner break.
At Second Reading, the Minister described Part 4 as,
“a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails”.
The noble Lord went on in a minatory—or should I say “maxi-Tory”?—vein to say:
“Those who intervene in a case … can … add value … but we think it right that they should face the financial consequences of their decision to intervene”.—[Official Report, 30/6/14; col. 1542.]
This, as we will no doubt hear again today and heard at Second Reading, completely misrepresents the character of intervention, which, after all, requires permission from the court. It is very often provided in significant cases of public interest by reputable charitable organisations and equally often is found to be helpful to the parties and to the court. I cannot blame the Minister—the voice is the voice of the noble Lord, but the hands around the throat of judicial review are the hands of the Lord Chancellor.
Clause 65 requires an applicant for leave to apply for judicial review to disclose any information about the source, nature and extent of financial resources available, or likely to be available, to meet the costs of the proceedings. The nature of the information would, as we heard on Monday, be specified by rules of court effectively determined by the Lord Chancellor because, as was made clear on that occasion, the rules of court committee effectively has to implement what the Lord Chancellor desires to be done.
Amendment 73G is intended, on the assumption that Clause 65 stands part of the Bill, to provide for judicial discretion about the funding issue. I must concede that it is poorly drafted and the word “or” in the amendment should be replaced by “unless”.
Amendments 73H and 73M would remove the court’s duty to consider what information is, in the Government’s extraordinary formulation, “likely to be available”. “Who from?”, one wonders. Crowdfunding, charities, or repentant spouses of Russian businessmen deprived of tennis games with the Prime Minister? And what is meant by the test of likelihood? Come to that, what is meant by the test of availability?
Amendments 73Q and 73U would restore the court’s discretion in the matter of an order for a non-party to pay costs, while Amendment 73X would confine any surviving provision for the court to order costs to those who actually provide financial support rather than those likely or able to provide it, who may never have provided such financial support. It is of course interesting that no equivalent provision in relation to costs appears to apply to those who might benefit from—or even, I suppose, help to fund, directly or indirectly, the respondent to—an application, unless Clause 66(3) is intended to apply in such a case. Perhaps the noble Lord could confirm whether that is the position.
In general, however, the effect of Clause 65 is to threaten not only the applicant but those who might support an application with a liability for costs on the basis of guilt by association in the eyes of the Government—who might, of course, be the defendant. That is an improper approach. The whole object of the clause is clearly designed to provide what we have heard referred to in debates on the Bill thus far as a “chilling effect” on the judicial review process, and in particular on those who might wish to raise significant matters affecting the rule of law where, I repeat, the court has to grant permission in any event. It is a wholly improper concept and I hope that even at this stage the noble Lord will indicate that the Government are prepared to think again about it. If they are not, and we get to Report with the Bill unamended, serious consideration will have to be given as to what will happen thereafter, because the portents do not look good for the preservation of judicial review in this important respect. I beg to move.
Lord Pannick (CB)
My Lords, I have indicated my opposition to Clauses 65 and 66 standing part of the Bill and I agree with everything that has been said by the noble Lord, Lord Beecham. I do not understand why the Government are seeking to single out judicial review for such provisions, unlike any other form of civil litigation, unless the objective is to discourage judicial review claims. Where is the evidence of any mischief that these clauses are designed to remedy? Courts already have ample powers, which they exercise in appropriate cases, to require third parties to pay costs.
I am particularly concerned about the effect that these clauses will inevitably have because the reduction in legal aid already makes it extremely difficult for claimants to secure funding for judicial review on matters of public importance. If claimants are able to demonstrate that they have a properly arguable case on its merits, and if they satisfy other requirements such as standing and time limits, they should not be obstructed further by complex requirements—as these are—to disclose financial information.
In any event, Clause 65 is far too broadly drafted, referring as it does to financial resources “likely to be available” to the applicant. What does that mean? Does it cover the family and friends of the applicant, the law firm or law centre that is providing services pro bono and the charity that is supporting the claim? For all these reasons, I am concerned that Clauses 65 and 66 will impose a wholly unnecessary hurdle that will impede the delivery of justice in this important area of the law.
Lord Faulks
I cannot add much to what I have already said. For the first time, in statute—if this clause becomes law—we shall have a requirement for information about financial resources to be provided. We shall also have clear guidance to the court as to how it should exercise its discretion on using that information about financial resources. I think that the noble Lord himself said that it was useful to have some of these things stated in the statute. That is precisely what we are doing.
Lord Beecham
The Minister has battled with arguments from around the House with as much valour as Richard III displayed at the battle of Bosworth, and with approximately the same result. The Minister’s arguments fell very far short of providing evidence of the case that the Government are seeking to rely on. We heard from him and the noble and learned Lord, Lord Mackay, about two cases. I am not sure whether one of those was hypothetical or not—I think it was a planning matter of the kind that the noble and learned Lord referred to—and the other was the Richard III case. As to the illustration of Islington cited by the noble and learned Lord, I think that the circumstances would be different now. Speaking as someone whose daughter lives in Islington and whose son has just sold a tiny flat for an enormous amount of money in Islington, I think it would be difficult to find anybody who could be described as poor in large parts of that borough. However, leaving that aside, and more substantively, let us look at the Richard III case. There is a point, and it is a fair point, about shell companies being established for that purpose.
Lord Faulks
I am hesitant to interrupt the noble Lord, but since he is coming on to deal with Richard III, and I was asked a question about it, I now have a better answer than the one I gave earlier. He may be able to comment on my answer, so I shall give him an opportunity that he might not otherwise have had. The position is that in the Richard III case the claimant—a shell company—got an absolute protective costs order as the company had no assets, so no costs at all were payable when the claimant lost the case.
Lord Beecham
I repeat that I think there is a potential issue with shell companies. How many other cases of that kind have occurred? The only one we have heard about, and the only one to which the former Lord Chancellor has legitimately referred, is the Richard III case. How many of the other 336 cases that have been brought for judicial review in the past few years have involved what I agree is an abuse? If there is a problem, which the noble and learned Lord and the Minister are perfectly right to address, could it not be dealt with differently? If necessary, there could be legislation dealing precisely with that situation, rather than a general application of principle which could affect many others who are perfectly legitimately seeking to advance their claim? It is fair to say that the Minister has not given the impression of knowing—I do not blame him, because I am in no better a position—whether the court’s current discretion will extend, as implied by the noble and learned Lord, Lord Woolf, to dealing with that situation now. If it did not, we would be prepared to support and discuss what kind of amendment might be made to the Bill to deal with that particular and discrete situation, as I have no doubt other noble Lords, particularly noble and learned Lords, would be.
Lord Mackay of Clashfern
The noble Lord asked whether the examples I gave were both real. One, which I have dealt with in detail before, is an actual example, and the other was simply to illustrate what could happen under the case put forward by the noble Lord, Lord Marks of Henley-on-Thames.
Lord Beecham
Of course the noble and learned Lord is right. I should simply have referred the Islington matter to him as a substantive one. As I said, that is unlikely to be replicated in that particular borough in any event, but that is by the way.
The Minister has signally failed to answer other questions, particularly what is meant by availability and the likelihood of availability. That question has been left in the air, which is not at all satisfactory. We have debated legal aid in this House before, as we have the problems that applicants and their legal advisers will face in dealing with matters up to the stage when permission is granted. There is a real risk that costs up to that point will not be covered by legal aid. There are other areas that will potentially be governed by other proposals, for example concerning a residence test, which currently is under appeal. We will come on to those later.
