Divorce, Dissolution and Separation Bill [HL]

Lord Beecham Excerpts

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Lord Walker of Gestingthorpe (CB)]

My Lords, the noble Baroness, Lady Deech, has spoken so fully and clearly on her amendment that it is difficult to find much to say in support of it without repetition. However, three points are entitled to a bit of expansion or repetition: first, prenuptial agreements; secondly, the extraordinary flexibility—or, one might say, disarray—of the reasons the court has to take into account at present in making a financial provision order under Section 25 of the Matrimonial Causes Act 1973; and, thirdly and lastly, the suggestion, which the noble Baroness modestly did not refer to, that her drafting of this amendment shows a degree of favour for her own preferred solution to the very difficult problem of general rules for financial provision.

I will take these points in turn. First, on prenuptial agreements, in the early days of divorce, the notion that an engaged couple might think about and discuss a future divorce was regarded as so shocking that it was ruled in English law as a matter of public policy that a prenuptial agreement was unenforceable. That rule has gradually diminished in importance and has certainly now disappeared, as was confirmed by the Supreme Court of the United Kingdom in the important case of Radmacher v Granatino about 10 years ago. What the Supreme Court did in Radmacher v Granatino was to take account of the premarital agreement, not to enforce it.

The suggestion is—and it is a powerful suggestion—that the courts should now go further and treat any premarital agreement as to the division of property and resources on divorce as being valid and enforceable so long as it was entered into fairly and so long as it was based on full disclosure of assets by each side of the marriage and full access to independent legal advice for each partner to the marriage. The Law Commission has made a very clear recommendation to that effect, which was in striking contrast to its failure to agree any other part of the changes that might usefully be made to financial provision.

Secondly, turning to the court’s discretion under the existing law as to what financial provision to make, there is an extraordinary provision that has been in force for many years. Section 25(2) of the Matrimonial Causes Act 1973 sets out a confusing list of eight disparate factors with no clear hierarchy or pecking order between them and no clear guidance to first-instance judges as to how they are to take account of these eight disparate factors in ordering financial provisions. Moreover, these eight factors were there long before 1973, since the 1973 Act was, of course, a consolidating Act. It has been very difficult to provide reliable and clear guidance to first-instance judges who have had to deal with these matters, sometimes on inadequate presentation of the facts and considerations in order to do justice.

In the case of White v White, which was decided about 20 years ago, the Law Lords, as they then were —and since then the Supreme Court—did their best to spell out, of the eight disparate factors, some sort of coherent code to be followed. The top court of this country has made heroic efforts to do that, but the result has been, I regret to say, singularly disappointing. It is also necessary to try to relate these factors, which have been part of the law for half a century, to the very different social conditions that we have today.

Surveys and research undertaken by numerous bodies—some working in conjunction with the Law Commission—have shown that there are wide variations in the way the eight factors in Section 25(2) are applied in different parts of the country and by different judges in the same parts of the country. That is not good for the administration of justice. It adds further stress and expense to what is in any event a sufficiently stressful and expensive procedure, especially if one has to take account of the possibility of appeals to higher courts because of the different ways in which the discretion is exercised. By contrast, the new rules for financial provision in Scotland, which are much clearer and which limit much more the extent of judicial discretion, are working well, as a recent survey has revealed.

Thirdly and finally, it has been suggested—I think politely—that the noble Baroness’s amendment is tilted in favour of her own views as to the amendments that should be made to the law. One simple answer to that is that it would be unsurprising if that were so, because she has of course spent a great deal of time thinking about it. However, she has been somewhat modest about the fact that they are not only her own views. The points mentioned specifically in her amendment, including the rule on prenuptial agreements, are not simply her thoughts. She was too modest to mention the fact that they have been embodied in two Bills which passed twice through all stages in this House without a single adverse vote, but which have never passed into law because neither Bill succeeded in finding a sponsor and getting through the House of Commons before the end of the relevant Parliament. Therefore, the matters specified in the amendment reflect the views which have twice been before this House and which have twice been approved by it, without becoming law. I support the amendment and commend it to your Lordships.

[Lord Beecham (Lab)]

The provisions of Amendments 7 and 17A clearly relate to an important aspect of matrimonial proceedings; namely, the financial settlement. The amendments seek to ensure that there are no discussions about such financial settlements for 20 weeks unless both parties agree. However, does this not illustrate the need for legal advice to be available to the parties, or at any rate to at least one of the parties, in the situation of a divorce? I understand that attempts were made to amend the Bill in that respect, but it was ruled that it was not possible to do so. However, will the Minister undertake to look again, or to persuade his colleagues in the Government to do so, at the issue of providing legal aid for matrimonial matters, particularly of this kind, where one party may well have insufficient resources to procure the necessary advice in this important area of the consequences of a divorce?

[Lord Mackay of Clashfern]

My Lords, I very much support Amendment 20, which the noble Baroness, Lady Deech, spoke to. Not very long ago, I got a fairly impassioned letter from a gentleman I knew who had recently been involved in a divorce. He said that one of the great difficulties in approaching that, which he found by no means easy, was that it was not easy to find out what was likely to happen in relation to finance, and that it was extremely difficult to guess. The reason for that primarily is that the present structure involves a very large amount of judicial discretion. Those of your Lordships who have had the experience of prophesying how a judge will react will understand the difficulty that you encounter with that kind of thing.

Discretion, as I think Lord Bingham said, is a departure from the rule of law, because the discretion becomes the rule not of law but of the judge’s wisdom or lack of it. I remember the old judge in the Court of Session when I first went there: Lord Carmont. He used to say that if you give a thing to a man’s discretion —he was not thinking of women at that time—you commit it also to his indiscretion. The limit of discretion is quite wide.

