Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 3 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, briefly, this group contains amendments to the process for making secondary legislation concerning the provision and use of information about financial resources, the provision of information when seeking a costs capping order, and identifying which cases are “environmental” for the purposes of costs capping orders. As the noble Lord, Lord Beecham, said, these amendments are inspired by the third report of this House’s Delegated Powers and Regulatory Reform Committee, which was published earlier this month, on 11 July.
I hope that I may deal very briefly with these issues. That is not to say that they are not important, and we will deal with them by way of a detailed response when we consider later groups that raise the issues covered by the report. The Government are considering how to proceed with the recommendations in that recent report and will set out how they intend to do so in due course. As such, although I am very grateful to all noble Lords for their amendments, the Government are unable to accept them in advance of full consideration of the committee’s recommendations.
I should, however, take the Committee’s time to discuss the role of the Civil Procedure Rule Committee, which is composed of members of the judiciary, both senior and more junior, and eminent barristers, solicitors and lay representatives. The Delegated Powers and Regulatory Reform Committee’s report proceeds in part on the basis that the existing structure for the making of Civil Procedure Rules, created by the Civil Procedure Act 1997 and amended by the Constitutional Reform Act 2005 pursuant to the principles agreed with the senior judiciary and set out in the concordat on the judiciary-related functions of the Lord Chancellor, does not make the Civil Procedure Rule Committee immune from influence by the Secretary of State, given that he has the power to direct rules to be made to achieve a specified purpose.
I should like to refute any suggestion that the Lord Chancellor improperly interferes with the making of rules, or that the rule-making committees or officeholders in any way play a quiescent role in the making of procedural rules before the making of which they must consult with such persons as they think appropriate. Their experience and expertise is respected entirely and there should be no suggestion of the Government steamrolling or negating the influence of those committees or officeholders on the rules. However, as I have said, the Government are carefully considering the Delegated Powers and Regulatory Reform Committee’s report and intend to make clear their position ahead of Report. In light of that, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Beecham (Lab)
I am grateful for the Minister’s assurances. I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 4 months ago)
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Lord Beecham
Lord Beecham (Lab)
My Lords, the amendments in this group deal with the Government’s proposal to require a charge to be levied on those convicted of offences, in addition to any financial or other penalty which may be levied on them. Characteristically, this would be a mandatory provision, judicial discretion thereby being further eroded, and the proposition is unsupported by an impact assessment. Out of thin air, Ministers pluck a figure of some £65 million for the estimated yield of this new charge, which will be calculated not merely on the costs of the individual case but on the overall costs of the court system.
As I pointed out at Second Reading, this sum is but a fraction of the vast amount of money owed under court orders: some £2 billion as at March 2013, two-thirds of it represented by unenforced confiscation orders. At that point, £420 million was outstanding by more than 12 months and there were no fewer than 1.2 million individual accounts outstanding. That puts into perspective the amount which this proposal would, perhaps, realise. Not all the figures that I have referred to relate to criminal matters. However, Liberty, to which I am indebted for a most informative briefing, averred that in the first quarter of this year £549 million was outstanding. Collection rates are poor across a range of orders, with 48% of fines and 35% of costs unpaid after 18 months. The Ministry of Justice does not even bother to collect statistics in relation to older debt.
There are serious difficulties with the Government’s policy, quite apart from the likelihood that, on present form, they will be very unlikely to recover anything like the amount ordered. Several of the difficulties are identified in Amendment 63AF, which seeks to prohibit an order where the court thinks it might affect a decision on how the accused pleads. This is clearly a serious matter. Defendants should not be deterred from advancing a defence on the grounds that they may be liable for not only punishment for the offence but what might be a significant amount to be paid under the provisions for a court charge. The amendment would deal with the issue of where enforcement costs are likely to mount to more than the charge, as enforcement costs could well be significant, and where the charge relates to any part of the hearing for which the defendant is not responsible—for example, adjournments—or any appeal, as the charge would apply not just to the original trial but to any potential appeal. The deterrent effect could, again, come into play. Finally, the amendment would seek to preclude the operation of the charge if a written means assessment had not been carried out.
Lord Faulks
It is certainly the case that the court should know, as far as possible, the level of outstanding fines. I understand the practical difficulties that can be encountered by courts but, with great respect to the noble Lord, we are concerned here with a definite, fixed cost in relation to the particular nature of the offence, which will not depend on fines outstanding. That is not a question—reasonable though it is—that arises on consideration of these amendments.
Lord Beecham
My Lords, I am struck by the direct relationship between the speed with which the Minister is racing through his brief and the embarrassment he no doubt feels at the material he is giving to the Committee. I cannot believe that the good and noble Lord is really convinced of the case he has been asked to put. That would not surprise me, because much of what we have heard is simply beyond credence. The noble Lord, Lord Marks, in a very powerful speech, made the essential point that—among other things—the court should have discretion on the amount. None of us is any the wiser about what kind of sums we are talking about. The Minister certainly has given no examples, except to say that it will be related somehow to the cost of the individual case. How is that to be calculated? On what basis will that be apportioned? Are we just talking about the cost of prosecution? That can be covered anyway, under the existing framework. Are we talking about a contribution to the cost of maintaining the court building or the cost of the judicial salaries in a higher court? There is no indication of how this cost is to be calculated and then passed on.
Equally, although the noble Lord rightly pointed out the provision in the Bill that the Lord Chancellor will prescribe the class of case to which the charge will apply, he has given no indication tonight—and I do not think that it was done in the other place either—of what kind of cases are envisaged. Why do we not know which cases are likely to be included? What will be the process, if any, for parliamentary approval of the classes as prescribed by the Lord Chancellor? Will Parliament be permitted any consideration in this, or will it simply be a matter of the Lord Chancellor’s fiat?
The Minister’s suggestion that it would be improper for the court to determine the amount because that would somehow reflect a vested interest on its part is simply risible. It is an absurd suggestion. The notion that magistrates or High Court judges will be influenced to make rather larger requirements of prisoners because that will somehow affect them, or the court system, is an insult to both the judiciary and the magistracy. It cannot be something that the noble Lord seriously believes. His scriptwriters need to go back to wherever they were taught their craft.
In addition, and worryingly, the Minister suggested that there is no deterrent effect because the charge will be imposed only long after a plea was entered. That is absurd. The fact that the court is in a position to impose a charge is known to the defendant before he appears there; it certainly ought to be. Of course, it may influence a defendant as to the nature of a plea, particularly in the case of an appeal.
Lord Marks of Henley-on-Thames
Is not the noble Lord slightly mistaken? It is the fact that the court is bound to impose the charge that is known to every defendant before they go into court.
Lord Beecham
I am not known for being mistaken, but I am happy to concur with the noble Lord’s judgment of me. However, I am not happy to concur with the Minister’s judgment of the situation because it is simply fallacious, particularly in relation to an appeal, when the costs will necessarily be significantly more than they would be at first hearing. Of course, appeals are not just confined to going from the magistrates’ courts to the Crown Court. There is also the question of an appeal from the Crown Court to the Court of Appeal and, I suppose, ultimately to the Supreme Court, the costs of which would presumably be unimaginable to an ordinary defendant.
In my view the Minister’s case is in tatters, but let me put a further point. If we are talking about the cost of the case and the cost to the courts, where is the logic in not extending that to the costs—I am now looking at the noble Lord, Lord Paddick—of the police force or the probation service, which might also be involved with a particular client? Why are we confining this charge to the court process? There is no logic to this at all.
We still do not know how the £65 million figure is computed. No doubt the Minister, in fairness to him, does not know either. I cannot imagine he has been supplied with the information. Even if that figure were right, it is something like 3% of the total amount outstanding. The noble Lord gave figures for the uncollected sums for two quarters of 2012. I think my figures were slightly more up to date, if they were correct. However, he did not answer the point—I do not blame him, because presumably nobody has told him—as to why the Ministry of Justice does not know how much has been outstanding for longer than 18 months. Is there an implication that, if money is outstanding for more than 18 months, it would be written off? That would be curious, in the circumstances. There is also the point that the charge will apply to those who are sentenced to a period of imprisonment, presumably to be met after they come out, no doubt as part of their rehabilitation. Does this make any kind of sense, I ask rhetorically? The Minister may think it does; there will be few in this House or outside who would agree.
Of all the misconceived and less than half-baked ideas we have seen in the Bill, this proposal must surely rank in the front line. It is simply appalling and I hope the Minister will use his long experience of these matters, as both an advocate and as a recorder, to persuade his ministerial colleagues, in particular the Lord Chancellor, that he is bringing the whole system into a serious collision with reality, one that will do no good to the defendants, to the court system, or, frankly, to the reputation of those who are putting forward these proposals. However, as we are in Committee, I will not press the matter tonight. It is very probably one to which I and others will wish to return on Report. I hope the Minister will use his influence with the Lord Chancellor to see that some significant changes, at the very least, are made to these appalling, deeply flawed proposals. I beg leave to withdraw the amendment.
Lord Beecham (Lab)
My Lords, I find myself not for the first time playing Spencer to the noble Lord, Lord Marks. We are almost ad idem on most of this evening’s discussions.
Clause 45 contains yet another mandatory instruction to the courts. On this occasion, as we have heard, it relates to findings of “fundamental dishonesty”. The noble Lord, Lord Hunt, raised some semantic issues about the terminology. I am personally rather anti-semantic but there is a possible interpretation of the phrase so that it is the effect of the dishonesty being fundamental to the claim, I think, rather than the nature of the dishonesty. As the noble Lord pointed out, the phrase is used in the Civil Procedure Rules. However, we need not worry particularly about the precise terminology. The problem is that if,
“on the balance of probabilities”,
such a finding is made, the court has to strike out the claim unless, as we have heard,
“the claimant would suffer substantial injustice”,
whatever that purports to mean.
Amendment 63FG seeks, as the noble Lord, Lord Marks, pointed out, to even up the balance by putting the defendants in the same position as a dishonest claimant, such that the defence would be struck out. It would certainly be legitimate to apply that to the issue of liability. Frankly, if the Government were to insist upon the full operation of their proposals in terms of the quantum issues, it would not be unjust to apply the same principle to the defendants. That is perhaps a debatable point.
However, I want to explore generally the issues a bit more widely as they have been discussed before this evening by the noble Lords, Lord Hunt and Lord Marks. Certainly there are in my mind a number of questions about Clause 45, which is clearly another example of the Government’s Pavlovian reaction to pressure from their friends in the insurance industry, this time including the noble Lord, Lord Hunt. I am not criticising the noble Lord, who perfectly properly declares an interest, but I am saying that the Government—particularly the Conservative Party—do rather seem to be beholden to the interests of the insurance industry, which is one of their more prominent supporters. I am not suggesting for a moment that the noble Lord is in any way to be criticised personally for that. However, it is a matter of fact that—
Lord Faulks
Is the noble Lord suggesting that in order to bring in a provision saying that one cannot recover damages if one is fundamentally dishonest, that is simply serving the interests of the insurance industry?
Lord Beecham
Of course it is not simply serving the interests of the insurance industry, but it is serving its interests and there is no reason why the insurance industry should not lobby to that effect. But let us not be unrealistic. I repeat that it is perfectly proper for the noble Lord to make his case, and I have no criticism of him whatever. My criticism is of the Government. In any event, there are a number of questions about the situation, as created by the Bill.
First, why single out personal injury claims? There are many damages claims to which such a provision might apply. There are claims, for example, of breach of contract over the supply of goods or services, damages to property or professional negligence. Indeed, paradoxically or ironically, the driver of a car might be caught by this provision in respect of a personal injury claim arising out of an accident but not if he claims only for damages to the vehicle. Where is the logic in that? In fairness to the noble Lord, he quoted an example of a potential for a claim other than a personal injury claim. But that is not what the Bill says; it concentrates purely on the aspect of personal injuries.
The second question is why, particularly given the drastic consequences, should the balance of probabilities test apply only to something that after all amounts to fraud, and is capable, as pointed out by the noble Lord, Lord Marks, of being prosecuted? In that event, it should be prosecuted if it is committed, but a different standard of proof would apply to the treatment of the conduct, deplorable as it is, in a civil claim as opposed to a criminal claim. As we have also heard, claimants, in addition to the possibility of prosecution, which would be amply justified, could face contempt of court proceedings in which again the applicant for the contempt case must prove fraud beyond reasonable doubt. I do not think that different standards of proof should apply to the same conduct in this context.
The third question is on why the entire claim should be struck out instead of judicial discretion being exercised to reduce damages or penalise the claimant in costs. The noble Lord, Lord Marks, has dealt very effectively with an example in which that situation might occur. The fourth question is whether the Government have considered the impact on third parties, notably the National Health Service, which in personal injury claims can recover treatment costs from the person causing the injury. Again, the noble Lord, Lord Marks, was ahead of me, not for the first time, and was quite right to say that if the defendant escapes scot-free because of some misconduct on the part of the claimant in relation to part of his claim, it is the health service—and the taxpayer generally—that will suffer.
The fifth question is: what is meant by fundamental dishonesty? The CPR, as the noble Lord, Lord Hunt, pointed out, coined the phrase in relation to qualified one-way cost shifting when a party loses the protection of QOCS if he has been found to have behaved in this way. However, as far as I am aware, there has been only one unreported case. It may be the case to which the noble Lord referred; it rings a bell. I think it was the case of Cotton. That is the only one that has so far come to light since the provision came in. I assume that the Minister will confirm that the Bill’s provisions have the same meaning, as far as that is ascertainable, as the Civil Procedure Rules.
The sixth question is: yet again, why are the Government seeking to fetter judicial discretion? This is one of the most fundamental points. In Fairclough Homes Ltd v Summers in 2012, the noble and learned Lord, Lord Clarke, said:
“It is for the court, not 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”
The Supreme Court said that its already existing power to strike out,
“should be exercised where it is just and proportionate to do so which is likely to be only in very exceptional circumstances”.
The court referred to other ways of punishing fraudulent claimants in costs, criminal or contempt proceedings.
Let me be clear: the Opposition are not in favour of tolerating, let alone encouraging, fraudulent claims whether or not the fundamental dishonesty applies to the whole claim or any part of it. To that extent, all of us who have spoken tonight—the noble Lords, Lord Hunt and Lord Marks, myself and no doubt the Minister are absolutely agreed. But the Opposition are content to allow the courts to deal with any abuse, both in determining the issues of damages and costs and in pursuing criminal proceedings when they are appropriate, and would regard that as applicable to all kinds of claims, not just personal injury claims. That would be illogical, in my submission. The Minister may wish to take that back as a matter to consider. I do not see why personal injury claims should be singled out for this particular treatment.
There is certainly a need to deal with people who abuse the system, but in my submission what is proposed here goes too far and leaves too little discretion to the courts, which are really capable of dealing with it. I beg to move.
Lord Faulks
My Lords, I am grateful for the contributions of all noble Lords to this useful discussion of Clause 45. Until the conclusion of the remarks of the noble Lord, Lord Beecham, I was beginning to wonder whether he thought that there should be any problem with people grossly exaggerating or being fundamentally dishonest in pursuing their personal injury claims. However, by the end I realised that the party opposite is not in favour of that, although he asked why we singled out personal injury claims.
The answer to the noble Lord’s question was provided very elegantly by my noble friend Lord Hunt. There has been—and the Government seek to address this by this clause—an epidemic of people claiming in circumstances that most right-thinking people would find deeply unattractive. The Supreme Court recently in the case of Fairclough had to deal with this particular issue, which the Government seek to address in Clause 45. So it is a particular problem that is troubling most people in society generally, with the so-called compensation culture, but also with a specific problem that has come before the courts. We suggest that it is entirely appropriate for the Government to endeavour to address this difficult problem; indeed, the Supreme Court found it difficult to find a satisfactory answer.
I am grateful for some of the constructive suggestions that have been made about how the clause ought best to have been drafted. At the moment, it requires the court to dismiss in its entirety any personal injury claim when it is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest, unless it would cause substantial injustice to the claimant to do so. That is of particular relevance when the claimant has grossly exaggerated his claim, and in cases where the claimant has colluded with another person in a fraudulent claim relating to the same incident—also, sadly, a far too common feature of the whole claims industry at the moment.
This is part of a series of measures taken by the Government to discourage fraudulent and exaggerated claims, which arise often in motor accident cases and so-called “trips and slips” claims. Such claims cause substantial harm to society as a whole, not least in increasing the insurance premiums that motorists have to pay. I notice that the noble Lord criticised the Government; I think that the inference was that they were in some way in league with the insurance industry. We are talking here about insurance premiums paid by members of the public. These cases also eat up valuable resources of local and public authorities and employers, which could otherwise be used for the benefit of business and in providing services to the public.
Under the current law, the courts have discretion to dismiss a claim in cases of dishonesty, but will do so only in very exceptional circumstances, and will generally still award the claimant compensation in relation to the “genuine” element of the claim. The Government simply do not believe that people who behave in a fundamentally dishonest way—and I will come to address the adverb in a moment—by grossly exaggerating their own claim or colluding should be allowed to benefit by getting compensation in spite of their deceit. Clause 45 seeks to strengthen the law so that dismissal of the entire claim should become the norm in such cases. However, at the same time, it recognises that the dismissal of the claim will not always be appropriate and gives the court the discretion not to do so where it would cause substantial injustice to the claimant. To that extent, some of the remarks of my noble friend Lord Marks were entirely apposite. The clause gives the court some flexibility to ensure that the provision is applied fairly and proportionately.
The amendments tabled by my noble friend Lord Marks and others would considerably weaken the effect of the clause by simply giving the court a wide discretion were it satisfied that the claimant had been fundamentally dishonest, which would enable it to either dismiss the claim, reduce the amount of damages or to do neither. That would make it much less likely that those provisions would be used, even in cases where the claimant has clearly been fundamentally dishonest. I do not believe that that would be appropriate. We do not believe that people who behave in a fundamentally dishonest way should be able to benefit by getting compensation regardless.
I assure the Committee that the way that the clause is drafted should not result in the courts using the measures lightly. Civil courts do not make findings of dishonesty lightly in any event; clear evidence is required. The sanction imposed by the clause—the denial of compensation to which the claimant would otherwise be entitled—is a serious one and will be imposed only where the dishonesty is fundamental; that is, where it goes to the heart of the claim. That was very much what my noble friend said about what it was aimed at.
Of course, “fundamental” has an echo in the Civil Procedure Rules and the qualified, one-way costs shifting. An adverb to qualify a concept such as dishonesty is not linguistically attractive, but if we ask a jury to decide a question such as dishonesty, or ask a judge to decide whether someone has been fundamentally dishonest, it is well within the capacity of any judge. They will know exactly what the clause is aimed at—not the minor inaccuracy about bus fares or the like, but something that goes to the heart. I do not suggest that it wins many prizes for elegance, but it sends the right message to the judge.
The amendments tabled by my noble friend Lord Hunt, who has enormous experience in this area, reflect the fact that in his view, any degree of dishonesty, unless the court is satisfied that dismissal would cause substantial injustice to the claimant, would be sufficient. It is a difficult balancing act, but we do not believe that that would be proportionate or practical. The sanction imposed by the clause is a serious one—denial of compensation to which prima facie somebody is entitled—and we believe that it should be imposed only where it goes to the heart of a claim. It would be disproportionate to require a claim to be dismissed in its entirety. It would also not be practical as it would be likely to lead to a large number of disputes between the parties over whether the claimant had or had not dishonestly exaggerated the claim. There is potential for it to impede settlements, leading to an increase in contested litigation.
My noble friend is quite right; the Government hope it will act significantly to deter people from bringing claims or exaggerating in any way at all. The fact that there may not be many reported cases about fundamental dishonesty and the QOCS scenario may be an indication that the concept does not engender great difficulties for judges applying it in practice, and therefore, there is no need for reported cases.
It should not be forgotten that the courts still have powers available—for example, the awards of costs to penalise claimants whose behaviour falls short of financial dishonesty—if it considers the sanction is merited. We consider that the courts will be able to apply the test. In addition, supplementary provisions are included to ensure that the sanctions imposed on the claimant are proportionate. Subsections (6) and (7) ensure that in the event of subsequent proceedings against the claimant for contempt or criminal prosecution, the court has a full picture of the consequences of the dishonest conduct for the claimant when deciding what punishment to impose.