Lord Mackay of Clashfern
My Lords, so far all noble Lords have spoken in the one sense in relation to this clause. Obviously, in the interests of balance, it is important to consider whether there is anything to be said in favour of the clause. So far as I am concerned, there has been a considerable growth in the number of interventions over recent years. I would like the Government to indicate to us—at some later point if they do not have the information now—exactly how many interventions there have been in the supreme courts. I use that term in its old form, because I think it is extraordinary that we now have senior courts and the Supreme Court. It is high time that the Supreme Court was regarded as the supreme court of the United Kingdom, while the High Court of Justice, the Crown Court and the Court of Appeal were the supreme courts of England and Wales. I hope that, after September, all being well, that may be corrected.
I am not aware that judgments have considerably improved in quality in recent years as a result of interventions, although there may be some way of estimating that. It is always a little difficult, but somebody may be able to do that for us and show the tremendous amount that the interventions have done. I know that the noble and learned Baroness, Lady Hale, for whom I have the highest possible regard for a number of reasons, has said that they are often helpful. I am sure that that is true. Everybody wants help; at least most people with any degree of humility are glad to get help, from whatever quarter it comes.
The noble Lord, Lord Marks, referred to an aspect of this which I think has to be taken into account. Some of the interveners are campaigning organisations, which are campaigning for a particular result. You may take it that they had a good shot at trying to persuade Parliament to go along with them and that, having failed at that, the campaign is continued once the law is passed. These are not conclusive arguments one way or the other, but I personally find this clause too prescriptive in any event. If there is a real point to be considered, the clause needs some revamping, possibly in the light of the amendments that have been proposed. At the moment, I am anxious to see just why there has been a huge increase—as I think there has been—in the number of interventions in recent years. The first intervention that really came to my notice to any substantial extent was an intervention in this House in a case that became rather important for a number of reasons.
Lord Beecham
I am sure that when it comes to interventions, the Minister is extremely grateful to the noble and learned Lord, Lord Mackay, because I suspect that no other intervention has offered him any assistance. The noble and learned Lord might recall that there have been, I think, 50 cases in the last 13 years in which bodies of the kind that he referred to, such as charitable organisations, have intervened. That is not, on the face of it, an inordinate number, just as the total number of judicial review cases—other than immigration cases which are no longer dealt with in the courts—is fairly modest.
Moreover, interventions take place only with the leave of the court. If there were a right to intervene that would perhaps give some force to the noble and learned Lord’s misgivings, but it is for the court to determine whether interveners should be allowed. That point has been made clearly today and on other occasions. It seems to me that the Bill’s provisions in relation to interveners are based on either a misunderstanding of their role or a misrepresentation—deliberate or otherwise—of how it works in the real world, rather than the world the Minister of Justice appears to imagine exists. As we have heard, the role of interveners is to assist the deliberations of the court, not to meddle. Of course, no intervention can be made without the court’s consent.
We have heard powerful speeches from the noble Baroness, Lady Campbell, and the noble Lord, Lord Carlile, who have direct experience of the role of intervention on—almost—different sides. Clause 67 seems to me to be a full-frontal assault on the principle of intervention. As has been stressed today, in earlier debates and in many of the briefings that we have received, this clause is clearly designed to deter contributions to the determination of judicial review applications. Again, leave for contributions must be obtained from the court and, as we have heard exemplified today, such contributions are very often most helpful to the court.
I shall speak to Amendments 74A, 74B, 74E to 74G, 74J and 74L. These amendments broadly follow the theme of preserving the court’s discretion in these matters where the Bill would fetter it, usually for the benefit of the respondent and often, therefore, of the Government. Clause 67(2) illustrates perfectly the Government’s attitude to the principle of equality of arms. It prohibits any order for costs in favour of an intervener. This provision is clearly aimed at charities and voluntary organisations, as opposed to commercial or statutory organisations which are well able to afford the costs of intervention, and it is heedless of the likelihood of thereby discouraging helpful interventions. Amendment 74A would therefore allow the court to make an order for a relevant party to pay the intervener’s costs. Amendment 74B would emphasise the discretionary nature of such an order by adding,
“if the court considers it appropriate to do so”.
Amendments 74E and 74F would remove Clause 67(4), (5) and (6), which require the court to make a costs order against an intervener in respect of costs deemed to have been incurred by a party as a result of the intervention, save in exceptional circumstances, the latter to be judged in the light of criteria, once again to be specified in rules of court, and again, therefore, effectively determined by the Lord Chancellor.
Amendment 74F would allow the court to make an order against an intervener where it considers it just to do so, and provided that exceptional circumstances apply. This would be defined by a new Clause 67(6) as where the intervener has in substance acted as if he were the principal applicant, appellant or respondent. If an intervener takes on that kind of role then he could be ordered to pay costs if the court so determines, as he could if he were a party. As an alternative, Amendment 74G, which is very much by way of a fall-back provision, would at least change the requirement in Clause 67(4) to make an order against an intervener from being mandatory to discretionary, which Amendment 74J would complement by adding,
“if the court considers it appropriate to do so”.
Noble Lords, in particular the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, who are highly experienced in these matters, have expressed profound concerns about the nature of the Bill’s proposals. We have had indications from the Minister in the past that the Government are perhaps open to argument and persuasion about this. I very much hope that we can hear from him confirmation of that. I hope that some move will be made in the direction of allowing this process—which is of great service to the administration of justice—to continue without the threat which would impede and deter potential helpful interventions from those in the best position to advise the court, which after all retains the ultimate decision.
Lord Faulks
My Lords, I am afraid that I am unable to resist thanking all noble Lords for their interventions on this debate. They have been extremely helpful, and I mean that. This is particularly in the light of the fact that I indicated at Second Reading—as has been referred to in the course of the debate—that we were listening to arguments about this clause. My honourable friend Shailesh Vara MP also gave such an indication in the other place. We will have benefitted greatly from the debate today in deciding on our final position.
Although the noble Lord, Lord Beecham, said that I was grateful for the intervention from the noble and learned Lord, Lord Mackay, it is of course the House which is grateful for all contributions on all sides. With great respect, the point about an intervention is not that it assists any one side, but that it assists the court. An intervention is there to assist the court. I noted and agreed with the noble Baroness, Lady Kennedy, who said that interventions are extremely helpful. They certainly can be extremely helpful, but not all interventions are equally helpful.
Clause 67 as currently constituted aims to strengthen the cost rules relating to third parties who voluntarily apply to join in a judicial review case as interveners. I stress “voluntarily” apply. These interveners can include anyone who is interested in the issues which the court is considering, and they seek permission from the court to intervene in a judicial review case through filing evidence or making representations. Of course, I accept the fact that interveners can add value and assist, as many noble and learned Lords have said. However, they can also delay and hinder. Sometimes they make arguments beyond those required by the court, or merely amplify or repeat those already made by a party.
Here I must declare an interest. I have been in a considerable number of cases where there have been interveners, at the level of both the Appeal Court and the Supreme Court, and on one occasion I acted for an intervener. In fact, I think that that was in the very same case in which the noble Lord, Lord Pannick, was also acting for an intervener. I am glad to say that we kept our remarks within the short compass, and our skeleton arguments were similarly brief. I do have experience of the mounting level of interventions in litigation.
