National Security Bill

Debate between Lord Carlile of Berriew and Lord Faulks

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I share the view that I think is being proposed, at least implicitly, by those who tabled the amendment that nobody should be prosecuted if a prosecution would be contrary to the public interest. Indeed, I share the view that nobody should be prosecuted if their belief, however unreasonable, was that something was in the public interest. I would hate to see a wholly unreasonable person prosecuted for something that they believed was in the national interest if, for example, they suffered from a psychiatric condition that made their belief totally irrational.

I have to say that I believe that this clause does not achieve the purpose which it is purported to achieve. The noble Lord who opened this debate did say—I recognise this—that he is not claiming this is a perfect clause, but I suggest that, if we are to have a clause anything like this, it needs an awful lot of work done on it. As drawn, subsection (3) in effect means that a jury would have to decide, in part at least, whether what the defendant had done was or was not in the public interest and then go on to decide whether the belief that they had that it was in the public interest was reasonable. I think it is very difficult to draft a credible and usable clause that achieves the end that is aimed for.

Indeed, my belief is that the target of this amendment is wrong. The target should be that people are not prosecuted for offences that should not be offences. We should try to remove from this Bill those parts which tend to criminalise, for example, journalists, rather than using a clause of dubious validity and coherence such as this.

There are criminal charges, mostly regulatory offences and often strict liability offences, in which there is a defence of reasonable excuse. A defendant can raise the evidential burden that they had a reasonable excuse for certain activities, and the prosecution then has to disprove the claim of reasonable excuse. There are torts, for example in defamation, where a public interest defence is specifically provided for, and that has been heavily litigated, including a very important judgment that was given by my noble and learned friend Lord Hope in one relatively recent case.

However, so far as I am aware—and I am sure I will be corrected if I am wrong—I do not know of a criminal offence where a jury has to decide what was in the public interest, and I would urge those who believe that this is something that could be placed before a jury to have sympathy with the courts that would have to deal with this provision, because judges in every case have the very important responsibility of summing up the law to the jury, and they would have to describe to the jury a reasonable definition of the public interest. That would have to be done, under current practice, by judges in writing, handing a document, a route to verdict, to the jury—and I apprehend that this provision would create impossible difficulty.

I return with an apology to something that I said in an earlier debate this evening about the public interest. Subsection (3) actually does set out tests which I imagine are habitually applied by the Director of Public Prosecutions if he—it is he at the moment—is determining whether it is in the public interest for a prosecution to take place. That is the right location for this decision to lie. What is set out here is the responsibility of the Director of Public Prosecutions. I apprehend that, in the sort of case that those tabling this amendment have in mind, it would be extremely rare for the DPP to decide that it was in the public interest for a prosecution to take place. That is not the role of the jury, and in my view it would be a serious mistake to make the judgment of the public interest the role of a jury.

[Lord Faulks (Non-Afl)]

My Lords, I have very little to add to that brilliant exposition of the difficulties with this amendment. As I said in relation to a previous amendment, I am of course very concerned with any threat to public interest journalism, and therefore I have some initial sympathy with the idea of a public interest defence. But I am afraid that, the more I looked at it and thought about it, the more I was convinced that this was not the answer. As the noble Baroness, Lady Manningham-Buller, pointed out so cogently, Article 10 is not an issue here. Article 10 has always been a qualified right. There is no violation of the convention by the absence of a public interest defence.

I am particularly concerned about proposed new subsection (2). It seems to me that what is contemplated is that, if a defendant raises some prima facie case that they disagree with government policy, or whatever their general justification is for being in breach of one of the very serious offences to which this would apply, the prosecution will have to prove that the conduct was not in the public interest. It is difficult to know how that can be done without potentially disclosing matters that, in the interests of national security, it might be most unwise to disclose. In fact, it might even result in the prosecution not going ahead because the prosecution might take the view that it would be too damaging to disclose this. That itself would not be in the public interest in appropriate cases.

