Independent Review of Administrative Law Update

Lord Beith Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I certainly agree that the courts would be expected to respect institutional boundaries, and Parliament and the Government should do likewise. The purpose of our consultation is to make sure that we produce the best system we possibly can so that all those involved in the judicial review process—judges, applicants, Government and everyone else—is party to a system which promotes good government and upholds the rule of law.

[Lord Beith (LD) [V]]

My Lords, we know what the Government’s latest ideas on the form of ouster clauses is, because there is one in the draft Bill to repeal the Fixed-term Parliaments Act. Clause 3 states that

“A court of law may not question … the exercise or purported exercise of the powers referred to in section 2 … any decision or purported decision relating to those powers, or … the limits or extent of those powers.”


Is that really the model that the Government are considering for other areas of law, and is it not simply putting the Minister in the position of saying, “I decide what my powers are and nobody can challenge that”?

[Lord Wolfson of Tredegar (Con)]

My Lords, a Minister does not decide what his or her powers are. If there is an ouster clause in an Act of Parliament, it is an ouster clause in an Act that has been passed by Parliament. When one is talking about the Fixed-term Parliaments Act, there may be special considerations because of the issue of Section 9 of the Bill of Rights. Generally, however, what we want to consult on in terms of ouster clauses are the two points that I have identified: first, whether ouster clauses ought to be used; and, secondly, if they are used, how to make sure that Parliament’s intention is given effect to, which we do not think is always the case with ouster clauses at the moment.

Crown Dependencies

Lord Beith Excerpts

Tuesday 12th July 2016 Lords Chamber

Asked by

[Lord Beith]

To ask Her Majesty’s Government what recent discussions they have had with the Governments of the Crown dependencies about the dependencies’ relationships with other countries and with the European Union.

[The Minister of State, Ministry of Justice (Lord Faulks)]

My Lords, regular dialogue happens between the UK Government and the Crown dependencies at both ministerial and official level across a range of issues, including Crown dependencies’ interests in relation to the EU and other countries. This has become especially important in the light of the result of the EU referendum, and on 27 June the Prime Minister confirmed that the Crown dependencies will be consulted on any new negotiation with the European Union.

[Lord Beith (LD)]

My Lords, although the Channel Islands and the Isle of Man are not in the EU, they benefit from the single market in goods. They also have a pressing need to conclude bilateral investment treaties with a number of third countries. Given the huge task facing UK negotiators, what mechanism will be put in place to ensure that Crown dependency interests are not lost sight of in EU negotiations? In order that third country treaty negotiations do not grind to a halt, will more use be made of letters of entrustment, so that they can get on with the job themselves?

[Lord Faulks]

The noble Lord has had a continued interest in the Crown dependencies: as chair of the Justice Select Committee, he wrote an influential report and a subsequent report in 2014, in which he applauded the response of the UK Government to the challenges that the Crown dependencies threw up. As the Prime Minister said, we are most concerned to ensure that the Crown dependencies’ interests are reflected in any negotiation. We are also anxious to encourage letters of entrustment where appropriate, to ensure that those interests are recognised in all treaties. There was a 2007-08 agreement which paved the way for such arrangements.

Prisons: Staff Safety

Lord Beith Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

I cannot, from the Dispatch Box, give the noble Lord a detailed account of why people left the Prison Service. Of course, he is right that that indicates that quite a number of them did leave, perhaps for reasons of retirement or simply a change in their job satisfaction. But I will endeavour to give him a more detailed analysis of those numbers.

[Lord Beith (LD)]

The Minister has recognised that the present numbers are a barrier to the Government achieving the rehabilitation objectives. However, will they not remain high if we continue to regard the length of a prison sentence as the only measure of the seriousness of an offence and until we put sufficient resources into alternative punishments?

[Lord Faulks]

With great respect to the noble Lord, that is a little unfair. The judges will of course determine the length of the sentence by reference to a whole host of factors: the seriousness of the offence, the history of the offender, and the best way both to protect society but also to rehabilitate. I know that judges always consider alternatives and that sentencing prisoners to prison will only be the last resort; very often judges will say, “I will sentence you to the least possible sentence that I am permitted”. Therefore the judges do not, as it were, oversentence.