The noble Lord, Lord Marks, referred to the possible chilling effect on those who habitually intervene; those were his words. With great respect, in his use of the word “habitually” there is perhaps an indication of something about which the Government are concerned. There are of course cases where the court is greatly assisted by interventions brought by a disinterested party, which can bring a particular knowledge or contribution to the debate. However, the court might be less assisted by those who habitually intervene and who have a particular agenda which may require or indicate that they support one side or another.
Lord Beecham
My Lords, who is to decide whether a habitual intervener should be allowed to intervene? What is wrong with the court making that decision of its own volition?
Lord Faulks
I was coming to that very point. Interventions can prove difficult for the courts to control. The reason I say that is because on occasions an application is made for an intervener to intervene and, on the face of it, the judge deciding whether or not they can intervene will do so on the basis that they have a knowledge of the case. The judge, having regard to the submissions that he or she receives, considers that the intervener might well be of assistance. The level and degree of intervention is then very often beyond the control of the judge who originally gave permission, so that one can then encounter—perhaps at the hearing of a judicial review, or at the Court of Appeal stage—a very substantial skeleton argument, bundles of authorities, and arguments which range very loosely around the subject matter of the dispute. Here I speak from experience.
Inevitably, this causes expense to all parties involved, whether the applicant or the respondent, because they have to consider the arguments. They cannot rest assured that the judge is simply going to ignore everything on the basis that it might be outside the scope of the intervention. Of course, good judges customarily curtail submissions made orally once the matter gets to the stage of a hearing, and do so effectively. That does not remove the danger of quite excessive levels of intervention and contribution.
Baroness Kennedy of The Shaws
I too feel very concerned about this capping of costs. I see it as being part of a pattern of seeking to reduce the discretion of judges. Of course government Ministers do not say, “We don’t have confidence in the judiciary”, but that essentially is what this is about. It is about saying, “We have to use law to do this because the discretion of the court cannot be trusted to do what we seek to effect”. This amendment is about insulating the Government against challenge. All the clauses that we have been discussing today are essentially about seeking to limit judicial discretion, judges being the people who can weigh up carefully the merits in order to reach just decisions. That is being interfered with to protect the Government from challenge. That is what it ends up being about.
I too, therefore, support the amendment. The Government should think again about how this is perceived. The sitting judges cannot stand up and speak on their own behalf, as we know, so it falls on those who have been judges or who are active in the courts to alert the general public to what is happening. What we are doing is fettering the power of judges to do that which is right in a given case.
Lord Beecham
My Lords, it might be convenient to consider this group and the following group as one. The noble Lord, Lord Marks, has addressed his amendments in that group. I strongly support the amendments tabled by the noble Lords, Lord Pannick and Lord Marks, to which I have added my name, together with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Carlile. I speak therefore briefly to the amendments in my name. Amendment 75 is particularly important in that it addresses the problems facing applicants for permission in the absence of legal aid for that stage. Amendment 75A provides that the court may make an order at any stage of the proceedings, in connection with Clause 68(3), and Amendment 75B would extend this potential protection to interveners whose position we have debated in a somewhat different context earlier today. Amendment 75E removes the reference to the court considering information of a financial nature if such is only “likely to be available”—a phrase that we have already debated —in respect of Clause 68(5).
Without the protection of the amendments in the group, not least from the Government’s proposals about a public interest test, which the Lord Chancellor conveniently empowered to define the terms of such a test, the protection offered to parties by this clause would be diluted to homeopathic proportions.
In the next group, Amendment 80B would apply to Clause 69(2) and provide that a costs capping order limiting or removing the liability of the applicant to pay another party’s costs where an order is not granted should “normally” rather than mandatorily limit or remove the other party’s liability to pay the applicant’s costs if that is the case. That introduces an element of reciprocity. Amendment 80C alternatively would allow discretion by substituting “may” for “must” in the subsection; again the issue of judicial discretion raises its head.
We have heard powerful speeches from non-lawyers—the noble Baroness, Lady Campbell, and my noble friends Lady Lister and Lord Davies—and, if I may say so, a magisterial rebuke to the Government from the noble and learned Lord, Lord Woolf; that was not for the purposes of delivering an admonition but to persuade them of the error of their ways, which I hope the noble Lord, Lord Faulks, will convey to the Lord Chancellor with some effect. These provisions thoroughly dilute what ought to be a sensible measure to protect claimants in this particularly important area of jurisdiction.
Lord Beecham
My Lords, I will compensate for the length of time that the noble Lord took—quite rightly—in moving his amendment by being commensurately brief in my remarks. On behalf of the Opposition, I support a stand part negative, as it were, in relation to Clause 70, for the reasons that the noble Lord advanced.
Amendment 82B, in my name and that of my noble friend Lord Kennedy, would effectively disapply Clauses 64 to 69 in favour of the terms set out, which would align the situation to that of the Aarhus convention. I think we are of one mind in inviting the Government to look again into this issue. It is another example of them failing to appreciate the implications—to put it in a benevolent sort of way—of what they are doing in this connection, not just to domestic concerns but to the international obligations to which we subscribe. I hope the Government will listen seriously to the noble Lord’s critique, look again at the amendments tabled, including the amendment in my name, and revise their position before we get much further down the road with this Bill.
Lord Faulks
My Lords, I am grateful to both noble Lords—my noble friend Lord Marks and the noble Lord, Lord Beecham—for their contributions to this debate. Clause 70 enables provision to be made to exclude judicial reviews about issues which relate entirely or partly to the environment from the revised costs capping regime established in Clauses 68 and 69, which we debated in the previous group. Clause 70 is to reflect our obligations under the Aarhus convention and the various European directives which implement it, which set out requirements for access to justice concerning environmental matters. This includes a stipulation that such procedures must be,
“fair, equitable, timely and not prohibitively expensive”.
This is relevant to judicial reviews in certain environmental cases. Allowing for such environmental cases to be excluded from the costs capping regime in Clauses 68 and 69 allows the Secretary of State enough flexibility to meet future changes in the international landscape. A separate regime has already been established in the Civil Procedure Rules to govern costs capping orders in such cases in England and Wales. It applies a fixed costs framework under which, in a claim raising issues that fall under the Aarhus convention, the liability of the claimant to pay the defendant’s costs is automatically capped at certain levels. This regime is simple to operate and understand.
Amendments 81C and 82B would seek to exclude certain types of judicial review from the provisions in Clauses 64 to 69. Those claims might be considered very broadly as “environmental”. Amendment 81C defines those cases that are excluded by reference to the Aarhus convention and introduces a requirement that, provided certain conditions are met, costs capping orders should be made in these cases.
Amendment 81C also aims to restore the full recoverable success fee and after-the-event insurance premium structure that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed, implementing the Jackson reforms to reduce excessive costs in civil litigation. Amendment 82C would seek to define what would fall within the definition of an Aarhus convention claim. Amendment 81A is contingent on Amendment 81C. Its effect is to make Clause 69 subject to the changes to Clause 70, which I have already discussed.
Attempting to define these claims in statute risks either being too generous and gold-plating the Aarhus requirements, or alternatively being too restrictive and missing out claims which should be caught by the Aarhus regime. The definition as set out in the proposed new clause is very broad, and appears to err on the side of gold-plating. In particular, we would not necessarily accept that all private law claims falling within the new clause should come under the term “Aarhus Convention claim”.