I thought about trying to do something about this in 1996, but I concluded that it was too difficult to try to mould it to what I was trying to do then. It is probably right that it should not be attempted as part of this Bill. On the other hand, it is mightily necessary to get on with it and get a framework that can be used in the majority of cases. It is true that some discretion may be required—you do not want the framework to be too rigid—but you want it to be fairly clear that this is the way the thing will work unless there are special reasons requiring the exercise of judicial discretion.

--- Later in debate ---

We consider this Bill a necessary first step to reducing conflict in marriage and divorce. We consider it appropriate to commence, when we can, a review regarding financial provision upon divorce. I hear what has been said across the House about the scope for such a review, but setting the parameters of a review before assessing what needs to be done is not the way forward. At this stage, in light of the commitment I have sought to give the House about commencing a consideration of a review, I invite the noble Baroness to withdraw her amendment.

[Lord Beecham]

Can the Minister respond to my request for the Government to look again at the issue of legal aid in matrimonial cases?

[Lord Keen of Elie]

The matter of legal aid is not within the scope of the Bill, and it is not the present intention to address it.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Lord Beecham Excerpts

Tuesday 11th February 2020 Grand Committee

I simply ask the Minister: why the rush to judgment? The point of piloting, provided for in the enabling legislation, was to give us the information to decide on the merits and effectiveness of alcohol monitoring requirements before they were rolled out. I suggest that implementation without that information is not what the legislation intended and is wrong in principle.

[Lord Beecham (Lab)]

My Lords, I thank the Minister for his explanation of the order. I concur very strongly with the comments of the noble Lord, Lord Marks. The documentation produced about the order makes it clear that the proposals are meant to punish the offender by ensuring that they do not consume alcohol. However, as has rightly been said, there is little to back that up. What will be the role of the probation service in supporting those involved, given the pressures on the service to which the noble Lord referred? For that matter, what is the role of the NHS? If one of its patients is involved, will doctors or general practitioners also be involved and invited to support individuals through the period during which the order applies? It would seem sensible for another professional who knows the person in question to offer support, in addition to the very overstretched probation service.

It is clear that, while the proposal is seen in the impact assessment as

“punitive as well as rehabilitative”,

there needs to be clear evidence that adequate support is available for those going through the process. Otherwise, it may be simply the temporary response to which the noble Lord, Lord Marks, referred, without any guarantee of a significant impact on future conduct. The objectives described in the impact assessment’s limited explanation of the proposal, which says that AAMRs

“are meant to punish the offender by ensuring they do not consume alcohol during the period in which the AAMR is in force”,

may be attained, but the long-term situation does not seem to be addressed by anything alongside this order. I therefore invite the Minister to say what discussions, if any, have taken place with the Department of Health and Social Care on what support can be given to patients of general practitioners who are in this position. Without that support, the chances of an enduring response are somewhat limited.

[Baroness Chakrabarti (Lab)]

My Lords, I do not want to be repetitive, but I will add a couple of extra thoughts. No one has spoken against the principle of these orders, or of this legislation. The concerns are more about the adequacy of the rollout process, particularly the information that has been made available. I note that the legislative framework was passed in 2012 and, as the Minister said, the final rollout across the jurisdiction will not be until 2023 or 2024. That is a very long time between the passing of law and order legislation and rollout across England and Wales. The piloting of such orders is a very good idea if it is done well and the data is independently evaluated and shared with the public, professionals and so on. However, if the pilots, followed by incremental rollout, go on for too long, it creates a different legal and punitive regime for people across the jurisdiction, with the potential under Article 14 for arguing that people are not being treated equally in sentencing and rehabilitation. Does the Minister have thoughts on what good governance looks like and the appropriate balance between experimentation and piloting new orders, on the one hand, and equal treatment in sentencing across the jurisdiction, on the other?

In the light of previous contributions, I am sure the Minister will say whether he now thinks that the concerns addressed by the Secondary Legislation Scrutiny Committee have been met. As the noble Lord, Lord Marks, said, the comments about limited information being “unacceptable” are very strong. I also hope that the Minister will respond to what my noble friend said about the tension whereby such an order is described as being both a punishment and a rehabilitation measure in the context of abstinence. It is hard to see how telling offenders that their abstinence is a punishment is going to achieve voluntary abstinence and rehabilitation at the end of the relatively short enforced abstinence.

I am also interested in the choice of pilot areas, from the point of view of equal treatment and Article 14, particularly given that there is such a long period before national rollout. How are areas chosen for such pilots? Is the same methodology applied to both datasets to aid evaluation? Is there an independent element in the evaluation? Many of the comments seem to come from enthusiastic stakeholders and the offenders them- selves, many of whom said that they would drink less at the end of the process. With respect, they would say that, wouldn’t they? What is the non-profit-driven, independent element that does not involve those who are monitoring the orders, or the offenders themselves?

--- Later in debate ---

[Lord Beecham]

What does the Minister envisage the role of the probation service to be under this new arrangement?

[Lord Keen of Elie]

Clearly, probation staff will have access to the monitoring data and will therefore use it to inform their supervision of individuals who are under licence, for example.

[Lord Beecham]

Has the matter been discussed with the probation service, and does it have the resources to do this? It is very stretched, and this will be an additional responsibility, presumably. The question therefore arises: can it meet it?