Prison Reform

Lord Beith Excerpts

Tuesday 15th March 2016 Lords Chamber

Asked by

[Lord Beith]

To ask Her Majesty’s Government what assessment they have made of the impact of the total number of prisoners on their plans for prison reform.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we do not need to reduce the prison population in order to reform our prisons. We will always provide sufficient prison capacity for those committed by the courts and aim to manage the prison population in a way that gives taxpayers value for money. Prisons must be places where offenders can transform their lives. We are therefore modernising the estate and will give prison staff greater freedom to innovate. Only through better rehabilitation will we reduce reoffending and cut crime.

[Lord Beith (LD)]

My Lords, at least three recent reports by Her Majesty’s Inspectorate of Prisons have demonstrated how difficult it is to achieve the Government’s worthy objectives of rehabilitation when there is a very large prison population and a much reduced staff managing it. Is it not time that, alongside the rehabilitation policy, Ministers began to look at why we imprison a larger proportion of our population than any other western European country, thus committing huge amounts of taxpayers’ money to a system which does not sufficiently reduce reoffending?

[Lord Faulks]

The Government are always anxious to find out why we imprison so many people. Of course, imprisoning is done by judges, not by government. We believe that the way to reduce the prison population is to tackle reoffending. Fifty per cent of adult prisoners are reconvicted within one year and 60% in less than 12 months. We aim to get to grips with that reoffending, and that will reduce the prison population.

Criminal Cases Review Commission (Information) Bill

Lord Beith Excerpts

Friday 26th February 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, what a privilege it is to follow the noble Lord, Lord Ramsbotham, and to see a change that the committee I chaired recommended only a year ago being implemented. We are grateful to have his authority in taking the Bill through this House. I record also my appreciation of Mr William Wragg MP for taking the Bill through all its stages in the House of Commons, and I thank Ministers for the support they have given the Bill. February has been rather a good month for the committee I used to chair, with the Supreme Court successfully addressing joint enterprise—another of the issues we brought forward—and redefining the law very helpfully.

The chairman of the Criminal Cases Review Commission, Richard Foster, said in evidence to the Justice Committee that,

“you can be confident that there are miscarriages of justice that have gone unremedied because of the lack of that power”;

namely, the power to compel the disclosure of material from private organisations. That was a pretty serious statement. The Criminal Cases Review Commission exists to remedy miscarriages of justice. We know they occur and we know how wrong it is that someone should serve a long term of imprisonment or have hanging over them a strong sentence for the rest of their lives for something they did not do.

Of course, the problem has become more acute, as the noble Lord, Lord Ramsbotham, pointed out, because a number of services that used to be in the public sector are now provided by the private sector or the non-governmental sector, such as the forensic science service and significant numbers of probation and prison services. Interestingly, in evidence to us the CCRC cited the fact that there was a large charity, mainly publicly funded, from which it had proved extremely difficult to obtain material that the commission believed it needed to deal with a case. Then there is a wider range of private sector organisations—transport companies, commercial suppliers, CCTV operators—which may have material that is necessary to establish whether a case should go to the Court of Appeal. These bodies can all be and are approached on a voluntary basis and in most cases co-operation is secured on a voluntary basis, but without some ultimate sanction we will continue to have a very serious problem.

The kind of material that the commission seeks can be crucial in surmounting the “real possibility” test. One reason the Justice Committee reviewed the work of the CCRC was that there was a deal of frustration about cases which do not get past the CCRC—people who believe they are innocent—but the CCRC does not take to the Court of Appeal cases which it does not believe the Court of Appeal will consider justified to bring forward, such as cases in which there is no new evidence. The “real possibility” test is applied. The new evidence may be in the form of material which can be verified only if the kind of information referred to already is obtained from private organisations.