The Government see no reason for excluding additional cases, particularly such a broad range of cases as would be covered by these amendments. Too broad a definition would create an incentive for claimants to characterise their claims as “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability. In the Government’s view Clause 70, which allows for the exclusion of certain environmental judicial reviews from the new protective costs order regime which Clauses 68 and 69 will establish, is sufficient to ensure compliance with our obligations under the Aarhus convention and the directives which implement it. The proposed new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental and other matters and ensuring that judicial review is not misused.
I turn now to Amendment 82D. The new clause seeks to amend Section 10 of the LASPO Act, which makes provision about exceptional case determinations for individuals, and Schedule 3 to that Act, which makes provision about exceptional case determinations for legal persons, so that Section 10 and Schedule 3 would both refer explicitly to claims for judicial review related to the Aarhus convention. The Government do not believe that such an inclusion is necessary. First, funding would already be available to bring a judicial review with a potential benefit to the environment, subject to the merits and means test. This is in the scope of the general civil legal aid scheme by virtue of paragraph 19 of Part 1 of Schedule 1 to LASPO. Section 10 of LASPO provides for exceptional funding in cases that are outside the general scope of civil legal aid. Secondly, along with the provisions of the Aarhus convention, this amendment is concerned with reflecting EU directives. The current provisions under Section 10 and Schedule 3 already provide for legal aid to be granted where it is necessary to make the services available to the individual or legal person because failure to do so would be a breach of the individual or the person’s enforceable EU rights.
The noble Lord, Lord Marks, referred to reviewing the CPR. The Government have committed to reviewing the costs regime for environmental cases when the European Court of Justice handed down its judgment in the Commission v the United Kingdom case. Following that judgment in February this year, and recent case law, we are reviewing the current costs regime. As part of that review, we will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters, look at what scope there is to amend the current cap—which is currently £5,000 for individuals and £10,000 for businesses—and consider the principles determining what level of costs in a particular case would be prohibitively expensive, as set out in Edwards v Environment Agency and reiterated by the European Court of Justice in its various infraction judgments, and whether they could be included in the costs regime.
The Government do not accept that all private nuisance claims are caught by the convention requirements. They tend to focus on enabling those with interests in land to protect their private property rights rather than enabling members of the public to challenge environmentally deleterious acts. However, on the occasions where a private nuisance claim relates to actions which do not merely harm the claimant’s private property rights but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which may be relied upon by members of the public.
The Aarhus convention protects the right of environmental NGOs to bring judicial proceedings. It is not necessary to intervene in existing cases, so Clause 67 does not put the UK in breach. As to reviewing the application of LASPO to this area, I recall that during the debate when the LASPO Bill was going through Parliament there was an attempt to carve out an exception for cases of this sort. As the noble Lord, Lord Marks, and the Committee will have heard me say, the Government are committed to reviewing the effect of the LASPO provisions, but it is far too early to do so in this particular context. The review will take place within five years—perhaps sooner than five years, but certainly not much sooner—so as to allow a full review of the effect, bearing in mind in particular that there was a large spike in cases before April 2013, the cut-off date, which may make it very difficult to analyse satisfactorily the effect of LASPO.
Of course, I will reflect carefully on the observations of my noble friend Lord Marks and the noble Lord, Lord Beecham, but I gratefully decline my noble friend’s invitation to amend the Long Title of the Bill as currently advised. It is our view that these provisions are sufficient to ensure compliance with our obligations under the convention and the EU directives. I therefore respectfully invite the noble Lord to withdraw his amendment.
Lord Cormack
My Lords, I spoke earlier this year—I think it was in May—in the debate on the Motion proposed by the noble Lord, Lord Pannick. The arguments were overwhelming and there was nobody, other than the poor, beleaguered Minister, who defended. I am moved to get to my feet again because, once more, we have heard a very calm, analytical speech from the noble Lord, Lord Pannick, with some fairly devastating quotations. We have heard a moving speech from the noble Baroness, Lady Campbell of Surbiton. She says she is not a left-wing campaigner and she clearly is not. She says she is not a right-wing campaigner and she clearly is not. However, an inspiring campaigner she clearly is. She has given up her day today and we know that that taxes her resources very considerably. She has been here throughout the day and she has spoken, as she always does, forcefully—and on one occasion with some peculiar accompanying sound effects over which she had no immediate control, but she made light of that as she always does, as she also has a very good sense of humour.
The noble Baroness, Lady Lister, talked about public money. Of course she is right to focus on that because we are talking about public money, but what is public money? It is the taxpayers’ money, and many of those who need to benefit from our legal system are taxpayers. It is incumbent upon every Government to ensure the defence of the realm and the policing of our streets—one could go on and on—but this country is nothing if it is not a country which is wholly honouring the rule of law. In order for all our citizens—all Her Majesty’s subjects—to benefit from the rule of law, the right and proper sums must be spent on ensuring that we have the proper rule of law.
The noble Baroness talked about children. We have a particular and, indeed, one could argue, overriding responsibility for those who are least able to look after their own interests. That really is at the root of this afternoon’s brief debate on this amendment. Earlier, when he was replying with a great deal of sympathy as well as his normal aplomb, the Minister indicated that he and his ministerial colleagues want to consider what is said in Committee in this House and that he will come back on Report having reflected. He clearly needs to reflect on what has been said in this very brief debate. I hope he will, because I do not want to see Report punctuated by acrimonious Divisions, or even non-acrimonious Divisions, but I think we have to get it right, and at the moment we clearly have not.
I could go on, as I did briefly in the other debate, about my regret that the Lord Chancellor is no longer a lawyer, but we are, as they say, where we are. The Lord Chancellor is a highly intelligent man. I hope he is a man who will read what has been said today and in preceding debates in Committee, and that when he reads and listens to the arguments put with forensic skill, as I am sure they will be, by the Minister, he will agree that this measure needs very significant amendment.
Lord Beecham
My Lords, we have had many debates in the four years during which I have been privileged to be a Member of this House on the subject of legal aid. Three years on from the Legal Aid, Sentencing and Punishment of Offenders Bill, we continue to see measure after measure in statute and secondary legislation continuing the steady erosion of access to justice, exemplified in a similar context by the confirmation of a fall of 79% in the number of applications to employment tribunals following the introduction of substantial fees, and justified by the Justice Minister Mr Vara by the curious assertion that:
“It is not fair for the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal, and it is not unreasonable to expect people who can afford to do so to make a contribution”.
It is notable that he apparently does not think it reasonable for employers in such cases, even those which are found to be liable, to make a contribution. It is an indication of the approach which the Government take to the issue of legal aid and access to justice.
As the noble Lord, Lord Pannick, reminded us, during the debates on the LASPO Bill, the Government said legal aid would continue to be available for judicial review, but that position, as he explained, has been substantially undermined. Legal aid is no longer to be available for the preliminary stage of applying for permission to seek judicial review, notwithstanding the tight timescales for making such applications after the making of the decision which evokes the application or the fact that often cases are settled with the respondent acting to correct the position before a hearing.
We now face an additional problem in that the Bill, if not amended, would require an applicant to prove a high likelihood of success at the permission stage—something that we discussed earlier today. That necessarily implies a great deal of preparatory work with absolutely no guarantee of funding—fine if you are a landowner, developer or commercial organisation challenging a decision, with the means to pay for such advice, but fatal if you do not have the wherewithal to pay for the necessary advice and support.
