Justice: Academic Research on Jury Decision-making
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Lord Faulks
In answer to the first Question, I indicated that the Ministry of Justice is considering the Law Commission’s recommendation and will of course bear in mind what is said there. The safeguards identified in that report are the same safeguards as exist at the moment. We remain open to persuasion. A Bill will in due course be coming to your Lordships’ House containing various provisions about juries. It is possible that there may be some amendment to that effect.
Lord Beecham (Lab)
My Lords, in addition to the recommendations about research, the Law Commission has proposed the creation of some new offences that apply to juries in the light of current developments, particularly in technology, and that better guidance be given, not merely in the form referred to in the question of the noble Lord, Lord Thomas. Are the Government in a position to respond to them, and to the recent suggestion by the Lord Chief Justice that in serious fraud cases, for example, a different method might be instituted which would mean that juries would not try such cases?
Lord Faulks
As to the latter question, as the noble Lord will know, that is no new suggestion. It dates back as long ago as when the Roskill commission made suggestions to that effect. There are no current plans to remove trial by jury. As to other changes in the jury system and legislating to that effect, the noble Lord may be aware that there are provisions in Part 3 of the Criminal Justice and Courts Bill dealing with, among other things, questions of electronic communication devices and the restriction on them and the restriction on jurors using the internet to obtain information during the course of the trial, which can of course compromise a fair trial, which is in no one’s interest.
Offender Rehabilitation Bill [HL]
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Lord McNally (LD)
My Lords, first I declare an interest as chairman designate of the Youth Justice Board.
I am breaking a promise that I made to myself not to intervene in MoJ legislation after leaving the Front Bench. However, I do so here because of unfinished business. When I spoke last, I warned the House that the amendment tabled by the noble Lord, Lord Ramsbotham, was defective, and so it proved to be. I also promised to keep the House fully informed about developments. I was mightily impressed by the amount of documentation that was provided in both Houses. I congratulate my successors Simon Hughes and the noble Lord, Lord Faulks, on the progress that has been made, as outlined in great detail by the noble Lord in his opening remarks. The truth is, as the noble Lord, Lord Faulks, said, there have been many hours of parliamentary debate on these matters, and the idea that somehow they have been smuggled past Parliament is plainly absurd. Hours of ministerial time have been afforded to the critics. The noble Lord, Lord Ramsbotham, acknowledged that in written submissions and meetings Ministers have been willing to discuss his concerns in detail.
I say to the noble Baroness, Lady Linklater, that it is not about our admiration or otherwise for the probation service. I am in awe of the work that probation officers do, and will continue to be so. However, we face a situation in which we could stay where we are, with the probation service as it is but probably facing increased pressures on expenditure and capacity to deliver—the same old same old—or we could embark on radical reforms that would release the resources to carry through proper reforms. The progress we have made is truly remarkable—30 bidders covering some 50 organisations, including 10 probation-based mutuals. This really is the dawn of a new era. I disagree with the noble Baroness; this is not the passing of the probation service.
I remember in the early part of this century following the debates about the probation service. What happened to it? It was turned into the poor relation of NOMS. In these reforms we are going to have a national probation service for the first time: the head of probation will have direct access to the Secretary of State, whereas NOMS does not even have a probation officer on its senior board. That is real progress for the probation service. We are going to have, as initiated by my noble friend Lord Marks, what I hope will become a chartered institute for probation, which will promote professional standards and best practices, not just in the National Probation Service but across the sector. As has been said several times—and each time everyone says how much they agree with it—we are going to have for the first time through-the-gate supervision and treatment for those sentenced to less than 12 months, a group populated mainly by young offenders and women offenders. That is another bonus.
I understand the concerns; it is very easy, when opposing things, to roll out the risks. We are dealing with a risk business. There are risks at the moment in the way in which we deal with very difficult, violent and vulnerable people but I do not believe that those risks are such that we should throw aside the opportunity radically to reform this sector to achieve the supervision we want for those with sentences of less than 12 months, which goes to the heart of reoffending.
It may be embarrassing to remember, but this legislation is being carried through under Labour’s 1997 Act. I followed the reports as the legislation went through: Labour carefully never guaranteed to the probation service that there would be no further reforms after 2010. I suspect that it was because Labour Ministers then realised that to open the door to reform of the under-12-months sector, get those crucial reforms and provide through-the-gate treatment, they also had to reform the probation system itself. That is why, when Labour proposed treatment for those with sentences of less than 12 months, the proposal had to be abandoned because it could not be afforded under the system at the time.
That is the reality. I have to say to the noble Lord, Lord Ramsbotham, that the delay that he wants offers no way forward. It would deliver an unreformed service exposed to further cuts with, as I said, no supervision for those with sentences of less than 12 months and no through-the-gate service.
The Government have put forward a package. Since the Second Reading of this Bill, I have presented it to this House as a package of probation reform where a whole range of voluntary and charitable organisations, as well as private sector providers, have brought forward these new ideas and initiatives into the sector to tackle reoffending and to promote rehabilitation. It is a reform of which I am proud. It is an honourable package offering protection for the staff and a chance to enhance the influence and professional standing of probation. It takes into account the protection of the public, and I have seen the testing of the various structures in that regard.
I agree entirely about the problem of government contracts but it is a problem that is not new to this Government or to the MoJ. A lot more work needs to be done and I believe it is already under way in the Cabinet Office, which is looking at upskilling public services to manage public contracts. However, that is not a reason for delay. These reforms open the door to new ideas, new methods and new technologies from the charitable, voluntary and private sectors, while preserving what is best in our probation service.
I will vote against the amendment proposed by the noble Lord, Lord Ramsbotham, and I will vote with the Government because I am willing to vote for the means as well as the ends. I urge all noble Lords who support those ends to join me in the Lobby today.
Lord Beecham (Lab)
My Lords,
“the Government claim that the aim of the Bill is to reduce reoffending ... Its real objective is to secure more centralised … control over the commissioning of offender management services. It centralises everything on the Home Office and removes responsibility from local people who govern the Probation Service”.—[Official Report, 17/4/07; col. 126.]