I echo what the noble Lord, Lord Carlile, said. A jury would be given a complex direction in writing. I can then only anticipate—I have had this experience myself, but not in this sort of case—that the jurors, who may be bewildered by a direction such as this, would ask a series of supplementary questions. What is meant by this? How do we respond to this? What if we agree with the defendant but do not think this? Et cetera, et cetera. It is difficult to conceive of this being a very satisfactory procedure, or indeed in the public interest.

So, although I sympathise with what lies behind this, I am concerned that the Bill could be altered more satisfactorily to protect journalists and whistleblowers. I am afraid that this is not the answer.

Counter-Terrorism and Sentencing Bill

Debate between Lord Carlile of Berriew and Lord Faulks

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[Lord Faulks (Non-Afl) [V]]

My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.

I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.

I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.

The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.

The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.

It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.

Counter-Terrorism and Border Security Bill

Debate between Lord Carlile of Berriew and Lord Faulks

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I rise to support the amendment moved by my noble friend Lord Anderson of Ipswich. It highlights a number of extremely important points, not least that there should be clarity and definition for people who may wish to visit a designated area. I have some reservations, but in relation to proposed new paragraph (c), perhaps I may give an example of the crucial need to attend court or another body exercising judicial power. It may well be that a relative would wish to obtain the custody of a child who is in danger in the designated area and would not be able to do so without entering that designated area. I agree with the noble and learned Lord, Lord Garnier, and the noble Earl, Lord Attlee, that the definition of “journalist” will need attention because it can all too easily be both a benign and a malign term.

I want to raise one other issue not directly connected to this amendment, but to avoid the duplication of speeches I shall refer to it now. I have been approached by some Jewish groups that have expressed concern that designation orders might be made in relation, for example, to the Golan Heights where quite a number of young people go on the Aliyah to kibbutzim or to Sderot, the town that is regularly the recipient of missiles fired from the nearby Gaza Strip. I have been bold enough to reassure those who have raised these issues that it is most unlikely that the Government of the United Kingdom would designate areas such as this because of the international political and diplomatic implications of doing so. However, at some point in the debate I would invite the Minister to reassure the Committee and the people who have made representations that the normal flow of people, albeit to sometimes quite dangerous places such as Israel, will not be interrupted as a result of these provisions because that would cause tremendous difficulties, particularly for families divided between the cities of England and Wales and Israel.

[Lord Faulks]

My Lords, I accept entirely that it is better, if at all possible, to clarify what constitutes not so much a defence but in which circumstances there will not be an offence, which I think is the way Amendment 17 is framed. If I understand it correctly, the answer to most of the objections lies in the word “solely” because, of course, if there is evidence of mixed reasons for someone being in an area, these provisions would not have a proper ambit at all. However, I share the reservations of my noble and learned friend Lord Garnier about visiting a dependent family member.

I want to raise a more general point about what Clause 4 intends to do. It is concerned with the designated area and the Government are not concerned primarily about protecting people visiting the area and ensuring their safety. Of course, journalists and those working for humanitarian purposes risk their own safety very considerably by going into such areas. The Government are concerned—perhaps my noble friend the Minister will confirm this—to prevent the risk of terrorism, as the Bill is headed. When looking at the risk of terrorism, the Explanatory Notes state:

“Such a risk may arise, in particular, if a conflict in a foreign country, potentially involving a proscribed terrorist organisation, acted as a draw to UK nationals or residents to travel to that country to take part in the conflict or otherwise support those engaged in the conflict”.


In other words, we want to stop people fighting against the United Kingdom. That, I suggest, is what this is really about, although my noble friend may disabuse me of that. If so, this is quite a convoluted way of achieving the aim of preventing an individual or individuals assisting or fighting against the United Kingdom. I shall raise this point again on Wednesday under my own amendment concerning the possible introduction of the offence of treason, because that is what it would be. Although this is a useful provision and I can see what it is driving at, I respectfully wonder whether it is really the answer to the evil it is aimed at in this case.