Perhaps the nastiest change the Government are pursuing is the introduction of a residence test for legal aid, which would apply to judicial review and to most other areas of law. This would apply to everybody over the age of 12 months who could not prove a period of continuous residence of at least 12 months in the UK at some point in their lifetime.
As my noble friend Lady Lister has reminded us, the Joint Committee on Human Rights was particularly, though by no means exclusively, concerned about the impact of this position on children, and concluded that it was in breach of the UN Convention on the Rights of the Child, because it would prevent children having effective legal representation in cases that affect them. It noted that the Government had no information as to the number of children who might be affected, or the savings that would accrue as a result of imposing the test.
The Secondary Legislation Scrutiny Committee was also critical, not least in relation to the evidential requirements for a residence test, which is apparently to be carried out by the provider. The Ministry of Justice had not worked through all aspects of the policy, and the committee recommended that it should make a clear statement before the order—which was due to be subject to the affirmative procedure in your Lordships’ House recently, and itself became the subject of an application for judicial review—was considered. The committee concluded by noting that,
“this exclusion is being pursued primarily as a matter of principle since the savings made cannot be quantified. It is a very sensitive matter and the House will wish to be absolutely clear on how the residence test will operate in practice”,
and recommended that the order, which was due to be debated two weeks ago, should not be debated until these items had been published.
In the event, as the noble Lord, Lord Pannick, has reminded us, the residence test for legal aid was ruled unlawful by the High Court, as it was adjudged that the provisions introduced a criterion—residence—that had nothing to do with what the Legal Aid, Sentencing and Punishment of Offenders Act provided as the criterion, which was need. The judgment applies to all areas in which legal aid might be required—including judicial review, which could, as my noble friend Lady Lister has reminded us, apply to children as it might to adults.
Sir Alan Moses referred—in unprecedented terms, I would have thought, for a senior judge to apply to any Minister, let alone a Lord Chancellor—to the comments made by the Lord Chancellor. He quoted Mr Grayling as saying in his article:
“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway”.
Then he referred to a group of left-wing lawyers—which on this occasion did not include me—
Lord Beecham
But I wish it had.
To this characteristic blast on the political dog whistle, Sir Alan responded with an extract from a 40-year-old judgement of Lord Scarman, who said,
“every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.
That is a very clear statement of principle, which the proposal for the residence test, and the Bill’s proposals on judicial review in general, significantly threaten to undermine.
The Government, in their perennial search for votes—not from left-wing lawyers but from the right—are, of course, appealing. A less appealing prospect than this Government and this Lord Chancellor remaining in office and continuing to dismantle our system of justice is hard to imagine. I hope that the Government will listen to the noble Lord, Lord Pannick, and also listen, not necessarily to members of the Opposition but to the noble Lord, Lord Cormack, and the noble Baroness, Lady Campbell, and all the others who are disturbed by the trend of policy in this area—and I hope that they will rethink, in particular, the provision relating to judicial review. Whatever happens—in the Supreme Court, I presume—about the question of the legality of the residence test, it plainly conflicts with Lord Scarman’s clear judgment, which we should all respect.
Lord Beecham
Perhaps the noble Lord will pass the legal caution on to the Lord Chancellor.
Lord Faulks
I am grateful for that contribution.
The Lord Chancellor made in the Daily Telegraph various comments which resulted in what was described—not alleged to have been described—as a “kick in the shins” by Lord Justice Moses. All I can say is that, during the time I have been standing at the Dispatch Box, the Lord Chancellor’s shins have been extremely bruised by the number of comments that have been adverse to him personally, to his responsibility to the office or to his disregard for the rule of law. I am sure that he is painfully aware of the harm that has been done to him by the observations that have been made. It is a matter for your Lordships whether you think that is appropriate.
I should also say this. Of course, the withdrawal of legal aid in any context is not something that any Government relish, but throughout the period—and we are now coming to the end of this Parliament—the party opposite has opposed all cuts to legal aid, whether they are civil legal aid cuts or criminal legal aid cuts. They have advanced very skilfully all sorts of arguments about the outrage that has followed. It is time for some clarity to emerge from the party opposite as to whether it will in fact restore legal aid to all these areas where it is said that it has been wrongly withdrawn or whether this is to some extent posturing on their part.
The noble Baroness, Lady Lister, referred to the difficulties that she described of children in particular in relation to the residence test. Although, as I say, I am not going to go into great detail because it is all to be considered by the court—at least in terms of the vires of the residence test—the Government’s position is that they do not believe that the JCHR should have concluded what it concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account. There have always been cases where the child speaks for himself directly or where a parent or guardian ensures that the views of the child are properly taken into account. The Government are not aware of any evidence before the committee that indicated in such cases the child is not able to express views and participate appropriately in legal proceedings.
Following the ruling of the court in the residence test case, noble Lords will be aware that the draft order introducing the residence test was withdrawn. The amendment before the Committee now would therefore introduce an exception to the residence test in the abstract. I would respectfully suggest that the appropriate place to consider any exceptions would be while considering the residence test as a whole, rather than in isolation and in the context of a free-standing provision for judicial review. Nevertheless—there should be no mystery about this—I should make it clear that we do not agree that an exception should be made to the residence test for all judicial review proceedings. The test reflects our view that individuals should have a strong connection to the United Kingdom in order to benefit from the civil legal aid scheme. In line with those principles, we therefore decided that, in general, applications for legal aid for judicial review proceedings should be subject to the same test.
The noble Baroness, Lady Lister, referred to certain “concessions”, as she described them. What happened was that, following careful consideration, we proposed certain limited and focused exceptions for judicial review cases that relate to an individual’s liberty, and for certain immigration and asylum judicial reviews. I am glad that she called them concessions; she previously described the Government’s position as a “climb-down”, which is perhaps not a kind way in which to describe the approach that the Government try to take on difficult decisions.
We believe that the residence test is by and large a fair test that should make sure that legal aid is targeted at those cases where it is justified. Moreover, it achieves the essential policy aim of targeting legal aid at those with a strong connection to the United Kingdom. I therefore ask the noble Lord to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
Lord Beecham (Lab)
My Lords, the amendment is to Clause 50, which deals with the Government’s new provisions in respect of wasted costs orders. Such orders fall to be made at the discretion of the court when it is thought by the court that the conduct of lawyers for the parties, or one of the parties, may have acted in such a way, either by deliberate act or by act of omission, so as to prolong the case unnecessarily and lead to costs which should not have fallen to either side or to the court system to pay.
The Government consulted about improving the system, as they described it, for wasted costs orders, and have in the end come forward with this clause, which requires the court to consider reporting lawyers to the regulatory agency to which they are responsible. Those agencies would be the Law Society, the Bar Council and, I assume—perhaps the Minister will correct me if I am wrong—the Chartered Institute of Legal Executives, if it is involved. These considerations would apply both to court proceedings and to proceedings in the tribunal system.
There was a consultation on this matter, and the responses of the Bar Council and the Law Society were quite interesting. The Bar Council certainly took the view that the Government’s proposals were flawed and opposed them in pretty forthright fashion. They responded to a number of questions—for example, on whether the fee should be charged to cover the costs of any oral hearing of a wasted costs order and whether that fee should be contingent on the case being successful. The Bar Council’s response was that:
“A person seeking to defend a wasted costs application should not be required to pay a fee at an oral hearing … It is appropriate to require a party asking for a wasted costs order to pay a fee upon making the application, as a disincentive to unfounded applications and satellite litigation”.