Those words were uttered from the Opposition Front Bench by no less a person than the noble Baroness, Lady Anelay, in a previous incarnation, when the House was debating the Offender Management Bill.
Nor was she the only opposition spokesman to criticise that measure on similar grounds. David Davis, who in the words of a famous movie character was “once a contender”, said that that Bill was,
“about more centralised Government control over offender management … a recipe for disaster”.—[Official Report, Commons, 28/2/07; col. 1027.]
A second reason for opposing that Bill was that it focused on “yet another organisational restructuring”. Those are interesting observations because, in a characteristically cavalier and disingenuous way, Ministers—until now not yet including the noble Lord, Lord Faulks—are now seeking to rely on provisions which they opposed and which they now deliberately misrepresent.
The Government chose to undertake this massive and highly controversial reorganisation of the award-winning probation service without seeking any degree of parliamentary approval. If it had not been, as my noble friend Lord Ponsonby remarked, for the efforts of the noble Lord, Lord Ramsbotham, and, if I may say so, my efforts, there would have been no debate about the issue before the noble Lord, Lord McNally, who is continuing to promote the cause from the Back Benches in his new capacity. The whole House will join me in wishing him well in his new role, and I have every confidence that he will carry out that role very satisfactorily.
The Government pretend that the Labour Government’s intention—and the noble Lord, Lord McNally, has hinted as much today—was quite consistent with what the present Government are doing. Yet the then Home Secretary, who is now my noble friend Lord Reid, said explicitly:
“If, at some future point, any Government were to decide that the time was right to open up that area of work”—
that is, offender management—
“they would have to make the case to Parliament, and Parliament would have the final say”.
He went on to describe it as a,
“double lock meaning that any movement after that will require a vote of both Houses”—[Official Report, Commons, 28/2/07; col. 1024.]
That is something that the present Government have been at pains to avoid.
Lord Faulks
Before the noble Lord sits down, could he help the House with how he sees the form of the amendment? Does he interpret it as requiring almost any change, of any sort, in the probation service to come before Parliament?
Lord Beecham
That is not my interpretation of it. That could have been levied against the amendment originally moved by my noble friend, but this amendment makes it clear that we are talking about a national change to the structure of the service, not every individual detail. It is consistent with the description I have already read to the House—quoting Hansard—from the Home Secretary at the time, about the requirement for parliamentary approval for changes of the very kind that the Government are promoting without having sought such approval.
Lord Faulks
My Lords, this has been an excellent and important debate. The noble Lord, Lord Ramsbotham, said that he wanted a debate on the probation service and he has got one. However, there have been a number of criticisms of the Government’s approach. Among other things, they are said to have delayed but then gone too fast. It is said they have not been sufficiently transparent and that the contract management is not sufficiently secure or not prospectively secure. I will deal with some of these criticisms without wearying the House too much. I have dealt with them in a number of meetings and documents sent to noble Lords but, for the convenience of those who may not have had those documents—or had a chance to read them—I will try and summarise some of our answers.
Since my noble friend Lord McNally committed to placing documents in the House Library, we have deposited 12 sets of letters, papers and publications about the reforms, including most recently all the draft contracts for the new CRCs. The noble Lord, Lord Ponsonby, raised the question of how CRCs will interact with statutory and non-statutory partnerships. We published a consultation paper about this and all his concerns are now reflected in the operating model.
Many Peers raised concerns about big private providers outmanoeuvring smaller charities. We have made changes to the number of contract areas to allow for smaller bidders; placed a cap of 25% on market share; engaged with potential tier 2 and tier 3 organisations so that 800 are now registered; and we have decided to accept the suggestion made by my noble friend Lord Marks to set up an independent institute.
It is said that the approach has lacked transparency and there was reference in debate to the risk register. Both this and the previous Government have agreed that there is a strong interest for the Government in having a safe place to formulate and develop policies for extensive reform. To remove that space and to challenge and manage risks internally would risk damaging confidence in the programme and could lead to a culture where risks are not even raised and properly managed through fear of the implications of doing so.
I should emphasise that the risk register is by no means a list of things that will happen, only of things that might conceivably happen if we take no action and we should therefore plan for and mitigate the possibility of happening. That is simply good management. The risks are given an inherent score: the score when the risk is first identified without any controls or mitigations in place, and a current score with controls in place. A target score is also agreed. Risks are reported weekly to the departmental board, and throughout the course of the programme Ministers have been kept closely informed of emerging risks and actions being taken to mitigate them. Programme officials regularly meet Ministers—on average twice weekly—on various aspects of the programme, as well as having close and regular informal contact with Ministers’ private offices.
It is said that there is a lack of clarity about the costing of these reforms. The Cabinet Office and Her Majesty’s Treasury are full members of the programme board before the reforms and attend regular monthly meetings. They have been closely involved with our decision regarding the launch and the invitation to negotiate. The Chief Secretary to the Treasury approved the payment mechanism, the launch of the invitation to negotiate and the outline business case. The programme has been given Treasury approval.
The question of scrutiny was raised. How, the question was effectively asked, will we make sure that the new system is open to public and parliamentary scrutiny? The reform system will be regulated and held to account through a combination of independent inspection, audit and commercial account management. Her Majesty’s Inspectorate of Probation will inspect services delivered by both the National Probation Service and contracted sectors. NOMS will have the right to audit CRC delivery, and the CRC contracts will also allow the National Audit Office access to CRCs’ financial systems where public reassurance is needed.
The audit schedule in the draft contracts, which the NAO approved and commented that it provides far-reaching audit powers, provides NOMS with wide powers of access to information, IT premises and personnel, including emergency audit. The NAO scrutinises public spending on behalf of Parliament and holds government departments to account for the way they use public money by reporting the results of its audits direct to Parliament.
There was a suggestion that staff were not being well managed and that some of them, at least, were reporting to individual noble Lords that they were unhappy with the process of transition which will inevitably happen. We have transition managers working with every probation trust, whose sole role is to be the link between the MoJ and trusts. There are weekly updates sent to probation chiefs; weekly teleconferences are held with senior leaders; testing and pilots of key elements of the programme have been and are taking place; and experts from probation have been seconded to the programme to add their valuable experience.