European Union (Withdrawal) Bill

Debate between Lord Carlile of Berriew and Lord Faulks

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Carlile of Berriew]

I always listen with great respect to the Government Chief Whip, especially when he sympathetically allows us to debate these issues after midnight.

In Francovich, workers who suffered damage when their employer became insolvent were entitled to compensation under an EU directive which required member states to secure their protection. Since Italy had failed to implement the directive, the individual workers brought a claim before their national courts for compensation from the state for the damage they had suffered due to this failure, and I think that we would all applaud that, too.

State liability is enforced not through the European courts but through national courts, thus the ECJ stipulated that national procedures should determine how state liability is enforced. The procedures for claiming damages from the state before national courts must comply with the principles of equivalence—that is, with the procedures available for comparable claims for damages—and effectiveness, to secure that EU law as well as national law is respected. As long as it respects these two principles, the member state can prescribe its own procedures for claims as regards, for example, proof and time limits —so it is hardly imposing wicked European ideas on the national courts, since they are left to enforce the principles concerned.

The Francovich principle has led to some significant legal actions; perhaps the best known in the UK is the Factortame litigation, which contained five cases concerning fishing rights.

What is the problem with the Bill? It is confusing. I quote from the summarised views of commentators more expert than me on this subject. It is said that Clause 6(1) removes the right to rely on EU law and obtain a reference to the ECJ after the date of exit. Paragraphs 3 and 4 of Schedule 1 plainly remove the ability to rely on EU law or utilise the Francovich principle after the date of exit. Or do they? I ask that because paragraph 27(3) of Schedule 8, which all noble Lords will have been reading carefully in preparation for this short debate, makes it clear that cases begun prior to the exit date are not subject to the restriction that I have described and therefore can continue to rely on Francovich.

As was pointed out by Dame Cheryl Gillan in another place on 14 November last, the Bill is contradictory, in that it both allows continued reliance on Francovich in cases commenced before the date of exit but also removes that right. That appears to mean that a litigant in a case started before the date of exit, and who has a legitimate expectation that the law will not change retrospectively and that he or she will be able to rely on Francovich, will lose that expectation. If I am wrong in that, I am not the only one and I would like a correction, please. All litigants have a legitimate expectation to have their cases heard under the rules applicable not at an arbitrary time, such as the date of exit, but at the time of the breach of the law concerned. This includes EU law at that time, if it was applicable, and on the face of it, the right of a reference to the ECJ if they are dissatisfied. The purpose of the two groups of amendments is to achieve something much simpler, clearer and more just than the conclusion if the complaints I have described are correct.

I respectfully suggest that if a relevant cause of action accrues before the date of exit, the claimant should be able to pursue that cause of action. That would be their normal litigation right, and exit should not retrospectively remove that normal litigation right. As the Bill stands, because of ambiguity there is a risk that some or all Francovich claims, unless they have already been completed, will be extinguished. Surely, that would be an incorrect and unintended consequence. Plainly—and I will deal with this in a moment—there are some concerns about the potential role of the ECJ.

[Lord Faulks]

One of the points I was going to make concerned the continued role of the ECJ, but while I am on my feet, I entirely understand the noble Lord’s points about transitional provisions, but will he clarify to the House whether his support would go as far as the noble Lord, Lord Davies, in having a continuing Francovich?

[Lord Carlile of Berriew]

No, I would not go so far as the latter part of the speech of the noble Lord, Lord Davies. I recognise that if we leave the European Union, as we are doing, we have to have the transitional arrangements that were promised and that were referred to by the learned judges in the Supreme Court, on the basis of submissions that may well have been made by the noble Lord himself.