I assume that, since the Government are not legislating on that point, they have accepted the Bar Council’s view in that respect.
A general question was also asked about the possible scope for any changes relating to wasted cost orders for cases other than judicial reviews. The Bar Council’s response to that was very clear. It stated that the Jackson reforms, instituted by Lord Justice Jackson over a year or so ago now,
“ought to be permitted to take their full effect before further changes are made. The costs budgeting provisions of the Civil Procedure Rules are intended to reduce the costs of civil litigation as a whole and ought to reduce the prospects of a party paying for the avoidable errors of a legal representative”.
It did not see how any additional cost provisions would materially assist.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, a wasted costs order transfers costs caused by the legal representative’s improper conduct from the party to the legal representative personally. The clause places a new duty on the courts, where a wasted costs order is made, to notify a legal representative’s regulator—I confirm that all the regulators mentioned by the noble Lord, Lord Beecham, would be included, within the definition of the 2007 Act—and/or the Legal Aid Agency, where the court considers it appropriate to do so.
The clause’s rationale, and the reason it should stand part of the Bill, is that there are no further formal consequences when a wasted costs order is made. The Government’s view is that the implications of receiving a wasted costs order should be strengthened to encourage legal representatives to consider more carefully decisions they make, both in handling claims and in deciding whether or not to pursue a case. The changes introduced by the clause seek to achieve this, and I will therefore in due course urge that Clause 50 stands part of the Bill.
Amendment 69A, in the names of the noble Lords, Lord Beecham and Lord Kennedy, seeks to replace the duty to consider notifying the regulators or the Legal Aid Agency with the discretion for the court to decide whether or not to notify them where it considers that it is appropriate to do so. It does so by changing “must” to “may”. In the Government’s view, the amendment is unnecessary. The mandatory requirement—the “must”—goes no further than requiring the court to notify where it considers it appropriate. The court is not absolutely required to inform the listed bodies or persons, or to inform any one of them, but to inform such of them, if any, as it considers appropriate. If the court does not consider it appropriate to inform any of those listed, it does not have to do so. Accordingly, it has to consider whether it is appropriate to inform one or more of them but it is not obliged to do so in a particular case: it is entirely a matter for the court. The discretion that the amendment seeks to introduce is already provided for in the clause as drafted.
Our view is that the courts should consider making a notification in every case where a wasted costs order is made but that it would be inappropriate to require it in every case. We agree that it is a matter for the courts based on the facts of the individual case. When notified of a wasted costs order, it will be for the relevant body to decide what, if any, action should be taken. Clause 50 does not make mandatory any action, as in the Government’s view that is properly a matter for the body based on the individual circumstances.
The noble Lord asked about the position of the Bar Standards Board, the Solicitors Regulation Authority and, I think, the Legal Aid Agency. The independence of the regulators is a fundamental principle and we do not wish to undermine this by setting out what action they should take upon receipt of a wasted costs notification. The Government have been in touch with the relevant bodies, informing them of the changes under Clause 50 and offering advice as to how they may wish to proceed. The Bar Standards Board has advised that it would treat the matter under existing procedures as an expression of concern about a barrister’s conduct. It might choose to investigate and could ultimately take formal disciplinary action if it considered it appropriate to do so. The Solicitors Regulation Authority would also welcome wasted costs order notifications and would treat such information in the same way as it treats all intelligence that it receives. The Legal Aid Agency is looking into taking account of wasted costs orders using existing contract performance management mechanisms for current legal aid contracts and contracts commencing this August. If adopted, contract managers would consider the number and financial value of wasted costs orders made and discuss them with the provider directly. The Legal Aid Agency might consider it appropriate to issue a contract notice or to take other contractual enforcement steps.
In view of the explanation that I hope that I have provided, and in view of the fact that I understood this probably to be a probing amendment, I respectfully ask the noble Lord to withdraw Amendment 69A, and I urge the Committee to agree to Clause 50 standing part of the Bill.
Lord Beecham
I suppose that I should have declared an interest as a member of the Law Society, although I confess—thank heavens—that I am not actively practising my profession and have not done for some time.
I thank the Minister for his explanation. I am still slightly at a loss to understand how it can be claimed that, as far as the solicitors’ profession is concerned, the clause would make any difference, given the Law Society’s stated response, as I have already indicated, that:
“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”.
I do not know whether that has been discussed directly with the authority or whether there has been subsequent discussions and a change of position. It just stands slightly at odds with the Minister’s reply. Perhaps he would care to look into that and write to me, placing a copy of the response in the Library, because it looks as though different approaches may be being adopted by two of the three parts of the profession.
Having said that, I certainly concur with the noble Lord that this is essentially a probing amendment and I beg leave to withdraw it.
Lord Faulks
My Lords, I now turn to Clauses 51 and 52 and government Amendment 86. Clause 51 amends the Contempt of Court Act 1981 by introducing a defence available to publishers or distributors. This provides that, where they have published material relevant to proceedings but prior to those proceedings becoming active, they cannot be in contempt unless the Attorney-General has given notice that proceedings are active. If the publisher fails to remove the material, the Attorney-General can commence contempt proceedings. Clause 52 provides a related right to appeal against court injunctions.
These clauses were included in the Bill at introduction to implement recommendations by the Law Commission intended to reform the law of strict liability contempt. The purpose was to remove the burden on publishers to monitor online archives for potentially contemptuous material, while protecting a defendant’s right to a fair trial. However, the Government have received representations from media organisations making it clear that they oppose the measures. The Joint Committee on Human Rights also commented on the issue in its 14th report of this Session. The Government have carefully considered those concerns. We remain of the view that the proposals are balanced and measured but we are satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings.
Since the measures were intended to assist the media but the media do not want them, we see no purpose in proceeding with the clauses. The then Attorney-General therefore announced in a statement on 30 June, and I also gave notice at Second Reading, that the Government had decided not to pursue the measure and would seek to omit the clauses from the Bill. Amendment 86 is consequential to the omission of Clause 51, since there is no purpose in defining its extent. I urge the Committee to agree that Clauses 51 and 52 should not stand part of the Bill.
Lord Beecham
My Lords, as the noble Lord the Minister said, the Government have had second thoughts—somewhat belatedly, but nevertheless just in time—about their proposal to create a new defence to the strict liability rule in relation to the offence of contempt of court, where material published on the internet before criminal proceedings commence remains accessible online. The objects of the Government’s policy are clearly laudable but the method involved the Attorney-General issuing notices to publishers identifying prejudicial material. While the notion seems sensible in principle, the JCHR has pointed out concerns that this risks creating what it described as an “arbitrary or disproportionate” exercise of power by the Attorney-General, since the Bill in no way qualified the power by restricting its exercise to where there might be a,
“substantial risk of serious prejudice”,
despite the Government’s indication that this was their intention.
The JCHR also questioned whether the “public interest” defence contained in the Contempt of Court Act 1981 was affected by the Bill as it was drafted. Perhaps the Minister would care to respond to that. I appreciate that it is almost irrelevant but it would be interesting to know whether the Government had taken that point in the original draft. The committee went on to express surprise at the Government’s state of denial that the arrangements had any implications for the freedom of expression and, further, that they did not intend to lay down regulations about the exercise of the Attorney-General’s power. This looked an appealing notion in many ways but it was ill thought through and led to some wholly inadequate drafting of the clauses that the Government have now withdrawn, having clearly had second thoughts about them.