[Lord Keen of Elie]

There is no suggestion that it will not have the resources to address this matter. It will receive data in circumstances where there will be some 400 active monitoring requirements at any one time. That, I respectfully suggest, is not an overwhelming imposition in addition to the demands made upon the probation service.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Beecham Excerpts

Wednesday 22nd January 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I will also speak to the Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations 2019.

These draft instruments form part of the Government’s wider plans to reform sentencing and law and order, through which we aim to strengthen public confidence in the criminal justice system. The purpose of these instruments is to ensure that serious violent and sexual offenders serve a greater proportion of their sentence in prison, and to put beyond doubt that these release provisions will apply in relation to offenders receiving consecutive sentences, ahead of further changes the Government will set out in a sentencing Bill.

Under the provisions of the Criminal Justice Act 2003, all offenders sentenced to standard determinate sentences must be automatically released halfway through their sentence. These orders move the automatic release point for the most serious offenders who receive a standard determinate sentence of seven years or more. Instead of being released at the halfway point of their sentence, they will be released after serving two-thirds of their sentence.

A key component of our criminal justice system should be transparency, but currently, a person convicted of rape and sentenced to nine years in prison will be released after only half that sentence. Victims and the general public do not understand why they should serve only half their sentence in custody. While improved communication about how a sentence is served will help, this measure aims directly to improve public confidence by making sure that serious offenders will serve longer in prison.

Some may suggest that the whole sentence should be served behind bars, but this would not serve victims’ interests. It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community. The licence period has long been an integral part of the sentence, and it should remain so. It provides assurance to victims through the imposition of conditions to protect them such as non-contact conditions and exclusion zones, through supervision by the probation service and through the power to recall that offender to prison if they breach their conditions. It is also an important period for rehabilitation, giving the offender the chance to address their offending behaviour and undertake activities that can help to prevent them reoffending. So, a licence period must remain.

However, it is not in the interests of public protection that when someone has committed a serious offence for which they rightly receive a long sentence, such as grievous bodily harm with intent or rape, they are entitled to be released half way. This instrument aims to address this by moving the release point for these serious offenders so that they will serve two-thirds of their sentence in prison and the remainder on licence. Retaining them in prison for longer will provide reassurance to victims, protect the public and restore public confidence in the administration of justice. It will also provide longer periods for these offenders to undertake rehabilitative activity in prison and prepare effectively for their release and resettlement in the community.

Automatic release from a fixed-term custodial sentence is a long-established measure. The Criminal Justice Act 1991 made a clear distinction between long-term and short-term prisoners. Short-term prisoners would be released automatically at the halfway point of their custodial sentence. Under Section 33(2) of that Act, long-term prisoners could be released automatically only at the two-thirds point of the custodial period. The 2003 Act removed this distinction between sentence lengths, requiring all standard determinate sentence prisoners to be released at the halfway point.

This order is the first step in restoring that distinction, beginning with those sentenced to standard determinate sentences of seven years or more, where the offender has been convicted of a serious sexual or violent offence, as specified in parts 1 and 2 of Schedule 15 to the 2003 Act, and for which the maximum penalty is life. Moving the release point to two-thirds for these offenders will correct what this Government consider to be an anomaly in the current sentencing and release framework.

Take the example of an offender convicted of rape. They could receive a standard determinate sentence, or, if they are determined by the courts to be dangerous, an extended determinate sentence. If they are given an extended determinate sentence with a custodial term of nine years, they could spend the whole custodial period behind bars if it was necessary for the protection of the public, but the Parole Board could consider them for release on licence after two-thirds of that period—namely, six years. However, if they were not assessed to be dangerous but had still been convicted of this very serious offence and sentenced to a standard determinate sentence of nine years, currently, they would be released after four and a half years. This measure will bring the two sentencing regimes closer into line, so that the offender could be released only after six years, ensuring that offenders committing these grave offences serve time in prison that truly reflects the severity of their crime.

We are starting with those sentenced to seven years or more because this strikes a sensible balance between catching those at the more serious end of the scale and allowing time for the change to embed sustainably. While the measures will apply to anyone sentenced to a standard determinate sentence of seven years or more for a relevant offence after the orders commence, the effects will not begin to be felt until nearly four years later—that is, until we approach the stage at which the first affected prisoners reach the halfway point of their sentence and remain in prison rather than being released. The impact will be felt gradually; our best estimates are that this will result in fewer than 50 additional people in custody by March 2024, rising to 2,000 over the course of 10 years.

The House’s Secondary Legislation Scrutiny Committee has drawn attention to the impact of this measure. I am content to offer assurances that this Government will act to ensure that the additional demands on HM Prison and Probation Service will be met. We will continue to invest in our prisons, both to build the additional capacity of 10,000 places announced by the Prime Minister—as well as the 3,500 places already planned at Wellingborough, Glen Parva and Stocken—and to undertake maintenance across our prison estate to manage the anticipated increase in demand. We have also invested significantly to increase staff numbers, recruiting between October 2016 and September 2019 an additional 4,581 full-time equivalent prison officers, thereby surpassing our original target of 2,500. We will continue to recruit officers to ensure that prisons are safe and decent, and to support both the current estate and planned future additional capacity.

Our impact assessment is based on assumptions that judicial and offender behaviour will continue unchanged, although of course, that cannot be certain. We are putting in place mechanisms with our partners across the criminal justice system to monitor the impact of the additional officers and give us the ongoing and future insight necessary to allow us to plan the prison estate. As these offenders spend more of the sentence in prison, correspondingly less time will be spent under probation supervision in the community.

These measures will enable us to take swift but sustainable action ahead of the wider package of reforms that the Government intend to bring forward in the sentencing Bill. They are not retrospective and will apply only to those sentenced in England and Wales on or after 1 April 2020.