What I suggest to deal with the ECJ problem is one of two alternatives. One is to allow the ECJ jurisdiction to continue for the very small number of cases likely to arise. I recognise, of course, that that will attract political problems that might better be overcome by a more pragmatic solution. The pragmatic solution is to recognise and clarify that the United Kingdom courts, in dealing with such cases, should apply normal, comparative law principles; the sort of thing that we lawyers are accustomed to when we cite, for example, Australian or Canadian cases before the senior courts. This would mean that the courts of the United Kingdom, in dealing with such cases, should have due regard to ECJ decisions on similar and analogous matters. This would fall, as I say, within the ordinary principles of comparative law, whereby the United Kingdom courts give due weight to useful and relevant decisions in other jurisdictions. Thus we would have at least analogous law applied to the residual Francovich cases. We would have a right to make a claim on the basis of the date when the claim accrued, even if it is not yet quantified and not yet pursued, and the unintended consequences of retrospectivity would be avoided. In my view this would accord with sound legal principle.

I urge the Minister, even at this late hour, to say that he will return to the House with suitable and welcome government amendments for the clarification and preservation of what are proper bases for action.

Article 50

Debate between Lord Carlile of Berriew and Lord Faulks

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

The noble Lord is perfectly correct, as a matter of law. Of course, there will be a question of what is expedient, in terms of the timetable, and whether pressure would be put on the Government. But he is absolutely right on the legal position.

[Lord Carlile of Berriew (LD)]

I thank the noble Lord for being the third Minister now to say very clearly that Parliament will have a role to play in the Article 50 process. Can he confirm that the role that Parliament plays will be a matter for discussion between the usual channels and that we will be able to have a debate on the real merits of what is proposed so that a proper democratic judgment can be made by Parliament on these matters?

[Lord Faulks]

I cannot, of course, anticipate precisely what the new Prime Minister will decide; if and when she decides on a particular course, I am sure that the way in which parliamentary involvement takes place will include the usual channels.

Assisted Dying Bill [HL]

Debate between Lord Carlile of Berriew and Lord Faulks

Friday 16th January 2015 Lords Chamber

[Lord Carlile of Berriew]

If a patient is not registered, they are not registered. If a patient goes as a temporary resident—as I think the term used to be; I am not sure if it still is—to see a particular doctor, a general practitioner, they are then registered for the period of the temporary residence, which from memory is, or at least used to be, one month, and which may be renewable for the purposes of that treatment.

To deal with the broader aspects of the noble Lord’s question it might be worth making the further point, while I am on my feet, that it is very difficult to imagine that a patient would be in the situation described in the Bill but had not been treated for at least six months by a practitioner, such as the practitioner who was treating their cancer. That is the general experience that people have.

[Lord Faulks]

My Lords, I do not have anything to add on that particular point.

This has been an excellent debate which has gone to the heart of some of the most difficult parts of the Bill. Why is six months the right period? Of course, we have heard plenty of informed opinion about how difficult it is to make a prognosis of any accuracy. In Amendment 21, a period of six weeks is suggested as a better period. It may be that that enables a clearer prognosis to be given, but it seems extremely short for the various practicalities and safeguards to give the Bill any real meaning. Inevitably, six months is something of a compromise; the question is whether it is a satisfactory compromise. It will not, of course, suit everybody.

It is something of an irony that one of the spurs behind this Bill and our debates is the Supreme Court’s decision in Nicklinson, which was concerned with the desire of two men with locked-in syndrome—an almost totally paralysing but not terminal condition—to request assistance to die. The Committee might like to be reminded that the President, the noble and learned Lord, Lord Neuberger, commenting in the judgment on the Falconer commission and the six-month period, said:

“That would not assist the applicants”.

I am sure that that is not in dispute. He went on:

“Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.

These are very difficult questions and I look forward to hearing the answer from the noble and learned Lord.

[Lord Falconer of Thoroton]

I am again grateful for a very good debate. I agree with the noble Lord, Lord Faulks, as ever, that this goes to important issues in the debate. I accept the definition given by the noble and right reverend Lord, Lord Harries, of these issues, which go to the safeguards.

In looking at the safeguards, it is important to put into context the safeguards in the current draft of the Bill: two doctors, independent of each other, certifying that the patient has a terminal illness which they reasonably expect will end their life within the next six months; the two doctors, independent of each other, certifying that the person has made a voluntary decision, that they have the capacity to make that decision and that it is their firm and settled intention that they wish to take their own life in those circumstances; and that decision is not to be given effect without the consent of the Family Division of the High Court of Justice. Those are the safeguards.