It would be churlish not to welcome this apparent change of heart; after all, for every Minister that repenteth there is much rejoicing—especially when it comes to the Ministry of Justice—if not in heaven then in legal and judicial circles. However, none of this must be taken by the less responsible elements of the media as a licence to produce or permit the continued publication of material that might prejudice a fair trial. We have seen the media—sometimes the print media but also other forms that have such wide circulation nowadays—engage in such publication too often.
It may be necessary to revisit the issue at some point, but in that case I trust that this or any succeeding Government would look carefully at the points raised by the Joint Committee on Human Rights, which certainly merit reflection. If anything were to be done along the lines of, or motivated in the same way as, the Government’s original proposals, obviously it would be sensible to incorporate those concerns and to deal with them in a way that might meet them if it became necessary—although one would hope that it would not—to strengthen the law in this area. Perhaps the second to last thing that anyone would want to do would be to curb the freedom of the press; the last thing that anyone would want to do would be to prejudice the possibility of a fair trial. The media has a role in ensuring that that highly desirable end is met in all circumstances. I do not dissent from the noble Lord’s withdrawal of the two clauses.
Lord Beecham
My Lords, this has been, as ever, a very well informed and interesting debate, and it has been particularly beneficial to have the views of those who are not lawyers to consider. I suppose I must congratulate the Minister on this occasion on having at least two supporters from the government Benches, which is double the usual quotient, if not better than that. I simply say, however, to the noble and learned Lord, Lord Mackay, who makes a valid point about financial information, to which we will come later when we discuss a further group of amendments, that there are other arguments about finances. These include in particular, as we shall no doubt hear, the chilling effect on those who are not in a position of wealth or able to find large sums of money to meet the potential costs. That is an item very much to be weighed in the balance. As the noble and learned Lord himself pointed out to his noble friend Lord Horam, who has been in his time the noble friend to all three political parties and members of them and remains on friendly terms with members of those parties, in the planning field the landscape has changed in any event, perhaps in a timely fashion. I do not think the noble Lord’s concerns are particularly relevant to the day’s deliberations, but in any event all that is required effectively is for those making decisions to comply with the requirements of the law. That is ultimately what judicial review is all about.
I support the amendments in the names of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Pannick and Lord Carlile, to which I have subscribed my name, and will speak to some amendments specifically in my name. I refer to Amendments 71B, 72D, 72E and 73A and 73C in this group. I will outline those briefly before turning to the substance of the argument. Amendments 71B, 72B and 73C would replace the words that we have heard something about this afternoon, “highly likely”, with the word “inevitable”, which is currently the position. That is to say, the outcome of the Bill for the applicant would not have been substantially different if the conduct complained of had not occurred. Instead of that being “highly likely”, that would become the “inevitable” position. That is a material restoration of the position as it now stands.
Amendments 72D and 73E would remove the obligation on the court—that is, both the High Court and the Upper Tribunal—to refuse to grant leave even if it believes that the outcome for the applicant would not have been substantially different if the behaviour complained of had not occurred. Amendments 72E and 73A would alter the definition of the conduct complained of for the purposes of determining whether such conduct would have made a difference to the outcome to mean any procedural defect rather than the conduct of the defendant; they would put it on more of a procedural basis.
As we have heard today, Clause 64 raises a new and significant barrier on the road to those seeking to hold the Government or other public bodies to account for a failure to observe the law. This self-serving change is one of a series deliberately designed to constrain judicial scrutiny and narrow judicial discretion. Its argument is partly based on a false claim that the number of judicial review cases has trebled whereas, as was made clear at Second Reading and, tellingly, repeated by the Constitution Committee in its second report on 4 July, after taking into account the transfer of immigration cases to the Upper Tribunal, the number has increased in 13 years by only 21%, or 366 cases.
Of those, only 0.4% have been conducted by campaigning organisations—that is to say, 50 cases in 13 years. Yet those campaigning organisations have attracted the obloquy of the Lord Chancellor, who, as we heard powerfully from the noble Lord, Lord Ramsbotham, in the debate on Part 2 of the Bill, has described organisations as being “left-wing”. Incidentally, those organisations that have brought judicial review comprise such extremist left-wing agitators as the Countryside Alliance, the Daily Mail, the Daily Telegraph and UKIP’s former treasurer. However, the Lord Chancellor has not confined himself to that observation. He spoke—or wrote, to be more precise—in the Daily Telegraph that judicial review is,
“exploited inappropriately by pressure groups with a political point”.
The Joint Committee on Human Rights, which I hardly need remind your Lordships is a cross-party—indeed, a cross-House—committee, with members from all Benches, including the Cross Benches, observed that:
“Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim”.
I think that most noble Lords who have spoken would concur with that fairly damning conclusion as, I suspect, many others would as well.
If the Government are concerned, as the Minister claimed to be at Second Reading, that “other more meritorious”—I pause to inquire whose definition of “merit” would be applicable—judicial reviews “can proceed more quickly” perhaps the Minister can tell us, in addition to those matters that have already been referred to by noble Lords, how many of the 25 recommendations made by the Bingham Centre for the Rule of Law in February the Government propose to adopt, or, if they have not yet reached a conclusion, at the very least what consideration has been given, and in what form, to those proposals.
Of course, as we have already heard, the amount that the noble Lord, Lord Horam, referred to, of a six-week period for raising an objection, has already been dealt with. A six-week period being imposed would in some cases present very serious difficulties, particularly with regard to the position of the non-availability of legal aid for pre-application work. However, of course, not all those cases are funded by legal aid in any event. I cannot speak of the Islington experience with the inside knowledge of my noble friend Lord Adonis or as acquired by the noble and learned Lord, but the fact that there is a disagreement about that on a particular case does not make a case for the substantial change that the Government are embarking on.
The effect of this clause in lowering the threshold for refusing permission to proceed to one in which it is only “highly likely” that the claimant will not succeed is, in the words of the Joint Committee,
“highly likely to conflict with the requirements of the European Convention on Human Rights”,
and has drawn the vigorous condemnation of the senior judiciary. The amendments before us echo the recommendations of the committee, not least in the requirement that it would be inevitable that the claimant’s case would fail. The Government choose to ignore the difficulty of claimants effectively having to try the issue without the benefit of legal aid or advice, which, as I have said, is not available at the permission stage.
Moreover, the JCHR recommendations address the additional and fundamental issue of whether the application would make a substantial difference to the applicant if the conduct complained of had not occurred. The recommendation in the Bill personalises the claim when in the first place many such claims by definition—as we have heard, again, from other of your Lordships tonight—give rise to a public interest element that transcends the position of the applicant, whether that is the applicant for a television licence or other rather more intrinsically weighty matters. Secondly, of course, it ignores the fundamental imperative of the decision-making being lawful. As the Constitution Committee points out,
“lowering the threshold risks unlawful administrative action going unremedied”.
When the President of the Supreme Court says that,
“any interference in or restriction of judicial review has to be looked at very carefully”—
to which I add the obvious further obvious comment that this must be especially true when those proposing the interference are by the very nature of the process the potential respondents in many claims—your Lordships’ House is obliged to take heed.