In addition, the new heads of CRCs have now been appointed and meet on the MoJ’s sounding board, which is helping to manage the transition process. The Secretary of State corresponds regularly with probation chiefs both through letters and via video message. Ministers and the programme management regularly visit trusts and maintain informal contact with probation chiefs throughout the programme.
Lord Faulks
My Lords, in moving Amendment 2, I shall speak also to Amendments 3 to 17 and 19 to 25. Although this is a relatively large group of amendments, most make minor or technical changes to the Bill and I will try to deal with them as concisely as I can.
I will start with the most noteworthy amendments in this group. Amendment 15 focuses on restorative justice. As I said earlier, I know that there is support across the House for the important role that restorative justice can play both in helping victims to move on from crime and in rehabilitating offenders. The amendment makes explicit that rehabilitative activities carried out under a community order, suspended sentence order or post-sentence supervision can include restorative justice. Noble Lords may already have spotted that this amendment is very similar to one originally tabled by the noble and learned Lord, Lord Woolf. Having debated the issue once again in the other place, the Government have been persuaded that it would be helpful to make explicit in the Bill our intention that rehabilitative activities can include restorative justice activities. This reflects the Government’s desire to see much greater use of restorative justice in appropriate cases. I pay tribute to the noble and learned Lord for first raising this issue and I hope that your Lordships’ House will welcome this statutory foundation for the use of restorative justice as part of the rehabilitation offered to offenders.
Amendments 2, 3, 4, 9 and 22 also pick up on an issue first raised in your Lordships’ House, this time by my noble friend Lady Linklater. Together the amendments deal with young offenders who are imprisoned for serious offences as a juvenile but are then released after they have turned 18. The Bill provides that this group of offenders, like others released from short sentences, will receive 12 months of supervision after release. The amendments make it clear that this supervision can be delivered either by an adult probation provider or by a youth offending team—YOT—as the Bill already provides for detention and training orders. There will be circumstances where a YOT may be better placed to deal with the needs of a young adult offender and it is absolutely right that the Bill should give flexibility to allow for this. In that way we can avoid the cliff edge of a sudden transition from youth to adult services. Again, I pay tribute to my noble friend for having championed this issue during the Bill’s original passage through the House.
Amendments 11, 12, 19 and 20 focus on drug testing requirements imposed as part of licence or the new post-release supervision period. Currently, an offender released on licence can be required to submit to compulsory testing in cases where the offender’s conviction offence is on a trigger list. The trigger offences are those crimes that are most likely to be linked to misuse of drugs. They include theft and fraud offences as well as drug offences.
Since the introduction of the Bill, we have looked in more detail at the evidence on drug use by prisoners in the Government’s Surveying Prisoner Crime Reduction survey. It suggests, as one might expect, that there is a strong correlation between prisoners who report use of class A or class B drugs before sentence and those who go on to reoffend. However, it also suggests that using the trigger offence as a filter omits around half of all prisoners who are class A drug users and the majority of those who are class B drug users. In short, where an offence is not on the trigger list but is linked to the offender’s use of illegal drugs, there is no power to require the offender to take drug tests where that would support their rehabilitation. Similarly, in a scenario where a persistent offender who is abusing drugs commits an offence that this time happens not to be on the trigger list, there is no testing power either after they are released from custody.
These amendments replace the trigger offence threshold with a new, two-limbed test: first, the offender has a propensity to misuse specified class A or B drugs; and, secondly, the misuse by the offender of any specified class A or B drug caused or contributed to any offence of which he has been convicted, or is likely to cause or contribute to the commission of further offences. That mirrors the threshold in place for the drug appointment requirement also contained within the current Bill. It continues to provide safeguards to ensure that testing requirements are not imposed in inappropriate cases.
Amendments 14, 16, 17, 21, 24 and 25 collectively allow for the transfer of the post-sentence supervision period created by the Bill to Scotland, Northern Ireland and other UK jurisdictions. Currently, terms of imprisonment and associated licence periods after release can be transferred to and from UK jurisdictions under provisions in the Crime (Sentences) Act 1997. That can happen on a restricted basis, where the sentencing provisions of the exporting jurisdiction apply in the receiving jurisdiction, or it can happen on an unrestricted basis, where the offender transfers on to an equivalent sentence in the receiving jurisdiction’s legislation. This gives flexibility for both the exporting and receiving jurisdiction to agree a transfer in the way that is most appropriate for an individual case.
These amendments make the necessary changes to the law to allow for post-sentence supervision, the supervision default order that is available as a sanction for breach of that supervision and the new drug appointment requirement to be transferred to other UK jurisdictions. The Government have worked very closely with the Scottish Government and the Northern Ireland Executive to agree the detail of these amendments. We have agreed with both Administrations that we will work with them in advance of commencement to review the existing operational guidance that exists on transfer of sentences. The existing position, where all transfers are agreed between the relevant jurisdictions, and where jurisdictions retain the right to refuse transfers, will continue.
Finally, Amendments 5 to 8, 10, 13 and 23 are technical changes to the clauses of the Bill that deal with consecutive sentences, drug appointments and fixed-term recall. They simply make clarifications to the way in which the clauses are drafted rather than any changes of substance. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.
Lord Beecham
My Lords, I am happy to confirm the Opposition’s support for these amendments and I am grateful to the Minister for his explanation of them.
Justice: Cautions
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Lord Faulks
My Lords, I agree with the right reverent Prelate. There is a great case for restorative justice in appropriate cases, and it is indeed an option for it to be part of the conditional caution. There is increasing approval in this House and outside of its use.
Lord Beecham (Lab)
My Lords, with a nod to the next Question from the noble Lord, Lord Horam, given the apparent increase in the use of cautions by police forces in the past few years, might it be desirable for the Office for National Statistics to look at the figures for reported crime and for cautions? People may well be suspicious that the recorded crime statistics are depressed by the use of cautions.
