European Union (Withdrawal) Bill

Lord Beecham Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

I hope that the noble and learned Lord who is to respond—if I have correctly identified who is to speak this time—will be able to say that the Government accept that it is right to make amendments in this way. Whether he is able to accept quite what the formulation would be is another matter, but he may wish to consider, between now and Report, whether discussions should take place to arrive at a formulation that those in the House who are concerned about this issue find to be a happy and helpful way of setting it out. That is for him to say. I would suggest that that would be most helpful, but in the meantime, I hope that on this occasion he will be able to say that in the light of what has been said about the importance of the principles of legal certainty and doing everything we can to uphold the independence of our judges, upon which principle we all depend, the Government accept it and will do something to make it right.

[Lord Beecham (Lab)]

Does my noble and learned friend agree that, in all fairness, the noble and learned Lord, Lord Keen, distinctly and clearly criticised those attacking the judiciary at the time that my noble and learned friend mentioned?

[Lord Goldsmith]

I am grateful for that unexpected intervention from my own Front Bench, but I am happy to take the opportunity to say that the noble and learned Lord, Lord Keen, was one of the few to say the right thing and uphold the independence of the judiciary at the time of that attack. I am grateful to my noble friend Lord Beecham for making the point because it deserves to be made.

Prisons: Women

Lord Beecham Excerpts

Monday 5th March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, with regard to the dispersal of prisoners from HM Prison Holloway, there were at the time of the move 241 prisoners who had to be transferred to other prisons. Of those, 114 were transferred to Downview and the remand prisoners, extending to about 56, were transferred to Bronzefield. Both those establishments had suitable facilities and services for the prisoners who were transferred. We are, of course, engaged in looking at and renewing the entire prison estate at the present time, which is one reason for the disposal of HM Prison Holloway.

[Lord Beecham (Lab)]

My Lords, it is nearly two and a half years since the closure of Holloway was announced and 20 months since it closed. As we have heard, prisoners have been moved outside London to Surrey, Kent, Peterborough and beyond, with serious effects on staffing and the well-being of prisoners now further away from their families. More efforts appear to be made to develop the former site than to replace the prison. Why was the closure implemented before accessible, suitable and permanent provision was secured?

[Lord Keen of Elie]

My Lords, accessible and suitable provision was secured for those prisoners who were transferred from Holloway. I have indicated that they were transferred to Downview, in particular, Bronzefield and one or two others. There were individual interviews in respect of all prisoners in order to determine the suitability of their transfer. In addition, 24 service providers at Holloway transferred to Downview and a further 12 were replaced with equivalent provision at Downview. We consider that suitable provision was made in respect of these transfers.

European Union (Withdrawal) Bill

Lord Beecham Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, your Lordships may have noticed that I am rather short: this afternoon, I can give the House some comfort by saying that, in relation to this amendment at least, I shall also be brief.

The Constitution Committee points out that Clause 2 is not needed to ensure that most categories of domestic legislation—which in practice will remain in force—will continue to apply. It concludes that,

“clause 2 appears to be significantly broader than it needs to be”.

The Constitution Committee affirms that it is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as retained EU law and be subject to the powers of the amendment referred to in Clause 7.

Does the Minister accept this? If not, on what basis does he take that stance? The provision appears to be a way of allowing the Government to amend legislation by the mechanism of secondary legislation. With all the concerns around the excessive use of such procedures that have frequently been expressed by committees of the House and by Members in the Chamber, it would be reassuring if the noble and learned Lord could make it clear that that is not the Government’s intention in respect of this Bill.

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

My Lords, I am grateful for the contributions from Members of the House with regard to this issue. We are extremely grateful for the extensive work done by the Constitution Committee with regard to the Bill, as set out in the report, and for the consideration that members of the committee have given to the provisions of the Bill and some of the difficult issues that arise in transposing EU-based legislation into domestic law, because it represents something of a challenge in a number of respects.

I shall begin by referring to a matter that does not arise out of this group, or did not until the noble Lord, Lord Adonis, raised it, because it may help if I address his point about whether retained EU law is primary or secondary legislation. It is neither in the Bill. There are provisions in paragraph 19 of Schedule 8 with regard to the Human Rights Act, which is a very particular case, where it will be treated as primary legislation. There is the Constitution Committee’s recommendation that it should all be treated as primary legislation. I shall not go into detail at this stage because we will address this later, but I want to reassure the noble Lord about where we are.