Subsection (5) ensures that when a court dismisses a claim under this clause, it can award costs against the claimant only to the extent that these exceed the damages that would otherwise have been awarded. I thought that I understood what that meant, but I hear what my noble friend says about it, and what my noble friend Lord Marks says about it, and if it is not as clear as it might be I will take that back to consider the drafting before Report. The intention is to limit the extent. We think that that is what it says, but I will definitely take that back and consider it.
Lord Hunt of Wirral
My Lords, I thank my noble friend the Minister, in particular for his generous tribute to the way in which I introduced the amendment. However, I am gravely disappointed by the reaction of the noble Lord, Lord Beecham, whom I have always felt to be my noble friend, in seeking to categorise me in some way. Perhaps I should have declared an interest as a solicitor for many years for the Transport and General Workers’ Union, acting in many claims. Perhaps I should have declared an interest as acting for the child most seriously damaged by the thalidomide drug, in a lengthy court action against Distillers. Perhaps it is all my fault that he should have categorised me in the way that he did—but I regret it.
As to my noble friend Lord Marks, I think that we are more or less in agreement, and I thank him for what he said. All I would say is that I do not think that we should have just a discretionary power because, as my noble friend the Minister just said, we all surely want to combine to send a strong message from this House that dishonesty must never pay. That is the purpose behind this.
I say to the noble Lord, Lord Beecham, whom I still regard as my noble friend, that he ought to have a word with Mr Jack Straw, who has been fighting hard on behalf of genuine claimants and seeking to eradicate this tendency to exaggerate claims and to make us the whiplash capital of Europe.
I think that the Government are taking a step in the right direction. I am very grateful to the Minister for agreeing to look at certain aspects again. In the light of that, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I have clearly upset the noble Lord. It certainly was not my intention to do so. We have a very long association, going back to the time when we were involved in the inner city partnership in Newcastle. We have always got on very well. I intended no imputation whatever upon the noble Lord. I do think that the insurance industry, as an industry, has been overpersuasive with the present Administration, in particular with the Conservative Party.
However, that is no reflection on the noble Lord. I made it clear that he has behaved with complete propriety, as he always has. I am sorry if I have upset him; I can say no more than that. I apologise if that has been the effect—it was certainly not intended. I look forward to engaging in civilised conflict with him from time to time over this and other measures in the spirit that we have enjoyed hitherto. I certainly would not like him to leave the Chamber tonight feeling that I have cast any slur or imputation upon him. He is widely recognised as extremely able and a man who has devoted a great part of his life to public service. I would not wish in any way to detract from his record or his sincerity.
Lord Faulks
I want to ask the noble Lord about that comment. He redirected his fire at the Government and said they had been improperly influenced by the insurance industry. Perhaps he can assist the Committee as to the basis of that allegation and how it is relevant to the amendment that the Committee has before it tonight.
Lord Beecham
I was trying to say that the Government have frequently changed the law in relation to claims, not just with regard to tonight’s amendment but on a range of issues in a way that adversely affects claimants and generally favours insurers. Whenever the Labour Party makes a proposition that affects working people and trade unions, it is accused of being in the pockets of trade union leaders, dancing to Len McCluskey’s tune. If that is a legitimate comment for the Conservative Party to make about the Labour Party, it is quite legitimate for us to point to some of those industries—not just the insurance industry; there are others—that seem to be willing to fund the Conservative Party, whether or not that involve tennis matches with the Prime Minister.
Lord Beecham
My Lords, I am perfectly satisfied that the Minister makes a very good case. We support it and would also support the amendment of the noble Lord, Lord Hunt. He and I between us have nearly 100 years—God help us—as practising solicitors and we have seen our profession change from a profession to a more conventional, perhaps even less than conventional, business. Professional standards seem to me—and, I dare say, to the noble Lord—to have suffered considerably from the commercialisation of the profession in a way that I find distasteful. I dare say he does as well. So we welcome this.
The problem does not stop with the inducements offered by solicitors or other people. All of us, I suspect, are constantly beset by unsolicited telephone calls raising the possibility of claims where there is no foundation to them, and all kinds of other calls selling services and the like. Quite apart from this legislation, the Government generally need to look at what can be done to make it much more difficult for this cold-calling industry across a range of issues—and certainly in the areas of promoting claims for PIP or accidents that have never occurred and so on. They should consider whether there cannot be a framework that makes it much more difficult.
Many of us have signed up to a system that is supposed to screen such calls but it simply does not work. Although it is impossible, I suppose, to stop e-mails, telephone calls which constantly occur—whether they are about this specific issue or more generally—are a nuisance. They are expensive and they are extremely irritating. It is not a matter for the Bill but perhaps the noble Lord could take back to his colleagues in BIS, and possibly other departments, that this issue generally needs addressing in addition to the specifics referred to in the government amendments and the noble Lord’s amendment, which we support.
Lord Hope of Craighead (CB)
My Lords, I am very conscious of the lateness of the hour and I shall be as brief as I possibly can.
This amendment, together with Amendment 69 which follows it, seeks to deal with matters which may have been overlooked when the Constitutional Reform Act 2005 was passing through Parliament. They both relate to the Supreme Court, provision for which was made in Part 3 of the Act. I tabled both amendments at the request of the President of the Supreme Court, the noble and learned Lord, Lord Neuberger.
Amendment 68 would extend to the President of the Supreme Court the same opportunity to lay representations to Parliament on matters that appear to him to be of importance that Section 5 gives to the heads of the judiciary in each of the three separate jurisdictions within the UK: England and Wales, Scotland and Northern Ireland.
So far as I can recall, no thought was given to the position of the President of the Supreme Court when the Bill that became the 2005 Act was passing through Parliament. There may be various reasons for that. I do not recall the matter being discussed at all. I do not think that there was any policy decision on the matter either one way or the other. There may have been a drafting explanation, because Part 2, which contains Section 5, appears in the Act before Part 3, which created the Supreme Court. The separation of those two parts may have led to the matter being overlooked. Whatever the matter, the fact was that the point was concealed from us by the events that were going on at the time. If we had been thinking of the matter now, we would certainly have asked for the president to be included.
I should say that there are no issues of current concern to the president. However, unless the statute is amended, he would be unable to make representations should something of concern arise. He has been looking for quite some time for a suitable vehicle to introduce an amendment to that effect and it seemed to him that this Bill contains that kind of vehicle, which is why this has been brought forward now.
I will say just a brief word about the wording of the provision that is being proposed. The heads of the judiciary in each of the three jurisdictions have no objection in principle to what is being proposed. However, some thought has been given—especially by the noble and learned Lord, Lord Neuberger, and myself—to the precise wording. The words,
“that appear to him to be matters of importance relating to the Supreme Court”,
which is the first part of the formula, are simply a translation of the first part of the formula in Section 5(1) to accommodate the new court. It has been a little more difficult to find a formula that is appropriate to the situation of the new court in place of the words,
“or otherwise to the administration of justice”,
in Section 5(1). The wording in my amendment uses the phrase “or the jurisdiction it exercises”—that is, the jurisdiction of the Supreme Court. The intention of that formula is quite simple: to ensure that the responsibilities of the heads of the judiciary in their respective jurisdictions are respected by the president, which of course he would seek to do.
Finally, I will address two very short points on this amendment. The first is that it would be highly desirable for this formula—or at least one that the Minister can be assured has the agreement of all concerned—to be adhered to in any revised version of this amendment. The second is that between now and when we come back on Report the president and the heads of the three jurisdictions will be seeking to agree a mutually acceptable form of words that will ensure that their respective areas of jurisdiction are respected. They may come up with the same form but, if there is any difference, we will of course let the Minister know.
The second amendment is quite short. It relates to the composition of the supplementary panel, provided for in Section 39 of the Constitutional Reform Act, from which the president may invite someone to sit as an acting judge of the court under Section 38, as is necessary from time to time when places need to be filled. The section contains a number of different sources from which that supplementary panel may be drawn, but time has marched on and subsections (2) and (3), which extended membership of the panel to Members of the House of Lords under conditions which are set out, are no longer relevant as there is now no one who can possibly satisfy those conditions. That is a feature of time marching on. Subsection (6) is of no help for the present either, for the same reason.
Therefore, the only subsection that can now be relied on is subsection (4), which is very tightly drawn, but it requires a decision to be made as to membership of the panel before the individual retires. The president, the noble and learned Lord, Lord Neuberger, has found that embarrassing in at least one case. He wanted to appoint somebody who was eminently suitable and who had retired very recently, but it was too late to catch him to put him on to the panel. The amendment seeks to retain the principle of tightness to avoid individuals becoming too, perhaps, stale after retirement but nevertheless to make it a little easier to draw in people who are suitable for appointment to the panel. That is the purpose behind the amendment. I do not think there is any dispute between any of the heads of jurisdictions about this amendment; it is just a simple matter of facilitating the sensible provision in the Act. I beg to move.
Lord Beecham
My Lords, I am very happy to support the noble and learned Lord’s amendment and I take it that the Government will accede to it. It is a very sensible change.
Lord Faulks
My Lords, Amendment 68 would have the effect of allowing the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom is able to do under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 of the 2005 Act to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales.
Amendment 69 would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the supplementary panel within two years of their retirement, providing they are under the age of 75.
First, I should very much like to thank the noble and learned Lord, Lord Hope, for all his work on these issues and for being so patient in waiting for this amendment to be reached at such a late stage. Given his background, he is of course well placed to speak with authority on these matters. I know that he has been working closely with the judiciary on these amendments and he has also recently written to me regarding them.
The Government understand the rationale behind the amendments. However, before we can agree to make such changes, we will need to consider the matter and the impacts of the proposed changes further and discuss them in more detail with the President of the Supreme Court, the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland. I will also be happy to have further discussions with the noble and learned Lord about the amendments and will respond fully to his letter shortly. On that basis, I hope that he will feel able to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Woolf (CB)
My Lords, I am not as expert in the matters raised as many who have already spoken in this important debate, but I have one advantage, which is that I am fully instructed by the Prison Reform Trust. The second is that, at one stage, I had to make a report—known as the Strangeways report—into deep problems in our prison system. Certain general lessons were set out in that report, which I think I am right in saying all those who are knowledgeable in this area still regard as being the right recipe for positive progress. We have had great advantage in hearing from the noble Lord, Lord Cormack, based in turn on what was said by the noble Lord, Lord Ramsbotham. I urge the Minister to take the very wise course that is being pressed upon him. We do not want to make a mistake of the sort that has been indicated could happen.
Lord Beecham (Lab)
My Lords, as noble Lords have already demonstrated, there is no shortage within your Lordships’ House of people with not only an interest in but considerable expertise of—derived perhaps from professional or even judicial experience—the problems that we are discussing. However, I think we would all agree with the noble Lord, Lord Cormack, that there is none with the particular degree of involvement and expertise of the noble Lord, Lord Ramsbotham. The House is indebted to him for his continuing interest in this problem and for the positive way in which he seeks to assist the Government and, through the Government, society in dealing with an intransigent and difficult problem affecting numbers of our young people.
I was particularly interested to hear from the noble Lord today about the local academy which is to start, I think he said, next year, and also about the Missouri experience. If indeed there is—and it is clear that there will be—an opportunity to see how the proposed academy, which I think he said would be built in Haringey, works, then surely it would be sensible to learn from that experience and, if it is successful or even if it is not, to build on that experience in order to craft a way of dealing with the Government’s proposal here. As I said at Second Reading, and again on Monday in Committee, we all agree with their proposal to the extent that we recognise the importance of providing education as part of the way of dealing with the problems of these young people. If, instead, the Government go ahead with their own proposal, next year there will be built an institution catering for 320 youngsters. There is a widespread view in this House and certainly outside it that that is simply too large a number of young people to afford a realistic possibility of attending adequately to their problems.
It so happens that I had tabled an amendment which proposed a much smaller college as a pilot. The number of places that I suggested was 50. I did not know about the Missouri experience in suggesting that figure but, on the basis of some of the discussions that have been held outside this Chamber, it seemed to be a reasonable size. I am reassured by the noble Lord’s confirmation that that appears to be a very successful project. Again, I commend that kind of approach to the Government in looking at how they might carry forward their very well intentioned objectives. I also refer them to the experience of Finland, which has a very good record in dealing with youngsters who have committed offences, and it has a successful record in ensuring that they emerge from care—let us call it that rather than “custody”—into society.
I do not know the extent to which the Government have looked beyond these shores, as the noble Lord suggested and as I am now suggesting, to see what the experience of other countries and jurisdictions might contribute. However, as matters stand, many of the criticisms that were voiced earlier remain unanswered. The noble and learned Baroness, Lady Butler-Sloss, asked a perfectly valid question about her local institution. She asked where the secure unit in Exeter will go. The same question remains to be asked about a whole range of institutions that are currently operating at, as I acknowledge, different rates of cost.
In Committee on Monday, I referred to the fact that the number of places in secure children’s homes has been reduced to 138, so there has clearly been a reduction—of 28 places nationally—in that area. It remains to be seen what the future will be not only of those homes but of the other training facilities, because it is envisaged that some of those who are currently in other institutions will transfer to this new college and presumably any other new colleges that might come on stream. Therefore, there is a very real risk to the kind of institutions that the noble and learned Baroness referred to.
As the noble Earl, Lord Listowel, and my noble friend Lord Ponsonby said, there is so little detail in the proposal that it is difficult to be confident that, at the end of the day, we will emerge with a fully developed project that will do the job which the Government intend—we agree with that intent—to see carried out. I do not expect the Minister, just two days later, to answer the questions that I posed on Monday. However, some of them are worth repeating. As is his normal, courteous practice, he said he would identify questions asked by noble Lords, write to us and place the reply in the Library. I will touch on some of them as a gentle reminder of some of the issues that were raised. One was the report of the Joint Committee on Human Rights and, in particular, its concern that there was no equality impact assessment. That seems particularly important in relation to gender, as there is a real concern about the current proposal of having girls in the same large institutions as boys. A second concern was the requirement for special educational needs to be catered for.
There are also questions around the secure children’s homes, to which I have already made reference. The Minister implied that there were, perhaps, some shortcomings in these establishments. What improvements in service have been identified as requiring attention? We have heard from the noble Earl, Lord Listowel, that a place in one of those homes costs around £200,000 a year. If that is regarded as too high, what do the Government consider an appropriate figure, both for the individual, on a per capita basis, and in terms of the aggregate cost? Reverting almost to the question posed by the noble and learned Baroness, Lady Butler-Sloss, how many children now in secure homes do they envisage will transfer to the larger college? It is slightly disturbing that the duty to use best endeavours to ensure that the needs are met of children who have been assessed as needing EHC plans would be placed on the principal of a secure college. On Report in the other place, the Minister said that,
“a great deal of further thought will be given to how those needs can be met”.—[Official Report, Commons, 12/5/14; col. 538.]
It is only two months since that observation was made, but can the Minister indicate—not necessarily today—that that has been followed up and with what result?
Many noble Lords are concerned, as I am, about staff to children ratio. Can we be assured that it will not simply be left to the contractor to opt for a figure just in terms of numbers, but that these will be numbers with the sort of qualifications that, as noble Lords have indicated today and in previous debates, would surely be required to attend to the complex needs, including the educational needs, which are the main object of the project?
Lord Faulks
It is true, and I am going to come on to deal with that. The different establishments are there, in the view of the Youth Justice Board, to deal with the different challenges that the individuals present. My point is that secure children’s homes are no panacea. The starting point is that the overall rate of reoffending is simply not acceptable. That is why we are introducing secure colleges.
I entirely accept the point made by the noble Earl, Lord Listowel, that the Government should be aware of the long-term cost as well as the short-term cost. Indeed, the whole purpose of secure colleges is that, with the benefit of proper education, the Government consider that there should be a cost-saving in the long term because of the accrued benefit for young people who go to secure colleges.
Lord Beecham
I am sorry to intervene at this point, but it is sensible to do it now rather than later. Are we to infer from that that the Government’s ultimate intention is to dispense with the 138 places in secure children’s homes or is it their view that there will still be some place for secure children’s homes? If so, how will they approach determining how many?
Lord Faulks
I respectfully ask the noble Lord to be a little patient; I am going to deal with that point in the course of my remarks. I have not been speaking for long. I have been much criticised for not giving the House information. I should perhaps remind the Committee that there were meetings offered first to the party opposite, then to this side and to Cross-Bench Peers. There has been written information and there was a further meeting at which the details of secure colleges, including demonstrations on visual display units, were supplied. That, together with the answers I have given and the answers I propose to give further, should give the Committee at least as much information as it can reasonably expect.
I have heard in the course of the debate arguments that there are better ways to improve the youth custodial estate and particular emphasis was placed on the secure children’s homes. The noble Lord, Lord Ramsbotham, for whose expertise the Committee is indebted, mentioned a number, in particular Diagrama, a Spanish not-for-profit organisation that runs custodial facilities. The Ministry of Justice is aware of the work of Diagrama, and it is an example, as I understand it, of the type of innovation that we want to introduce and attract into secure colleges. We have, as I said previously, an open mind, and we are anxious to encourage innovation. However, as the noble Lord quite rightly said, he would not expect me to comment from the Dispatch Box on the advantages or disadvantages of the specific matters that he raised in his speech, valuable though his contribution is to the general approach to trying to find the right answer to these difficult problems.
Lord Beecham
“(4) Where the Secretary of State enters into a contract with another person under paragraph 1(1), and that person is not a public authority for the purposes of section 3 of the Freedom of Information Act 2000 (public authorities), that person shall be designated by the Secretary of State as a public authority for the purposes of that section in relation to that contract.”
Lord Beecham
My Lords, the Committee will be pleased to hear I will not detain it long on this amendment, which follows similar amendments moved during earlier parts of the Bill. The amendment seeks to ensure that the Freedom of Information Act procedures will be available in respect of the operation of the secure colleges, if they are built, by designating them as a public authority. The amendment would require the Secretary of State, when entering into a contract to provide or run a secure college with another person that is not a public authority, to designate that person as a public authority for the purposes of that section of the Act.
The Minister just referred to two possibilities: one is that the Secretary of State enters into a contract with such an outside body to provide the facility; the other is that the Secretary of State, the department or some other public body—perhaps the Youth Justice Board, which is a recognised public body—would carry out that function. The intention, clearly, is that it should be a contracted-out service. I understand that four bidders to provide the service have been selected, and I believe them to be—I may be wrong and, if so, no doubt the Minister will correct me—effectively private sector bodies.
Lord Faulks
My Lords, Amendment 44 seeks directly to extend the Freedom of Information Act to providers of secure colleges who have entered into a contract with the Secretary of State under Schedule 6 to the Bill. The amendment, as the noble Lord, Lord Beecham, said, is similar to Amendment 11, which we debated in Committee on day one. It would provide for private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.
As the noble Lord said, the amendment differs in one respect from Amendment 11 in that it would lead to the formal extension of the FoI Act to providers of secure colleges, whereas the amendment debated previously sought to achieve the same ends in relation to providers of outsourced electronic monitoring services through the code of practice that the Secretary of State would issue under new Section 62B of the Criminal Justice and Court Services Act, which is being introduced through Clause 6 of the Bill.
As we set out in the debate on Amendment 11, the Government recognise that there are concerns about the position of private providers of public services, under the Freedom of Information Act. The issue of outsourced public services was considered in some detail during the post-legislative scrutiny of the Freedom of Information Act carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed that,
“contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act”.
The committee also felt that,
“the use of contractual terms to protect the right to access information is currently working relatively well”.
The Government recognise not only that concerns exist in this area but the potential challenge that the increased delivery of public services by non-public sector providers poses to transparency. It is for that reason that the Government accepted the committee’s recommendation. Later this year, the Government will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. As we explained in the debate on Amendment 11, the guidance to be provided in the code will promote and encourage the use and enforcement of contractual or sub-contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will go further than the current obligations under the Act. It will encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.
The Government and the Information Commissioner will monitor the effectiveness of the code. If it does not prove successful, the Government have said that they will consider what other steps may be necessary to ensure accountability, including the possible formal extension of the Freedom of Information Act to contractors. As I have indicated previously, we believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of the steps that we are taking, I suggest to the House that the measures proposed through these amendments are, with respect, unnecessary. I invite the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I will withdraw the amendment and I am grateful to the noble Lord for reaffirming the Government’s general position. He did not—I do not criticise him for this—quite deal with the further point I made about having a monitor, particularly the issue of the Secretary of State reporting on the outcome of such issues. He may wish to consider that. I hope we can clear up that point because, if the Secretary of State is issuing or preparing a report, it should be in the public domain. That may very well be intended but perhaps we can deal with that matter before Report. I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, I have added my name to Amendment 48B, as have my noble friends Lady Linklater and Lord Carlile of Berriew. We have also tabled Amendment 48F. However, the purposes of our amendment are identical to those of the noble Lord, Lord Ponsonby, so I will be brief.