Lord Faulks
My Lords, the House may be interested to know that the use of out of court disposals rose significantly between 2003 and 2007 but has fallen significantly since 2007 and continues to fall under this Government. The use of cautions is at its lowest point for almost 30 years, and nearly at half the level seen in 2007. Furthermore, crime continues to fall. Recorded crime is down by more than 10% under this Government and the independent Crime Survey for England and Wales shows crime is at its lowest level since records began.
Anti-social Behaviour, Crime and Policing Bill
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Lord Brennan
Now that I am in the same House as the noble Lord and not appearing in front of him as an advocate, I very firmly disagree. Compensation for miscarriages of justice does not depend on a successful appeal. For years, in certain cases, awards have been made without such an appeal. In the examples I have given, no contrary example has been given thus far to show why the other test proposed by the Government should be put forward. I make the following concluding submission: the Lords amendment is based on well founded principle—the Adams terminology—arising from a well established system of criminal law and criminal justice. The government test is neither of those things. The Lords amendment better serves the interests of justice and this House should send it back to the Commons for reconsideration by MPs and by the Government in the interim.
Lord Beecham
My Lords, I must first congratulate the noble Lord, Lord Taylor, who managed to escape the onerous task of replying or, indeed, of advocating the Government’s case. The noble Lord, Lord Faulks—the Minister—has, as it were, picked up a dock brief. He comes before the House as a poor man’s lawyer—or, I should say more relevantly, a poor Lord Chancellor’s lawyer.
It is instructive to consider how the debate on the Government’s proposal played out in the House of Commons. Deep concern and opposition to the original Clause 151 was voiced on all sides of this House in 19 speeches. Speakers included former Law Lords, lawyers of varying experience in this field and non-lawyers. Members may recall in particular the powerful speeches of the noble Lord, Lord Cormack, the noble and learned Lord, Lord Hope, who has addressed us tonight, and my noble friend Lord Brennan, who has also spoken to us, with his long history of involvement with this issue. These and other noble Lords voiced profound misgivings over the Bill’s requirement for those claiming compensation for a miscarriage of justice effectively to have to prove their innocence. I do not need to rehearse the arguments advanced at Second Reading, in Committee, on Report and again today. Only four speeches, other than those from the relevant Minister, supported the Government. Three of these, no less, were made by the eminent former Law Lord, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, from whom we have heard again tonight. The other was made by the noble Lord, Lord Faulks, before his accession to ministerial office. One Member expressed doubts in a speech at Second Reading and did not vote on Report.
The overwhelming body of opinion in debate in this House—right through the progress of the Bill—was, therefore, opposed to a proposal that was at odds with our historic attachment to the presumption of innocence unless and until guilt is proved beyond reasonable doubt. It was a proposal that, as I have mentioned in previous debates, would save all of £100,000 a year, given the paucity of successful claims—some two a year, as the Government’s own impact assessment made clear.
The Government have consistently claimed that the law was uncertain: it was not, though the Supreme Court invited the Government and Parliament—having reached a conclusion by a narrow majority in the Adams case—to consider the matter. However, the decision in the Adams case was clear, and the noble Lord, Lord Faulks, was kind enough to advise me yesterday that it has effectively been followed and upheld by the Court of Appeal. Therefore, it was with some astonishment that I read the terms of the government amendment and the debate on it in the House of Commons.
The Minister, Damian Green, claimed:
“The Government have taken account of all the points that have been made and all the concerns that have been expressed and our position has changed as a result of the very good debates that have taken place in Committee as well as in the House of Lords”.—[Official Report, Commons, 4/2/2014; col. 163.]
The change, of course, is to drop the requirement for the claimant to establish that he was innocent of the offence and substitute the requirement to show that “he did not commit” the offence. I do not pretend to understand by what process of jurisprudential alchemy the base metal of proving innocence becomes converted to the gold of establishing that a claimant did not commit the offence. It is a distinction without a difference—an attempt to preserve the Government’s version of legislative maidenly modesty.
Assisted Suicide
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Lord Beecham (Lab)
My Lords, the issue of assisted suicide raises profound questions of an ethical, juridical and practical nature. Tonight’s debate is not on the general principle of assisted dying, which is of course already the subject of passionate debate—we have a had a number of such debates in your Lordships’ House—and one to which we will return when we discuss my noble and learned friend Lord Falconer’s Bill in due course. Rather, this debate is—or should be—on the narrow or legal issue of how the current criminal law is to be applied.
The DPP’s very carefully drawn guidelines reflect current practice. Reading the examples of recent decisions, I am struck by the balanced and sensitive nature of the approach that has been adopted. As the noble Lord, Lord Macdonald, pointed out, there is a two-stage process, setting out the factors that have to be considered—the evidential stage and the public interest stage—should the evidence support a charge that,
“the suspect aided, abetted, counselled or procured the suicide or the attempt”.
It is not quite clear to me what constitutes,
“an act capable of encouraging or assisting”,
to use the phrase in the guidelines. I infer that mere words would constitute an act, but I may be wrong in that inference. Sixteen tests are enumerated but it is not clear how the public interest is actually defined. Perhaps it is impossible to do so.
I was interested in the article written by John Cooper QC that is contained within the Library briefing, which illustrates the complexity of the situation. He says:
“Perhaps it can best be said of the DPP’s guidelines that they please no one and for many they were unwanted, not least of all by the DPP”.
Mr Cooper concludes that,
“it is my view that the guidelines can work and will enhance and maintain the existing law”.
This all underlines the desirability of a definitive conclusion on whether the present law should stand or be altered, as in my noble and learned friend’s Bill or perhaps in some other way. But we have to bear in mind, as others of your Lordships have pointed out, that a significant majority of the public, as measured by the polling, would support a change. I join with the noble Baroness, Lady Boothroyd, in expressing the hope that the House will be given an adequate opportunity to discuss this fundamental issue when my noble and learned friend’s Bill comes to be considered. In the mean time, it will be interesting to hear the Government’s response to the director’s guidelines.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014
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Lord Beecham (Lab)
My Lords, I begin by breaking the habits of my three and a half year parliamentary career and not only thanking the Minister for the clarity of his exposition—to which we are accustomed—but also confirming that most of what is in these instruments is agreed by the Opposition.