That recommendation raises enormous difficulties because there are aspects of EU-derived legislation that, for example, involve the enumeration of the contents of a particular dye or chemical, and the idea that we could amend that only by way of primary legislation raises issues of its own. Nevertheless, it seems to the Government that there is some scope for considering how we can take this forward, and we are open to considering not only the recommendations of the Constitution Committee but of others. For those who have an interest in this issue, I commend for consideration, at least, the recent observations of Professor Paul Craig of St John’s College, Oxford, in a blog on the UK Constitutional Law Association site dated 26 February—only a few days ago—in which, supplementary to an earlier note that he made, he proposes a categorisation of EU-derived legislation. I cannot say that it is one that we entirely agree with, but it is certainly one that we are looking at because there is more than one route to the resolution of this issue. We are looking at that and, for noble Lords who are interested in that point, it may be worth considering.

Prisons

Lord Beecham Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Keen of Elie]

The conferment of a hereditary title is welcomed. Mrs Keen will be very pleased.

This is of course a serious issue. The demands on our prisons are a long-term issue, not a short-term problem, and we intend to address it with a programme of new prisons. Perhaps I may say that the question of capacity in our prisons has been with us for well over 15 years: indeed, we are not quite at the same sort of ceiling of use as we were even 10 years ago. As regards crowding levels, I regret to say that, since 2004, they have remained persistently at about the same level on a measure in percentage terms of between 24% and 25%—but, as I say, we are seeking to address these issues with our programme of new establishments.

[Lord Beecham (Lab)]

My Lords, are the Government content that we have the fifth-highest incarceration rate in the EU—exceeded only by Poland, Hungary, the Czech Republic and Slovakia? If not, what do they propose to do about it?

Asylum Seekers: Legal Advice

Lord Beecham Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, all persons detained in immigration removal centres now have access to a duty solicitor and therefore have access to legal advice.

[Lord Beecham (Lab)]

My Lords, it should be axiomatic that legal assistance is available to people facing removal and the Minister has made it clear that that should be the case. However, surely the underlying problem is the shameful record of the Home Office in this area. We read regularly that people who have been living in this country for decades, often working and having led a successful life here, are now being ordered to depart. Will the Government review the performance of the Home Office and its policies in this very sensitive area?

[Lord Keen of Elie]

My Lords, the period for which a person has remained illegally in this country should not be and is not a determinant of their right to remain here. It is necessary to apply the relevant law both to the issue of asylum seekers and those who arrive here unlawfully, not even seeking asylum.

Prisons: Careers Guidance

Lord Beecham Excerpts

Wednesday 31st January 2018 Lords Chamber

Asked by

[Lord Beecham]

To ask Her Majesty’s Government why they have cancelled the contract of the National Careers Service to provide careers guidance in prisons.

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

My Lords, the custodial element of the National Careers Service contract has not been cancelled; it will reach its expiry date on 31 March 2018. We are reviewing options for alternative provision as part of wider employment services. We are committed to providing training and advice to deliver effective rehabilitation for the needs of offenders.

[Lord Beecham (Lab)]

My Lords, job coaches, who are likely to replace the present people who deal with prisoners, are not people who visit just before release. Others coming into this position will not provide as good a service as the career advisers, who work with prisoners over a considerable time. Can the Minister say what consultations have taken place on this decision and whether the results will be published in due course? Why have the Government refused to provide information as to the likely number of advisers who will no longer be employed?

[Lord Keen of Elie]

My Lords, the contract for the in-custody National Careers Service element could have been extended by a further period of six months maximum from 31 March 2018. A decision was made not to extend it because an internal review of the service being provided indicated that custody contract performance showed significant inconsistencies of service between institutions. As regards its replacement going forward, I note, for example, that community rehabilitation companies already work with every prisoner 12 weeks prior to release to ensure a personalised plan with respect to employment, and Department for Work and Pensions prison work coaches also work in this field. Indeed, it has been noted, particularly in 2016 by Dame Sally Coates in her review of prison education, that there is overlap and duplication within the current arrangements for supporting prisoners.

Prisons: Action Plans and Special Measures

Lord Beecham Excerpts

Wednesday 24th January 2018 Lords Chamber

[Lord Keen of Elie]

Clearly, our prisons remain a priority for this Government. There have been challenging issues, which we need to address and we will address. As regards special measures, when prisons go into special measures, they are provided with central support, which can potentially cover a number of areas, including expert advice, provision—in some instances—of further capital, and direction to the governor and staff of the individual prison.