There are three purposes to this group of amendments. The first is to ensure the extension to electronic media of those provisions dealing with restrictions on reporting of offending by children—restrictions that in a previous era applied to newspapers and standard television broadcasts. The public electronic media should all be treated in the same way. The second purpose, as the noble Lord, Lord Ponsonby, said, is to deal with pre-charge naming of children, which undermines the anonymity granted to them only later. Section 44 of the Youth Justice and Criminal Evidence Act 1999 would deal with that but has not yet come into force. The purpose of the final subsection of the proposed new clause in Amendment 48B is to deal with that. The third point, as the noble Lord explained, is to amend Sections 39 and 49 of the Children and Young Persons Act 1933 to establish that anonymity given to children should last beyond their 18th birthday unless there is a substantial reason why the position should be changed. That would be subject to an order of the court. In those circumstances, I invite the Minister to accept these amendments and ask the Committee to do so, too.
Lord Beecham
My Lords, it would appear that in this area, as in others, we are short of information about the number of cases in which young offenders are named. There does not appear to be a dataset indicating how many of these young people are being named and, apparently, has there been no research of any great depth on the impact of being named on such young offenders or their families—as my noble friend pointed out, particularly in relation to their siblings.
The UN Convention on the Rights of the Child, as long ago as 1989, stated that as well as the right to privacy, “best interests” of the child should always,
“be the primary concern in making decisions that may affect them”.
It is striking that, although it is a matter for the courts whether the child should be identified, the applications tend to be made by the media on the grounds of public interest. The capacity of the media to identify their interests with the public interest is of course unlimited, but in this rather sensitive area it might be thought that the principles of the convention should be taken a great deal more seriously. Some of the ways in which the media have portrayed young offenders, complete with photographs—my noble friend mentioned a case where a child’s photograph was prominently displayed—and emotive language such as how “young thugs” should be dealt with, are not conducive to meeting the requirements of the convention, which we should all respect.
I understand that the Government are looking at the existing law on reporting restrictions and had indicated that they would be coming to a conclusion some time this year. They may not have done so, but I do not know whether the Minister is in a position to indicate when that review might be completed. It would be helpful to the House to know when that might occur. In fact, the Government—I should, in fairness, say successive Governments—have not responded to the UN committee’s report, which is dated as long ago as 2008. In addition to the general principle to which I referred, that report made the strong point that respecting privacy should extend especially to avoiding messages that expose the child to shame and are against their best interests.
This is potentially quite a serious issue. From my experience as a councillor and, indeed, as chairman of the social services committee in Newcastle in the 1970s, I recall very well the famous case of Mary Bell, who was a young child when she committed offences that became notorious. Rather like the subsequent Bulger case—or rather, those who were guilty of killing Jamie Bulger—she became exposed to a great deal of publicity. That made assimilation into adult life extremely difficult for her, as it has for other defendants, it would appear, including those in the Bulger case. This is a very sensitive area in which we need a clear position from the Government in terms of a response not only to the amendment but perhaps more importantly to the UN convention requirements of as long ago as 2008.
Of course, there may be public interest in knowing what is happening, but a public interest in knowing does not necessarily amount to a matter of public interest. The two terms become confused. I hope that that is not the position that the Government ultimately end up with. There are clearly issues here that can have a long-term impact on young offenders. I entirely take the Minister’s point: the whole point of dealing with these young offenders is to ensure they do not offend again and can assume their place in society. We should not facilitate making that any more difficult by permitting disclosure when it is not necessary. I hope that the Government will look sympathetically at the amendment moved by my noble friend and respond to the long outstanding report and recommendations of the UN convention.
None of us would say that people—even young people—who commit serious crimes should not be punished or go through the processes that the law prescribes. They should not, however, be subjected to public obloquy in addition to that. It is rather disconcerting that, at the time of the riots in London a few years ago, the Home Secretary seemed keen to publicise the identity of some of those, particularly young people, who were involved in criminal and quite disgraceful behaviour. I think that many of us would feel that, in that sort of case and for that sort of young offender, publicity might be regarded as almost a badge of honour and is therefore not to be encouraged from any perspective. I hope that that situation will not recur. In the mean time, we have a number of offenders, some of whom are involved in very serious offences, whose anonymity has been done away with in a way that cannot be conducive to helping them to reform and to assume a normal place in society.
Lord Faulks
My Lords, I am grateful for the amendments tabled by the noble Lord, Lord Ponsonby, and those tabled by the noble Lord, Lord Marks, the noble Baroness, Lady Linklater, and the noble Lords, Lord Carlile and Lord Dholakia. All have shown considerable commitment to the subject of how we respond to children and young people in the youth justice system. Some have direct experience of how children and young people are dealt with in court, as magistrates, lawyers or counsellors, in one or more of those capacities or in some other capacity. I welcome the opportunity to debate the issue of youth reporting restrictions. Noble Lords’ amendments bring into focus a range of issues, each of which I will deal with in turn.
First, as to online content, noble Lords are seeking to address a potential lacuna in the existing reporting restrictions framework which was remarked upon by the High Court in the case of MXB v East Sussex Hospitals NHS Trust. The court commented that information that would normally be prohibited from publication in a newspaper could be published and made available to the public via Facebook or Twitter. The present position therefore appears to be not entirely clear, although it may conceivably become clearer in the light of further developments in case law. However, we know that the publication of information through online content is in many ways quite different from the more traditional forms of communication that Sections 39 and 49 of the Children and Young Persons Act 1933 were intended to cover. For example, information can now be published, updated, viewed and replicated almost instantaneously in a way that could not have been envisaged by Parliament many decades ago.
However, the ability to view such information may be restricted by the author of the online content to a very limited set of individuals indeed. We must be mindful of the boundary between private correspondence via e-mail, which the current youth reporting restrictions framework, rightly, in no way seeks to curtail, and publication to the world at large. It is worth noting that, in its recent reports on the law of contempt, the Law Commission considered what statutory definition might capture online content and identified a drafting solution very different from that put forward by the noble Lord. I wish to reassure noble Lords that the Government are aware of the concern that has been raised and are giving further thought to this very technical and complex issue. In light of that assurance, I hope that, in due course, the noble Lord will withdraw his amendment.
As to criminal investigations, Amendment 48B, also in the name of the noble Lord, Lord Ponsonby, seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999, which has been on the statute book for some time. Section 44 applies whenever a criminal investigation begins into an alleged offence and means that no information enabling the identification of a young person under 18 suspected of committing the offence may be reported by the media. Section 44 also gives the Secretary of State the power to extend the protection to children and young people who are alleged to have been the victims of, or witnesses to, a criminal offence but only by means of an affirmative order. Hansard indicates that on 29 June 1999, during Committee stage in the other place, the affirmative procedure in respect of victims and witnesses was introduced by the Opposition when in government. A number of objections were raised in respect of Section 44 and were considered in a process in which parliamentary scrutiny went hand in hand with discussions with the print and broadcast media. I have recently received letters from the Newspaper Society and the BBC outlining similar misgivings.
During what I referred to as hand-in-hand discussions, it was suggested that it may be time to look at whether the media’s own regulatory arrangements to protect vulnerable young people could be strengthened in a way that is specific to young people who might be harmed by publicity about crime. Given the significant restriction that Section 44 potentially imposes on the freedom of the press and the possibility that its aims might be achievable through other means, it was determined that Section 44 should be extended to victims and witnesses only after both Houses had been given the opportunity to debate the issue again. Since then, the section has never been commenced and guidance and regulations have been pursued instead.
Baroness Howe of Idlicote
My Lords, I support the amendment in the name of my noble friend Lord Listowel. Article 1, as he said, of the United Nations Convention on the Rights of the Child defines a child as a person under the age of 18. In 2010 the Government made a commitment to have regard to children’s rights when developing law and policy affecting children. In the majority of the youth justice system, 17 year-olds are rightly treated as children and so are entitled to the same protection as all other children. The police station is the only part of the criminal justice system where 17 year-olds are not—uniformly, at any rate—recognised as children.
At present, one other anomaly remains: 17 year-olds are still not entitled to the protection afforded to other children when they are cautioned. However, I think we all welcome the fact that Clause 32 rectifies that. Of particular concern is the fact that if they are detained by the police, 17 year-olds are not entitled to a local authority bed—my noble friend made the point firmly that they must still be detained in police custody.
Police custody is an intimidating and frightening environment that is unsuitable for children, particularly the sort of children who are as damaged as those who are likely to be in that situation. We have heard about the tragic consequences that can result, and I offer my condolences to the family of Kesia Leatherbarrow, the 17 year-old who was found dead following detention in police custody. By contrast, local authority accommodation has trained staff. As my noble friend Lord Listowel has mentioned on many occasions, trained staff are important in such situations. They are more supportive and far more appropriate.
I cannot see the rationale for denying 17 year-olds access to local authority beds. It is clearly desirable and is in keeping with the UNCRC. The Government are still making progress in other areas to ensure that 17 year-olds are treated as children in the youth justice system—for instance, under Clause 32. I urge them to do the same with regard to the provision of local authority beds, and to accept the amendment.
Lord Beecham
My Lords, the Committee is indebted to the noble Earl, Lord Listowel, and to other noble Lords who have spoken in the debate, for raising a matter of concern and for pointing out the inconsistency that now applies, particularly in regard to the welcome change that the Bill incorporates, and to which other noble Lords have referred, about having an appropriate adult present when a 17 year-old is being charged or interviewed.
Noble Lords have spoken in moving terms about the problems faced by vulnerable young people in the circumstances that the amendment addresses. Clearly, from their point of view, it would be highly desirable for a different sort of accommodation to be made available. Perhaps the noble Lord, Lord Paddick, who has not participated in the debate, might agree that it is better from the police’s point of view if they do not have responsibility in an area where, as the noble Baroness has just pointed out, they do not have the expertise to look after vulnerable young people who might be capable of inflicting harm upon themselves in a difficult and unusual situation.
Both sides of the equation, as it were, argue for a change and a degree of consistency across the legislative framework. It would, however, be desirable, if it has not yet been undertaken, to consult with the Local Government Association representing local authorities in England and Wales to ensure that the local authorities have an awareness that this will, necessarily, impinge to some degree upon their responsibilities, and for an adjustment to be made in the financing that would no doubt be required to provide a safe, temporary haven for these young people before they make their court appearance. If the Minister is unable to give an unequivocal response today, I join others in hoping that, between now and Report, matters might be progressed.
This may be seen primarily as a matter for the Home Office but it is clearly of interest for the Ministry of Justice and I hope that the two departments between them—possibly with, as I said, the involvement of the Department for Communities and Local Government and maybe even the Department for Education, which has a potential interest in respect of children’s services—might come to a fairly rapid conclusion about what is not an inherently complex matter in a way that would satisfy the noble Earl, Lord Listowel, and, more particularly, those who have undergone a traumatic experience with their own children and do not wish to see that repeated in respect of other 17 year-olds and their families.
Lord Faulks
My Lords, I begin by acknowledging the contribution that the noble Earl, Lord Listowel, has made to our debates generally on the plight of young people, particularly those who are or have been in care, who, sadly, often find themselves in the position that this amendment particularly focuses on. I join others in expressing the Government’s deepest sympathy with the family of Kesia Leatherbarrow. It was, as all noble Lords have pointed out, a tragic case.
The main purpose of the amendment is to include, within the definition of “arrested juvenile” in Part 4 of the Police and Criminal Evidence Act 1984, 17 year-olds in the context of police detention following charge. I acknowledge that although 17 year-olds may often appear confident and adult, that can conceal vulnerability, as the noble Baroness, Lady Kennedy, pointed out. In line with the current treatment of 10 to 16 year-olds the amendment would have the effect of requiring a 17 year-old who has been charged and denied bail to be transferred to local authority accommodation when it is both appropriate and practicable for the police to do so.
I understand that this proposed amendment, which has at its heart a laudable intention, is related to the Hughes Cousins-Chang High Court ruling of April last year. The Government did not appeal that ruling and accepted the findings of the court, which related solely to the Police and Criminal Evidence Act codes of practice C and H. Specifically, the ruling required that 17 year-olds, when arrested on suspicion of committing an offence, must be provided with an appropriate adult and have a parent or guardian informed of their detention. The Government made these changes in full as soon as possible, allowing for the statutory obligation to consult on all changes to the PACE codes, and these provisions were made mandatory in October.
Since the implementation of the High Court ruling, the Government made clear their commitment to review the primary legislation relating to the treatment of 17 year- olds as adults in the criminal justice system. This was to consider whether changes should be made for similar reasons. I can confirm, as noble Lords have already indicated, that an internal review has already been launched and that the work is continuing. Whereas this amendment concerns specifically the case of detention following charge, the review covers all the legislation where 17 year-olds are treated as adults in the criminal justice system. It includes, for example, Section 65 of PACE, which relates to the age at which a person can give their independent consent to the taking of fingerprints, impressions of footwear, and intimate and non-intimate samples at the police station.
The Home Office review also covers the consequential changes that would need to be made to other legislation should 17 year-olds be regarded as juveniles. For example, an amendment to Section 37(15) of PACE, which is the proposition here, would also require amendments to the Children (Secure Accommodation) Regulations 1991, the Bail Act 1976, the regulations of 1991, the Children and Young Persons Act 1933, and so on. These are just some examples, for which other departments have responsibility. Those examples demonstrate the breadth and complexity of the legislation, which needs to be properly thought through before change is made.
It is of the utmost importance that any change in the law is workable in practice and not merely symbolic. We need to be sure, for example, that local authority accommodation will be available to 17 year-olds were the law to be changed, that adequate transportation exists and that police officers are trained properly to understand the requirements of this change. The appropriate adult change, which has been referred to, is considerably less complicated operationally than that which is the subject of this amendment. Any amendment to primary legislation needs to be subject to proper consultation, appropriate consideration and full scrutiny by Parliament. This amendment, though laudable in its aims, represents, we respectfully say, a somewhat hurried approach to the issue of how we treat people at the age of 17 at the front end of the criminal justice system.
The noble Baroness, Lady Howe, referred to the police’s knowledge of young people in dealing with 17 year-olds. The noble Lord, Lord Beecham, tried to elicit a contribution from my noble friend Lord Paddick as to the unsuitability of the police to deal with 17 year-olds.
Lord Beecham
In fairness, I was not saying that the police were not suitable but that it is placing an undue burden upon them. That is a rather different point.
Lord Ponsonby of Shulbrede
My Lords, I welcome the Government’s move to single justice procedures. I have sat on many hundreds of these types of cases and it is absolutely not necessary for three justices to sit to make such determinations.
I have three amendments—the noble Lord referred to them in his comments—which the Magistrates’ Association has asked me to put forward to clarify particular issues. As the noble Lord said, Amendment 50A is an amendment to the Government’s amendment which seeks to add that specified and relevant information should be made available to the court. The concern raised by the Magistrates’ Association is that magistrates should have access to the right information, such as DVLA records, as appropriate. The amendment was worded in a wider sense because if one was dealing with television licences one would need information on non-payment. The amendment is to ensure that magistrates, when sentencing, have specific and relevant information in front of them.
Amendments 50B and 51A would require the court to give public notice of trials under the single justice procedure and to publish the outcomes of these trials. I know the Magistrates’ Association has been consulted fully on these changes and everyone is aware that we are dealing with high volume, low level regulatory cases more than anything else. Nevertheless, it is important that these cases are dealt with properly and that the public should have confidence in our legal system. Therefore they need to know when the trials are happening and the results of those trials. The purpose of the amendments is to provide some clarity on what the Government intend to do in making sure that the trials and their results are well published.
As the Minister pointed out in his comments, if anyone turns up for a trial, the matter would be put off to be dealt with by a Bench of three. That is, of course, right and proper.
Lord Beecham
It is some 23 years since I last appeared before Newcastle magistrates. I should make it clear that I was in a professional capacity, although I had the pleasure recently of seeing them in a political capacity. As I think I mentioned at Second Reading, I attended a meeting of what is now the Northumbria Bench—in the current state of play, of course, there is no longer just a local Newcastle Bench. Unlike my noble friend Lord Ponsonby, who of course has long experience as a sitting magistrate, I was initially attracted to the notion that some have suggested; namely, that, although the procedure is generally to be welcomed, it should be not one magistrate but two who sit on these matters. However, I am persuaded not only by the eloquence and logic of my noble friend but, perhaps more relevantly, by the almost unanimous opinion of the local Bench in Newcastle and Northumbria that such a precaution is unnecessary.
There are, however, a number of issues, which are the subject of amendments to which I shall now refer. The first of those is Amendment 49A, which would ensure that there is a proper procedure for determining which offences can be tried under the new system. It is obviously sensible for many of the offences which have been canvassed in discussion—television licences and matters of that sort—to be dealt with in this way, but the amendment would require that the issues be determined by regulations and approved by Parliament. We do not want added to the list for disposal in this way matters which are not necessarily the first that come to mind as more or less formalities. It would not be asking too much of the Government for them to indicate what they intend and how many offences and for them to proceed by way of regulation. In this case, the negative procedure would be quite acceptable.
Amendment 49B would remove the automatic paper trial if the defendant did not respond to the notice that would have been given. There is a potential for difficulty to be encountered here if, for example, the defendant does not understand English or the purport of the document. What is sought in the amendment is that failure to respond would not itself trigger the automatic transfer to dealing with the case on the papers.
Amendment 49C, on the provision of evidence in respect of vehicle licensing cases, would require the court to be satisfied with the position as recorded by the DVLA, so that the defendant would have an opportunity to say that matters had been dealt with on the basis of the DVLA providing information. It is a relatively modest requirement.
Lord Faulks
I defer to the noble Lord’s experience in that regard, although the new format of the driving licence makes it slightly less destructible than its predecessor. I maintain nevertheless that the courts do have access to the DVLA records, so, when trying a motoring offence, a single justice will have the information even if the defendant does not produce a driving licence at all. I am therefore confident that the safeguards we have built into this procedure make the amendment unnecessary.
Amendment 50AA would remove the provision that a court can decide a case under the single justice procedure other than in open court. That would undermine one of the main drivers behind this policy. We consider the time wasted and costs incurred in requiring magistrates to sit in open court and decide cases disproportionate in the type of straightforward, low-level cases that this procedure will apply to. Safeguards are in place to enable a prosecutor to ensure a case is heard in open court by issuing a requisition and a defendant to ensure the same by indicating his or her wishes in response to the single justice procedure notice. I reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure that proceedings are open and transparent. The press and public will continue to have access to information about these cases, as they do now.
Amendment 50C would allow a single justice to hear and consider evidence from a party to the case if they turn up when the single justice is considering the case. In practice, parties will not know when a case will be considered by a single justice under this new procedure, so it is extremely unlikely that this situation would occur. However, there is a risk that it could be seen as encouraging prosecutors to turn up and assist the court. That could be perceived as unfair and unequal, particularly if the case was being heard other than in open court. We could not allow evidence to be heard by a magistrate when a single justice was making a decision, as that would lead to unfairness if the other party had not been given the opportunity to consider that evidence. In any case, there is clear provision in the Bill stating that when a person wants to be heard by a magistrates’ court, they are perfectly able to request a hearing.
Amendment 51B would introduce a legislative requirement to publish in advance details of cases to be heard under the single justice procedure and to publish the outcome of these cases. It is, of course, vital that the media and the public continue to have access to information on these cases under the new single justice procedure. However, the appropriate place for such provisions is within the Criminal Procedure Rules. Those make it clear that certain specified information must be made available to journalists and other members of the public on request. The rules also allow the court to make certain additional case information available to third parties on request. The Criminal Procedure Rule Committee will be invited to review the Criminal Procedure Rules to make sure that they are fit for purpose for the single justice procedure.
I can reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure the proceedings are open and transparent. The press and public will continue to have access to information about cases, as they do now. There is a protocol in place between Her Majesty’s Courts and Tribunals Service, the Newspaper Society and the Society of Editors whereby magistrates’ courts routinely make written lists of cases and results available to local media, most often by e-mail. This arrangement will continue.