Not proceeding with legislation would mean continuing with a system which fails properly to ensure that serious offenders serve sentences that reflect the gravity of their crimes and continue to be released halfway through their custodial period. In our view, that is not in the public interest, nor does it promote confidence in the justice system. I beg to move.

[Lord Beecham (Lab)]

My Lords, for some time this country has had the dubious distinction of having among the highest number of prisoners relative to population in Europe, with the numbers having risen by almost 70% in 30 years, with the vast majority of those, some 60%, being imprisoned for non-violent crimes. Moreover, the length of sentences has increased substantially, with 2.5 times as many people being sentenced to 10 years or more in 2018 as in 2006. On average, those receiving mandatory life sentences spend 17 years in custody, an increase of four years since 2001, while the average minimum period imposed for murder rose from 12.5 years in 2003 to 21.3 years in 2016. And yet, typically, the Prime Minister chooses to play to the gallery by reviewing sentencing policy without any consultation beyond the inner workings of the Ministry of Justice, and emerges with proposals for a draconian increase in the length of sentences which is likely to increase substantially the problems faced by an overworked and understaffed Prison Service, and indeed by the majority of prisoners.

As the Prison Reform Trust has pointed out:

“No evidence is given about the re-conviction of people currently released from these sentences”


and there is a risk that

“the people affected will spend a shorter period under the supervision of the probation service after release.”

The trust points out that reconviction rates are indeed lower for those serving more than four-year sentences, but there appears to be no evidence that sentences of seven years or more lead to any further reduction in reoffending on release.

The trust also reveals that the Ministry of Justice’s own research discloses that, when they are given the full facts of individual cases,

“the public tends to take a more lenient approach than sentencing courts.”

Moreover, they are likely to be confused by the fact that, when two convictions lead to consecutive sentences of less than seven years but with a total of more than seven years, the new provisions will not apply. And, of course, it is in any event open to the trial judge to impose longer sentences where this is deemed necessary.

As the trust rightly points out, there are other and better approaches to combating potential reoffending, not least by tackling the problems of the understaffed probation service. It rightly points out that the Chief Inspector of Probation has raised the issue of unacceptably large case loads for officers responsible for the supervision of long-serving former prisoners. Typically, no detail has been supplied of the additional costs of providing the offender management of those in custody that the new regime will require. Can the Minister supply any information about the relevant staff numbers and the costs involved?

For that matter, is he able to provide an estimate of the costs likely to be incurred by local authorities to meet the needs of families struggling for even longer periods without the income of an imprisoned partner or parent? What assessment has been made of the impact on prisoners’ employment possibilities after serving longer sentences and the consequential cost of benefits if, as seems increasingly likely, they find it even more difficult to find employment after a longer period of imprisonment?

Other financial questions arise. Four years ago the Government declared that they would provide an extra 10,000 prison spaces. All of 200 have been created. How many places will be required now to meet the need created by this order? How long will it take to provide them? What is the estimated cost of their provision and of the necessary increase in staffing? To what extent does the estimated increase in prison numbers of 3,200 by March 2023 reflect this new policy—or did that increase precede the policy contained in this order?

The last decade has seen a shocking worsening of conditions in our prisons. Sexual assaults quadrupled between 2012 and 2018; 117 prisoners have died having used or possessed new psychoactive substances; self-harm incidents rose from 23,158 in 2012 to a staggering 55,598 in 2018, with women disproportionately affected; and assaults rose dramatically, tripling to more than 10,000 on staff between 2013 and 2018. Yet staff numbers were cut by 26% between 2010 and 2017-18—albeit with some partial restoration since then. But—this is surely alarming—54% of the officers who left the service last year had served less than two years. What, if any, attempts were made to understand the reasons for this drastic loss of staff in such a short period and to avoid its repetition? Currently, 35% of staff members have been in post for less than two years and only 46% have served for more than 10 years. What, if anything, is being done to address this disturbing position and what, if any, is the difference between privately and publicly managed prisons in those respects?

In 2018, 58,900 people were sentenced to prison, 69% of them for non-violent crimes. Of those who received custodial sentences, 46% served six months or less. Is it not time to review the utility of such sentences against alternative measures? Would it not be better to secure greater investment in the probation service and the youth service as an approach to tackling the problem?

Should it not be a priority to promote purposeful activity for those sentenced to imprisonment? Just two in five prisons received a positive rating for this in 2017-18, while the quality of teaching and learning in prisons has declined, with the number of those rated as good reduced to 42%. Some 62% of those in prison had a reading age of 11 or lower in 2017-18. What will the Government do to address this serious situation, which is mirrored in a significant fall in the number participating in education while in custody?

There are serious matters to be addressed in our Prison Service. Will the Minister use his influence to persuade the Prime Minister to address them rather than play to the gallery with a populist approach that at best will achieve nothing and is likely to make matters worse, not just for prisoners but for prison staff and society as a whole?

[Viscount Hailsham (Con)]

My Lords, my contribution will be very brief. I support the principle enshrined in these regulations, but I share and strongly echo two concerns expressed by the noble Lord, Lord Beecham—and I do so as one who was until relatively recently on the monitoring board of a local prison.

My first point relates to the availability of relevant courses for prisoners to take in order to demonstrate that they can be safely released. When I was on the monitoring board, I was very concerned by the fact that a number of IPP prisoners were not able to find courses that could demonstrate that they were safe to release. I hope, therefore, that the Minister is able to say that resources will be dedicated to the provision of relevant courses.