That being the case, and it being an anomaly, we may wonder why it has taken so long to put it right. The usual argument was about the lack of a legislative vehicle, which I found particularly unpersuasive when we have had about two criminal justice Bills every year for as long as I can remember. The chairman of the commission said of that phrase that it,

“is something that well-meaning officials have been telling us since 2006”.

I am glad to say that wiser counsels have now prevailed. The Government have given assistance to the Bill and support for it is widespread.

There are some questions on which I hope the Minister can help us when he contributes to this debate. One that has been put to me is: are there sufficient safeguards for information to be protected when there is another principle at stake, such as legal privilege, medical information which would be damaging to the patient without materially assisting the appeal case, or journalists’ sources? That issue was raised with my noble friend Lord Lester of Herne Hill, who cannot be here this morning. He passed on to me a letter from the News Media Association, which wrote to one of the Justice Ministers, Dominic Raab, on 16 February about this. At Third Reading in the Commons, Mr Raab said there are “safeguards”; I presume that he was relying on the fact that a Crown Court judge, upon whose authority the disclosure is to take place, would certainly have in mind proportionality, necessity and a long-established understanding of the importance of confidentiality in some of the spheres that I have mentioned.

A further point is that where disclosure to the CCRC is found to be necessary, we also rely on the commission’s care in the handling of documents. Its record in that respect is very good. In evidence, the commission told us that security and intelligence organisations, which have every reason to safeguard confidentiality, co-operated with the commission because they felt safe that its document-handling procedures were good enough.

I should add that some recommendations which the Justice Committee made do not feature in the Bill. One was a provision for timely compliance in the public sector, where there is quite a lot of variation. Requests made to the courts have 92% compliance with the timetable but in local authorities it was only 67%, according to the evidence that they gave us. The Government wanted to see more evidence from the CCRC before they would be convinced that this provision was needed. The ball is therefore in the CCRC’s court to demonstrate whether it has been able to secure an improvement in that sector or whether, at some future point, we need to give attention to that.

Secondly, the Government agreed with our recommendation that the CCRC should develop a system of feedback so that all parts of the criminal justice system get a better understanding of how and why miscarriages of justice take place. The Government offered to assist and facilitate this process, which is obviously sensible. After every major miscarriage of justice case we all say, “This really mustn’t happen again—we must look at the kind of factors that led to it happening”. Indeed, the setting up of the CCRC followed just such a reaction. Does the Minister think that progress in getting feedback is happening? I hope that he will encourage it. It does not need to be in the Bill but it is important.

The third thing that the committee recommended was that the CCRC should have a significant addition to its resources. Of course, we made that recommendation when securing more resources for any public body was particularly difficult. The CCRC has had to live without any significant uplift to its resources but, in the context of the Bill, one has to ask: given that some more cases will probably be pursued because access is obtained to disclose material, will the commission have the resources to enable it to do that?

Although there were other recommendations, as I have mentioned, the recommendation which the committee believed was so urgent and overdue that no criminal justice Bill should pass through Parliament without its inclusion was the one which this Bill addresses. We now have the opportunity to put that matter right.

Criminal Legal Aid Services

Lord Beith Excerpts

Friday 29th January 2016 Lords Chamber

[Lord Faulks]

A Government should always say sorry when they make a mistake. This is a response to a difficult situation which confronted the Government. As I indicated, contractions were taking place within the market. There has also, fortunately, been a drop in the crime rate generally, and the need for consolidation was overtly acknowledged by the Law Society. So these changes were not, as was suggested by the noble Lord, going wholly against the grain, true though it was that many objected to those changes.

It is easy to say that this was a disaster for the department, but the noble Lord is not himself unfamiliar with changes in policy. In 2009, as he may well remember, the Labour Government altered their approach to criminal legal aid. Governments of all colours will, from time to time, in reviewing these difficult situations and in trying to balance the need for access to justice and the need to control public expenditure, adjust their plans.