Amendment 52A introduces another condition on which a defendant can make a statutory declaration so that, in addition to being unaware of the proceedings, the defendant can state that they did not understand the information contained in the single justice procedure notice and the accompanying documents. This deals with the point made by the noble Lord, Lord Beecham, about things such as language difficulties. The associated documentation sent to defendants under the single justice procedure will be no more complex that the documentation which is currently sent in this type of case; indeed, we are confident that the flexibility afforded by this new procedure will enable us to make the whole system for these cases more easily understood by defendants. As with the existing process, prosecutors have developed strategies to identify those who may require further assistance and Her Majesty’s Courts and Tribunals Service is also considering, as part of implementation planning, how it will continue to discharge its duty to provide assistance to unrepresented defendants. The provisions, as set out, provide magistrates’ courts with the flexibility they need to operate the single magistrate procedure effectively while ensuring that the rights of defendants are protected.
I will say a little more about the suggestion put forward by the noble Lord about the availability of information on case outcomes. I agree that the information should be available as soon as possible after the trial has concluded. In both cases, the noble Lord suggests that this should be within 21 days. However, such detailed procedure should not be contained within the legislation itself. As I said earlier, the appropriate place for such detail is within the Criminal Procedure Rules.
We know that journalists and the general public seldom attend to watch this type of hearing and this is the reason behind the protocol to which I referred. As to the listing, we accept that it is vital for there to be access to information and we anticipate that cases will initially be listed in the same court buildings as they are at the moment. This arrangement with local media will replicate exactly what currently happens in practice. In future, we will want to take advantage of the fact that consideration of cases in writing can happen anywhere, and maximise the efficiency that can be derived from this greater flexibility. In doing so, we will want to maintain flexibility and transparency.
There are opportunities, as part of the criminal justice system digitisation agenda, to look more radically at how we can use the opportunities of digital to preserve and perhaps enhance open justice. It is our intention to make case information available on a self-service basis and enable the press and public to access cases in real time and follow the progress of the digital process online in a more meaningful way than they can at present. The rule committee will be invited to review the rules to ensure they are fit for purpose for the single justice procedure. I am sure that such a review will want to take into account the proposals made by the noble Lord, Lord Ponsonby. Any necessary amendments can be made, subject to annulment by either House of Parliament in the usual way.
I hope that, in the course of rather too long a response to those amendments, I have been able to allay any concerns and explain the thinking behind the single justice procedure. With that reassurance, I hope noble Lords will not press the amendment.
Lord Beecham
That was a very thorough response for which I am extremely grateful, but one thought has just occurred to me in relation to some of the noble Lord’s later remarks. I may be wrong, but I understand that it is possible that some of these cases will be taken, as it were, to some other court and thus will not necessarily be heard in the place where the offence was committed. Perhaps I have misunderstood the noble Lord, but if that is right, does that not make the question of the openness of the process in terms of recording the outcome more difficult? There will not be a local reporter in, say, Newcastle for a case that has been transferred from there to Middlesbrough. Perhaps the noble Lord could look into this because I would be interested to hear his views on it. I think that it would be regrettable. If we are to have this process, it should be based in the local court where the offence occurred and where it would normally be dealt with.
Lord Faulks
My Lords, Amendment 63A is designed to provide clarity about the operation of Section 22A of the Magistrates’ Courts Act 1980, inserted by Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014, which made low-value shop theft a summary offence. Your Lordships may recall that although theft from a shop of property valued at £200 or less became a summary offence, the defendant’s right to elect to be tried by the Crown Court was retained. Where it is exercised, Section 22A provides that the case is to be sent to the Crown Court. The basis on which the magistrates’ court would now do so is that once the defendant has elected, as the court has no option but to send to the Crown Court, the offence becomes indictable only and falls to be sent there on that basis under Section 51 of the Crime and Disorder Act 1998.
Amendment 63A provides absolute clarity about the basis on which such a sending takes place as it is not sufficiently clear in the legislation. It makes clear that a low-value shoplifting case in which the defendant elects is to be treated in the same manner as an either way offence in which the defendant has elected. The magistrates’ courts will still be obliged to send the case to the Crown Court where the defendant elects and will continue to do so under Section 51 of the Crime and Disorder Act. Amendments 84A and 84B provide for that change to come into effect two months after the Bill is passed. Amendment 63F is required to put beyond doubt the role of the court in relation to the imposition of the criminal courts charge.
The Serious Crime Bill includes a provision that amends Section 13 of the Proceeds of Crime Act 2002 to make clear that the imposition of the confiscation order should not be taken into account when the court makes a victim surcharge order. That is because the court has no discretion over whether to impose victim surcharge, or how much. In a similar way, the court’s charge will be imposed by the court in any case where an adult is convicted of a criminal offence and the charge levels will be specified in secondary legislation. Amendment 63F therefore makes a similar change to Section 13 of the Proceeds of Crime Act to include the criminal court’s charge as an order in relation to which the imposition of a confiscation order should not be taken into account. I beg to move.
Lord Beecham
My Lords, I am grateful to the Minister for explaining the amendments. I am not quite sure what difficulties have been occasioned by the subject of the first amendment, in particular, or whether this proposal will make any difference in the real world. Could the noble Lord kindly explain it a little further? Unless he can show that it has, in fact, led to difficulties, I am somewhat puzzled.
In respect of the second matter, I suppose the question of consistency is relevant. I wonder whether there has been any review of the impact of the victim surcharge order in relation to outstanding fines. This, of course, deals with the confiscation order but, as we have established, there is a huge backlog of confiscation orders that have not been enforced and fines that have not been collected. While this is a tidying-up exercise, the practical effect may be negligible unless considerably greater efforts are made to enforce both fines and confiscation orders. Perhaps the noble Lord will enlighten us as to what the Government will do about the substantial backlog running into, as I recall, something like £2 billion under these heads. Otherwise, this will become a cosmetic change, with no real likelihood of the grave current situation being improved. In fact, unless additional resources are provided, matters will potentially get worse since efforts are presumably not now being made which would be brought into the scope of the provisions on confiscation. That might be an added case load which there seems little realistic prospect of achieving. Perhaps the noble Lord could clarify, in respect of both these matters, where the Government are and, more particularly, what they will do to make sense of the confiscation order procedure under whatever head it takes.
Lord Faulks
The noble Lord asked whether any problems have arisen. We are not aware of any, but the purpose of the amendment is simply to clarify the position for the purposes of a good law. The Government’s view on the existing drafting is that, after election for trial, this offence is sent up under Section 51(2) of the Crime and Disorder Act 1998. The noble Lord is no doubt anxious to know the answer to the question. This is not stated clearly in the 2013 Act and the interpretation has consequences which, although not significant in practice, make little sense. One example is low-level shoplifting cases where the defendant, as elected, would be brought within the ambit of the unduly lenient sentence scheme. The present amendment clarifies the position and avoids the consequences; it is the simplest way to deal with the issue.
Amendment 63F is simply a consequential amendment to remove any possible doubt as to whether the court has any discretion over imposing the criminal courts charge or the level of that charge. It would not be appropriate for courts to exercise discretion over a charge that directly contributes to the funding of the courts, but we will consider the role of charging in the next group of amendments. If I may, I will deal then with the questions of charging and victim surcharge and the appropriateness of those.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 4 months ago)
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Lord Beecham
“Offence of driving while disqualified to be triable either way
(1) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences under the Traffic Acts) in the entry relating to the offence of obtaining licence, or driving, while disqualified, section 103(1)(b) of the Road Traffic Act 1988—
(a) in column 3, for “6 months” substitute “12 months”;(b) in column 2, after paragraph (c) insert—“(d) On indictment, in England and Wales”; and(c) in column 3, after paragraph (c) insert—“(d) 2 years or a fine or both”.(2) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference to 12 months is to be read as being a reference to six months.
(3) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”
Lord Beecham (Lab)
My Lords, after the late excitement, we come to the more mundane world of driving while disqualified.
Clause 26, which we do not oppose, deals with what might be described only as another Grayling gimmick: the imposition of a maximum 10-year sentence for causing death while driving when disqualified—not for causing death through dangerous or careless driving while disqualified but for causing death while driving when disqualified. It is a measure of the significance of the amendment that there were 13 convictions in the past year for the offence of causing death when driving while disqualified or without insurance or a licence. This was not really a major problem. What the Government failed to do was to consider the real problem of the number of members of the public who drive while disqualified whether or not they are involved in other road traffic offences, particularly offences which cause injury. It is that problem with which this amendment deals. The current situation is that the maximum sentence is six months’ imprisonment only.
The question of causing death while driving under disqualification, now to attract a 10-year sentence, stands oddly with a five-year maximum sentence for causing death by careless driving and a two-year sentence for causing death while driving without a licence. Some 7,000 people are convicted every year for driving while disqualified. In my submission and that of the Opposition the sentence of six months is clearly inadequate for that offence. The amendment therefore proposes that the offence should carry a maximum of two years’ imprisonment and be treated as either way: it could be tried in a magistrates’ court or a higher court if necessary. That seems an appropriate way of dealing with an offence of this kind and I hope that the Government will reflect on it and accept the suggestion, if not today then on Report. We must do something to discourage the prevalence of the serious offence of driving while disqualified. At the moment, particularly given the very substantial sentence imposed under Clause 26, that looks inadequate and needs to be remedied. I beg to move.
Lord Faulks
My Lords, this amendment, as the noble Lord, Lord Beecham, has explained, would make the current summary-only offence of driving while disqualified an either-way offence. That would mean that the offence, currently dealt with by magistrates, could also be tried by the Crown Court with a jury, and the Crown Court would have a maximum penalty of two years’ imprisonment available. I know that an identical amendment was tabled on Report in the other place, but let me explain what the Government propose to do in relation to driving offences.
This Bill already contains proposals, welcomed from all sides, to increase the maximum penalty for causing death by driving while disqualified to 10 years’ imprisonment and to create a new offence of causing serious injury while driving while disqualified with a maximum penalty of four years. That was a pressing issue which the Government wanted to address, and we have done so in this Bill.
I agree with the noble Lord, Lord Beecham, and the question of disqualified drivers generally is of concern to the Government and all in this House. We want to ensure that we are doing what we can to keep our roads safe. Those who are disqualified from driving should not be on the road, and those who flout the law should be dealt with appropriately by the courts. I stress that where a person decides to drive when they have been disqualified and their driving is also bad, the CPS has a range of other offences it can charge—for example, dangerous driving, which is already an either-way offence with a maximum penalty of two years’ imprisonment.
However, the Government are not ruling out doing exactly what the amendment seeks to achieve. We have already made it clear that we will carry out a wider review of the offences and penalties for driving offences over the coming months. We want to look at the sentencing framework for driving offences as a whole and to address the various concerns that I know many noble Lords and the public have about specific aspects of the law in this area.
I know that my right honourable friend Jeremy Wright has already made it clear that the review would look at the specific issue of driving while disqualified. We also want to look at the most effective ways of ensuring that repeat offenders are prevented from driving and do not pose a risk to the public in future.
Noble Lords will recognise that while we can make changes to specific offences where there is a pressing need to correct a gap in the law, as we have done with the causing death and serious injury offences, looking at the wider range of offences and the rationale for the entire sentencing framework needs careful consideration and should be done over a longer period.
I hope that my undertaking that the Government are looking at the driving while disqualified offence in the wider context of its relation to other offences and sanctions will reassure the noble Lord, and that he will feel able to withdraw this amendment.
Lord Beecham
I am grateful for the Minister’s indication. What he said underlines the legitimacy of the charge of gesture politics laid at the door of the Secretary of State, because he said that there is now to be an intensive review of the range of driving offences. It is absolutely right that that should be the case, but for an offence that was committed 13 times last year it was found necessary to amend the Bill in advance of the review to which the Minister referred. It is lamentable that Parliament, and this Bill in particular, should be used to make a mere gesture of that kind when the Government have already decided upon a proper, thorough review of these serious matters. Having said that, the assurance that the Minister has given satisfies me and the Opposition. I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 4 months ago)
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Lord Black of Brentwood (Con)
My Lords, I am pleased to support my noble friend Lord Sharkey’s amendment. He has done all those who are committed to real equality for gay men and women, living and dead, a great service. I hope he has also ensured that Wednesday’s prom will be a sell-out, as indeed it should be.
I make three points in favour of what seems to be a sensible, proportionate and long overdue measure. First is the straightforward question of logic. If it is right that those who are alive can have quashed, under the Protection of Freedoms Act, convictions for a range of what were once sexual offences between consenting adults of the same sex, why cannot those who died before the law caught up with changes in society? To make a distinction between the living and the dead in this way seems to me to be wholly irrational.
Second is the question of equity and fairness. It is absolutely right that a pardon was granted to Alan Turing, whose tragic case served to highlight the plight of those who had criminal records for acts that should never have been crimes. However, what of the families and decedents of ordinary people? As the noble Lord said, there were up to 60,000 of them over the many generations when a sexual act between men was an offence. Benjamin Cohen, the campaigning publisher of PinkNews, which does so much to stand up for the rights of the gay community, made the point well in a letter to me:
“Almost as soon as the Protection of Freedoms Bill was passed, PinkNews readers questioned why those who had passed away could never have their name cleared, and the royal pardon granted to Alan Turing also posed many questions. Why him and not others, and not just famous people like Oscar Wilde?”.
That question needs to be answered. The noble Lord’s amendment does just that.
Finally, there is one other important point. The amendment sends a signal to the wider international community. My noble friend Lord Lexden and I, along with others across the House, have on many occasions raised the shameful treatment of homosexual men and women in the Commonwealth, where our poisonous imperial legacy still means that people of the same sex who love each other face prison and, in some cases, the death penalty when they display that love. We have done much in recent years to show those countries that we are absolutely setting our own house in order. The Protection of Freedoms Act and the equal marriage Act were hugely important parts of that process. Now it seems to me we have another opportunity to show the states that maintain repressive regimes how we have disowned the barbaric part of our past, ensuring that those who suffered as a result of that path and their families will benefit from the equality that now exists, even in death. We can then urge that those states too should begin what will be a long and slow process of decriminalisation. The amendment, which I hope the Minister will support, would be a potent symbolic act in that quest.
I was recently rereading EM Forster’s great novel Maurice, which centres largely on the issues of historical importance raised by the amendment. Forster’s characters, one of whom was imprisoned for an act of so-called gross indecency, lived in the shadow of that terrible injustice. All those who were sentenced to imprisonment with hard labour around the time that novel was written would now be dead, taking their shame, guilt and, in so many cases, criminal record with them to the grave. Forster said on the front page of his masterpiece, “This book is dedicated to happier times”. For people such as him and those ordinary people he wrote about, happier times never arrived. However, they are here now and the amendment is our opportunity to do right by those who were not as lucky as us.
Lord Beecham (Lab)
My Lords, I support the noble Lord’s amendment, but I have a slightly left-field suggestion to make. Part of the problem the Government appear to have is the process of dealing with applications—possible costs and all the rest of it. Would it not be possible, instead of requiring people to apply on behalf of the deceased, for the Government to legislate to disregard the convictions of anybody convicted for conduct which would not now be an offence? That would not involve individual applications, their processing and all the rest of it, but would be a blanket amnesty for anything which would not now be a criminal offence. I put forward that suggestion for consideration. I do not expect the Minister to leap at it with any more enthusiasm than he usually leaps at my suggestions. I see the noble Lord is nodding that he too may be interested in it. It is a suggestion he might care to look at. Perhaps we can consider it on Report.
Lord Faulks
My Lords, this has been a short, very well informed and powerful debate. I pay tribute to my noble friend Lord Sharkey and others for all they have done relating to Alan Turing and to the amendment to the Protection of Freedoms Act. That Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people aged over 16. The House is grateful too to my noble friend Lord Lexden for his usual accurate and illuminating historical analysis of the origins of this sad state of affairs, which gave rise to so many convictions and caused so much unhappiness.
A disregard results in a person’s relevant convictions being removed from the records held by the police and the courts. Those convictions will therefore no longer appear on a criminal records check and the individual never has to declare them, in any circumstances. However—this is where the amendment is concerned—where someone has died, the intended effect of these provisions would apply. The provisions in the Protection of Freedoms Act are designed to help living individuals get on with their lives free of the stigma of the disregarded offence. I fully appreciate and sympathise with the intention behind the amendment, but the Government are concerned that there would not be a practical benefit to the change. A disregard would not allow the applicant, on behalf of a deceased person, to say that the deceased person was incorrectly convicted, nor that he or she has received a pardon. It is important to remember the rationale that lies behind this. The objective of the Protection of Freedoms Act, in disregarding certain offences, is that they should no longer affect a person’s life or career. The intention is to support living people who are disadvantaged when they apply for work, rather than to set the record straight.
The Government are still concerned that such an amendment would introduce a disproportionate burden on public resources; reference was made to a similar answer given from the Dispatch Box, not by me but by another Minister. For living people, the Protection of Freedoms Act will amend the data used for criminal records checks for living people. When someone is deceased, the offence is more likely to have taken place prior to the establishment of the National Policing Improvement Agency’s names database. Identifying appropriate records would be a lengthy, expensive and uncertain task. There is less certainty that any records can be identified, and those that are found may be insufficient to be sure that offences were consensual and with a person aged over 16.
The Government are concerned this would place a disproportionate burden on existing resources at the Home Office and on the police service. My noble friend Lord Sharkey referred to the answer he was given by a Home Office Minister to a question about the number of people who had made applications, following the estimate of 16,000. I am told that it is true it has now risen to 192 from 185. However, noble Lords will appreciate that departments are operating under severe financial restrictions. While we believe that the cost of dealing with applications from those whose lives continue to be affected is justified in the current climate, we cannot agree that costs, which we believe will be significantly higher for each application, could be justified in trying to deal with the records of those who have died. In our view, the limited resources should be directed at those who continue to have difficulties as a result of their conviction or caution for these offences. I need hardly stress that there is a difference between a pardon and a disregard.
The noble Lord, Lord Beecham, made an interesting, bold suggestion. He rightly predicted that I was unlikely to swallow the suggestion from the Dispatch Box, sincerely though it was made. My initial reaction is that, if there were to be a blanket amnesty, as I think he was proposing, we would need to go through this case by case to establish whether this act was consensual and therefore within the scope of the Act.
Therefore, while having considerable sympathy with all that lies behind the amendment, the Government are still not in a position to accept it as tabled by my noble friend Lord Sharkey. However, I appreciate that there is a feeling that something ought to be done to right a historic injustice. I can certainly—without, I hope, raising any expectations—at least agree to facilitate a meeting with the Minister to discuss this matter further. However, I emphasise that I cannot raise expectations and the position at the moment is precisely as I have outlined it. In those circumstances, notwithstanding the arguments that have been put forward, I hope that my noble friend will be prepared to withdraw his amendment.
Lord Beecham
“(d) secure children’s homes.”
Lord Beecham
My Lords, at Second Reading, the Minister referred to a “network” of secure colleges, of which the planned facility at Glen Parva in Leicestershire is to be the first. This so-called network would consist of precisely three establishments, each housing around 320 young offenders, very many of whom will of necessity be a long way from home and family. That is not a network as most people would understand the term.
Some of us were recently treated to an exposition of the plans for the college, kindly organised by the Minister, where we heard from the developers, Wates. The technology was attractive and smart, which is more than can be said for what passes for the thinking behind the concept. It became apparent from the answers to questions from the noble Lord, Lord Carlile, who is not now in his place, that not only did the site have severe limitations in terms of the facilities, particularly outdoor and recreational facilities, but that instead of the intended function of the site dictating its location and size, the site, which was already owned by the department, dictated the nature of the development. Its limitations in terms of size and location were simply never addressed.
The Government are pressing ahead with a scheme—to the extent of going out to tender—which is property-based rather than service-based. Given the paucity of evidence of support for the project during the consultation exercise, with the Children’s Commissioner, the Chief Inspector of Prisons and a host of organisations expressing serious concerns and objections, this is completely unacceptable. I have today received the reply to a Written Question about this process, which makes interesting reading. It refers to the Government’s invitation to,
“interested parties to develop propositions of their vision for implementing Secure Colleges”.—[Official Report, 16/7/14; col. WA 130.]
It goes on to say that a competition was launched in January, for which all of four bidders submitted tenders. The contract has now been let, all before Parliament has debated—never mind passed—the legislation. A separate competition to appoint an operator will take place, with a view to that taking effect next year.