[Lord Beecham (Lab)]

My Lords, one of the most disturbing features of the crisis in the Prison Service, highlighted at HMP Liverpool, has been shockingly inadequate healthcare. What discussions have taken place between the Ministry of Justice and the Department of Health to improve this situation? Will the Government encourage local authorities, which have responsibility for scrutinising health services, to exercise that function in relation to the provision of healthcare within custodial institutions in their area? I refer to my interest as a member of Newcastle City Council’s Health Scrutiny Committee.

[Lord Keen of Elie]

My Lords, the provision of healthcare within prisons is generally carried out by way of partnership between the prison and the health service. It is on that basis that it is continued. There are ongoing issues over the review of such partnerships.

Legal System: Prosecutorial Policy

Lord Beecham Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I congratulate my noble and learned friend on securing this important and timely debate. Much is heard, and rightly so, of the needs of victims in our criminal justice system, exemplified dramatically in the past few weeks by the Worboys case. The distress occasioned by the apparent failure to prosecute more cases involving this offender and, arguably, the even more worrying failure to notify victims of the offender’s release from prison is palpable.

As the Motion makes clear, there are also significant issues affecting defendants, especially in relation to disclosure of evidence material to a prosecution, which need to be addressed, and there are also concerns about the process of decision-making on whether to prosecute. These issues, although they have come dramatically to the fore in the past few weeks, are not new.

Victim Support published a report last April which recounted failures to comply with the victims’ code. Of 19 requirements laid out in the code, three were not met in more than 50% of cases, including offering a chance to make a victim personal statement and having the consequences of such a process explained, while in no less than 62% of cases victims were not asked about their needs and assessed for an enhanced service. In only four categories did the failure in meeting entitlements fall below 20%, and many were in the range of 30% to 50%. Unsurprisingly victims were much more satisfied when they received all the code’s entitlements than otherwise. There is a clear systemic failure to meet the needs of victims in a range of material issues. The report concluded that more monitoring and enforcement of the victims’ code is required. Can the Minister confirm that these matters will be addressed in the new strategy for victims expected to be published soon?

Disclosure of unused material is another area of concern, as we have heard, which is reflected in the joint report by the Crown Prosecution Service Inspectorate and the Inspectorate of Constabulary last June. As the report pointed out, every item of unused evidence should be retained and reviewed to see whether it could undermine the prosecution or assist the defence and, if so, it should be disclosed. In practice, however, the process was described as,

“routinely poor, while revelation … to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare”.

Sensitive material is not managed effectively, and prosecutors are not managing ongoing disclosure, with an audit process,

“far below any acceptable standard”.

The report concludes that the failure to provide timely disclosure leads to,

“chaotic scenes … outside the courtroom … unnecessary adjournments and … discontinued cases”,

which,

“reflect badly on the criminal justice system in the eyes of victims and witnesses”.

The report made nine recommendations, one for immediate action, six for implementation within six months, and one for implementation within 12 months. Will the Minister update us on progress in the past nine months?

While we are considering the question of resources, it is interesting to note that the Sunday Telegraph—not my usual paper of choice—reported on Christmas Eve that prosecutors were being urged two years ago to boost rape cases but that the CPS,

“found lawyers struggling with deadlines, pressing charges where there was scant chance of conviction”,

and that the service was underresourced, making it difficult to achieve quality casework. The telling headline to the Telegraph article was:

“We warned sex trials would suffer under workload, says CPS”.


The report was published last February. Will the Minister tell us what extra resources have been allocated to meet that difficult situation?

My noble friend Lady Chakrabarti last month referred to two recent cases in which inadequate disclosure of material led to acquittals, after much stress on the innocent defendants, and attributed this to the underfunding of an overstretched CPS and police service, although—one might have thought predictably—one Nick Timothy, the Conservative Party’s answer to Steve Bannon, denied that resourcing was an issue. In fairness, he at least welcomed the acquittal of the unfortunate Liam Allan after two years of police bail on a charge which ultimately fell apart. The Prime Minister’s statement that it is,

“important that we look at the issue again to ensure that we are truly providing justice”,—[Official Report, Commons, 20/12/17; col. 1062.]

was very welcome, but it needs to be followed through by an independent review of process and a commitment to ensure that adequate funding is available to train, employ and supervise the relevant staff in the police service and the prosecution service.