Let us look at the proposals in the light of those existing safeguards. First, the noble Lord, Lord Carlile, proposes, in effect, that a person must have as one of the doctors a general practitioner with whom he or she has been registered for the last six months—I understand that registration is a concept that only has relevance to a general practitioner. That proposal, as the noble Baroness, Lady Brinton, has pointed out, appears not to deal with people in the following circumstances: somebody who, for example, moves to live near their relatives, then gets ill and is not registered for six months; somebody whose general practice, for example one run by a sole practitioner, packs up; or somebody who, for example, has a general practitioner who has a conscientious objection to the use of the provisions of the Bill.

If Parliament were to pass a Bill giving people the right to an assisted death, I venture to suggest that it would be a very odd conclusion that your ability to access that right would depend on the adventitious circumstance of whether, for example, you had moved one month before to be near your son and daughter, as my own stepmother did. That does not seem a sensible basis. However, a very powerful thread in this—which has been mentioned in particular by the noble Lords, Lord Cormack and Lord Empey—is the idea of a doctor who does not, as it were, properly consider the merits of an individual case but is, as suggested by the noble Lord, Lord Empey, available for hire. That is something that I would wish to avoid as much as possible. I venture to suggest that there may be three ways to deal with it.

First, I would expect the medical bodies to produce guidance. That can be given effect to, because a High Court judge would have to be satisfied that an appropriate process had been gone through. In addition to that, I note that, according to Clause 3(7), the independent doctor has to be “suitably qualified” in that he,

“holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I would anticipate that the Secretary of State would be able to make in regulations provisions that make it clear that the independent doctor could not be the sort of doctor that the noble Lords, Lord Cormack and Lord Empey, and others referred to. If there are better ways of dealing with the doctor for hire situation, I am very willing to hear and discuss them and bring them forward at the next stage, but I am absolutely clear that the way in which the noble Lord, Lord Carlile, is suggesting it be dealt with is unworkable and unfair and cuts at the heart of the Bill.

Legal Aid

Debate between Lord Carlile of Berriew and Lord Faulks

Thursday 4th December 2014 Lords Chamber

[Lord Faulks]

Litigants in person have always been a feature of the legal system. Clearly, any judge—I speak as someone who has sat as a judge—would much rather have a case in which both parties were represented by highly competent lawyers. Unfortunately, we have had to make certain cuts. The cuts, when fully implemented, will reduce the amount that we spend from £2 billion per year to £1 billion. This still makes us one of the most generous countries in the world. We are of course listening carefully to any anxieties that people have about there being injustices. We have committed to review LASPO on a period of three to five years.

[Lord Carlile of Berriew (LD)]

My Lords, reverting to the question from the noble Lord, Lord Howarth, does the Minister agree that there will be cases in which parents will be unable to be represented on financial grounds in cases in which their children will be removed from them? Does he bear in mind that there was severe criticism in one court last week of the activities of a local authority in relation to just such an issue? Does he think that it is conscionable that there should be a single case in this country in which, because of financial indigence, parents cannot be represented in such cases?

[Lord Faulks]

I am not in a position to comment on the individual case but, in a number of cases, as the noble Lord will know, the legal aid scope remains. In cases of abuse, for example, it was retained. After careful scrutiny of the provisions by this House among others, we have tried to ensure that in all sorts of cases where it is most necessary there will still be legal aid.

Assisted Dying Bill [HL]

Debate between Lord Carlile of Berriew and Lord Faulks

Friday 7th November 2014 Lords Chamber

[Lord Carlile of Berriew]

I am very glad to answer the noble Lord’s two questions. To the first, there is a very straightforward answer: I do not anticipate any difficulty whatever. The medical profession will prioritise like the rest of us when needs must. So far as the chief coroner’s role is concerned, I anticipate the chief coroner receiving not only the independent expert’s report but possibly other representations and determining whether an inquest should take place in a particular case. I anticipate that there would be very few cases anyway if the recipe that I have proposed was brought into effect and I doubt that there would have to be any inquest in those cases. However, we have to keep open the possibility of an inquest, and it is much tidier to have the chief coroner decide whether there should be an inquest than, for example, to have judicial review proceedings arising as a result of the complaints of affected persons. I think that these are both very quick routes to deal with simple issues that might arise.