As the series of amendments we are debating demonstrates, there is virtually no detail about cost or how the college is to be run. On the contrary, the Government make a virtue of saying that they have invited the potential contractors to say what they propose to do. The impact assessment—unusually flimsy even by the MoJ’s standards—says:
“There is … some uncertainty over the level of operating costs we would expect to achieve through a competition”—
a masterly understatement. The same applies to the estimated capital costs of £85 million. When my honourable friend Dan Jarvis MP tabled a Parliamentary Question about the latter, he was told:
“To avoid prejudicing the effectiveness of the design and build competition … the Ministry of Justice will not be able to publish a breakdown of the budget until the competition has been completed”.—[Official Report, Commons, 17/3/14; col. 438W.]
It irresistibly brings to mind the words “buying”, “pig” and “poke”. Let us be clear: the objective of providing better education for these youngsters is wholly admirable—not least in literacy and numeracy skills—and will command universal support, but there is absolutely no detail on how this is to be achieved. The Government seem to imagine the college as a kind of Eton for delinquents where inmate students will start their course in, say, the autumn term and progress through until they have completed however many terms they remain there. The reality, of course, will be different.
The average stay in youth custody is all of 79 days, as the Justice Committee observed. The youngsters, therefore, will come and go at different times and for different lengths of time. Robert Buckland MP, now promoted to Solicitor-General—an appointment well received across the political spectrum—asked a series of questions in the Public Bill Committee about the actual working of the college, the level of provision and the types of staff to be employed and their training. He pointed out that the only staff specifically mentioned are custody officers, whose duties are not defined and, strikingly:
“The words teacher, psychiatrist, social worker, and counsellor do not appear in the schedule”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; col. 280.]
He asked about the child to adult ratio and to these questions, posed again in the amendments we are discussing, answer came there none.
Jeremy Wright MP—whose elevation to the position of Attorney-General in place of Dominic Grieve was greeted with rather less acclaim than that of the new Solicitor-General in the light of his aversion to the Human Rights Act and the European Convention on Human Rights—could say about teachers only that,
“it is likely that an operator of a secure college will recruit a number of qualified teachers”.
He also said that,
“as with free schools it will be for education providers to determine how best the educational engagement and attainment of young people in a secure college can be raised”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 20/3/14; cols. 291-92.]
No indication was given about health issues, including how mental health is to be treated. Of course NHS England would have the responsibility, but how will this be exercised, especially with short-stay inmates? What contractual conditions on these matters do the Government have in mind—if any? Will these two simply be left to the education providers to determine? I recall the lines from TS Eliot’s “The Love Song of J Alfred Prufrock”:
“And time yet for a hundred indecisions,
And for a hundred visions and revisions”.
To venture another quotation, there is a line from “Richard III” in his speech to the troops before the Battle of Bosworth:
“Remember whom you are to cope withal”.
That is something the Government seem conspicuously to have failed to remember. The colleges will deal with damaged, vulnerable youngsters. A survey last year found that 65% of girls and 37% of boys in custody were last at school aged 14 or under, 86% had been excluded, 60% had communication difficulties, 75% had literacy difficulties and 25% had learning difficulties—a matter which the noble Lord, Lord Ramsbotham, has raised repeatedly. All this means that they require strong educational support. More than 30% of boys and 60% of girls had been in care, 41% had a drugs problem and 19% of boys had emotional or mental health problems.
The Government’s proposal is to warehouse the whole age range—both sexes—in the juvenile equivalent of a Titan prison. How can it be right to place a small number of girls in an institution which, given their numbers, will be even more likely to be remote from their homes? How can it be right to place 12 to 15 year-olds alongside older adolescents? It cannot be intended that they would attend the same lessons, take part in the same recreational activities and receive the same psychological and medical support.
The Joint Committee on Human Rights points out that the plans do not accord with international standards governing the administration of juvenile justice which, for example, should include,
“small open facilities where children can be tended to on an individual basis and so avoid the additional negative effects of deprivation of liberty; and that institutions should be decentralised to allow for children to continue having access to their families and their communities”.
The Joint Committee went on to note that there was no equality impact assessment. What response does the Minister make to the recommendation that these should be made and provided as soon as possible, especially in relation to the impact on girls and younger children? What of the call for more information about special educational needs provision in the colleges?
The amendments in my name and that of the noble Lord, Lord Ramsbotham, are designed to address these issues and ensure that if the policy goes forward—to which issue I will return later—there will at least be an obligation on the Government to explain not merely what they seek to achieve but precisely what will be achieved, and with what safeguards, on the issues that I and others identify in these debates. Amendment 42E would add secure children’s homes to the list of places the Secretary of State may provide for youngsters sentenced to detention. Such homes are currently provided by local authorities. It would be necessary to develop a joint approach in this context. Amendment 42K would require the Secretary of State to ensure that sufficient secure home places were available. Amendments 42F and 42G would exclude girls and children under 15 from secure colleges. Amendment 42J would require adequate specialist provision to cater for the often complex health and well-being needs of offenders in secure colleges.
Lord Faulks
I am happy to deal with that amendment; in the interests of economy, that seems a sensible suggestion. The amendment raises a concern about how the enhanced and tailored provision offered by a secure college might influence the behaviour of the courts when making sentencing decisions in respect of children and young people—so-called up-tariffing, as it has been referred to in other contexts.
We have seen a fall in the number of children and young people sentenced to custody in recent years. I hope noble Lords will be reassured that statute and international convention already provide that a custodial sentence must be imposed only as a measure of last resort. Statute provides that such a sentence may be imposed only where the offence is,
“so serious that neither a community sentence nor a fine alone can be justified”.
That is referenced in the Sentencing Guidelines Council’s current guideline, Overarching Principles—Sentencing Youths, which goes on to explain that even when a threshold for a custodial sentence is crossed, a court is not required to impose it. Before deciding whether to impose a custodial sentence on a young offender, the court must ensure that all statutory tests are satisfied, taking into account the circumstances, age and maturity of the young offender. Those tests are that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order; that a youth rehabilitation order with intensive supervision and surveillance, or with fostering, cannot be justified; and that custody is a last resort. To demonstrate that the statutory tests have been followed, the court must, in addition, state its reasons for being satisfied that the offences are so serious that no other sanction is appropriate other than the custodial sentence.
As regards the length of the sentence, the court, again by statute, is required to set the shortest term commensurate with the seriousness of the offence, and those overarching principles I referred to earlier set out guidance on how the judiciary should approach deciding the length of the sentence for children and young people. Furthermore, courts will no doubt be aware that due to the variation in needs and vulnerabilities among children in custody, there is a range of provision. They certainly should be aware. As my noble friend Lady Linklater will know, there are secure children’s homes, secure training centres and young offender institutions, as well as, in future, we hope, secure colleges.
When sentencing children and young people, the court can determine only the type of sentence to be imposed and its length. The decision on which type of establishment a child or young person is placed in is taken by the Youth Justice Board for England and Wales, rather than by the court. Its experienced placement service considers factors specific to the young offender—for example, their age and needs.
Finally, the noble Baroness noted that the amendment would have the wider effect of fettering the discretion of the independent Sentencing Council by stipulating precisely what its guidelines should say. That is a road which I am sure noble Lords would not wish us to go down.
I hope, therefore, that I have assuaged noble Lords’ concerns sufficiently for them not to press this amendment also.
Lord Beecham
My Lords, I look forward to whiling away the long Summer Recess by reading the Minister’s helpful replies in Hansard, and his even more helpful letters, which will no doubt find their way to me and to other noble Lords. It is, however, necessary to say that what we are being effectively invited to do is to sign a blank cheque to as yet unknown operators of an entirely new institution conceived on the basis of no evidence and with no clear idea of how it is to operate.
In a particularly sensitive area of penal policy, indeed social policy, that is simply unsatisfactory, and I have no doubt that many of us—from different parts of the House—will wish to return to these matters on Report. Having said that, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, one of the most reprehensible provisions in this deeply flawed part of the Bill is that dealing with the power to be invested in those contracted to run secure colleges to use force to maintain good order and discipline, as set out in paragraphs 8, 9 and 10 of Schedule 6. Curiously, paragraph 10 of the schedule empowers a secure college custody officer, whose qualifications, as we have already heard, are not prescribed, to use reasonable force “where necessary” in carrying out the functions set out in paragraphs 6 and 9,
“if authorised to do so by secure college rules”.
Yet, as we have already heard, the Bill provides no mechanism for parliamentary approval of those rules.
The schedule therefore creates a situation in which force can be used—on children as young as 12 as the Bill now stands—to,
“prevent their escape … to prevent, or detect and report on, the commission or attempted commission … of other unlawful acts … to ensure good order and discipline … and … to attend to their well-being”.
The notion of exercising force to attend to somebody’s well-being is intriguing. It would be interesting to hear the Minister’s explanation of that term. In addition, the custodial officer may use such force to search a person detained in the college. We are not just talking about conduct but about searches. These are very widespread areas in which force can be used.
As we have heard, the Joint Committee pointed out that this topic has been exhaustively examined by the committee itself, beginning as long ago as 2007-08 with its report The Use of Restraint in Secure Training Centres, and its view was upheld by the Court of Appeal which held that the use of force to maintain good order and discipline was incompatible with Article 3 of the European Convention on Human Rights which prescribes the right not to be subjected to inhuman and degrading treatment. Amazingly, the Government sought to argue that the court’s decision was limited to particular techniques to cause pain, whereas the committee points out that the court’s judgment,
“was quite unequivocal that the Rules were … incompatible with Articles 3 and 8 ECHR ‘and must be quashed on that ground’”.
The committee went on to dismiss the ludicrous attempt by the Government to shelter behind the fact that the Bill leaves the use of force to be defined by the college rules. It goes on to question the compatibility of the use of force to enforce good order and discipline with the UK’s obligations under the UN Convention on the Rights of the Child, as referred to by the noble Lord, Lord Marks, and the UN Convention against Torture. The former explicitly declares:
“In all actions concerning children … the best interests of the child shall be a primary consideration”.
Assisted Dying Bill [HL]
Lord Beecham Excerpts(10 years, 4 months ago)
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Lord Beecham (Lab)
My Lords, although I speak today from the Opposition Front Bench and in favour of my noble and learned friend’s Bill, I do so from a purely personal perspective. This is not an issue on which the political parties should take a position; nor have they. Members of all three main parties have spoken on either side of the debate today. The subject of the debate is quintessentially one demanding the exercise of individual judgment, touching, as it does, on the most profound concerns—issues of life and death, freedom of choice, responsibility and ethics. Members of your Lordships’ House have demonstrated in this and previous debates a keen appreciation of the complexities which confront our society in contemplating the plight of those suffering from conditions that are not only incurable, but, in the terms of the Bill, terminal. The sincerity and motivation of proponents on either side of the argument justify the confidence which the Supreme Court displayed in its recent call to Parliament to review and clarify the law.
It is just over four years ago to the day that my wife returned to hospital in the last stages of incurable bowel cancer, diagnosed two years earlier, and we are exactly seven weeks short of the fourth anniversary of her death. As I revealed to the House in the debate on the Motion of my noble friend Lord Dubs last December, she had been a nurse, health visitor and counsellor, and the daughter and sister of doctors. She had seen her grandmother, mother and brother die of cancer. From the start of her journey, she made it clear that if the pain became unendurable, she would wish to be helped to die. She lived as fully as possible during those two years, not least by raising awareness about bowel cancer. In the event, she died peacefully, without excessive pain, under sedation in the hospice where she spent those last few weeks. But I know that she would have wanted me to support the Bill. She would have wanted those whose suffering could not be sufficiently alleviated to have the choice which the Bill, with proper safeguards for both patient and clinician, affords.
In that December debate, I mentioned a friend who was suffering much more pain than my wife as the result of a long illness caused by a cancer which had returned years after surgery. She, too, wished for a peaceful end. She died not long after that debate, but would have preferred an earlier release.
Another friend also suffered badly from an incurable cancer which left her extremely weak, causing her to pass out and fall on a number of occasions, leading to her being rushed into hospital many miles from her home. At one stage, she was put on the Liverpool pathway, without being asked, only to be taken off it a day or two later and dying a couple of weeks after that. The Liverpool pathway has its supporters, but it also has its critics. Its use without the consent of the patient is surely a denial of individual choice. Even with the consent of the patient, it is difficult to argue that it is fundamentally different in substance and effect from what the Bill proposes.
We have heard many moving speeches today, and no one who heard the impassioned speeches of the noble Baronesses, Lady Campbell, Lady Grey-Thompson, and Lady Masham, could fail to be moved by their arguments. Their active lives are the most eloquent testimony of the human spirit’s to attain fulfilment, notwithstanding physical impairments with which many of us would struggle to cope. I understand, but do not agree, with their concerns that the Bill would threaten the future of people with a disability; it is specifically addressed to terminal conditions.
Some of the other arguments against the Bill seemed to me also unconvincing. The numbers affected would not generate the significant financial savings to the National Health Service that the noble Lord, Lord Tebbit, suggested—even assuming that clinicians improperly took that factor into account. It seems to me that the suggestion of the noble Lord, Lord Macdonald, that its provisions bypass the need for an inquest into an inflicted death ignores the crucial point: that, under the Bill, death is self-inflicted following a detailed procedure, although I concede that we need to give further consideration to the details of that procedure.
Support for the principles enshrined in the Bill appears to be growing, even from some of those—such as Desmond Tutu, as referred to by the noble Lord, Lord Dholakia, and the noble and right reverend Lord, Lord Carey—whose commitment to their Christian faith is unchallengeable. Although, as we have heard, many of the professional bodies are opposed to the Bill, many individual physicians support it. Last December, I quoted the line from Keats’s Ode to a Nightingale, in which he expressed his aspiration,
“To cease upon the midnight with no pain”—
an aspiration which I suspect that we all share. Another line occurs slightly earlier, which might be thought to serve as a symbol of the Romantic movement, in which the poet speaks of being,
“half in love with easeful Death”.
It is not necessary to subscribe to that morbid approach to recognise the legitimacy of the desire of a patient to end, with assistance and after due process, a life which is in any case drawing to a close but in circumstances which are, to the sufferer, unbearable.
Nothing in the Bill reduces the requirement to provide the best possible palliative care for those who need it, for as long as the patient requires it. However, I respectfully suggest to those who oppose the Bill that it would not be right to deny those for whom even the best palliative care is insufficient the mercy of an earlier release, if such is their wish. Ultimately, as my noble friend Lord Elder said, it should be a matter of choice—a choice about one’s own life and not, as the noble Lord, Lord Carlile, seemed to postulate, about the life of others.
I join all those who have spoken in favour of giving the Bill a Second Reading and going on to examine it in detail in Committee, where legitimate concerns about safeguards for both patients and medical and nursing staff can be explored. In that connection, and having regard to my wife’s experience as a counsellor, I suggest that consideration might be given to the potential role of counselling in the safeguarding process. We should definitely look at requiring parliamentary approval of a code of practice, as suggested by the noble Lords, Lord Shipley and Lord Carlile. I also concur with the suggestion of the involvement of a judge that was made by the noble Baroness, Lady Neuberger, and the noble Lord, Lord Shipley, supported again by the noble Lord, Lord Carlile.
Whichever way Members are inclined—and I make the tally of speeches for each side approximately equal, which gives a sense of how important this issue is and how much thought has been given to it—the House today has fulfilled its function well. We should now continue in that vein at the next stage, doing what your Lordships’ House does best: scrutinising and improving legislation that bears, in this case quite literally, on the life of the citizen.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 4 months ago)
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Lord Beecham
“(10) 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, Amendments 4, 5, 8 and 16 relate to the obligations imposed on the Parole Board by Clauses 3, 4, 5 and 7. Clause 3 adds terrorism and explosive offences to the category of the enhanced dangerous offenders sentencing scheme. Cases will be referred to the board for a decision about release instead of offenders being eligible for automatic release after serving two-thirds of their term. Clause 4 extends this to all such offenders serving extended determinate sentences. Clause 5 applies a similar provision to other offenders convicted of serious crimes, as listed in the schedule, who will be subject to discretionary rather than automatic release between the halfway and end points of their sentence. Clause 7 creates a new release test for recalled prisoners to be applied by the board under which the Secretary of State or the board has to be satisfied that it is highly unlikely that a prisoner would breach a condition of his licence.
All these measures are likely to increase the pressure on an overstretched and underresourced Parole Board. The Government estimate an increase of 1,100 hearings a year by 2030, rising by an estimated 50 next year, 400 by 2020 and ultimately requiring an extra 1,000 prison places. As the Prison Reform Trust points out, the Ministry of Justice has form in these matters. When indeterminate sentences—IPPs—which we will be debating later were introduced, the ministry, under a previous Administration, estimated an increase in the prison population of 900, but by the end of last year 5,335 people were serving IPP sentences, two-thirds of them beyond their tariff date.
This was in good measure a result of the failure, frequently commented upon in this House and beyond, to provide the necessary resources to the Parole Board to prepare people for release and rehabilitation. As the Prison Reform Trust reported, offending behaviour programmes are scarcely available and limited in their scope and effectiveness, and it is inherently difficult to demonstrate reduced dangerousness and pass the high safety threshold for release. That was in 2010, when numbers were smaller and staffing greater. Moreover, as the Prison Reform Trust points out, the Government’s impact assessment of the provisions of the Offender Rehabilitation Act estimated that 13,000 offenders would be recalled or committed to custody a year, leading to an extra 600 prison places being needed. Have the Government looked into the real impact of the Offender Rehabilitation Act on this situation to date and as anticipated in the near future? Further, what assessment have they made of the effect of the recent Supreme Court judgment in the Osborn case requiring the board to hold more oral hearings, which last December alone had increased by one-third in indeterminate review cases to just under 400 in a month and to 90 in indeterminate recall cases?
The board warned in its annual report, as it appears from today’s Daily Telegraph, that the number of oral hearings could increase from 4,500 a year to as many as 14,000, and at an additional cost of £10 million. What is the Government’s response to this estimate? The Minister has apparently indicated that an extra £3 million will be allocated to the Parole Board. How does that square with the board’s own estimate of the potential cost? What is the Government’s estimate of the impact on prison numbers and on the work of the board of the Secretary of State’s latest headline-grabbing decision that no prisoner may be transferred to an open prison if he or she has previously absconded, which is apparently already building up a backlog of Parole Board hearings? How do the Government expect the board to cope with these pressures when it has already lost 20% of its staff and when its members are now having to use an unreliable video link system to conduct hearings—another example of the problems associated with rushing headlong into the all too frequently costly and inadequately tested application of IT and electronic systems?
All this is set against a background of massive overcrowding in many prisons with the attendant problems that that poses for prisoners and staff, and with the system too often being pared back to one of simple confinement. The chief inspector has spoken of dangerous instability in the prison estate and has pointed out that despite some recent high-profile cases, there is a very low failure rate for release on licence. Further questions arise over the Government’s apparent intention, as reported in the Times on 21 June, to transfer responsibility for the administration of recall cases to the magistrates’ courts. Can the Minister tell us whether this is the Government’s policy, because of course the report may be wrong, and if so, what consultations have taken place with the Parole Board, the Magistrates’ Association, the judiciary and other interested parties? Is there an intention to pilot such a concept before rolling it out?
It really is time for the Government to adopt less of the kind of muscle-flexing populism that is so often exhibited by the Secretary of State and more of the considered approach we have come to expect of the Minister. These amendments are designed to ensure that the Parole Board is fully engaged with any plans to implement these measures and that Parliament has an opportunity to scrutinise and approve their implementation on the basis that the necessary resources will be made available to ensure that the pathway to rehabilitation is properly and securely paved. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to add to some of the comments made by my noble friend Lord Beecham on the make-up of the review of the Parole Board. My understanding is that at present Parole Board members can either sit as a single Parole Board member or as two or as three. They can be a mixture of lay people and lawyers. It is of course desirable that the more serious the case, the greater the legal training and the more appropriate the experience of the people sitting on those hearings. I also wonder whether the Minister can comment on the possibility of using lay magistrates to sit on parole hearings. Is this something that the Ministry of Justice is willing to consider? We have a resource in the pool of magistrates throughout England and Wales, so is the ministry considering the use of magistrates in parole hearings? The whole subject of the Parole Board is extremely important, as we have heard from my noble friend Lord Beecham, and is something that needs to be managed very carefully, given the reduction in the resources being made available to it.