I reassure my noble friend, who has just spoken, about some of his concerns. The family court concept does not exclude the magistrates’ court and lay justices; it includes them. They become part of a virtually seamless provision for dealing with family court matters. Therefore, the magistracy will remain involved. With regard to my noble friend’s last question to the Minister, the Minister may or may not be able to answer it but I can, because I have put the same question to the Magistrates’ Association. It is content with this afternoon’s legislation and has no objections to any of the proposals.
Lord Beecham
I can report to the Committee only what I have heard directly from the Magistrates’ Association. I have not heard from the Justices’ Clerks’ Society because I did not contact it. The Magistrates’ Association has no reservations about these matters.
Lord Jones
But is my noble friend speaking on behalf of the Magistrates’ Association and is he giving guarantees?
Lord Beecham
No, I cannot speak on behalf of the association. I am not, as it were, briefed by it or retained by it, unfortunately, but I assure my noble friend that it has communicated with me in the sense that I have just described. However, other reservations that my noble friend has expressed, which are not, strictly speaking, germane to the matters that we are debating this afternoon, raise concerns which I share and which, indeed, I have raised from time to time. They are also concerns which the Magistrates’ Association shares—that is, the current size of Benches that have been amalgamated and the position now occupied by the justices’ clerks on those Benches. The clerks are no longer responsible to magistrates but are responsible upwards, as it were, to the Ministry of Justice.
My noble friend rightly refers to the accessibility of courts and the closure of court buildings. However, one matter to which he has not referred but which has caused concern, which I have voiced previously, is the apparent growth in the role of full-time or part-time professional district judges as opposed to lay magistrates. There is concern about the imbalance that that is creating. Nowadays, some cases are dealt with virtually exclusively by district judges and the lay judges have a diminished role in consequence. These are genuine concerns which I think we need to explore further, but not for the purposes of the legislation today.
I have in the course of my 40-odd years—some of them rather odd indeed—practised as a solicitor and have spent much time briefing counsel. I am experiencing something of a role reversal today, because I have benefited from briefing from a distinguished family law practitioner, Michael Horton. I do not know whether he is somebody with whom the Minister is acquainted but he is an experienced counsel dealing with family matters. He raises a number of issues which do not undermine the thrust of the regulations that we are discussing but in some instances suggest that a little further clarification is required.
The first issue relates to the appeal to the family court. Where, within the family court, does the appeal lie? In other words, who in the family court will deal with the appeal? The Civil Procedure Rules lay out a definition of who will hear appeals. At the moment, it appears that a new practice direction to the Family Procedure Rules will identify the destination of appeals—that is, not just the broad destination of the family court, which, as I have just emphasised, reaches from the magistracy right through, ultimately, to the Court of Appeal—but what tier of the judiciary will deal with it? I understood the Minister to say that that either has happened or is about to happen—that the rules will be promulgated. They are to come into force in six or seven weeks’ time. I take it that they have been the subject of consultation and I should be grateful if the Minister could confirm that. If, by any chance, they have not yet been the subject of consultation, I strongly urge that they be made so.
Another issue raised is not a criticism at all but it arises from a welcome change to which I do not think the Minister specifically referred. It is the possibility of funding emerging from the change in rules which will allow payments to be made to charities, to be ordered by the family court. I am not quite clear of the intention here. but one hopes that such payments could cover the advice services provided by voluntary organisations to those engaged in family disputes. It would be helpful to have clarification of whether that is in fact the intention. It could make a significant difference in facilitating support for litigants who are not able to pay for or obtain legal aid for advice, as would be the case in a number of instances, if voluntary organisations could be the recipients of money as the result of such an order.
Lord Faulks
Yes, I will certainly write in so far as I do not answer all the issues raised by the noble Lords, Lord Jones and Lord Beecham. I fear that I will not be able to answer all the points, but I hope that I can at least reassure the noble Lord that the magistracy will still be involved in the matter, as it was before, and will not lose its expertise—it will simply be called something different. There is some reallocation of its tasks, but not a loss of its important role.
The closure of courts generally is a different issue from that which we are considering. There are always difficult arguments on the cost of having a court that is infrequently used as against the convenience for local people. We are of course anxious that the quality of decision-making should be high and that there should be convenience, and we do not anticipate that there will be a radical change in individual cases. The noble Lord mentioned the position in Llanelli, where he feared that there would not be enough local expertise. I am assured that there would not be a radical transfer unless the court service was satisfied that there was the appropriate level of expertise in a local area.
I turn to issues raised by the noble Lord, Lord Beecham. He said that he was concerned that there had not yet been a specific route for the appeals identified. I indicated in the course of my remarks that they would be set out in a statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984, which would be made by the Lord Chief Justice or his nominated officer after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. The rules are made with the consultation of the committee, which includes expert practitioners, justices’ clerks and judges. It also includes a representative of the court users, so it should be possible before the appropriate tier of appeal is finalised for all interested parties to have an opportunity to have their views reflected in the designation. Although I understand the noble Lord’s anxiety, it is unlikely that he will find the organisation of appeals in any sense out of sync with the construction of appeals that exist generally in civil procedure—that is, there will be an appeal from a court to a higher level of court and, depending on where the initial allocation begins, a superior court will then come to consider the relevant appeal.
The noble Lord, Lord Jones, asked a question about the consultation with the Magistrates’ Association, which was very helpfully answered by the noble Lord, Lord Beecham, who was able to confirm that it had been consulted. The statutory obligation was to consult the family practitioners’ rules committee, which comprises representatives of the lay magistracy, justices’ clerks and a number of judges, so it would have been included in any event in that consultation.
The noble Lord, Lord Beecham, asked about payments to charity. I am told that the amendment to Section 194 of the Legal Services Act 2007 will mean that the family court will be able to order a party to make a payment to a charity. This mirrors the current position in the civil courts and applies where a party has been represented free of charge. It will be for the court in the individual case to determine to which charity the payment should be made. I hope that that answers that point. The noble Lord also made a point about the increase in costs and the fees for divorce going up. Yes, if it is dealt with at a lower level then I understand his point about that. A final decision has not yet been made on whether to increase the fees for divorce, although this matter was consulted on. I will certainly take back his observations.