The second and related point has already been made by the noble Lord, Lord Beecham: the longer a person stays in prison, the more difficult it is for them to be reabsorbed into the community and, more particularly, the more difficult it is for them to get a job. When I was on the monitoring board, I was very concerned by the lack of meaningful out-of-cell activity, particularly in the field of education and the acquisition of work skills. Therefore, I very much hope that my noble friend is able to tell the House that the Government will increase the provision available to prisons to provide for meaningful out-of-cell activity, particularly in the field of education and the acquisition of relevant work skills, which will enable prisoners, when released, to be absorbed back into employment.

Queen’s Speech

Lord Beecham Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Beecham (Lab)]

My Lords, “Justice, justice thou shalt pursue” is a biblical exhortation which should be the hallmark of policy and practice in this critical area of government policy.

There is little evidence of it to be found in the Ministry of Justice’s contribution to government policy and its legislative programme, with the exception of sensible measures such as the Divorce, Dissolution and Separation Bill and the Sentencing (Pre-consolidation Amendments) Bill. There is no recognition of the impact on access to justice of the last nine years of coalition and Conservative government policy, nor any indication of a determination to tackle the dreadful conditions in our overcrowded and understaffed prisons in a country with among the highest incarceration rates in Europe and a dreadful level of violence which we are encountering regularly. On the contrary, the Government seem determined to promote longer sentencing and potentially counterproductive measures such as more hours of unpaid work of an undefined nature. Nothing appears to be happening in ensuring that in this area profit is not a key factor.

However, it is not just the custodial system that is found wanting. The Law Society, not noted for left-leaning tendencies, describes the justice system as being “at breaking point”, citing

“shortage of duty solicitors and independent experts, court closures, barriers to accessing legal aid, and crucial evidence not being disclosed in court until the last minute.”

It also describes the criminal justice system as being at breaking point. It is true that the Ministry of Justice’s budget for criminal justice is being increased, but this is largely devoted to providing new prisons and supporting the appointment of new police officers to fill the gap caused by cuts over the last few years. The probation service continues to be overstretched. The Law Society calls on the Government to ensure adequate funding across the whole criminal justice system, not just a few parts of it. This will include the need to ensure the availability of legal representation by increasing fees and updating the means test to increase it in line with inflation since 2010, given that the present level falls well behind.

Similarly, the society invokes the need to facilitate access to civil justice, so badly affected by LASPO, which currently leaves many people on very low incomes ineligible for legal aid. It also draws attention to other failings of the present system, including the need to restore legal aid for early advice in housing and family law. Here, at least, and at last, there will be a belated piloting of an advice scheme in relation to housing law. We have to see the extent to which effective changes are made. As I pointed out several times in earlier debates, there are legal deserts in this important area, where 37% of the population live in local authority areas with no legal providers for housing law cases, in particular at a time when there are many problems in the private rented sector.

The society raises further issues, including concerns about the apparent failure to proceed with the court modernisation programme embodied in the Courts and Tribunals (Online Procedure) Bill, which passed through your Lordships’ House and appears to have since disappeared. Since 2010, the Ministry of Justice budget has been cut by 40%. This translates to applications for employment tribunals collapsing, legal advice services reducing from 3,266 in 2006 to less than 1,500 in 2015, and by 2017 there was a reduction in legal aid providers by 20%—presumably by now there has been an even greater reduction. Moreover, many courts have been closed, others are in poor repair, videolinks are sparse, and waiting areas sometimes fail to provide separate facilities for parties in domestic abuse cases.

One correspondent who works in the public children’s law sector sees some of the most vulnerable children in society and reports seeing,

“a court system where judges are struggling to cope with high numbers of litigants in person—some very vulnerable people—trying desperately to navigate a system so that they can either protect their child, see their child or respond to serious allegations against them … it is not unusual to see a case where there have been 3, 4, 5 social workers in the space of one year”,

with grandmothers offering to look after children and then delays of months, even years, to obtain appropriate housing.

This underlines the need not just to ensure that the legal system and proper advice and representation are accessible but that other critically important services are properly funded and available to assist both the parties and the courts. What steps will the department take to work with other departments, for example, local government and education, to contribute to the resolution of such pressing problems?

Prisons: Pregnancy Healthcare

Lord Beecham Excerpts

Thursday 31st October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I cannot accept all the propositions advanced by the noble Baroness. As at 3 pm on Monday, 47 women in custody were identified as being pregnant. In 2018, collection of local data identified that there were fewer than five cases in which a woman in custody had given birth in prison. Every effort is made to ensure that suitable midwifery and perinatal care is available for all women taken into custody. Indeed, the guidance document Working with Women in Custody and the Community, published in December 2018, includes an entire section on caring for perinatal women in prison. This was a most unfortunate incident. As I say, it is not appropriate for me to go into the detail of the incident, given that there is an ongoing police inquiry, but I can assure the noble Baroness that, apart from the guidance I have just referred to, the National Prison Healthcare Board has a principle of equivalence of care for prison healthcare in England to ensure that the same standard of perinatal care should be available to those in custody as to those in the community.

[Lord Beecham (Lab)]

My Lords, we have a situation where 600 pregnant women are confined. While this raises questions about sentencing, it surely also underlines the need for those in charge of women’s prisons to provide proper care. There are 11 investigations currently under way. Given the shocking failure of Sodexo in this case, what sanctions will the Government impose on the company? Will it transfer the management of women’s prisons to public sector or non-profit-making management?