What we have done has been welcomed by the profession. We have considerable regard and respect for the profession, particularly those criminal legal aid solicitors who go to the police station at highly inconvenient hours and provide valuable assistance to their clients. The profession has welcomed the abandonment of dual contracting, the suspension of the second fee cut and the Government’s intention to work with the professions, as we have indicated, to try to ensure that changes that will have to be made in due course are made with maximum co-operation from both solicitors and barristers.

Although we have not yet calculated the overall cost, this will certainly have been expensive, which is of course a matter of regret. However, if it results in stabilisation of the legal profession and continued maintenance of high standards, then that is not a matter of regret. We will of course have to accept the characterisation of this as a U-turn. I am not sure that U-turns are always quite the disasters they are depicted as in the newspapers. If a responsible government department thinks again, that may be characterised as a U-turn or it may be considered an appropriate response to changed circumstances.

[Lord Beith (LD)]

My Lords, whether we regard this as a U-turn, a breath of fresh air from a new Secretary of State or simply a dose of realism in the department, it is welcome. But does the Minister recognise that a number of factors were reducing the number of solicitors doing criminal work in most towns and many rural areas, and that he will still have to address the danger that no one will be available, particularly if there is more than one defendant? While he is looking at that, will he also look at the fact that, since the scope changes, the number of claims on the exceptional cases fund has been surprisingly small, perhaps because people have never consulted a solicitor in the first place? Does that not need looking at as well?

[Lord Faulks]

The noble Lord is right that whatever the change in policy, it is important that we are satisfied that there are firms of solicitors that can represent people in whatever part of the country they are needed. When the replacement contracts come to be considered, that is clearly one of the factors that will be taken into account. The noble Lord also asked about the scope of legal aid generally and the exceptional funding provisions. They have been the subject of litigation and further clarification. One of the difficulties was that the forms that had to be filled in were perhaps not as clear as they might be. There has been considerable improvement in that regard, and the percentage of cases where exceptional funding has been obtained as a result of an application has increased considerably.

As a Back-Bencher looking at the LASPO Bill as it went through, I found the provisions on exceptional funding somewhat opaque, referring, as they did, to the Human Rights Act and Article 6. It was not always easy to know quite what the coalition Government were driving at. I think there is increased clarification of that. There has been a decision, although it is subject to appeal, but the noble Lord is right to draw our attention to exceptional funding.

Prison Reform

Lord Beith Excerpts

Thursday 21st January 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, I share the feeling, expressed around the House, of enthusiasm that this debate is happening, that it was so powerfully introduced by the noble Lord, Lord Fowler, and that it takes place at a time when the relatively new Lord Chancellor appears genuinely open to new thinking and radical reappraisal of some of the kinds of ideas that I pursued when I chaired the Justice Committee in the other House.

I want to try to analyse why the problem is as it is. We have to do something; we have far and away the largest proportion of our citizens in prison of any country in western Europe, at a time when there is enormous pressure on prison staff. Prison officers, instructional staff and others cannot really be expected to deliver very good results under that degree of pressure.

We all know that there are people who have to be in prison for public safety. However, we also know that the prison system is relatively weak in its record on rehabilitation. We know that it is of extremely limited deterrent value in relation to quite a few crimes and very many criminals, most of whom believe that they will not be caught and, if they are, that they will not receive a prison sentence anyway.

In the Justice Committee, I have had witnesses in front of me who said that they committed further offences in order to get back into prison; far from being deterred, they wanted to get back inside, in some cases because they could get access to drug treatment in prison that they could not get outside, and in others, frankly, because they did not really have anywhere else to go. At Christmas time or in the depths of winter, people were actually committing offences to get into prison. Another part of the problem is that the prison system pre-empts resources that cannot then be used to deal with the alcohol problems, drug addiction problems and failures in the care system and in the education system that put so many people into prison in the first place.

So why is the UK—this is true in Scotland as well as in England and Wales—set on a default course to the wrong place? Why is it that our system seems always to push up the prison population unless a real effort is made, as it is from time to time, to try to counteract it? These are the reasons I want to suggest to your Lordships.

First, it is institutionally dominant in the Ministry of Justice and the National Offender Management Service. Everything starts from the fact that we have this great big prison system and the effects of that within any management structure are quite powerful.