[Lord Faulks]

This has been another useful and well informed debate, following on from the first group. I do not think that it is necessary for me to add anything from the point of view of the Government. The noble Baroness, Lady Finlay, made a particularly helpful clarification about DNR notices. The difference between DNR and DNACPR is probably insufficiently understood and I think that the House is grateful for that clarification. One final thing I should say, in responding to what the noble Lord, Lord Davies, said about legal aid, is that nothing I said about exceptional funding, I am glad to say, was wrong, it having been reviewed. However, as yet no assessment has formally been done on availability to cover this situation. I am sure that the House will understand that.

[Lord Falconer of Thoroton]

I understood that. I do not think that the noble Lord, Lord Faulks, suggested anything to the contrary in his previous answer. We went over quite a lot of this ground in the first debate. Like the noble Lord, Lord Faulks, I agree that this has been a useful debate in a number of respects. However, the key point in the debate is the factor added by the judicial model proposed by the noble Lord, Lord Carlile. In addition to provisions required to ensure that the person has a firm and settled view and that he or she has the mental capacity, there is an additional very significant requirement—namely, that to refuse an order would amount to a breach of both Article 3 and Article 8 of the European convention.

In effect, the noble Lord, Lord Carlile, is suggesting that the judge should make a judgment about the quality of the life of the person who has applied and, in particular, whether the quality of life of the person applying in effect constitutes torture, inhuman or degrading treatment. Only when satisfied of that can the judge make an order under the proposal of the noble Lord, Lord Carlile. I totally reject that approach as being inconsistent with the essence of the Bill, which is subject to appropriate safeguards. It is not for a court to make that sort of judgment; it is for the individual. The purpose of the court’s involvement is to ensure that there has been no undue pressure and no lack of capacity in reaching that conclusion; it is most certainly not to make the sort of judgment that the noble Lord, Lord Carlile, suggests. That was my understanding from the way in which the noble Lord put his case in the first debate and it is my understanding that the House has rejected that approach.

Criminal Justice and Courts Bill

Debate between Lord Carlile of Berriew and Lord Faulks

Wednesday 22nd October 2014 Lords Chamber

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments, which are important, although they focus on two narrow but, I understand, critical aspects of these proposed secure colleges.

Dealing first with girls and those aged under 15, Amendments 109 and 117A seek to exclude girls and under-15s from secure colleges, or to prevent girls being accommodated on the same site as boys. I entirely recognise that there is understandable caution about the risks involved in allowing girls and under-15s to be placed in a new type of secure establishment, where the majority of young people will be boys between the ages of 15 and 17. I also recognise the importance of secure colleges being able to address the particular educational, health and emotional needs of these undoubtedly very vulnerable young people.

Let me assure noble Lords that we have gone to considerable lengths in our designs for the secure college to ensure that the younger and more vulnerable groups could be accommodated in separate small units. As my noble friend Lord Carlile told the House, following a meeting in July we made changes to the plans to enlarge the site by two acres, and to ensure that the younger and more vulnerable people have their own sports and recreational facilities. This is not merely tunnels—as he describes it—but separate facilities and separate access routes to the main education and healthcare building. In this way, it will be possible to deliver a distinct regime that caters to these more vulnerable boys and girls. In our consultation on our plans, we have also proposed a rule requiring girls to be accommodated separately from boys. I referred to that consultation earlier this afternoon.