My noble and learned friend Lord Morris asked a Private Notice Question on the disclosure issue in December. The noble Lord, Lord Faulks, took the opportunity to ask whether there were,

“adequate resources, by way of legal aid or otherwise”,—[Official Report, 18/12/17; col. 1836.]

to enable defence lawyers to analyse all the pieces of relevant information, to which the Minister replied that that point would be addressed. It was surprising that no assurance on this critical point was proffered at the time. A month on, what is the position? This is surely an issue which could be addressed immediately.

One area on which the Government have appeared to take action is pre-trial cross-examination of victims, with the Attorney-General saying in November that he welcomed the further rollout of this practice. Will the Minister say what progress has been made in this area and what targets have been established for its adoption? It is to be hoped that change of this and other kinds will not be delayed because of resource implications, not least because it could actually save money if properly employed, as well as improving the substantive process and helping victims cope with the stress of reliving their experience.

This has been an interesting and well-informed debate. I hope that the Minister will be able to give some assurance that progress will be made sooner rather than later in tackling the variety of problems raised not only by your Lordships this afternoon but by other organisations to which I and other noble Lords have referred.

HMP Liverpool

Lord Beecham Excerpts

Thursday 21st December 2017 Lords Chamber

Asked by

[Lord Beecham]

To ask Her Majesty's Government whether, and if so when, they will publish the recent report by the Chief Inspector of Prisons on Her Majesty’s Prison Liverpool; and what steps they are taking to address the problems identified in that report in order to prevent serious harm to prisoners.

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

My Lords, the inspection report on Her Majesty’s Prison Liverpool will be published on 19 January 2018. A comprehensive action plan is being developed that will urgently address the inspector’s recommendations. Immediate action taken at Her Majesty’s Prison Liverpool since the inspection includes the appointment of a new governor, a review of prisoner accommodation to facilitate refurbishment and urgent work with the contractor to deal with the backlog of repairs.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, the situation in Her Majesty’s Prison Liverpool is the latest manifestation of the crisis in our prisons. It is a shameful litany of squalor, sickness and apparently even death. Instead of initially refusing to comment on the chief inspector’s leaked report, the Government should already have published it, together with their response. Will they in particular examine the apparent failure of contractors over a long period to carry out major repair work in a way that did not threaten the well-being of inmates and staff? In addition, will they review the performance, in Liverpool and elsewhere, of an overstretched and underfunded NHS in protecting the health and well-being of our prison population?

[Lord Keen of Elie]

My Lords, very troubling matters were raised by the report, but I am not going to comment on the contents of a leaked report. What I can say is that the inspector debriefed the Prison Service immediately after and we have responded to that. Her Majesty’s Prison Liverpool was originally a Victorian prison, and there are indeed real issues with the standard of cell accommodation. It is worth noting that no expenditure—not one pound—has been spent on cell accommodation at Liverpool since 1994. In the intervening period, there was a Labour Government from 1997 to 2010.

Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Lord Beecham Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant at my former solicitors’ firm. I should add that it gives me two tickets for Newcastle United matches, but in the present circumstances I do not regard that as much of a benefit.

It is now 18 months since the referendum and nine months since the Article 50 notice was given. We are only 15 months away from the deadline, yet the first meeting of the Cabinet to discuss the details of a post-Brexit future has only just taken place. Astonishingly, the meeting lasted all of one hour and 25 minutes, with 25 Ministers participating, giving an average of three minutes and 24 seconds per member—possibly exceeded by the likes of the three wise men leading the charge: Boris Johnson, David Davis and Michael Gove.

I congratulate my noble friend Lady Kennedy both on securing this debate and on the European Select Committee’s report, published nine months ago tomorrow. This debate has been a long time in gestation, due primarily to the dilatory response of the Government, which emerged only on 1 December.

Some Members of your Lordships’ House may recall a television series called “Candid Camera”. The picture portrayed by the Government is more like “Candide Camera”, emulating Voltaire’s famous character and giving the impression that all will be for the best in the best of all Brexit worlds. Its eight-page letter contains all of 25 paragraphs of reassurances, many of which, to put it mildly, are somewhat less than convincing.

It begins with the complacent claim:

“Our justice system and our legal sector will continue to be the envy of the world after EU Exit”,


which seven years of attrition in access to justice in this country and growing difficulty in making judicial appointments somewhat belie. It goes on to assert that the Government will,

“need to build a bridge from our exit to our future partnership”.