[Lord Keen of Elie]

My Lords, the guidance that I referred to applies equally to public sector and contracted prisons. With reference to Her Majesty’s Prison Bronzefield, I observe that the most recent report from the inspectorate, published in April this year, identified Bronzefield as an “overwhelmingly safe prison” and an “excellent institution”. It found that pregnant prisoners in Bronzefield were identified and immediately referred to midwifery support. Clearly, we need to look at this incident and learn lessons from it. We are intent on doing so.

Crime: Rape

Lord Beecham Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I can understand the noble Baroness’s concern about this issue. That is why we are taking forward a quite urgent cross-government review in relation to rape. Where we consider that there are gaps in the law and these are identified, we intend to take action.

[Lord Beecham (Lab)]

My Lords, the number of convictions for rape fell by 26% between 2017-18 and 2018-19, while the proportion of reported cases being prosecuted declined to a mere 1.4%, the lowest on record. How does the Minister account for these figures? What steps will the Government take to ensure that the relevant departments—the Ministry of Justice and Home Office and, perhaps, the Department of Health working with the victims—address this deplorable failure in the justice system?

[Lord Keen of Elie]

My Lords, I fear that the drop in the number of rape cases being referred to trial is even greater than the noble Lord suggests. Current figures indicate that approximately half the number of cases is reaching court, from a peak in 2015. That is a matter of real and material concern and is why we have set up a cross-government working group—a sub-group of the Criminal Justice Board—to bring forward an action plan as soon as possible. We hope to have that plan in place by the spring of 2020.

Feltham Young Offender Institution

Lord Beecham Excerpts

Wednesday 24th July 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I thank the noble and learned Lord for repeating that Answer. The state of the Prison Service in a country with one of the highest incarceration rates in Europe has long been a matter of concern. The chief inspector’s report on Feltham cites concerns about the safety and care of 15 to 18 year-old prisoners, with very little time spent out of their cells and an alarming increase in self-harm, physical restraint and attacks on staff. What steps will the Government take to remedy this situation and ensure that it is not repeated elsewhere?

[Lord Keen of Elie]

My Lords, I am grateful for the noble Lord’s observations. We have developed a clear process to respond to urgent notification letters. Senior officials, led by the executive director of the Youth Custody Service, will be directly involved in the work to ensure that immediate action is taken, along with a more in-depth plan to ensure that we see sustained improvement to the establishment in the long term. Of course, as part of the process, the department will publicly respond to the chief executive within 28 days.

Serco

Lord Beecham Excerpts

Thursday 4th July 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, this issue arises out of the Government’s infatuation with the concept of privatising public services—in this area, largely in connection with prison and the probation service. In these areas, privatisation has been a signal failure. Why has it taken six years from the revelation of Serco’s fraudulent charging for the offender tagging contract between 2010 and 2013 to secure the payment of £19.2 million? Deloitte has also been fined £6.5 million for its role in the scandal. Why do the Government apparently intend to continue to allow these companies to tender for government contracts of this or other kinds?

[Lord Keen of Elie]

My Lords, the noble Lord refers to an infatuation of this Government. I remind him that the contracts with which we are concerned go back to 2004, at a time when, at least as I recollect, there was a Government of a different complexion. It was that Government who let these contracts to Serco in 2004 and for many years thereafter.

The resolution of the matter between the Ministry of Justice and Serco took place in 2013-14, when there was a financial settlement of £68.5 million. As to why it took six years for the criminal matter to be concluded by DPA, that is of course a matter for the SFO, to which we lent all our assistance during the course of this very complex inquiry.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beecham Excerpts

3rd reading (Hansard): House of Lords
Tuesday 2nd July 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I support not only the amendments to which my name is attached but all the amendments proposed today. Taken with the earlier amendments which the House considered and which the Government have added, this makes for a much better Bill than ever it was. The particular point I wish to emphasise is that, as a result of these changes, the House, and in particular the Government, have recognised the impact of the constitutional reforms of 2005. The emphasis ought now to be recollected whenever there are any proposals to address the way in which the courts system works. Beyond that, I thank the noble and learned Lord, Lord Keen, for his personal contribution to the discussions and improvements—and, through him, I thank his team.

[Lord Beecham (Lab)]

My Lords, I join noble Lords who have spoken in this very short debate in thanking the noble and learned Lord for the way he has approached the Bill. He has sought very clearly to achieve consensus; he has been open to discussion; and he has obviously been persuaded to make important changes. It is something he might like to have a word with other ministerial colleagues about, because it has not always been the case that Ministers have responded so constructively to debates in the Chamber. On this occasion, I am sure that the House will unanimously agree these amendments. Certainly we on these Benches—such as we are this afternoon—will do so.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I wish simply to join in the unanimous praise and gratitude for the Government’s acceptance of those amendments that they have accepted, and their tabling of these amendments today. The Online Procedure Rules are intended to introduce a new and simplified procedure. We were concerned to ensure that litigants who were going to find it difficult to use that procedure, particularly in so far as it was a digital procedure and they would not be using paper means to conduct proceedings, should not be excluded by difficulty from approaching the procedure and should have afforded to them the kind of assistance they would need to handle litigation, without the need for lawyers, under the Online Procedure Rules.

We are particularly grateful for the Government’s acceptance of Amendment 4, which imposes a duty on the Lord Chancellor, as the Minister has explained, to provide assistance or support for digitally excluded people, and these amendments tie in the obligation to have regard to the needs of those people in conducting that litigation. I was particularly concerned about the use of the word “technical” in relation to that assistance, because it seemed to us that that might be unduly restrictive. I am grateful for the excision of that word from the amendments.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beecham Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

“those with limited digital skills, for whom basic browsing and messaging may be within their capabilities but the complexity of online legal forms may not”.