Secondly, prison is treated as a free good in the criminal justice system. It is commissioned nationally, whereas all the alternatives to prison are commissioned locally. When a court has an offender in front of it and is coming to a decision about what to do, at the back of the mind there will always be the simple fact that, if some kind of community sentence is required with several elements in it, it has to be established whether that is available—whether it is available locally and whether there is a place for someone to take it on. If the sentence is custody, a van will roll up outside and it will be somebody else’s job to find a particular prison to put the person in, but prison will be found, with the resulting overcrowding if necessary. The commissioning system does not work well, because things are commissioned in completely different places, which creates an imbalance in the system.

The third factor is that the prison system has been exempted from the value-for-money questions which have been applied to every public service, including defence, which of course shares with prisons this crucial importance to the security and safety of our citizens. I was very pleased to learn that the Lord Chancellor has been to Texas. The Justice Committee certainly went to Texas; that surprises most people you mention this to until you explain to them that what happened in Texas, particularly with regard to drug-related offences, is that right-wing Republicans and liberal-minded Democrats found that they agreed that they could not go on as they had been, putting more and more people into prison. The Republicans said, “This is the taxpayers’ dollar—it’s our duty as state senators to make sure that money isn’t wasted in this way”. Therefore, they reached an agreement that they should put more money into family-based programmes, nurse-family partnerships, problem-solving courts and keeping people out of prison, particularly when drug-related offences other than large-scale dealing had put them there. In our system, we now need to apply to the prison system some of the value-for-money tests which are applied to every other aspect of our system.

The final factor is that prison and the length of a prison sentence is the only yardstick by which society, and particularly the press, measures and asserts how seriously a crime is viewed. If you read a newspaper article it will ask, “Did he get more than somebody else got for a slightly less violent attack?”. We use it as a measure and a yardstick. That will not do, because it does not lead to the most effective disposition for that offender—the choice of sentence for that offender which might make them much less likely to reoffend. We have to find ways to insist and demonstrate that crimes are taken seriously when the courts impose a demanding community sentence or a community element as part of a sentence which involves custody. That has to change.

Legal Services Act 2007 (Claims Management Complaints) (Fees) (Amendment) Regulations 2016

Lord Beith Excerpts

Monday 18th January 2016 Grand Committee

[Lord Beecham (Lab)]

My Lords, the Government are right to take action in this matter, and I certainly endorse the new arrangements that have been laid out, but it has a rather curious history. Looking at paragraph 4.2 of the Explanatory Note, I can see that it was some seven years after the passage of the 2007 Act before steps were taken to deal with this issue. The paragraph contains this rather curious sentence:

“This provision treats the designated Claims Management Regulator as an approved regulator to be levied in the same way as other approved regulators for the costs of the Legal Ombudsman”.

It goes on to say:

“However, there is currently no designated Claims Management Regulator and the function is fulfilled by the Secretary of State”.

One might have thought that he had more important things to do. Obviously, Mr Gove and his predecessor will not have been involved in this personally, but it is a curious situation that for some years there apparently was no functioning regulator in post.

The position appears to be, as the Minister has indicated, that a £500,000 shortfall has occurred in a very short period. I do not know whether he is able to indicate how many cases there were. He said that there were not many, but £500,000 is a reasonably large amount of money. It will be interesting to know how many cases there were and how many of those were from small companies, which appear to be leaving the market. But the very fact that after all these years there are clear deficiencies in how some of those providing this service are operating raises questions about the degree to which their activities are regulated in advance of the unfortunate outcome, which sometimes leads them to be subject to charges for maladministration or their conduct. Does the review to which the Minister referred encompass looking at the qualitative regulation of the industry? Should there not be a floor above which the resources of these companies should be fixed? If not, we will continue to have a situation in which, quite apart from the financial implications for the Government, people who have consulted these companies presumably are being short-changed. One wonders what has happened to valid claims that have gone astray as a result of maladministration. That side of it does not seem to be touched on at all in relation to this order, but it may be encompassed within the review. I certainly hope that that is the case, but if it is not, perhaps the Minister could undertake to look into the nature and quality of the supervision that ought to be exercised and, if necessary, what improvements should be made to what has gone on recently.