However, I should make clear to the House that no final decisions have been taken on who will be accommodated in the secure college pathfinder. This will be determined in light of the analysis of the make-up of the youth custodial population ahead of the pathfinder opening in 2017. I also gave a commitment in Committee that girls and under-15s will not be placed in the pathfinder from its opening, and that any decision to introduce them would be carefully phased. While I entirely recognise the concerns that lie behind these amendments, I believe that the risks can be sensitively and safely managed. This already happens in secure training centres and secure children’s homes, where boys and girls of different ages are accommodated on the same site.

There have been references to the numbers in the youth custodial estate. I can assist the House by saying that at the moment there are 16 girls in secure children’s homes, and 20 girls in secure training centres. That is a total of 36. There are 25 under-15s in secure children’s homes, and 13 in secure training centres, giving a total of 38. In one of the secure children’s homes there are 24 boys and one girl, so we are not talking about a large number.

We are anxious not to preclude, as a matter of strict law, the possibility of admitting to the secure college girls or those aged under 15. However, the House will know that the Youth Justice Board takes the decisions on where young people who are sentenced or remanded into custody are to be placed. These decisions are taken by specially trained staff and informed by detailed advice from the youth offending teams who have been working with the young people. The Youth Justice Board’s placement decisions are based on the individual needs of a young person. They take into account the whole range of factors that you would expect, such as age, gender, vulnerability, location, offence and any previous history. There is a very nuanced assessment before children are even considered appropriate for the secure college. However, the amendment would absolutely prevent it.

[Lord Carlile of Berriew]

I am grateful to my noble friend for giving way. I accept everything he has said about it not being for the Government to determine who goes to which institution. However, surely he can tell us whether he expects or anticipates any girls being sent to this institution.

[Lord Faulks]

As I said a little earlier, we do not expect this to happen, certainly in the short term. However, we do not want to write into the legislation that it should never happen. This is because, as noble Lords will appreciate, not all 14-year old boys are the same, physically, mentally or in their needs. This is also so with girls. I do not anticipate that this is likely to happen in the short term, but this amendment would completely prevent it happening. Yet there are instances of girls and boys actually deriving benefit from each other’s company.

--- Later in debate ---

[Lord Carlile of Berriew]

I apologise for intervening once more. I promise not to do so again, at least in this speech. Does this mean that, although my noble friend is not able to anticipate whether any girls will be placed in this pathfinder college, nevertheless the Government have decided to build a building to accommodate girls, which may lie empty for the next 25 years?

[Lord Faulks]

No, the answer is that by their secure college the Government are trying to provide a college which is sufficiently flexible to allow them to cope with whatever the demands are. Of course, it is impossible to predict precisely the age or the gender of those who will find themselves sent to a secure college, or to whatever the appropriate custodial institution may be. The answer is to set up a college which has the provision for a separate accommodation if that is appropriate.

It appears that we are somewhat damned if we do and damned if we do not. We were criticised for not having a separate accommodation for girls and young men, and we are now being criticised for having it and not using it. I hope that there will be some acknowledgment that we have made considerable efforts to try to find an appropriate way of housing them, should it be appropriate for them to be sent there.

Amendment 110 seeks to place a duty on the Secretary of State to make arrangements for adequate specialist provision to meet health and well-being needs in a secure college, and to make sufficient places available in a secure children’s home. Amendment 117B would impose a number of welfare requirements on secure colleges. These amendments go to the heart of which matters should be for primary legislation, which should be in secondary legislation and which are to be delivered through contractual arrangements. Some of the requirements in Amendment 117B relate to areas of fundamental importance—such as safeguarding, education, health and well-being, staff training and visits—and as such are matters that, rightly, we will address in the secure college rules.

Similarly, Amendment 110 would require the Secretary of State to make arrangements to ensure that secure colleges have adequate specialist provision in place to address young people’s health and well-being, and to ensure that sufficient places are available in a secure children’s home. The responsibility for commissioning health and well-being services, including specialist provision, for young people in a secure college will rest with NHS England. As noble Lords will be aware, this is in line with the arrangements currently in place for the existing secure estate.