Perhaps I have not quite sufficiently answered the question about the general sufficiency of the numbers of justices’ clerks. It is actually the case that the assistant justices’ clerks will be doing most of the work in courts. There are about 1,400 of them and the justices’ clerks are managers, so there is one in each area. There are 26. Her Majesty’s Courts and Tribunals Service has assured Ministers that there will be sufficient justices’ clerks to perform the various functions which they are able to do as a result of this designation.
I think that I have answered most of the questions—no, I have not.
Lord Beecham
There is just the question of interest, upon which the Minister might care to write to me. I presume that he has not been briefed on that yet by those behind him.
Lord Faulks
The position is that I cannot give an answer, I am disappointed to say, but we will definitely write on that issue. I hope that the noble Lord will be satisfied with the answer.
I am grateful for the helpful questions from noble Lords and, notwithstanding the reservations in the points that have been helpfully made, I hope that your Lordships will agree that these draft instruments are an important step in simplifying the family court system and making it more accessible to families.
Social Welfare Law
Lord Beecham Excerpts(10 years, 6 months ago)
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Lord Beecham (Lab)
My Lords, I join previous speakers in congratulating the right reverend Prelate on a notable maiden speech and in expressing profound gratitude to the noble Lord, Lord Low, and his colleagues, for their comprehensive and lucid analysis of the problems of accessing advice and legal support in this critical area of social welfare law, and for the constructive proposals contained in the report.
The landscape the report describes is changing as a result of changes in the financial and, I would argue, political climate. Where once a thriving network of advice services, citizens advice bureaux, law centres, voluntary organisations and professionals was able to support people in times of great difficulty, we are now seeing virtual advice deserts—to use the phrase deployed by the noble Lord, Lord Thomas—within which an occasional oasis can be found, struggling with soaring demand and diminishing resources. As the report demonstrates, and as we have heard today, a number of law centres have closed, with more to come, while the survivors operate with reduced staffing. CABs, serving more than 2 million clients nationally, face shrinking budgets, while the impact of reductions in legal aid and advice increases pressure on them.
Many Members of your Lordships’ House have a long and active relationship with the voluntary sector, especially the advice sector. As a solicitor, I undertook legal aid work. I did pro bono advice sessions with the Newcastle CAB. I helped found the Wallsend CAB in 1973. I initiated the Newcastle Welfare Rights Service as chairman of social services in 1974, and as council leader supported the creation of the Newcastle Law Centre in 1978. The situation of that law centre, the only one between Kirklees and the Scottish border, is dire. From a staff of 14, with five qualified lawyers, it is now down to one solicitor and one adviser, with three staff. It does not undertake legal aid work.
The Newcastle CAB faces similar difficulties. It no longer has any legal aid funding. Its brilliant chief executive, Shona Alexander, has set out in the starkest terms the current position that she, her staff and volunteers, and, most importantly, her clients, now face. Staffing has fallen from 26 to 19, none legally qualified, and 11 of them on contracts expiring in March next year. Funding for a debt adviser by a local charity is ceasing and a full-time adviser and part-time administrator will be made redundant. The bureau’s opening hours have been reduced and demand is such that the bureau closes its doors after half an hour because it cannot accommodate in its waiting room the many people who wish to attend drop-in sessions. The average time taken to advise each client has increased by 50% or more because of the triple whammy of legal aid disappearing, welfare changes and cuts in public services. There is now no funding for interpreters or medical reports, and recently there has been difficulty with deaf clients, with interpreters charging the bureau £70 for an interview. Shona Alexander says:
“Just about every private law firm in Newcastle is referring clients to us because of legal aid cuts”,
and increasing numbers of clients need crisis intervention, especially because of benefit sanctions. She states that, ironically,
“every Government department website or letter refers clients to their local CAB”,
but of course, without providing any direct funding.
As if all this were not enough, there is the difficulty, mentioned in the report, of clients obtaining telephone advice from government departments at premium rates. The Newcastle bureau can deal with only 38% of incoming calls, while clients, some of them specifically referred to the bureau for the purpose by government departments, seek to use the CAB’s own phone lines.
Finally, Shona Alexander refers to two areas of high demand: welfare rights and employment. On the former, hundreds of clients seek advice, for while the city’s service is fully stretched, the CAB caters for non-city residents from the surrounding area as well. The part-time specialist worker is fully booked dealing with complex cases and coaching staff and volunteers with more routine work. In employment, the CAB relies totally on pro bono work from local solicitors, the very source referred to by the noble Lord, Lord Gold. However, there are,
“serious cases of discrimination, health and safety issues and other illegal work practices which are now going unchallenged”.
None of this catalogue of difficulty is unique to Newcastle, as the report makes clear, which is why there is such widespread interest in, and support for, many of the commission’s proposals, as evidenced by this debate. I hope that the Government will respond positively to the constructive proposals in the report. Like others, I was particularly attracted to the idea of public legal education that the commission seeks to promote. Will the Government revive the programme initiated by the previous Government, which, as my noble friend Lord Bach reminded us, they abandoned some four years ago? Will they review urgently the areas of welfare law now excluded from legal aid, particularly those highlighted by the commission in its report—again, this was stressed by the noble Lord, Lord Low, tonight—in relation to housing disrepair, harassment and eviction and disbursements for benefits advice? Will they fund the advice required for applications for exceptional funding and revisit the imposition of fees for employment tribunal applications? For that matter, will they disavow any intention of charging claimants fees to access decision-making and appeals processes, as was mentioned by my noble friend Lord Bach and the noble Baroness, Lady Grey-Thompson?
I hope that the Government will endorse the suggestion of local and national advice plans, adopt the proposals to ensure quality of provision and support moves to share services across the sector and promote pro bono services, recognising that the latter must be seen as supplementing and not replacing properly staffed provision. Will they also look again carefully at the online and telephone gateway services, as others have mentioned, not least in respect of cost?