Lord Beecham
My Lords, I thank the Minister for his explanations. I do not, I am afraid, find them entirely satisfactory, particularly in relation to the increased workload and its cost. It is, after all, the board’s annual report that suggested that there would be an increase of nearly threefold in the number of hearings—from 4,500 to 14,000—at what it estimated would be an additional cost of £10 million, which, on the Minister’s figures for the current costs, represents a doubling of the cost. Yet the Government’s planned contribution is of the order of £3 million, which is significantly less than was indicated by the board’s figures. There is still an issue here, and that is what lies behind the suggestion that we in Parliament need to take an overall look at the situation as it develops in terms of the adequacy of resources.
The objectives are admirable, but it does not seem to me and, I suspect, some other noble Lords that the Government have fully thought through and costed what is required to deliver the policy—hence the suggestion that the Parole Board be consulted. Consultations are, no doubt, taking place but the results of those consultations, and the implications for staffing and otherwise, should be laid in a report before Parliament in order that it can exercise its job of scrutinising a significant area of public policy that potentially impacts upon public safety. All of us wish the service to work well but it has to be properly resourced, and it is necessary for Parliament to have a role in doing that, given that, on the face of it and for all the Government’s good intentions, they do not seem to have worked it through sufficiently.
At this stage, I will not press the amendment but it is a matter to which we may well return on Report. I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I must confess that I am somewhat puzzled by the position outlined in the JCHR report and what the noble Lord, Lord Lester, referred to as the Government’s recent pronouncements on it. As he rightly said, the report indicated that the Government would be awaiting the outcome of the appeal in McLoughlin before updating the Committee of Ministers of the actions that they plan to take to implement the Vinter judgment—which implies that the Government are planning to implement the Vinter judgment, but in ways as yet undetermined.
I am sure that the Minister will be able to enlighten us about whether that is in fact the Government’s intention and, if so, what approach they will be taking. If they are awaiting the outcome of that appeal before coming to a conclusion, that is not an unreasonable position for them to take, but the underlying question is whether they intend to implement the Vinter judgment as indicated in whatever decision the Supreme Court ultimately makes on the details of the McLoughlin appeal.
I am also uncertain about the interesting reference that the noble and learned Lord, Lord Phillips, made to a wider meaning of “compassion” and whether that would be a criterion for release. Is that something that the Government are in fact contemplating? Might that form part of their response to the Committee of Ministers in relation to Vinter?
These are difficult cases, and one must hope that we can reach the position where we are not in conflict with the court but that, nevertheless, the balancing interest of public safety is also given due weight. For the Opposition’s part, we await the Government’s response in general and the Minister’s response in particular this afternoon.
Lord Faulks
My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.
However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.
I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.
The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.
The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:
“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.
The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:
“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.
The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.
The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.
The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.
The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)
My Lords, if Amendment 9 is agreed to, I cannot call Amendments 10 to 12 inclusive by reason of pre-emption.
Lord Beecham
My Lords, tagging—or electronic monitoring, to give it its official title—is potentially a useful tool in cases where it is necessary to protect the public by, for example, prohibiting contact with named individuals, imposing a curfew or restricting access to particular places. Even so, we are all conscious of the appalling experience with the Government’s favoured all-purpose contractors, G4S and Serco, which resulted in the repayment by those companies in the end of £214 million, roughly equivalent to the total of a year’s savings engendered by cuts to legal aid. Clause 7 takes us, as we have heard from the noble Lord, Lord Marks, into new territory with the extension of the use of this system to prisoners on licence, and that on a mandatory basis. The Chief Inspector of Prisons has been highly critical of this proposal, since in the absence of evidence of absconding or committing offences while on licence this is not, in fact, a significant problem. What is the evidence on which this proposal is based and what is the cost of the equipment and the necessary monitoring? The impact assessment 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 such, we are unable to calculate impact”.
That is an extraordinary basis on which to import into this legislation a mandatory requirement. It seems, as an approach to legislation, to be matched only by the Home Office’s approach to record keeping.
Dan Jarvis MP, my honourable friend in the Commons, has identified some significant risks. They include the possibility that the technology might not be capable of delivering the service at an economic cost. The use of tagging might not have the anticipated deterrent effect. The new licence conditions might lead to an increase in breaches, such as not wearing the tag, which could lead to more prison places being required. On the latter point, the impact assessment rather weakly admits that the number of additional prison places required, “cannot be accurately estimated”. If ever the Government’s own impact assessment has made the case for properly piloting a provision, this is clearly such a case. Moreover, there is widespread concern about making this a mandatory condition, something that is at odds with the whole purpose of release on licence, which is to help offenders reintegrate into society. One has to ask whether making it mandatory is a provision dictated by the potential contractors’ need for an assured case load and associated financial returns rather than any substantive merits of the procedure.
There is also the unacceptable position that the Secretary of State may impose a code of practice especially about the data acquired through the process without parliamentary approval. The Joint Committee on Human Rights regards safeguards in relation to the collection and storage of such data as crucial. Where are we in relation to the drafting of a code? Amendment 12 deals with this issue.
Amendment 13 calls for an early review of any scheme in order to assess its actual impact on individuals, on reoffending, and on cost. Amendment 11, which we seek to repeat in Amendment 44 applying to secure colleges, would make the contractors subject to freedom of information procedures. Last year, the Information Commissioner asked the Justice Committee, in this respect, if more and more services are delivered by alternative providers which are not public authorities, how do we get accountability? This is particularly relevant in the context of the justice and penal systems, where there have been too many worrying failures and instances of quite disgraceful treatment of prisoners and detainees by such contractors. If, as is quite right, state prisons are subject to the Freedom of Information Act, what possible reason could there be for excluding other providers, including those who are to provide the tagging mechanisms here?
I hope that the Minister can deal with some of these questions, as well as the points of substance raised by the noble Lord, Lord Marks. It is absolutely impermissible for these powers simply to be imposed by order, and on the basis of such flimsy evidence as the Minister produced, to support the extension in the way that the Bill prescribes.
Baroness Kennedy of The Shaws (Lab)
My Lords, I know that it is normal that the Front Bench on this side finishes any debate before the Minister answers, but I really have a bad feeling about the clause and I want to support the amendment. The provision smacks to me of the outcome of lobbying by those who will have highly remunerative contracts, if it comes to pass. We are not hearing any costings on this, and I would very much like the Minister to tell us what it is going to cost the public purse. As others have said, there are circumstances in which it is very useful to tag someone when there are concerns about whether they might not respond to the ordinary inhibitions on their liberty during a period of parole, but I am concerned about it being used in this wide way. Behind the provision is the lobbying by those private sector companies that now make a great deal of money out of this very kind of thing. Have any costings been done? How much will it cost the public purse?
Lord Ahmad of Wimbledon
The noble Baroness asks a pertinent question. Representations are always made in any part of government, but the Government are, as I hope I have indicated, taking these steps forward in line with the concerns that exist and based on the evidence that I have presented to the Committee today.
Lord Beecham
With respect to the Minister, he may not be able to answer the question that my noble friend has asked without advice from the Box or elsewhere; but he has not even purported to answer the question. The question is a legitimate one. Perhaps he would undertake to reply to my noble friend and let her and the Committee know whether those who are likely to benefit from these contracts lobbied for this provision to be mandatory.
Lord Ahmad of Wimbledon
Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.
Lord Beecham
“(1A) The code of practice must include a requirement that a person carrying out electronic monitoring who is not a public authority as defined by section 3 of the Freedom of Information Act 2000 shall provide information in respect of the carrying out of electronic monitoring in the same manner as if they were such a public authority.”
Lord Beecham
My Lords, the amendment addresses the growing trend of government to outsource the provision of public services to private contractors. Something like £95 billion a year is now tried up in such contracts. They cover a whole range of services, but the Ministry of Justice has been at the forefront of this development in public policy. One thinks of the controversial issue of probation, which we have debated at length, notwithstanding the Government’s initial decision not to include it in legislation. We also have the experience of a number of private prisons—certainly under the previous Government as well, but now clearly to be promoted even further. We have for some time now seen court staff provided to magistrates’ courts and elsewhere by private contractors. We have had the shambles of the interpreter service, again in the hands of contractors. In the Bill we have, as we have already heard this afternoon, provisions about tagging. We will come in due course to the controversial provisions about secure colleges.
Public providers still operating in some of these areas, such as in the case of prisons, have to comply with the provisions of the Freedom of Information Act, but the private contractors do not. That strikes many as a complete anomaly. Why should a private prison such as the Acklington prison in the north-east of England, where I come from, which has experienced great difficulty since privatisation, not be subject to FoI requests when one of Her Majesty’s prisons, perfectly properly, is? Why should those who look after certain detention centres for asylum seekers be immune from FoI requests, particularly given the constant flow of unfortunate stories that we hear from such places, while a public institution is, perfectly properly, accountable? I have already quoted the Information Commissioner’s comments in addressing the Justice Committee last year, but I will repeat them. He asked,
“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?”.
Even the Prime Minister is on record as being in favour of transparency. A couple of years ago, he spoke about the power of transparency and why we need more of it. He also spoke of leading the most transparent Government ever. Transparency, of course, has a number of meanings and one can accept that, in a certain respect, his Government is exceedingly transparent—but it is not particularly transparent when it comes to the letting of contracts, particularly to these third-party organisations.
My honourable friend Dan Jarvis said in a debate in Committee on the Bill:
“The rewards that third parties stand to gain need to go hand in hand with the duties of transparency and information sharing. The public should be able to ask … how, and how well, the service they are paying for is being run”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 187.]
The Labour Party has pledged to extend the FoI legislation to contractors of public services. Why will the Government not at least match Labour’s pledge to do likewise and extend the freedom of information provisions to these companies, which are carrying out important and, in many cases, extremely sensitive areas of public provision? It would appear that those companies are essentially immune to the same processes that would apply if they had remained in public hands. Particularly given the great concern about the developments in the probation service, it is not time that the Government acknowledged that there is force in this argument and, accordingly, accepted the amendment? I beg to move.
Lord Ahmad of Wimbledon
My Lords, Amendment 11 seeks to impose a requirement on providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act 2000. It does this by introducing a requirement as to the contents of the code of practice that the Secretary of State will issue under new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. The amendment would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.
I assure the Committee that the Government recognise that there are concerns about the position of private providers of public services under the Freedom of Information Act. As noble Lords may know, the issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act, carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed,
“that contracts provide a more practical basis for applying … outsourced services than partial designation of commercial companies under section 5 of the Act”.
The committee also felt that,
“the use of contractual terms to protect the right to access information is currently working relatively well”.
The Government accepted the committee’s recommendation and later this year will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. The new code will promote and encourage the use and enforcement of contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will also encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.
The Government and the Information Commissioner, referred to by the noble Lord, Lord Beecham, will monitor the effectiveness of the new code. If it does not prove successful, the Government have said they will look at going further, including potentially extending FoI formally to contractors—again, a point made by the noble Lord, Lord Beecham. We believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of these steps, I would argue that the measures proposed through these amendments are unnecessary. Based on the explanation and assurance I have given, I hope the noble Lord will be minded to withdraw his amendment.
Lord Beecham
My Lords, I will not press the amendment at this stage, but it is not clear to me why there should be two separate systems, one for private contractors and one for public agencies. The opportunity to raise an FoI request is open to anybody and should apply equally to the two different types of provider.
The Minister and his ministerial colleague in the House of Commons referred to the production of a code of practice. Once again, we are being asked to legislate in a vacuum because we have not seen the code of practice. Nor is it clear whether that code of practice will be subject to parliamentary approval. Perhaps the Minister can indicate whether that would be the case.
However, even if it were subject to parliamentary approval, I still do not see the logic in having two separate systems for the provision of like services, depending on which provider is carrying them out. Surely that will not assist members of the public. It must be difficult for them, as it is for me, to comprehend why there should be two parallel systems when they are looking not so much at the provider as at the nature of the service and any potential problems that might arise.
If the noble Lord cannot deal with that today, perhaps he will consider writing to me—again, sending that reply to the Library—otherwise, this is a matter to which we may well have to return on Report. In the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
“(4B) In considering whether the person is highly likely to breach a condition included in the person’s licence, the conditions shall be reviewed and amended as appropriate to ensure that the person is able to comply.”
Lord Beecham
My Lords, I shall speak also to the Question whether Clause 8 stand part of the Bill.
This amendment refers to the provisions in Clauses 7 and 8 dealing with the test for release after recall in the case of determinate sentences. The amendment requires the Secretary of State and the Parole Board to consider, in addition to other factors currently applicable in determining whether a recall prisoner is suitable for automatic release or rerelease when subject to discretionary release, whether the offender is “highly likely” to breach his licence condition. That is the thrust of the Bill as it stands.
At present, the principal consideration is whether release would involve a risk of serious harm to the public. Clause 8 empowers the Secretary of State to change the test by means of an order subject to affirmative resolution. Left as it stands, the “highly likely” test looks to be subjective, and that impression is enhanced by the failure to consider and provide for factors which might contribute to the outcome of a decision to release.
Similar issues arise in relation to the new offence of remaining at large after recall in Clause 10, to which we will come later. As in that case, what is missing is an assurance that the necessary support will be given to vulnerable offenders, especially those with, for example, mental health problems or learning disabilities which seriously impair their capacity to understand even common terms such as “victim” or “breach”, as affirmed in the helpful briefing provided by the Prison Reform Trust. A substantial proportion of prisoners suffer from conditions that affect their capacity precisely to understand the conditions that might be laid upon them or otherwise to conduct what for ordinary citizens would be a simple lifestyle.
The Prison Reform Trust points out that conditions in relation to release and supervision need to be appropriate to the intellectual ability and understanding of the offender in order to comply with the obligations of the Equality Act 2010. It is unclear whether the Government have considered the applicability of the Equality Act to this provision and whether they consider that the provision passes the test.
Amendment 15 would therefore require the conditions in a person’s licence to be reviewed and amended from time to time to ensure that the person is able to comply—that is, that he has the faculties to allow him to comply—and that will usually involve the provision of relevant support for the prisoner in preparing for release and during the period of release. Amendment 16, which we covered earlier, would require the Secretary of State to,
“consult with the Parole Board about the resources”,
and report to Parliament on them, required to deliver that degree of support.
Clause 8 is an unsatisfactory provision inasmuch as it empowers a change in the test by secondary rather than primary legislation, as I pointed out at Second Reading. The noble Baroness, Lady Linklater, who is not her place, put the case even more strongly. She said that the clause gave the Secretary of State,
“an unacceptable degree of power”.—[Official Report, 30/6/14; col. 1593.]
She said that, for that reason, she hoped the House would join her in a stand part debate in relation to Clause 8, thereby restoring the current position, which is that change should be effected by primary legislation. It is regrettably a notable feature of this Bill that, as Justice points out, it creates no less than 30 new delegated powers, of which only eight require approval by affirmative resolution.
That is particularly objectionable in a case where individual liberty is at stake. Albeit that it is conditional liberty because it is release on licence, such is the case with the provisions that we are now debating. I hope very much that the Government will reconsider this. Perhaps, the Minister could indicate what the Government take to amount to the conditions of a test of high likelihood that the Bill expresses as a condition.
There are therefore two grounds for my amendments. The first is the requirement to ensure that the individual can cope with the conditions, and be prepared for them and supported in them. The second is to do with the parliamentary process to ensure that there is proper parliamentary scrutiny by way of primary legislation before changing a test which will interfere with the liberty of the subject. I beg to move.
Lord Beecham
I thank the Minister for his helpful reply and will look carefully at the record to see whether it is necessary to bring matters back on Report. However, I emphasise that the Opposition as a whole—and, I suspect, other members of the Committee—are reluctant to confer on the Government order-making powers of a kind that would interfere with the liberty of a subject without primary legislation to establish them. However, that is a matter that we may consider at a later stage. In the circumstances, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.
The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.
Lord Beecham
My Lords, it is ironic that the Committee meets today, on Bastille Day, as the French Revolution effectively broke out with the release of a number of prisoners on what were presumably indeterminate sentences. I suppose that they might have been lettres de cachet. The House and the Committee are indebted to the noble and learned Lord, Lord Lloyd, who has constantly raised this matter.
The noble and learned Lord, Lord Phillips, referred to “Fidelio”. I am not sure whether the Secretary of State would find himself comfortable in the position of the Minister in that opera; perhaps he would be more comfortable in another opera as Gilbert and Sullivan’s Lord High Executioner. Be that as it may, the noble and learned Lord raised a series of questions, implicitly or explicitly, to which we have had no reply thus far. I hope that the Minister will be able to give us some indication of the Government’s thinking, if they have got that far, on the issues raised this afternoon.
The first question has already been asked but I will repeat it: why include a provision in legislation and then completely ignore it? Have the Government or, more particularly, the Secretary of State considered using the provision that this Government included in the LASPO Act? If they have, on what basis has that consideration taken place? Has the Secretary of State looked at any cases of the kind to which the noble and learned Lord referred—I would hardly expect him to look at them all—to come to a view about whether it would be right to exercise the discretion that was deliberately placed in his hands? If he has not, why not? What is the Government’s intention in relation to this section of LASPO? Is it to be ignored or is it at all to be used? If it is not to be used, why do the Government not have the courage of their apparent convictions and delete it? If it is to be used, when and under what circumstances will that be?
Questions have repeatedly been asked today about the resources available to the Parole Board to deal with matters of this kind. I asked the general question before to which others, including the noble Lord, Lord Wigley, have now alluded about the increased burden on the Parole Board as a result of recent decisions and the growing number of cases that it will be asked to look at in oral hearings. However, has any specific consideration been given to the resources required to deal with the cases of people who have been in prison for the length of time to which noble Lords have referred? Again, if not, why not?
There may be a concern in respect of some of these defendants as to what would happen if they were released and whether they might to some degree be a risk to the public. What investigations have been carried out to assess the need for investigation and inquiry by the Parole Board in support of those potential candidates for release who have served such a length of time? The overriding question is really therefore: what was the purpose of incorporating the Secretary of State’s discretion in the 2012 Act if it is to be treated as redundant? If it is not to be so treated and there is an intention to do it at some time, why the delay? As we have heard, many cases have been running for an unacceptable length of time. I hope that the Minister will be able to give some assurances that this matter will be seriously addressed and not simply left on the shelf in a way that does no credit to our system.
I think that the previous Government were rightly criticised on matters of this sort, in many respects, particularly in also failing to provide sufficient support for the Parole Board. However, their failure is relatively minimal compared to the looming failure which is likely to affect not only this category of prisoner but others who require the Parole Board’s intervention. I hope that the Minister can indicate, today of all days, that some movement will be made and that the Secretary of State will address himself to the plight of these people, and thereby avoid a further stain on the reputation of the Government in this respect.
Lord Faulks
My Lords, we are debating once again the position of current IPP prisoners. The Government abolished that sentence in the LASPO Act 2012, for reasons I need not rehearse. We replaced them with immediate effect so that no further IPPs can now be imposed on offenders convicted after December 2012, regardless of the date of offending. That, as I think noble Lords would agree, is a major step forward. The noble Lord, Lord Beecham, said in the course of his address to your Lordships that the Government who preceded ours had not given the Parole Board sufficient resources. What he failed to do was to acknowledge that it was his Government who brought in this scheme, which has been so much criticised. That scheme has resulted in a number of people being imprisoned and still being in prison; this Government repealed that provision.
However, in respect of IPP sentences already imposed, our position remains that it would not be right or appropriate retrospectively to alter sentences that had been lawfully imposed prior to the abolition of IPPs, particularly because in this case those sentences were imposed with public protection issues in mind. Consequently, prisoners serving IPP sentences are not released unless the Parole Board authorises it.
A number of questions were posed about the Parole Board’s resources, including those from the noble Lord, Lord Wigley. In answer to an earlier amendment, when I think the noble Lord was not in his place, I set out to the Committee the fact that the Government were well aware of the demands, temporary and in future, being presented to them. They had given further resources and were intending to be nimble in responding to the demands that were and would be placed upon them.
Lord Beecham
I am sorry to intervene at this point but, as the noble Lord, Lord Wigley, was not in the Chamber when this matter was discussed before, would the Minister care to address the point that I made to him that the Parole Board’s estimate of the increased demand was £10 million a year, which is equivalent to the total budget, while the Government’s provision is proposed to be £3 million? How does that square with the assurance that he is trying to give to the noble Lord?