Similarly, it is local authorities, not the Secretary of State, which are responsible for providing sufficient places in secure children’s homes. The Youth Justice Board recently agreed contracts with nine secure children’s homes. As I have previously indicated, we remain committed to ensuring that specialist separate accommodation will be available for the youngest and most vulnerable offenders. NHS England will assess the healthcare needs of all those detained in secure colleges, and commission services appropriate to meet their assessed needs. In doing so, NHS England applies the intercollegiate healthcare standards for children and young people in secure settings which were developed by the royal medical colleges at the invitation of the Youth Justice Board.

As we indicated in the recently published consultation on our plans for the rules, the role secure colleges play in healthcare is to provide the right environment where healthcare professionals can carry out their responsibilities for the care and well-being of young people. We therefore propose that the rules should include a requirement to ensure that a young person has safe and timely access to health services in a secure college. I hope that that goes some way towards reassuring the noble Baroness, Lady Finlay, who is understandably concerned about the quite complex care needs that these young people will have.

As I said in answer to an earlier debate, the design of the healthcare facilities has been developed in collaboration with NHS England, which was consulted at that stage. Indeed, it was NHS England which advised us to amend our plans in order to bring the healthcare provision within the main educational block. NHS England assisted in the consultation and the way that the college is to be configured. Not only will this reduce the disruption to education when young people need to attend health appointments, but it will also help to normalise access to healthcare for a group of young people who, as I am sure that the noble Baroness and others will be aware, have not always had regular contact with a GP or with the specialist services they require. In some senses, it is hoped that they will be better off here than they might be in the community in terms of access to healthcare.

Criminal Justice and Courts Bill

Debate between Lord Carlile of Berriew and Lord Faulks

Monday 28th July 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

I am grateful to my noble friend for giving way. I should declare the interest of having appeared for the juror in the case to which my noble friend referred a few moments ago. I make no comment on the case or the result, but the jury video and the instructions given to jurors were not perhaps quite as good as they might have been, particularly for a young juror under the age of 21 who used his social media almost as a part of his body. Can we be reassured that when these new provisions are brought into force a new jury video will be made available immediately, as well as revised instructions, so that jurors young and old, including those between the ages of 70 and 75 who also enthusiastically use their social media, really understand what they are not permitted to do? It can be very confusing.

[Lord Faulks]

I am grateful to my noble friend for that intervention. Clearly this matter should be taken very seriously. I do not think that these directions are frozen in time or form, and the debate as to precisely how best to communicate what there is agreement on over the use of electronic communications will go on. I entirely take my noble friend’s point about the degree of attachment to them that exists, depending on the individual and not necessarily depending on their age.

The new clause proposed would impose statutory obligations on the Department for Education, the Judicial College and HM Courts and Tribunals Service, and on jurors themselves, in connection with jury service. These obligations cover the same ground as some recommendations from the Law Commission, which we are still considering and to which we will respond shortly. The crucial point, however, is that if it were decided to implement them, or to make any further suggestions about improving directions to jurors or about jury management issues as opposed to trials of particular cases, legislation would not be required. It could be done administratively, and in our view that would be a better course than accepting the suggested amendment. I invite the noble Lord to withdraw it.

Justice and Security Bill [HL]

Debate between Lord Carlile of Berriew and Lord Faulks

Wednesday 11th July 2012 Lords Chamber

[Lord Carlile of Berriew]

I am very grateful to my noble friend for giving way, and for the great clarity with which he has opened this debate. However, will he deal with this question: why are PII proceedings less secretive than CMP proceedings?

[Lord Faulks]

The PII proceedings, which we attempt to define in this amendment, would not normally be secret. The process contains a number of different options for a judge in dealing with an application. It is conceivable that in the course of responding to the particular facts of a case a judge might decide that a certain part of the hearing, even under PII, might have to be under a CMP. However, the purpose of the amendment is not to impose a straightjacket on the procedure but to ensure that the PII procedure is gone through—with all its inherent safeguards—before moving on to CMPs, which are by definition closed material proceedings and therefore do not involve access to the litigants or to the open advocate.