It is the same aspiration repeatedly voiced by the Government over other areas but not one, apparently, shared by the EU. So, far from building a bridge, we appear in danger of walking the plank. What response has been received to this aspiration and its proposed,

“strictly time-limited implementation period”?

The Government’s response to the committee’s call for provisions in any withdrawal or transitional agreement to address specifically the Brussels I Regulation is, to put it mildly, less than confident.

In the important area of family law, mentioned by a number of speakers, including the noble Baroness, Lady Shackleton, my noble friend Lord Cashman and the noble and learned Lord, Lord Hope, there is clear concern about the problem of cross-border cases, including international child abduction and financial provision. The Government’s response in August was that they are seeking an agreement to achieve cross-border collaboration in these areas. Perhaps the Minister could indicate what progress, if any, has been made.

As an article in the New Law Journal in October pointed out, while the August paper on cross-border co-operation affirmed an intention to continue to participate in the four Hague conventions to which we subscribe directly and the two to which we subscribe by virtue of EU membership,

“no mechanism for this to happen”,

was included in the paper.

We are dealing here with highly sensitive issues, from divorce and separations to child abduction and protection, adoption, the enforcement of orders for maintenance and the choice of court. Both the former and current President of the Supreme Court have called for clarity on these matters. Where do we now stand in terms of both timescale and substantive proposals?

Paragraphs 27 to 31 of the committee report raise the issue of the jurisdiction of the Court of Justice of the European Union, which the Government rejects, although the committee was,

“left unable to discern a clear policy”.

The response was flaccid, proclaiming the,

“need to ensure future civil judicial cooperation takes into account regional legal arrangements”.

How do the Government propose this is to be achieved?

The report’s conclusion called for a “coherent plan” for addressing the three sets of regulations covering families, individuals and businesses, to which the response, characteristically, falls back on the platitudinous assertions that:

“Where disputes arise, these will also continue to need to be settled. Cooperation on the civil judicial mechanisms and procedures which underpin these relationships is essential, and the best way”—


I interpolate “in the best of all possible worlds”—

“to deliver that cooperation is through a close and comprehensive agreement between the UK and the EU, that sets out coherent common rules”.

The Government’s contribution to achieving such an agreement consists of an eight-page letter sent on 1 December, but can the Minister say what, if any, progress has been made in the last four months in discussions with the EU?

Much is at stake, not least in relation to the UK’s legal services. The Law Society, in a fuller paper than that provided by the Government, calls, among many other issues, for the ability to recruit skilled individuals from Europe, access to practise in the UK and the maintenance of recognition and enforcement of judgments with EU states. It places emphasis on the need to deal swiftly with cases involving children and asserts that the UK should sign up to international conventions on family law, now covered by its EU membership. It also calls for maintaining participation in the process of serving documents and taking evidence. Do the Government agree, and what assurance can they give that these objectives will be met?

Not unnaturally, the Law Society also points to the significant contribution of legal services to our economy, including £3.7 billion of net export value. It points out that the UK is the second largest legal services market in the world and the largest in the EU, accounting for as much as 20% of all European legal fee income. All of that is under threat. Other countries are already believed to be following the trend in the banking and financial services sectors in seeking to displace the UK as a forum for dispute resolution and the source of legal advice and representation.

The society, in its report of January 2017, referred to two reports it published as long ago as September and October 2015 covering a wide range of substantive issues as well as the implications for the profession. Have the Government responded to that document and to what extent are they reflecting the society’s concerns in their approach?

The committee’s report also addressed the critical issue of the Brussels I Regulation and the potential impact on citizens and businesses of failing to reach agreement on its application after Brexit. In their response, the Government, inter alia, said that they had proposed a time-limited implementation period pending the preparation of new processes and systems. Again I ask: what response have they received?

The Government have also stated that,

“in the event that we do not agree an arrangement for future civil judicial cooperation with the EU, it will be important to have reached a common view on the general principles that would govern how ongoing cooperation in this area could be wound down”.

Given that both the Government and the EU have published their general principles in this area, can the Minister indicate how close or distant the two approaches are?

Today, in an interesting judgment, the European Court of Justice has ruled that Uber is a transport company, not a digital service, and as such its drivers should have employee rights. Is this a decision welcomed by the Government or one they would seek to change under Brexit?

It is difficult to avoid the conclusion that we are embarked on a voyage into uncharted waters with no clear destination, a potentially mutinous crew and an indecisive captain. I wish only that we had the equivalent of my noble friend Lord West at the helm.