I very much hope, even at this late stage, that the Government will review their position. If not, I envisage that on Report, those of us who have tabled amendments and spoken to them tonight will seek to test the opinion of the House about a fundamental, radical and wrong-headed change to our system, which we must use our best endeavours to halt if we cannot improve it.
Lord Faulks
My Lords, this has, correctly, been a lengthy debate, in which views have been expressed by a number of noble Lords with judicial and legal experience and—to the benefit of the debate—by noble Lords who have different but none the less valuable experience to contribute to the debate as a whole. Since this is our first opportunity to consider Part 4, it is wholly understandable that the comments made by certain noble Lords have ranged beyond the strict confines of the clause that we are considering, because the general thrust of the argument embraces more than one clause. I make clear that any points that arise in the subsequent groups should be taken again, and that no noble Lord should feel any restriction by having mentioned them in this first group.
The development of judicial review has been contributed to, quite apart from this debate, by a number of those who have contributed to the debate. Although they have not said so, it is clear that there is a great deal of judicial pride in the fact that it has evolved and provided a valuable, and indeed fundamental, check on executive power, not just in this country but, as we have heard, in Northern Ireland. I do not resile from anything that I said at Second Reading about the importance which the Government attach to judicial review, nor indeed in the columns of the Times. I have not ventured into the Daily Mail or any of the other organs that the noble Lord, Lord Beecham, referred to, nor have I expressed any views about the particular political affiliations of any potential applicant, which are nothing to the point. The question is whether it is appropriate for any—and in particular these—reforms to take place.
Of course, it is tempting to suggest that judicial review is so perfect an object that it is beyond improvement. It is described by the noble and learned Lord, Lord Brown, as “a heresy” to consider any modification of the doctrine of judicial review. I agree with those who said clearly that any change to judicial review should be looked at very carefully indeed—quite so. That is precisely what this debate and subsequent debates enable us to do. However, I respectfully differ from the point that it is beyond Parliament’s competence to make some modest changes, and these are modest changes. That is appropriate if Parliament approves that these changes are made, bearing in mind, of course, that they should not encroach on the proper role that judges have established and which they perform so well. We must accept, as illustrations have shown in this debate, that there is the potential for abuse in judicial review. That is not to say that it does not have an extremely vital function, but we should be astute enough to ensure that the doctrine is sufficiently rigorous to remove or at least limit the possibilities for abuse.
Lord Beecham
My Lords, would the case that the noble Lord has just outlined not be one in which the decision be “inevitable” rather than “highly likely”? Would the amendment that I have tabled not therefore meet that sort of case?
Lord Faulks
It might or might not be “inevitable”, but we suggest “highly likely” would ensure that it would not survive. “Inevitable” might leave room for the argument that it was highly likely but not inevitable. This makes sure that the position would be as we say that it should be.
Lord Beecham
I am not entirely clear about the Minister’s position in relation to the process. Assuming that the highly likely test—indeed, any test under the present arrangements—is retained, it would presumably need to be the subject of the application for permission. The Minister is nodding. Will the applicant not therefore have to make a case at that stage? That is presumably the whole point of applying for permission. In circumstances where legal aid is no longer available for those who do not have the means, does that not place a heavy burden on an applicant in a way that the inevitable—that is the word he used—test would not do at that crucial stage?
Lord Faulks
An applicant now may fail at the permission stage if the outcome would be inevitable, given the putative departure from lawfulness on the part of the public authority. It is precisely the same calculation that an applicant has to make whether the test is inevitable or highly likely, that the result would be the same. Both are directed at whether there is essentially a technical departure with no real substance. As I said, the only difference is whether the matter is a very low or a slightly higher bar. The position is that all claimants in any form of litigation will have to consider the real merits of their case and decide whether it is worth pursuing.
Lord Beecham
Lord Beecham
My Lords, the amendments in this group essentially stem from the third report of the Delegated Powers and Regulatory Reform Committee, published on 11 July. They deal with the Bill’s provisions in relation to the requirements on applicants for judicial review to disclose information about their financial resources or, critically, those of third parties—that is to say, someone who, under Clause 66(3), is identified by such information as,
“providing financial support for the purposes of the proceedings or”—
and in my submission, this is deeply worrying—
“likely or able to do so”.
In its report, which dealt with a number of other parts of the Bill, the committee looked in particular at the question of information about resources contained in Clauses 65, 66 and 68. It stated:
“Clause 66(2) provides that the High Court, the Upper Tribunal or the Court of Appeal must, when determining costs … have regard to information specified in subsection (2)”.
The committee also states:
“Subsection (3) also requires the court to consider whether to order costs to be paid by a person who is not a party to the proceedings but who is identified in such information as someone who is (or who is likely, or is able) to provide financial support”.
The information about financing the proceedings will be provided in accordance with the existing legislation applying to the courts and the tribunals.
The committee goes on to say that the Senior Courts Act 1981 would be amended by Clause 65(1),
“to require an applicant to a court for leave to apply for judicial review to provide any information … as is specified in rules of court”.
That may include information of the kind mentioned in the subsection to which I referred—and, indeed, other subsections. Clause 65 goes on to specify that that also includes information about resources likely to be available to an applicant, which is understandable, and then deals with the position of body corporates and their members.
Of course, tribunal procedural rules are made under the Civil Procedure Act. They are made not by Ministers but by the rules committee. The problem with that is that they must be allowed by the Lord Chancellor and then are subject to parliamentary scrutiny by way of the negative procedure. Conventionally, it sounds as if the negative procedure would apply and we in this House are accustomed—perhaps too accustomed—to dealing with matters by way of the negative procedure.
Even assuming that that was satisfactory, it is not as simple as that, and I would argue that in a matter affecting judicial review, we should in any event be looking to the affirmative procedure and not the negative procedure. But even the negative procedure as laid down is not quite as open to the influence of the rules committee as one might think. The 1997 Act enables the Lord Chancellor to give notice to the rules committee that,
“he thinks it expedient for the rules to include provision that would achieve a purpose specified in the notice”.
Section 3A(2), the following subsection of the 1997 Act, states:
“The Committee must make such Rules as it considers necessary to achieve the specified purpose”.
In other words, the Lord Chancellor’s purpose has to be implemented by the rules committee. We are in a position where, ultimately, to use a commonplace metaphor, the shots are all the Lord Chancellor’s. He calls the shots via the rules committee. Therefore, there is no independent role for the rules committee. A negative procedure puts enormous powers in the hands of the Lord Chancellor.
I hope that later we will discuss the details of Clauses 65 to 68 and the potential difficulties that they occasion. Essentially, the point of these amendments is to look at the procedure which would be involved. The issue is one of effective parliamentary oversight over the group of tendentious changes that the Bill proposes in terms of JR. The Delegated Powers Committee declared that it found it,
“inappropriate that the nature of the information to be required under … the Senior Courts Act 1981 and … the Tribunals, Courts and Enforcement Act 2007, and under clauses 66”,
which we touched on with this amendment, “and 68(4)”, to which we will come later,
“is to be specified in rules of court subject only to the negative procedure. We consider that, in so far as such information cannot be specified in the Bill itself, it should be specified in a statutory instrument subject to the affirmative procedure”.
I hope that the Minister will give us satisfaction on that account because the proposals we will discuss are very far reaching.