The report makes relatively modest demands for additional resources but I am slightly apprehensive about the call for local government to fund an extra £50 million. As the noble Lord, Lord Thomas, pointed out, councils already contribute 46% of the funding to CABs—some £73 million nationally. Many, including most of the areas where demand for advice and assistance in welfare matters is most acute, are facing unprecedented cuts in funding for mainline services, including statutory services. Requiring additional expenditure would constitute a “new burden”, which, under the Government’s own new burdens doctrine, should be funded by government and not by further cuts to existing provision.
However, I have a suggestion to make. Many people, alas, have suffered terribly from the recent floods. I hope that that damage will be made good by insurance; according to the industry, the cost will apparently be some billions of pounds. Most of us pay insurance premiums. Funding the commission’s proposals in this report would represent a mere fraction of the cost of repairing that flood damage. Could we not, as a society, treat the emergency situations that so often overwhelm our vulnerable fellow citizens—including many disabled people, as the noble Baroness, Lady Grey-Thompson, pointed out—in the realm of social welfare law as something that we could collectively insure via a modest hypothecated surcharge on our insurance premiums? I invite the Government to consider and cost that suggestion, which may be a better way of helping to make good some of the resource that has been lost in the past year or two.
I spoke earlier about my early involvement with this topic of advice and legal aid. By chance, I recently came across a scrapbook that my father kept of my early years in local politics. It included a letter of mine about legal aid published in the Times in 1971. The Times was the beneficiary of my epistolary contributions as, at that point, I had not taken up reading the Guardian. The letter concluded:
“Is it too late to hope that some of Lord Hailsham’s undoubted energy will be applied to broadening, rather than restricting, the scope of legal aid?”.
This was at a time when Lord Hailsham was mooting changes to the availability of legal aid. I ask tonight: it is too late to hope that the Minister’s undoubted energy, ability and empathy will be applied in restoring the accessibility of advice and legal support for social welfare law, which is a potential life-saver for so many of our fellow citizens?
Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014
Lord Beecham Excerpts(10 years, 6 months ago)
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Lord Hope of Craighead
My Lords, perhaps I can insert a few words of welcome for the measure. I used to prosecute in the High Court of Justiciary in Scotland as an advocate depute. From time to time, cases arose north of the border where the Revenue wanted to prosecute in the High Court. As the Minister will know, in Scotland all prosecutions are in the hands of the Lord Advocate. I remember having to deal with officials from the then Inland Revenue and, separately, HM Customs, who were somewhat upset that they could not conduct those prosecutions themselves but had to hand the papers over to me or my colleagues so that we could conduct the matters on their behalf.
Of course, the order has nothing to do with the position in Scotland, which is quite unaffected, and it is unnecessary to do anything about it because it is well established that prosecutions will continue to be handled by the Crown Office under the overall supervision of the Lord Advocate. As the noble Lord said a moment ago, my experience was that efficiency was promoted by combining the prosecution element—the exercise in presenting the material in accordance with the best use of the courts—in one body. It seemed to me at the time rather odd that, south of the border, there was this division of functions, which gave rise to uncertainty in my mind as to exactly why it was necessary for there to be a separate prosecution system at all in the hands of the Revenue or HM Customs.
So, from a rather unlikely quarter, I admire what is being done administratively and entirely approve of the Minister’s suggestion that it should now be endorsed in legislation. I am sure that this is a good measure to promote efficiency.
Lord Beecham
I must begin by apologising to the noble and learned Lord. I had not noticed that he was here and obviously intended to speak; I apologise for that.
As I said, try as I might—and I certainly tried—I cannot find anything much to object to in the 19 pages of the order or, indeed, the 134 amendments embodied in it. The principle is clearly right and it is sensible to combine the two positions. However, although this does not quite fall within the Minister’s brief, there are still questions to be asked about the operation of the service as a whole, particularly in relation to staffing.
Of course we are only talking about part of HMRC for the purposes of the order, but within HMRC there have been significant staff reductions. To be precise, 1,697 staff left in 2012-13. That forms part of a significant reduction in funding of HMRC amounting to about £2 billion, or 16.5%, by 2015. The Chancellor’s reinvestment, as it were, of £154 million, which was announced with a flourish a couple of years ago, will not make much of an impact on that massive cut.
The question arises, therefore, about the implications for staffing on what had been the HMRC function. Will the staff be protected, or will there be reductions? The record of HMRC in recovering moneys is clearly not very good. The Public Accounts Committee criticised it for collecting more than £1 billion a year less in December 2012 than it would have done, had it had the relevant staff.
Another question in relation to staffing is: will those who will be employed in the completely unified structure be paid comparably to those with whom they will no doubt be locking horns in the private sector? For that matter, is there much of a two-way flow between the department as it is now constituted and the private sector? I am not talking about the prosecution side thus far, as far as I am aware, but concerns have been expressed about people coming to work for the Inland Revenue from the private sector and then going back to the private sector and so on. I am not asking the Minister to answer this today, but it would be helpful if he would let us know the position in relation to movement inward and outward of staffing, particularly on the Inland Revenue side.
One of the concerns raised—I do not think with any great force in the consultation—was about the need to maintain within the prosecution side expertise of Inland Revenue matters. The Government seem to be satisfied on that, and I am not challenging that assertion, but it underlines the need to keep an eye on matters. No doubt the Government will be reviewing the situation as it progresses.
A further point relates to the third arm of prosecutions in this country, which is the Serious Fraud Office, which comes under the aegis of the Attorney-General and is separate from the DPP and HMRC, which we are now discussing. Given the somewhat challenging history of the SFO in recent years, I wonder whether it might be opportune at some time to consider a further merger between that department and the structure that we are formally approving today. I am not suggesting that the Minister can give an immediate response to that, but it is something that his colleagues could look into. In principle, it might seem sensible to have a seamless prosecution service dealing with serious fraud and tax fraud and the other matters that come under the direct surveillance of the DPP.
Having said that, we certainly do not object to this order and wish the fully combined departments well in their endeavours on behalf of the public and the taxpayer.