Lord Faulks
The Government and the Parole Board, as the noble Lord would expect, are in frequent communication. It is difficult to be precise about these figures; an estimate is simply that. I assure the noble Lord that the figures in so far as they can be reached are the result of a number of conversations that have taken place regarding predictions about the demand. It is the Government’s position that we are providing the appropriate support for the Parole Board now and its estimate of what will be required in future. I also said—
Lord Beecham
Lord Beecham
Clause 10 creates a new offence of remaining unlawfully at large after recall. When he replies, will the Minister indicate the likely incidence of this offence or at least the basis on which the Government have seen fit to create an offence? How many offenders have broken their conditions and have remained unlawfully at large? That would be a material consideration.
The amendment does not necessarily challenge the creation of the offence, but it seeks to incorporate within the definition of the offence in Clause 10(1) and thereby insert into the Crime (Sentences) Act 1997 a factor which would render a person guilty of an offence if he, while unlawfully at large fails, deliberately and without reasonable excuse, to take all necessary steps to return to prison as soon as possible. The point of the amendment is to address the significant number of offenders, to whom I have already referred in another context, who have mental health or learning disabilities which may well impair their capacity to understand and comply with requirements in relation to recall.
It is important to bear in mind the significant numbers that I have already mentioned. I shall give a little more detail of the percentages involved: 20% to 30% of offenders have learning disabilities or disabilities that interfere with their ability to cope with the criminal justice system; 23% of young offenders have learning difficulties—that is to say, IQs of below 70—and a further 36% have borderline learning difficulties. That is a clear majority of young offenders. More than half of prison staff believe that prisoners with learning disabilities or difficulties are more likely to be victimised or bullied than other prisoners. They are also more likely to have broken a prison rule by several times the number of other prisoners. This is a group of damaged people, largely as a result of learning disabilities.
We know in any event that a very high proportion of prisoners suffer from one or more learning disabilities. Some 70% of adults suffer from one or more of such disabilities, while 80% of young offenders suffer from them. With that will often go problems in communication and comprehension skills, and perhaps even memory problems. Given that, we are dealing with a group of people of whom at least quite a significant proportion will struggle anyway out in the community, whether they are on licence or have ultimately served their sentence. To create a criminal offence that does not take into account those limitations is, in my submission, to veer towards injustice. What is needed is for those factors to be taken into account before bringing these people within the ambit of an offence. This amendment seeks to do that because deliberation assumes the capacity to take a decision which most noble Lords and perhaps most of the population would be able to take without the encumbrance of conditions which might limit that capacity.
The thrust of the amendment is to provide a safeguard. I hope that the Minister will look at it sympathetically. His colleague in another place, Jeremy Wright, seemed to think that the word “deliberately” did not add anything to the question of a “reasonable excuse”, but I suggest that potentially it does. It strengthens the position of those who would find it difficult to cope with the requirements, but it would not exclude those who are capable of deciding on what is required of them and who then make a deliberate decision not to comply. I hope that, either today or by the time we reach the Report stage, the Minister will be able to indicate the number of people who are remaining at large unlawfully at any one time. That would be useful background information to inform the debate at a later stage. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I understand totally the sentiment behind the amendment, but the offence is about making sure that, in the most serious cases where offenders have been recalled from licence and have run off to avoid serving their sentence, the courts have the necessary powers to deal with them. I assure the Committee that this is not about locking up as many people as possible or indeed prosecuting them unnecessarily. The offence will not apply to the vast majority of recalled offenders, who are returned to custody within a few days, some of whom are unaware that their licence has been revoked until they are arrested. I understand the aim of making sure that the new offence does not penalise offenders who may remain unlawfully at large through no fault of their own. Clause 10 is carefully framed so that an offender who is recalled to prison will be guilty of committing the offence only if they have been notified of the recall, either orally or in writing, or they can be treated as having been notified of the recall in light of repeated failures to keep in touch with probation as required. If they fail without reasonable excuse to take all necessary steps, they can be returned to custody.
The noble Lord, Lord Beecham, has rightly raised the issue of safeguards. Not all licence breaches lead to recall and there are a number of stages that must be passed before the offence will bite. These provide important safeguards which ensure that the vulnerable offenders whom he mentioned quite specifically are not set up to fail. He will know, as will most noble Lords, that in all circumstances the probation officer and the National Offender Management Service must consider whether the offender’s licence should be revoked and, if so, whether they should refer the offender to the Secretary of State to make the final decision. That judgment is and will rightly remain a matter for the discretion of the professionals who know the offender and the particular circumstances.
The noble Lord also asked how many offenders are currently unlawfully at large. The provision is about those who remain unlawfully at large following a recall to custody from licence. Information on licence recalls and returns to custody is published quarterly and the most recent publication was on 24 April this year. The total number of offenders recalled to prison for the period 1984 to December 2013 who had not been apprehended by 31 March 2014 was 1,050, which represents around 0.6% of the offenders who were recalled during that period. I hope that this information is helpful and I would reiterate that I understand the intent behind the amendment. I hope that the safeguards which the Government have sought to put in place in framing this clause reassure the noble Lord and I trust that he will be minded to withdraw the amendment.
Lord Beecham
I am grateful to the Minister for his response and I note the very small percentage of those who fail to respond. Of course, the noble Lord is not in a position to say who among them would fall into the category I have described, and it may be that that is a matter which is worth looking into. However, I presume that it would be for the Parole Board or some other body. In the circumstances, and certainly at this stage, I beg leave to withdraw the amendment.
Lord Patel of Bradford
I completely agree with the noble Lord, Lord Mancroft, about the issue of prescription drugs out in the community, given the ludicrous figure of literally 50 million prescriptions—I think—having been issued last year. However, there is a clear distinction between that situation and the situation in prisons. Mandatory drug testing was introduced to test prisoners for heroin in particular. However, following the introduction of mandatory drug testing, many prisoners who had been using cannabis, which stayed in the system for longer, started to use heroin, which stayed in the system for a shorter time. We got over that problem through introducing into the prison estate a very good integrated drug system, which has worked exceptionally well.
However, the drug abuse problem has shifted to prescription drugs. In prison after prison, prescription drugs are used as a commodity. People are being bullied on account of these drugs and violence is associated with them. We do not have the measure of this problem or know the extent of prescription drug abuse. Indeed, we have no idea about the problem of the so-called legal highs, which is clearly a problem in prisons, because the mandatory drug testing simply does not pick up those drugs. Merely to say that we will conduct mandatory drug testing for all drugs will not solve the problem. We need to analyse further how prisoners can safely take the prescription medicines they are prescribed and what policies need to be put in place to provide safe places for them to do so. We need data on prisoners’ prescription medicines and on the incidence of abuse to enable us to move forward on this issue. The intention behind the amendment is to obtain that data and for the Secretary of State to present them to Parliament in a report. That would give us the opportunity to improve the situation.
Lord Beecham
I should like to add a further thought and thank my noble friend for putting the case for these amendments so capably. The responsibility for providing medical services in prisons belongs ultimately to NHS England as the commissioners. Therefore, it is not a matter solely for the Ministry of Justice. It seems to me that some interdepartmental discussions on this issue would be timely, if they have not already taken place. There is the sheer cost, of course, of providing prescription drugs for prisoners as, indeed, for anyone else, which, obviously, will be a factor in the mind of NHS England. As regards the general health problems of prisoners, particularly mental health problems, it seems to me that the involvement of the Department of Health and NHS England in looking at the aspects to which our amendments refer would be very helpful. I am not asking for any response on that tonight except perhaps for a nod in the direction that some discussions will be held with NHS England and the department to see whether a more holistic approach can be adopted across the relevant agencies. It would be helpful if such an indication could be given.
Criminal Justice and Courts Bill
Lord Beecham Excerpts(10 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 (Lab)
My Lords, this amendment was provoked by a disturbing article in the Guardian on 1 July, based on the recently published report of the inquiry into children and the police by the All-Party Group on Children, chaired by my noble friend Lady Massey. It appears that, in 22 police forces that replied to a request for information, 1,136 children under the age of 10—well below the age of criminal responsibility —were subject to stop and search between 2009 and 2013. The Met could not supply figures for 2009-11. The number of children under the age of 18 subject to this process across 26 forces exceeded 1 million.
There have been reports on this issue in the past, including one in November 2009 relating to children from BME backgrounds, and one in January 2010 on searches of 11 year-olds. In January this year, it was reported that 500 such searches had been carried out in Scotland on children under the age of 10, including 72 on children aged only seven or younger. It is apparent that there is no effective code of practice governing the carrying out of such searches, or even of properly recording them. For example, police forces were unable to say how many looked-after children had been stopped and searched. Some forces do not even record a child’s name, address and date of birth, although some do. Only 20 of the forces had separate custody facilities for children in their police stations.
The Home Office has reviewed stop-and-search powers, but the all-party group’s inquiry suggested a number of improvements relating to the collection of data, including ethnicity, and specific guidance on safeguarding and child protection, especially for vulnerable children in care or at risk of abuse or exploitation. When a child is taken to a police station for the purposes of a search, he or she has a right to have a parent present. Some forces make an effort to take a child home before searching.
The Bill contains a welcome provision in Clause 20 to require an appropriate adult to be present when a caution is given to an offender under the age of 17. The amendment, which is designed as a probing amendment, would extend that principle to stop and search so that an appropriate adult would have to be present, particularly during the search. The stopping is not necessary something an appropriate adult would be present for, but the search, which is a more personal intervention, should be in the presence of an appropriate adult. As it stands, the amendment applies to children under the age of 10, but perhaps thought should be given as to whether that age remains too low—after all, it is below the age of criminal responsibility. In Scotland, consensual searches—searches the child simply agrees to—will now no longer be carried out on children aged under 12.
I hope the Minister will agree to consider this amendment and come back on Report possibly with an improved version. It seems important that this process, if it has to be undertaken, should be undertaken in as sensitive a way as possible, preferably in the presence of a parent, but, if not, at least of an appropriate person independent of the police force. I hope the Minister will look kindly on the suggestion and perhaps work with the Opposition to see whether we can reach an agreed position on it. I beg to move.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for drawing the Committee’s attention to this issue. The purpose of the amendment is to extend the safeguards provided in PACE codes of practice C and H, covering custody procedures, to provide children under the age of 10 with an appropriate adult in public settings where a stop and search is carried out. While this is a laudable aim, the Government do not consider the amendment desirable, as we consider the existing provisions in law and codes of practice are sufficient for the purposes of ensuring that children are treated appropriately. For instance, there are already important safeguards attached to Section 1 stop and searches. These include the obligation on the police 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. In addition, a person can be detained for the search only for as long as is reasonably required to allow the search to be carried out. Therefore, the period of time for which an individual can be held for the search is strictly limited and proportionate.
Indeed, in terms of the time that individuals are detained, were there to be a requirement for an appropriate adult to be called in a stop and search context, this would require the police to arrange for provision in all public settings and at all times, which would entail detaining children for significant and disproportionate periods of time. This would also mean a significant strain on police time and resources.
There is also Section 11 of the Children Act 2004, which places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. The statutory guidance accompanying this duty requires the police to ensure that appropriate training is in place to enable police to deal appropriately with children.
In respect of the police’s use of stop and search, those are just some of the safeguards in place which apply to children, and they are entirely appropriate given the nature of the procedure.
The principal function of an appropriate adult is to explain and demystify the criminal process at the police station following arrest and detention. For example, the police interview, the meaning of the caution, the individual’s rights within the police station context and so on would need to be explained. However, these considerations do not apply to a brief stop and search encounter, which is about confirming or allaying a police officer’s reasonable suspicion that an individual may be in possession of something they should not.
I am aware that this proposed measure was mentioned in the recent All-Party Parliamentary Group for Children report on children, published this month. The group’s initial report stated that,
“APPGC Officers will continue to consider recommendations on the stop and search of under-10s for our final report, including ... whether”,
stop and search,
“should only occur in the presence of an appropriate adult, carer or parent or in the family home”.
In answer to the noble Lord, the Government will consider the group’s conclusions in its final report on this matter, but for now, without adequate consideration and consultation, we are not convinced that this measure should be introduced in legislation.
Finally, on 30 April, as the noble Lord said, the Home Secretary announced a comprehensive package of measures designed to reform the way that stop and search is used. The measures are designed to ensure that these powers are used fairly and effectively and in a way that engenders community confidence. These measures should impact positively on all sections of the community, including children. For these reasons, I respectfully ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I confess to being somewhat disappointed by the Minister’s response. We are talking here essentially about very young children, and much of what he said would be relevant certainly to adults and possibly to adolescents, but children aged 10 or under will be going through a process that is not systematic and with apparently no clear national guidance on how these things are to be conducted. Indeed, as I said, the fact that even the recording of what has happened is not uniform suggests that there is certainly a need for a coherent code. I also still urge consideration to be given to the suggestion in the amendment that an appropriate adult be available, particularly for younger children.
I do not know what timescale the Minister envisages for the production of any further guidance or indeed how long it will take the APPG to produce a second report. However, even if it is not possible before Report to reach a conclusion on whether the parliamentary group believes that it is necessary to amend the Bill, I hope that we can emerge from this whole process with a coherent approach in which the issues that the APPG has raised are addressed and in which legislation or guidance is uniformly adopted by all relevant agencies, including of course the various police forces.
I particularly invite the Minister to look at the Scottish experience. Scotland has taken a very clear decision, which is in any event quite different from the one that we now apply here. I hope that there will be some conversation with interested agencies north of the border, irrespective of the outcome of the referendum, in order to ensure that the best possible practice is implemented when we are dealing with children of this age in England and Wales. Having said that, I beg leave to withdraw the amendment at this stage.
Baroness Barker
That is exactly the point that Paul Burstow was trying to cover. If you back into that, I think you will find that the fears the noble Baroness is raising are addressed by looking at all of this section in totality.
Lord Beecham
My Lords, I will briefly mention Amendment 33, which I tabled in the light of representations from the Medical Protection Society over a range of issues. It struck me in particular that it was important to offer protection to registered medical practitioners who are exercising their clinical judgment, as opposed to other matters that they might, as it were, stray into. But where it is a matter of clinical judgment, that should surely be a defence which would displace the possibility of a prosecution for the range of offences set out in Clauses 17 to 22. I hope the Minister—I take it that it will be the noble Earl, Lord Howe, who will be dealing with this—will agree that it is important to protect clinical judgment in that way and that this amendment will be acceptable to the Government.
Lord Kennedy of Southwark
My Lords, at Second Reading I made reference to this and other clauses in this section of the Bill. I said I believed that the Government were attempting to,
“close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust”,—[Official Report, 30/6/14; col. 1620.]
although of course these amendments have much wider implications for a wider group of employees looking after vulnerable people, as the noble Baroness, Lady Finlay, outlined. These clauses were added late to the Bill during its passage through the Commons and I do not believe that they were looked at in any great depth there. As I said at Second Reading, it seemed odd to me that volunteers were not also included in these clauses, so I hope the noble Earl can address that in his reply.
We have wonderful people working in the caring professions here in the UK and we have wonderful volunteers helping people, but we must be clear that an abuser who exploits people could easily be in either group. Look at the horror story of the actions committed by Jimmy Savile. He was a volunteer at numerous establishments that were caring for vulnerable people. He was never an employee at any of the hospitals he visited but it appears he had power, influence and keys, and the system in place failed his victims for decades.
There is always the risk of unintended consequences and we need to be very careful that these clauses do not create a culture where healthcare professionals would have their normal, everyday clinical decisions open to criminal investigation, as the noble Baroness, Lady Finlay, and my noble friend Lord Beecham outlined. I do not for one minute believe that that is the intention of the Government but we have to be very careful that that is not what is created or what people believe has been created. So the amendment moved by the noble Baroness, Lady Finlay, is very welcome as she attempts to bring clarity to the issues and talks about,
“a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”,
that,
“causes the avoidable death of, or serious harm to, that individual”.
For the same reasons, my noble friend Lord Beecham and I tabled Amendment 33, which makes it clear that clinical medical judgment exercised by a registered medical practitioner is excluded.
These are very serious matters. I hope that the Minister can address the points that I have made about volunteers and the whole question of the sanctions being applied only to the most serious cases, as well as those about harming transparency and improving excellence in care made so well by the noble Baroness, Lady Finlay, and my noble friend Lord Beecham.
Lord Beecham
I can quite understand the Minister saying that he cannot see that. However, is there not a danger that members of the public will not see it that way? If this amendment were to be adopted, it would send a clear message to the public that clinical judgment is outside the scope of the general provision. Is that not something worth achieving? I cannot see that it costs anything in terms of the Government’s policy and its implementation. However, it sends a clearer signal not just to the profession but to those who might feel that they should have recourse to the law when it has resulted from clinical judgment. It would be better to make that clear from the outset in the legislation.
Earl Howe
I come back to my earlier point: the bar is set high here because wilful neglect has to involve ill treatment that was intentional or reckless. The courts have traditionally interpreted that in a very narrow way, which is as it should be. I say this again and on advice: we do not believe that a doctor exercising his or her clinical judgment would fall within the scope of that offence.
I should make a couple of other points here. Amendment 33 refers only to “a registered medical practitioner”. The implication of that would be that other types of healthcare professionals exercising clinical judgement would not be excluded because they are not specified. So, for example, a triage nurse working in an A&E department would have very reasonable cause for concern about the kind of clinical judgments that they have to make perhaps not being outside the scope of the offence, because they are not explicitly mentioned in the Bill. Clearly, I would not want to create that kind of confusion and I am sure that the noble Lord would not either.
I hope that I have been able to demonstrate that the Government have worked hard to ensure that a whole range of issues and concerns were properly considered in the formulation of the new offence of ill treatment or wilful neglect. In particular, I hope that I have been able to reassure the noble Baroness and the noble Lords on their specific concerns and that she will now feel able to withdraw her amendment.
Lord Beecham
“Identity theft
After section 9 of the Fraud Act 2006, 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, the law understandably frequently struggles to keep pace with changes in society, and this is never more apparent than in these days of rapid developments in technology, which increasingly include cybercrime. We are constantly reminded of the necessity of protecting our identities from the predators of the cybersphere who seek to access personal information, often in order fraudulently to access financial details and make off with our savings and investments. Our banks remind us of the dangers of phishing and most of us will have received heart-rending pleas for help purporting to come from relatives or friends allegedly stranded in some foreign country. A friend of mine discovered that someone she knew had been taken in by just such a ploy and had sent the fraudster £1,500 that she could ill afford. My friend felt obliged personally to make good that loss.
There is a multitude of ways in which identity theft can be deployed, and it is clear that fraud generally is rising, by 25% a year on the latest figures, while convictions are falling. Sometimes the individual victim may be recompensed by his or her bank or via insurance, but ultimately the cost is passed on to customers at large. Identity theft is therefore never a victimless crime. As the Home Office Select Committee averred:
“Online criminal activity which defrauds victims of money is often not reported to or investigated by law enforcement”,
agencies. We are therefore unable to measure the true extent and cost of identity fraud, especially when perpetrated through technology.
Lord Faulks
My Lords, I am very grateful to the noble Lord for his introduction to this amendment. Of course, he is right to identify the increasing danger of fraud in the cybersphere, something acknowledged in the Serious Crime Act. He was also right to refer to the fact that there are other offences that deal with fraud—in particular, the Fraud Act 2006, which 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 purposes 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 fraud purposes is. Therefore, the amendment as drafted has difficulties, because it would also apply to innocent persons—for example, to persons who collect a parcel using their relative’s identification from the post office, which is currently permitted. However, the Government take the issue of identity crime extremely seriously and are pursuing a number of initiatives to prevent it. A multiagency strategic group, led by the Home Office, has been formed to reduce the threat to the United Kingdom. The group is engaged in a range of activity to tackle the problem, such as strengthening the issuing processes of government documents, improving data-sharing of false identities, and taking down websites that offer false documents for sale. There is a national policing identity crime champion. The City of London Police is leading this work and is currently developing an identity crime strategic threat assessment, working closely with the National Crime Agency.
The Government recognise that there are often particular challenges in dealing with the consequences of identity theft. These challenges relate to the difficulty of identifying and catching offenders, rather than to a lack in the criminal law. The Government are working with banks and credit card companies, promoting technical solutions to the problem and working to help the victims of such crimes. We are working with the 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 Callcredit. We are also addressing the scale of this issue and establishing identity crime trends over time, through the Crime Survey for England and Wales.