[Lord Beecham (Lab)]

My Lords, I declare my interest, as in the register, as an unpaid consultant with my former legal firm.

It is unusual for me to extend congratulations to the Minister, with whom it is usually an enjoyable conflict of arms over the Dispatch Box, but he has made it very clear in his approach to the Bill that the Government are seeking to secure improvements to the legislation. He has tabled nearly half the amendments that we are discussing on Report, which is an unusually high proportion. That says a great deal for his interest in securing support for and improvement of the legislation, and for that he is to be highly commended. I welcome Amendments 1 and 18, and the acknowledgement of the need to have regard to those involved in the justice system who will require support to engage in an unfamiliar process.

Amendment 7, in my name, does not appear to have attracted a great deal of support around the House. It is designed to ensure that either party may choose whether proceedings will be online or offline rather than restricting the choice to the claimant, which is the present position under the Bill. It would allow the relevant judicial officeholder to decide which rules are to be followed where the parties are not in agreement. I am frankly puzzled by the criticism on this occasion from noble and learned Lords with a rather higher status in the legal profession than I ever aspired to or achieved. But since the Bill itself provides under Clause 3(1) that the Minister may,

“by regulations, provide for circumstances in which the person initiating proceedings, or an aspect of proceedings, may … choose”,

one side of the case can choose. However, there seems to be an objection to the other party being able to make a choice with the ultimate decision made, if necessary—if there is conflict on that—by a judicial officeholder.

I understand that the suggestion I have made would make both sides able to opt for a decision—I remind noble Lords that they cannot concur on the decision to be made—by an officer of the court. This is consistent with the European Convention on Human Rights and is strongly supported by the Law Society. I hope that it may be looked at again, in either this Chamber or another place. It seems only equitable for both sides, if any is to have a choice in proceedings, to give an indication and provide for a system where an independent party could, if necessary and by way of being a judicial officeholder, decide which rules would apply.

[Lord Keen of Elie]

My Lords, I thank all noble Lords for their contributions to this debate. I propose to address Amendment 5, which touches upon government Amendment 4, and then go on to look at manuscript Amendment 9A and thereafter Amendment 7. I will also touch upon the two technical amendments, as they were termed by the noble Lord, Lord Marks.

On Amendment 5, the use of the word “initiate” was intended to capture all engagement with online services throughout the proceedings, as I indicated on a previous occasion—in other words, “initiate” was taken as a synonym for “engagement”, not “commence”—but I appreciate the uncertainty that is in the minds of some noble Lords with regard to that matter. The noble Baroness, Lady Drake, made the point about comparing the terms of an earlier clause with this clause, where it refers only to “initiate”. I intend to look further at that matter before Third Reading so that we can arrive at a conclusion as to the appropriate wording, because I believe we are as one on the appropriate outcome on that point. In these circumstances, I hope that the noble Lord may see fit not to press his amendment at this stage so that we can proceed with Amendment 4 and address that point further in due course.

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[Baroness Drake]

My Lords, I support Amendment 22 to Clause 8. I will steer clear of debate on Clause 9, being neither a judge nor a barrister or solicitor.

In Committee, deep concerns were expressed about the extent of the ministerial powers in the Bill, which could result in rules that set digital engagement and participation in online courts as compulsory conditions for access to justice in civil proceedings. In effect, the ministerial powers in the Bill have the potential to require people to choose between online proceedings or not pursuing legal claims. The Constitution Committee shared those concerns. The Minister sought to mitigate those concerns by giving assurances as to the Government’s intentions. In Committee, in response to my noble friend Lady Corston, the Minister commented:

“We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular”.


However, Clause 8 explicitly allows Ministers to both instruct and overrule that committee of experts.

On a further occasion, the Minister gave an assurance that,

“judicial discretion … ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice”.

However, as the noble and learned Lord, Lord Mackay, so acutely observed in Committee:

“It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that”.—[Official Report, 10/6/19; cols. 287-89.]


In summary, notwithstanding ministerial assurances, Clause 8 confers powers on Ministers to require specific provisions to be included in the Online Procedure Rules which the Online Procedure Rule Committee must comply with. Clause 8 also requires that the rules that the committee is required to make must be in accordance with Clause 7, but that clause gives the Minister explicit powers to disallow rules made by the Online Procedure Rule Committee of experts. Clause 8 gives Ministers considerable scope but fails to frame those powers in a way that ensures access to justice and does not give rise to the potential of a person having to choose between online court proceedings or not pursuing their case.

There are real concerns across the House about the potential of the powers given to Ministers in Clause 7, and I will not replay them here, but the case for Amendment 22, which introduces a degree of control over the exercise of those powers by requiring the Minister to secure the concurrence of the Lord Chief Justice, who is the head of the judiciary and is ultimately responsible for the delivery of justice, is, I believe, compelling.

[Lord Beecham]

My Lords, I welcome the Minister’s acceptance of the need for the Lord Chief Justice to concur with the creation of rules rather than merely to be consulted. However, Amendments 16 and 19 look to enhance parliamentary scrutiny by requiring the affirmative process. The increasing reliance on the negative procedure has already roused concern in your Lordships’ House, and many Members are further concerned about its application to this sensitive area. The Law Society strongly endorses the amendments prescribing the affirmative procedure on the basis that it would secure further parliamentary scrutiny of the regulations.

Amendments 20 and 21, which are in my name, would empower the committee to decline a government request—in effect, an instruction—to create certain rules, which is really the issue that my noble friend Lady Drake has just referred to. If there is to be a really meaningful role for that committee, to my mind we need an amendment along the lines of Amendments 20 and 21.