Lord Faulks
My Lords, I am grateful for the remarks of the noble and learned Lord, Lord Hope, for bringing to the debate his experience from Scotland and for endorsing the desirability of this move from that vantage point. As well as making certain economies, we think that it will prevent potential demarcation disputes of the sort to which he referred.
The noble Lord, Lord Beecham, as ever, probes slightly beyond the scope of the statutory instrument, as I am sure he would be the first to accept. On the question of staffing and training, there is perhaps one aspect with which I can help the Committee. The legislation removes the barriers to the staff of the CPS and the staff of the RCPO from working on mixed duties.
The question of training is relevant. The HMRC prosecution work will remain for the immediate future within the CPS central fraud division, which prosecutes cases nationally. Expertise already exists within the division and the new staff are trained internally. Where any HMRC work is to be devolved, this will be managed carefully and appropriate training and support will be provided.
I am given to understand that RCPO is entirely separate from HMRC, and there have been no staff reductions as a direct result of the merger. I anticipate that the noble Lord, Lord Beecham, was talking of staff reductions more generally, but I can confirm that, in so far as the issue of the statutory instrument is concerned, there are no such reductions.
As always, I will take back his remarks and observations generally about the Serious Fraud Office and whether or not further consolidations might be made with profit, as well as his observations generally about staffing and the involvement of the private sector. I am grateful for those contributions.
We submit that the draft order is a modest but worthwhile measure. In effect, it will complete what was unfinished business and should enable improvements and efficiency to take place. I commend it to the Committee.
Legal Aid
Lord Beecham Excerpts(10 years, 6 months ago)
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Lord Faulks
The answer to the noble and learned Lord is that it depends very much on the context in which “exceptional” is used. The context in which it is used in this particular section is by specific reference to the European Convention on Human Rights.
Lord Beecham (Lab)
My Lords, in answer to a recent Written Question from me, the Minister said that there had been 1,130 applications, of which 35 were granted, not the figures that he has given today. Be that as it may, what was the Government’s estimate of the number of successful applications and what did they anticipate would be the proportion of successful applications? Given that it has taken 14 months to reach a decision to grant legal aid in an important inquest case in which counsel appeared four times without any certainty of being paid, will the Government publish details of the times taken to determine applications?
Lord Faulks
In answer to the second part of the noble Lord’s question, the Government will be happy to publish the times taken. Indeed, I think that the noble Lord will be pleasantly surprised at how quickly these applications are being processed. In answer to the first part of his question, it was expected that some 3,700 would be funded each year. As I said in answer to an earlier question, it is somewhat mysterious as to why so few have qualified. Each case is considered separately by the Legal Aid Agency in accordance with guidelines given by the Lord Chancellor. All those doing this work are experienced and all of them follow the guidelines.
Tribunal Security Order 2014
Lord Beecham Excerpts(10 years, 6 months ago)
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Lord Beecham (Lab)
My Lords, this is a perfectly sensible change to the rules to provide for security on tribunal premises. I do not expect the Minister to be able to answer the one or two questions I have immediately, but it would be interesting to know whether there is a record of any significant incidents in which the presence of a security officer with these powers would have made a difference. It would be interesting to know how many problems have arisen or are arising, and how that compares with the other courts. That said, it is clearly sensible to have these provisions. However, can the Minister say how the Government intend to proceed in terms of the employment of such staff? Will they be seeking to contract this operation out, like so much else of the administration of justice, to contractors such as G4S and Serco? Or will it be done, as it were, in-house?
Secondly, will they, in any event, ensure that staff employed on this important task are paid at least a living wage? I fear that people may be employed on part-time, minimum-wage conditions. Given the nature of the job, that would be entirely unjustified. It would be helpful to know, if not now then subsequently, what the Government’s attitude would be, whether it is providing the services directly or contracting them out. Subject to these observations, I very much endorse the regulations.
Lord Faulks
Contrary to his expectation, I think I can answer some of the questions posed by the noble Lord, Lord Beecham.
In the reporting period from April 2013 to 31 December 2013, a total of 75 security incidents were reported from tribunal venues and hearing centres. Those incidents are classified in a number of ways. Examples include verbal abuse, verbal threats and unauthorised access through to security systems or loss of ID. I do not have any further breakdown, but I hope that gives the noble Lord at least some idea of the scale. I also do not have information comparing that with security incidents at courts, but it can be seen that it is a substantial potential threat, and the noble Lord has been good enough to acknowledge that it is appropriate to make this change. Of course, it was not possible under the 2003 Act until the Tribunals Service was brought within the overall control of the Courts Service.
I turn to the questions around employment. Important pre-employment checks will be made on contractors—and there will be independent contractors—to assess their suitability to work within the organisation. I am instructed that the guards will be provided by G4S and Mitie. Some tribunal venues and hearing centres are covered by the PRIME contract. The contract has input from the Department for Work and Pensions and is managed by a private organisation, Telereal Trillium. The guards will be supplied to these sites by G4S or Mitie depending on their geographical location, and the template seen across the court sites will be used to manage security within tribunal venues and hearing centres.
As part of the employment process, the relevant contractor will undertake pre-employment checks to assess applicants’ suitability to work within their organisation, including obtaining references, interviews and so on. Before designation—the word apparently used in this context—HMCTS undertakes further suitability checks to confirm the identity of the individual. Checks are made of disclosure and barring service certificates, and an assessment is made of the appropriate level of training required. The assessment of this suitability is part of the designation process, with assurances going to the Lord Chancellor. As part of the application process, all potential designates must hold a current Security Industry Authority licence and have completed training on conflict management and physical intervention. There is also continuing monitoring of employees’ ability, but I will not provide all the details now.
I noticed that the noble Lord’s eyebrows were raised slightly by the reference to G4S. He may be thinking back to the question of electronic monitoring and tagging. The tagging contract is not linked to the provision of security on court sites; rather, it is managed by a separate department within G4S. I hope that that provides some assurance for the noble Lord.
Lord Beecham
Will the noble Lord respond to the questions about the conditions of the staff in terms of earnings, zero hour contracts and so on?
Lord Faulks
I am grateful to the noble Lord for reminding me about the question of the living wage. I do not have any details on the precise wages, but I will write to him.