We are not in any way complacent but I hope that my response to the noble Lord’s very real and appropriate concerns about identity crime has satisfied him that the Government are well aware of the issue and are responding appropriately. In those circumstances, I respectfully ask him to withdraw his amendment.
Lord Beecham
I will, of course, withdraw the amendment. However, if I may say so, I am slightly disappointed by the Minister’s rather complacent tone in relation to where we are in this situation. I do not detect a properly co-ordinated response between the Home Office and the Ministry of Justice where the police service is concerned. This matter bears further examination. If, as the noble Lord says, it is currently under consideration, I wonder whether there is any possibility of a report being made before we get to Report stage. If that is not the case, I will be tempted to bring something back at that point. However, I am happy to enter into further discussions in the light of any progress made by the Government in drawing their various strands together. I beg leave to withdraw the amendment.
Legal Systems: Rule of Law
Lord Beecham Excerpts(10 years, 4 months ago)
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Lord Beecham (Lab)
My Lords, of course, I join others in your Lordships’ House in congratulating the noble and learned Lord, Lord Woolf, and thanking him for giving us the opportunity of an important and very well informed debate.
The reputation of our English legal system stands as high as it does precisely because of the wisdom, expertise and independence of our judiciary, as exemplified by the contributions to this debate of noble and learned Lords who have played such an important part in the development of our jurisprudence and, indeed, to the deliberations of this House. It is a matter of deep regret that in a number of respects that reputation is under threat from government policies reflecting a growing indifference—perhaps even hostility—to some of the cardinal principles that lie at its heart.
As we are frequently reminded, next year sees the 800th anniversary of the sealing of Magna Carta—a document that has acquired an iconic, not to say almost mythical resonance as a charter of liberties. Only three clauses survive unchanged over the centuries, the most important perhaps being the pledge to,
“sell to no man … either justice or right”.
I shall refer later to the issue of whether and to what extent the positive version of the provision, which might be encapsulated in a pledge to ensure access to justice or right, is currently under threat. I am grateful to the noble and learned Lord, Lord Judge, for reminding us that one of the provisions was to render the king subject to law.
In his book The Pursuit of Justice, the noble and learned Lord, Lord Woolf, described Magna Carta as,
“a symbol for the values of the common law, remarkable because it is such an historical statement of the fundamental principles of the rule of law”.
As he said in the book and again today, it is one adopted by other, later jurisdictions from the USA to India. Lord Bingham, who alas is no longer with us, records in The Rule of Law that Magna Carta was cited in no fewer than 60 United States Supreme Court judgments between 1940 and 1990. I cannot resist quoting the memorable line of Tony Hancock’s jury foreman in a parody of “Twelve Angry Men”:
“Magna Carta … Did she die in vain?”.
However, the common law, powerful and flexible as it has been, and instrumental alongside the independence and integrity of our judiciary in earning the admiration of other countries and their jurists, does not stand alone, nor is it immune from threats which seem to be growing in number and intensity. We have debated many times in recent years and months the vexed question of access to justice, particularly in the light of the steady and continuing undermining of judicial review—referred to by a number of noble Lords today, including the noble Lords, Lord Lester and Lord Marks—which we will be debating in the Criminal Justice and Courts Bill, and the erosion of the availability of legal aid and advice in the courts and tribunal system. Whole swathes of rights and remedies are now beyond the reach of many of our citizens, unless they have the means to pay for legal services, or the good fortune to obtain advice and support from an increasingly overloaded and underresourced voluntary sector.
On 21 July we will be debating the latest road block to be placed on the road to justice—the residence test for legal aid—set to deprive even children, admittedly only those over the age of 12 months, of support if they have been resident for less than a year. It might be thought that that is another example of the politics of the dog whistle, which in the view of the Joint Committee on Human Rights is in flagrant violation of the European Convention on Human Rights. That convention is very much the United Kingdom’s contribution to the post-war construction of a democratic Europe in which the rule of law has become the cornerstone of civic and judicial structures, and we all owe a Conservative politician who became the Lord Chancellor, Sir David Maxwell Fyfe and later Viscount Kilmuir, an enormous debt for what became in effect the Magna Carta of the 20th century. Yet, increasingly, a disturbing trend has emerged in which human rights are devalued and the role of the convention is disparaged in the very country which did so much to advance them. As the noble and learned Lord, Lord Woolf, pointed out, if England is to be true to its heritage, which is a commitment to the rule of law, it has to be, and has to be seen to be, a champion of human rights. Making the human rights convention part of our domestic law has proved a great success. He observed that it embodies very much the same values that have been recognised by the common law for centuries. And to those who denigrate the convention, the late Lord Bingham asked, again in The Rule of Law, which of the rights would be discarded.
But rather than cherish these rights, the Government see in our judicial system a commodity to be traded. Access to justice for hundreds of thousands of citizens a year is made hugely more difficult while foreign litigants are rightly encouraged to use our skilled lawyers and our courts to resolve their differences. Justice is in danger of being seen primarily as a commodity and thus as a contributor to our balance of payments, welcome of course though that contribution is, and a tribute as it is to the skill and experience of our practising lawyers and the judiciary. However, while these litigants—Russian oligarchs and others—enjoy a Rolls-Royce service, our citizens are having to contend with an increasingly inefficient and ineffective system. The problems of criminal law practitioners and the future of the criminal Bar in particular have been referred to frequently, and notably today by the noble and learned Lord, Lord Woolf. We have the chaos in the recently reorganised and fragmented probation service, and in our overcrowded prisons in which we house, after a fashion, more people per head of population than any other EU country and with a lower age of criminal responsibility. These are conditions which are little short of scandalous.
The situation in our civil courts is also very worrying. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, there is growing concern over the number of litigants in person, especially in the field of family law. Last week I attended the opening of a personal support unit offering non-legal support to litigants in person at Newcastle Crown Court. At that event Lord Justice Briggs confirmed that the issue of delays and costs of unrepresented litigants in person was becoming a serious matter, as the noble and learned Baroness reminded us in the debate.
These problems are also affecting other parts of the civil justice system. I am indebted to Patrick Allen from the leading solicitors’ firm Hodge Jones & Allen for an update on some other aspects. It appears that papers can be lodged in a county court, date-stamped and sent to Salford, because that is where all matters now have to be routed, where they will again be date-stamped but not necessarily issued before deadlines have expired, thereby creating the risk of a case being out of time unless the High Court extends it. The savings to be engendered by this new procedure, all of £3 million to £4 million a year, are not even going to be recycled into the system, as the Civil Justice Committee of the Law Society has been told. The promised but belated investment in IT, some £75 million over five years, is to be prioritised for the commercial court. We can understand the incentive for doing that, but equally if all the resources go in that direction there will be little prospect of improving matters for domestic litigants.
In addition, the problems of the decision in the Mitchell case, which imposed what many think were disproportionate sanctions for failure to meet rigid deadlines under the Jackson rules, has led to all co-operation between parties being withdrawn. I understand that the position is to be reviewed, and I am sure that the profession more generally will be awaiting the outcome with great interest. It seems that, as the noble Lord, Lord Marks, rightly referred to, the system of arbitration is being developed. Apparently the new and very effective approach of an alternative arbitration system has been developed by a leading Silk, Andrew Ritchie QC, which will be cheaper, quicker, and more collaborative. It is to be hoped that that will have some impact.
The frustration experienced in the civil and criminal courts also extends to the magistracy, where local justice is perceived as under threat from court closures, large benches and more full-time district judges. The system of which we have been so justly proud, and which other jurisdictions have so often sought to emulate, is under threat as never before. This threat is not from a medieval monarch, but from an obtuse ministry which seems prepared only to pay lip service to the tradition of centuries and the adjustments required to reflect and cater for changing needs in our evolving society. The question at next year’s celebration will not be:
“Magna Carta … Did she die in vain?”,
but “Magna Carta—does its spirit live on?”. If not, where stands the reputation of our much admired legal system?
Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (Chartered Institute of Patent Attorneys and Institute of Trade Mark Attorneys) Order 2014
Lord Beecham Excerpts(10 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, first, on the designation order, the purpose of the order is to designate the Institute of Chartered Accountants in England and Wales—ICAEW—as an approved regulator under the Legal Services Act 2007 for the reserved legal activity of probate activities. I should also say that, if this is approved, a further order will be laid in the near future to designate the institute as a licensing authority for probate activities, which will mean that it will be able to license alternative business structures. This should help to promote increased competition and innovation in the legal services market.
The Legal Services Act 2007 established a new regulatory framework for legal services. Among the key aims of the Act was to deliver a more effective and competitive market. The Act contains eight regulatory objectives which include protecting and promoting the public interest; protecting and promoting the interests of consumers; and improving access to justice. The Institute of Chartered Accountants in England and Wales is a regulator and professional membership body for the accountancy profession in England and Wales. It provides leadership and practical support to its UK and international members and professional standards are maintained through working closely with Governments, regulators and the industry. It also undertakes education and training to support students studying to become chartered accountants.
The institute applied to the Legal Services Board in December 2012 to be designated as an approved regulator for probate activities. It also applied simultaneously to be designated as a licensing authority for probate activities. During 2013, the Legal Services Board very carefully and rigorously tested the institute’s proposals against the criteria in the 2007 Act. The Legal Services Board has also taken care to assess that the institute has both the capacity and the capability to undertake a regulatory role in the legal services sector. The board took advice from the mandatory consultees, as required by the 2007 Act. These are the Lord Chief Justice, the Legal Services Consumer Panel and the Office of Fair Trading—now the Competition and Markets Authority. The board additionally consulted the Financial Reporting Council and the Insolvency Service.
The Legal Services Board took care to ensure that the governance arrangements proposed by the institute are suitably robust in ensuring that its regulatory arrangements are independent from its representative functions, which is a key element of the 2007 Act. This is an important point, on which concerns were raised during the consultation, but the board has tested this issue and is fully satisfied that the arrangements that the institute has set out for its new probate committee will allow it to exercise the regulatory functions in a way that is not prejudiced by the institute’s representative functions. The Legal Services Board is fully satisfied that the institute has in place the safeguards required to regulate authorised bodies and protect the providers and users of such bodies. The Government accept that assessment.
The Government recognise the importance of the legal services market and want to encourage its growth. We believe that designating a new regulator, which has the appropriate safeguards for consumer protection, will help to achieve this. As for consultation, some issues were raised when the proposals were consulted on. The then Lord Chief Justice had long-standing general concerns that regulatory competition would have a detrimental effect on standards. The Legal Services Board was aware of these concerns and addressed them by setting out how the 2007 Act aims to achieve a more effective and competitive market, thereby improving standards. The Legal Services Consumer Panel strongly welcomed the application by the institute but was concerned that the institute was initially not proposing to have a majority of lay members on the probate committee or disciplinary committee. In response to the panel, the institute redrafted its regulations so that the probate committee was made up of a majority of lay members. The Office of Fair Trading had no objections. The Law Society wrote to the Legal Services Board to express concerns, in particular, as I have already noted, about the governance arrangements being proposed by the institute. The Legal Services Board copied this letter to the institute, which responded in detail to all the concerns that the Law Society had raised. The LSB was content with the response and the governance arrangements.
As I have also already mentioned, the Legal Services Board consulted the Financial Reporting Council and the Insolvency Service. Both the Financial Reporting Council and the Insolvency Service noted that the institute takes its regulatory responsibilities very seriously and supported the applications.
I appreciate that some might argue that the Government should not be pressing ahead with this and that an accountancy regulator should not be permitted to regulate legal services. Some may even suggest that there will be a lowering of standards, or a diminution of consumer protection. We do not accept these arguments. The Legal Services Board is satisfied that there will be no lowering of standards or lessening of consumer protection, and the Government agree. I am satisfied that the Institute of Chartered Accountants in England and Wales will be a highly capable and effective regulator in the legal services market. Its entry to this field will help contribute to the growth of the legal services market and bring further innovations, leading to benefits to consumers of legal services.
I turn now to the appeals orders. Noble Lords may be aware that the licensing regime for alternative business structures, as contained in the 2007 Act, became operational on 6 October 2011. In brief, alternative business structures are bodies that carry on reserved legal activities and are partly or wholly owned or controlled by non-lawyers.
In relation to that regime, as I have said previously, the ICAEW has applied to the Legal Services Board to be designated as a licensing authority. The Chartered Institute of Patent Attorneys—CIPA—and the Institute of Trade Mark Attorneys—ITMA—also made a joint application to the Legal Services Board to be designated as licensing authorities. Members of the Committee may be aware that the Legal Services Board made recommendations on 6 December, and earlier this year the Minister responsible for legal services agreed to make the following orders designating the Chartered Institute of Patent Attorneys, the Institute of Trade Mark Attorneys and the Institute of Chartered Accountants in England and Wales as licensing authorities under the Legal Services Act 2007.
In accordance with that Act, before CIPA, ITMA and ICAEW can be designated as licensing authorities by order of the Lord Chancellor, it is necessary for there to be an appellate body with the power to hear appeals against its decisions made in relation to alternative business structures.
The purpose of these orders is to make provision for the First-tier Tribunal to act as the appellate body for the purpose of appeals from those three bodies in their capacity as licensing authorities. As required by the 2007 Act, these orders are made on the recommendation of the Legal Services Board, following public consultation.
In summary, the two appeals orders make provision: for the First-tier Tribunal to have the power to hear appeals from the decisions of ICAEW under Part 5 of the 2007 Act and its licensing rules and to hear appeals from the decisions of CIPA and ITMA, acting jointly or separately, under Part 5 of the 2007 Act and their licensing rules; for the orders that the First-tier Tribunal may make on appeals from decisions made by those bodies under their licensing rules; and for modifying the Legal Services Act 2007 so that these appeals fit into the existing structure of onward appeals from the First-tier Tribunal to the Upper Tribunal.
These orders have been brought before the House at the earliest opportunity, following recommendations from the Legal Services Board on 2 May. If approved, the orders will provide individuals and businesses that are subject to licensing decisions of the Chartered Institute of Patent Attorneys, the Institute of Trade Mark Attorneys and the ICAEW with an opportunity to appeal those decisions through an independent and impartial appellate body. I beg to move.
Lord Beecham (Lab)
My Lords, having safely navigated the rather stormy waters of the Second Reading of the Criminal Justice and Courts Bill yesterday, it is a pleasure to renew acquaintance with the Minister over these crucially important statutory instruments. One or two questions occur to me about them.
The first is that we are talking effectively about alternative business structures, which are clearly well regulated. I do not know whether this is possible, but supposing that within a single alternative business structure you had both lawyers and accountants, what would be the appropriate framework? Would the professional body of which an individual within such a structure might be a member have a jurisdiction? Or is there an overarching mechanism for the structure as a whole as opposed to the individuals who work within it?
Secondly, grants of probate are issued to executors. My understanding is that if the executors chose to employ someone who is not part of a regulated profession, of course none of these safeguards would apply. Is it the intention of either the Government or the relevant bodies—I presume it would certainly be that of the latter, but it would also be sensible for the Government—to promote the use of properly regulated structures for these purposes? Having said that, I mentioned to the Minister before we began this Committee that I know of a solicitor who many years ago charged something like £90,000 in fees on an estate that was valued at just over £100,000. The regulatory body disposed of him in due course, but he was nevertheless guilty of an offence and seriously defrauding his client. The existence of a regulatory body itself does not necessarily mean that everything will be well.
There is one other matter, which may be slightly tangential. I am assuming that other accountancy bodies may be in a position to apply to be recognised for the same purposes as the chartered institute. In that connection, I have some involvement with an organisation called the Association of International Accountants. It is a non-commercial relationship; I just happen to know some of the people involved and I was recently asked to host a dinner in this House in lieu of my noble friend Lord Sawyer, which I did. The organisation is having some difficulties, not in this particular context, but in the more general context of being recognised for certain other purposes. It may not be possible for him to give me one at the moment, but I would like an assurance from the Minister that, if such a body were to apply to be recognised for the same purposes as the chartered institute, the same process that the chartered institute has successfully undergone would be available to it.
There is a feeling on the part of the Association of International Accountants that the two main accountancy bodies in this country—the chartered institute and whatever the appropriate body is for certified accountants—are, in one particular area, effectively operating a duopoly from which this association is excluded. I asked a Written Question about this some time ago, to which I received a not terribly helpful reply from the point of view of the association. An assurance that they would be treated on an equal footing in terms of passing whatever tests are necessary to be included in this would perhaps be of some comfort to them. Having said that, I cannot see anything to object to in these orders and we are perfectly content to see them go through.
Lord Faulks
My Lords, I am grateful for the questions that I have been asked by the noble Lord, Lord Beecham, who rightly says that regulation and discipline are no absolute guarantee against unprofessional, to put it mildly, practice on the part of a professional in whatever their particular role is. The Legal Services Board has been given by Parliament the task of approving as a regulator these various bodies. As your Lordships will be aware, the scope of their activities is limited. In terms of protection of the consumer, it was important that the effective arrangements were in place to ensure that members co-operated with the legal ombudsman. The Government also had to be satisfied that appropriate client protection arrangements were in place for any body designated as an approved regulator. The Legal Services Board undertook a detailed analysis and was satisfied with the arrangements of the probate compensation scheme, and the requirement for all authorised firms and accredited probate firms to hold professional indemnity insurance. That should protect someone in whatever particular professional role they perform within an alternative business structure.
In terms of these now multidisciplinary practices, there may well be lawyers working with what one used to regard as an accountancy firm. As I understand it, their work within the accountancy firm would be regulated in the way of the accountancy firm licensed to perform these particular activities, but if they were solicitors, for example, their activities would also be regulated by the Solicitors Regulation Authority as the disciplinary body. In so far as there can be protection for the individual, that will be ensured by these new arrangements.
Lord Beecham
In view of what the Minister has said, it is right that there should be professional indemnity insurance but that is basically for professional negligence. Certainly, the Law Society—as I know from the experience of having to contribute to these things—has occasionally to step in, not just in cases of professional negligence but also in cases of dishonesty, to compensate the clients of solicitors. Is it a condition of these bodies being recognised as regulatory bodies that they should assume responsibilities in that context of compensating those who have been defrauded of their entitlement as opposed to in claims for professional negligence? Again, it may not be possible to answer that question now but it would be interesting to find out.
Lord Faulks
I think that it would. I would be happy to write further with details about the arrangements. As I understand it, the Legal Services Board needed to be satisfied of the capacity for individuals to be compensated if mistakes were made in non-contentious probate. For historical reasons, probate is a reserved activity; hence the need for this whole process. The Legal Services Board was satisfied about professional indemnity insurance.
If I sound somewhat hesitant, the noble Lord will appreciate that Parliament has designated the Legal Services Board as the regulator. This is not directly the Government’s approval; it is the Legal Services Board’s approval. They have created this body, and the body has gone through the process. The Government have to be satisfied that the Legal Services Board has gone through the necessary process of consultation and satisfied itself of the adequacy of protection, for example, for consumers, and all the other aspects to which I referred in opening, but they do not have a separate governmental role. We do not think that there has been any inadequacy in the process of this approval. Essentially, the Legal Services Board, having been given that task, has satisfied itself. If an individual chooses a regulated person to undertake their probate, they naturally have protection and redress. As the noble Lord says, individuals have the choice of whether to undertake their own probate, in which case they do not, which is a matter of consumer choice. Further to what I said about lawyers and accountants within a single ABS, that will, of course, depend on which regulator licensed the alternative business structure. However, I understand that entity regulation applies over individual regulation, although, as I say, the individual may have some additional professional obligations of the sort that I described.
I do not think that I can answer from the Dispatch Box the other question that the noble Lord asked in relation to international firms. However, I will try to write him a more helpful letter than the one that apparently he received on a previous occasion.
Lord Beecham
I am grateful to the Minister for that. However, to be clear, the Association of International Accountants is not just a body of international accountants; it is a body with many UK members and some overseas members as well. It is therefore not operating solely in the international sphere. However, as I say, I am grateful to the noble Lord for his offer.
Lord Faulks
I hope that, subject to my providing further information by letter, I have satisfied the noble Lord. The debate has enabled me to put on record the importance of the alternative business structure and of the Government encouraging growth and innovation in the legal services market generally through these means. The order designated the ICAEW as a new approved regulator, which demonstrates our commitment to it. I hope that the debate has demonstrated the importance of the appeals order, which naturally needs to exist to support the effective operation of the ABS scheme. The appeals orders form a key component of the licensing arrangements. I commend these orders to the Committee.