Finally, we will certainly support the noble and learned Lord, Lord Judge, if he seeks to take the opinion of the House on the two amendments in his name.

[Lord Keen of Elie]

My Lords, I begin with two general observations. First, I am not conscious of having run out of fuel, but I leave that to others to judge. Secondly, it occurs to me that the Henrician view of executive power does not differ in any practical respect from the Stuart view of the divine right of kings.

Perhaps I should begin by making this point. Under the structure of the Bill, it will be necessary, pursuant to Clauses 2 and 3, to identify proceedings of a specified kind that may be subject to the Online Procedure Rules. In the light of the Government’s amendments, that can be done only with the concurrence of the Lord Chief Justice, as indicated, and subject to the affirmative procedure.

It is not open to the Online Procedure Rule Committee to make Online Procedure Rules in respect of procedures that are not of a specified kind—that would simply be ultra vires. There is scope the other way, for the Online Procedure Rule Committee to provide that certain proceedings that are of a specified kind are not to be governed by the rules; that is pursuant to Clause 1(6). So the point I seek to emphasise at the outset is that the definition of specified procedures—the specified kind of procedures—sets out the framework within which the Online Procedure Rule Committee can operate. If the Minister were at any time to direct the Online Procedure Rule Committee, pursuant to Clause 8, to make rules in respect of proceedings that were not of a specified kind, that would be ultra vires; that is quite clear. He can direct them to make rules only in respect of proceedings of a specified kind pursuant to Clauses 2 and 3.

It is not possible to utilise the Clause 8 power in order to run roughshod over the provisions in Clauses 2 and 3, which clearly set out the need for the Lord Chief Justice to give concurrence to the proceedings that will be subject to the rules. Perhaps I am stating the obvious, but it occurred to me that one or two observations made in the course of this debate were inclined to suggest otherwise. I do not accept that. One has to look at the entire structure of the Bill and have proper regard to the way in which Clauses 2 and 3 will operate in that respect.

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[Lord Keen of Elie]

My Lords, this group of amendments, beginning with Amendment 10, concerns the composition of the committee. I will therefore address Amendments 10, 15 and 17. The purpose of the amendments is fourfold: first, to increase the number of judicial members of the Online Procedure Rule Committee; secondly, to enable the Lord Chief Justice to appoint one judicial member as chair of the committee; thirdly, to provide that, when making rules, the majority of the committee must sign the rules, rather than the current requirement that they be signed by three members; and fourthly, to ensure that, where the committee is tied on the making of one or more rules, the chair’s signature will act as a casting vote.

These amendments, alongside our proposed amendment on concurrence in Clause 2, seek to ensure sufficient safeguards in the Bill to balance the role of Ministers on the one hand and the judiciary on the other in the making of online rules. The amendments aim to achieve a balance of nominees of the Lord Chief Justice and of the Lord Chancellor, such that each would have three nominees to the committee. In addition, one of these judicial nominees will now be designated by the Lord Chief Justice as the chair of the committee and will have the casting vote should the committee be tied on the making of any rule.

On the issue of committee members signing rules, the previous iteration of the Bill simply stated “three” as that would have been a majority of the five committee members. However, having considered the observations of noble Lords, and having made a small change to ensure that in future the committee increases in size, a simple majority of members will always be required to make rules. In this instance, where there are six members, should the committee be tied, the chair, as I said, would have the deciding vote. The consequence would be that the judicially appointed members of the committee would in such circumstances always have the majority on the committee. It is in these circumstances that I commend Amendments 10, 15 and 17 to your noble Lordships.

[Lord Beecham]

My Lords, I rise to speak to the amendments in my name, Amendments 11, 12, 13 and 14.

Amendment 11 seeks to enlarge the Online Procedure Rule Committee to include members covering the legal profession and the magistracy, all of whom should be familiar with the difficulties experienced by people unused to the digital process. Importantly, Amendments 12 and 13 amend the provision of Clause 4(2)(d), under which two persons are added to the list of the committee members, one of whom must have experience in the advice sector, and the other two of whom must have IT experience and knowledge of end-users’ experience of internet portals. The amendment would add a third member with experience in representing the views of people who are digitally excluded. We regard this as imperative, not least in the light of the appalling experience of universal credit, which the organisation Mind cites as an example of “digital by default”, whereby 25% of people with long-term health conditions could not make claims online. Mind also cites a case, LH Bishop Electrical Co Ltd v Commissioners for Her Majesty’s Revenue and Customs, in which the First-tier Tribunal ruled that requirements to file VAT returns online discriminated against disabled people, older people and people living too remotely for digital access.

Mind, while supporting increasing the choice for core users and making the system easier to navigate, rightly avers that it is essential to make sure that there are safeguards to ensure that people who are digitally excluded are not locked out of the justice system. It goes on to suggest that the Online Procedure Rule Committee’s powers should be limited so that it cannot require that proceedings be initiated online without providing an alternative that is clearly advertised and provides for each stage of the proceedings. This reinforces the case with an approach that does not leave the decision as to whether proceedings should be online with one party. This is consistent with the view expressed in Lord Briggs’s report, which sought to include non-lawyers with the requisite skills. These amendments are supported by the Law Society.

Finally, Amendment 14 seeks to promote and ensure gender balance in the membership of the committee and invites further work by the Government to achieve that.

--- Later in debate ---

Moved by

[Lord Beecham]

12: Clause 4, page 4, line 21, leave out “two” and insert “three”

[Lord Beecham]

My Lords, I wish to test the opinion of the House.