[Lord Beith (LD)]

My Lords, I very much agree with the noble Lord, Lord Beecham, about the rather curious nature of the regulatory arrangements for claims management companies. The Lord Chancellor left himself holding the baby when the original legislation was taken through. I never thought that this arrangement would last as long as it has. It is quite right that it should be subject to review. It is obviously right that the costs of dealing with what the noble Lord called the maladministration in the industry is visited upon the industry and not the taxpayer. Therefore, I support the order and the principle behind it.

The history of claims management companies has been one of things that go beyond individual complaints. There have been systemic changes to the way the legal system operates and attempts to turn it into an ambulance-chasing activity. We all have some worries about whether, in another area, the necessary referral fee bands have actually brought some of the claims management activities in-house, into some solicitors’ practices, where once they were precluded. This is a very difficult area and the regulatory problems that it generates are not just individual cases being badly dealt with but systemic weaknesses. I hope that when we dispatch this order successfully as an appropriate means of dealing with the costs arising from individual claims, we will not neglect some of the wider issues that this industry has generated.

[Lord Faulks]

My Lords, I am grateful for that short debate and for the contributions of the noble Lord, Lord Beecham, and the noble Lord, Lord Beith, who, I know, when he was chair of the Justice Select Committee had considerable concern, possibly in relation to the Compensation Act going back to 2006. At that time the question of claims regulations was certainly raised, with the emergence of claims management companies and the possibility that they were and would be engaging in unacceptable practices. That is a matter of concern generally to the Government.

The claims management regulation unit in Burton-on-Trent has been doing a good job but the Government are by no means complacent about this activity. The review being conducted by Carol Brady is wide-ranging and I do not want in any way to pre-empt its conclusions, but the Government are not going to lose sight of the potential dangers that this claims management activity can present. I take the noble Lord’s point about referral fees and the possibility that they might have the unintended consequence of driving claims away from lawyers towards claims management companies.

On the plus side, I think that the increased powers to fine companies have been a positive step, together with the fact that a number of the less reputable companies have left the market. There is something like half the number of claims management companies in existence that there were. This is at least some indication that the better ones are still active rather than the less reputable ones.

The wider point that both noble Lords make about claims management is valid. I hope that the review will assist; the Government are very much aware of the field and whether it is desirable in the long term that these companies should exist, as well as the need for regulation.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 17th March 2015 Commons Chamber

[Mr Vara]

I believe there has been a rise in litigants in person, but the Government have also made a huge amount of provision to cater for that. I also say to the hon. Lady and Opposition Front Benchers, who have never said that they are going to reverse the cuts that we have made, that we need a legal aid system that is sustainable, for the people who need it, for the legal providers and for the taxpayers who pay for it.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Has the Minister noted the Justice Committee’s conclusion that although the Government had achieved the cost reduction, there was some transfer of cost to other budgets and far too little availability of the exceptional cases fund, and that mediation, far from increasing, had actually dropped?

[Mr Vara]

May I thank the right hon. Gentleman for his question? As far as exceptional funding is concerned, the giveaway is in the title. The fund is meant to be exceptional, but some people have seen it as a discretionary fund. Not surprisingly, therefore, the numbers involved in it have been few.

I understand that the right hon. Gentleman is retiring at the end of this Parliament. Let me say what a pleasure it has been to work with him. I may not always have agreed with him, but working with him has always been a pleasure, and I wish him well for the future.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 3rd February 2015 Commons Chamber

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Will my right hon. Friend take a critical look at the proposal on its way to his desk that there should be a single local justice area stretching from Berwick to Sunderland, which could lead to cases being transferred for administrative convenience to courts 70 miles away at great cost to witnesses and families?

[Mike Penning]

I will, naturally, look at any submission that comes across my desk. I am sure the Minister responsible will look at that very carefully when it arrives.