Criminal Legal Aid Services

Debate between Lord Clinton-Davis and Lord Faulks

Friday 29th January 2016 Lords Chamber

[Lord Faulks]

I am grateful to my noble friend for that intervention. He is right that this House has always held the Ministry of Justice, in particular, to account with the galaxy of legal talent that is available around the Benches. I am certainly aware that any policy change is subject to great and close examination by all those here, not least this particular policy, which I have been asked about a number times in specific debates and in the course of Question and Answers. I reassure my noble friend and the House that the Secretary of State listens to what is said in this House and will continue to do so.

[Lord Clinton-Davis (Lab)]

The amount of complacency about changes in legal aid is absolutely bewildering. I speak as somebody who, in earlier life, was much involved with criminal legal aid. At the moment, there will be immense difficulties in recruiting young solicitors to do this work. I hold the view that it is desperately unsatisfactory. I hope the Minister will not again get up and say that economies have to made in legal aid. The economies that have already been made are devastating.

[Lord Faulks]

There is no complacency on the part of this Government. This Government value the contribution that solicitors make to the system as a whole, particularly those who work in criminal legal aid. The noble Lord is quite right: rates are not what they were and, as a profession, it has considerably fewer attractions than it once had. It is important that we continue to encourage able practitioners to go into areas where legal aid is the main source of funding. However, we have to bear in mind the interests of the taxpayer. We have constraints put on us by the Treasury. I particularly pay tribute to those who, despite the difficulties that are encountered, nevertheless pursue careers in this less profitable area of the profession. Our profession is often characterised as being full of ambulance chasers and fat-cat lawyers. These lawyers are very much not in that category.

Legal Aid

Debate between Lord Clinton-Davis and Lord Faulks

Tuesday 24th November 2015 Lords Chamber

[Lord Faulks]

No, that presumes the outcome of the litigation. Disappointed contractors may well feel it necessary to challenge and decide it appropriate, as is their privilege, to use the legal process. We have not yet had the legal process, nor do we know what the result will be. There have already been some preliminary hearings, but we are some way from a full judgment. Both the individuals were employed as commissioning assistants in a junior role. We are in no doubt that what happened was a perfectly appropriate way of assessing the competence of the solicitors and their appropriateness for the contract.

[Lord Clinton-Davis (Lab)]

Have the Government received any representations from the Law Society in the light of this Question? Will the Minister signify how the Law Society has reacted? I am in accord with what he has said, but I think it is important that he should be more accurate about it.

[Lord Faulks]

Of course we listen to what the Law Society says: the Law Society represents solicitors and I am sure that a number of them are disappointed at the outcome, although they will still have an opportunity for own-client contracts and as delivery agents for those solicitors who have a duty provider contract. I should perhaps reassure the House that the Legal Aid Agency has monitored and will continue to monitor the quality of the delivery of services through its well-established audit and peer-review programmes.

Criminal Justice and Courts Bill

Debate between Lord Clinton-Davis and Lord Faulks

Monday 30th June 2014 Lords Chamber

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

My Lords, this is a significant and far-reaching Bill that has at its heart a vision for a stronger and fairer justice system. It introduces steps to toughen our approach to the most serious and repeat offenders, ensuring that penalties reflect the seriousness of the crimes committed and providing greater certainty for victims. It seeks to modernise our court processes and rebalance the judicial review system to reduce the delays caused by inappropriate or unmeritorious claims.

Our system of justice is regarded with enormous respect throughout the world. The quality of our judiciary and our respect for the rule of law are significant factors in attracting foreign investment to our shores. The Government are not, however, complacent. We must constantly examine our criminal and civil justice systems, not simply to respond to the latest headline but to ensure that they are adapting to the modern world.

In the field of criminal justice there is a need to identify the most serious offences and to make sure that our judges have adequate powers to deal with offenders. Equally we are absolutely determined to make a real impact on reoffending by our reforms, which will transform rehabilitation. Your Lordships’ House has enabled, for the first time, offenders who have received short sentences to be properly prepared for release and properly supported when they are released. This way, they will be better able to cope with life on the outside and will be much less likely to offend.

Another major issue is in the provision of education for young offenders. The need to provide this lies at the very heart of our plans in the Bill to introduce secure colleges to give young offenders real educational opportunities, often for the first time in their lives.

Improvements in our civil law system are making a difference. In Part 2 of the LASPO Act 2012, we implemented recommendations suggested by Sir Rupert Jackson to rebalance the system and deal with the consequences of the introduction of conditional fee agreements, which benefitted no one but lawyers and the organisations that fed on the system. It will be a little time before we can assess the full effect of our reforms, but the signs are hopeful.

One of the least attractive aspects of our system was the growth of claims management companies. A claims management regulation unit, which I have visited, has been in place since 2007, providing really effective protection to consumers and closely reining in unacceptable practices. The unit has the power to suspend, vary or cancel licences. Furthermore, I announced last Friday that the unit will be able to impose substantial fines on companies that break the rules. I am glad to tell your Lordships that the number of these companies is reducing, and reducing quickly.

These are just some of the changes that we are making. This Bill is part of the narrative. Criminal justice provisions in Part 1 of the Bill will help to keep our communities safe and secure, and ensure that offenders face the consequences of their crimes. Provisions in this part of the Bill place restrictions on the use of simple cautions on a statutory footing to ensure that serious and repeat offenders are treated consistently and are punished appropriately.

Unless there are exceptional circumstances, offenders will no longer receive a caution for the most serious offences, such as rape and robbery. For other offences, we are limiting the repeated use of cautions for the same, or similar, offences committed within a two-year period. We are ensuring that for all dangerous offenders and those who commit offences of particular concern, the Parole Board will consider their risk before early release can be authorised. This will improve public protection and encourage offenders to take responsibility for their own rehabilitation.

We have also made provision to ensure that the courts have sufficient tools to deal with offences that can have an enormous impact on victims and our communities. That is why we have increased the penalty for causing death while driving while disqualified, and introduced a new offence of causing serious injury while driving while disqualified. It is why we are adding further terrorism offences to the enhanced dangerous offender sentencing scheme, as well as increasing maximum penalties to life for offences where that is not already the case.

It is right that we have the necessary tools to monitor offenders on licence and to deal with breaches of licence conditions. The Bill introduces an additional “recall and release” test for determinate sentence prisoners, requiring consideration of whether, if released, an offender would be highly likely to commit further breaches of their licence, including further offending. This seeks to end the continuous cycle of fixed-term recalls and automatic release for offenders who persistently and wilfully breach their licence conditions.

We are also taking powers to impose mandatory location monitoring of offenders released on licence. The use of innovative new technology will help to deter reoffending, allow better monitoring of whereabouts and compliance with other licence conditions, as well as assist with crime detection.

It is sometimes the case that issues of national concern highlight the need for our laws to evolve to tackle different types of behaviour. The horrifying events at Mid-Staffordshire NHS Foundation Trust, and the review into the safety of patients in England that followed, exposed a gap in legislation as regards ill treatment or wilful neglect of users of health and care services. It was rightly recommended that this should be rectified. The Bill closes that gap by creating new criminal offences to deal with these completely unacceptable behaviours.

High-profile failings in police conduct have dominated headlines in recent years, most notably following the revelations about the handling of the Stephen Lawrence investigation. The existing common-law offence of misconduct in public office dates back several hundred years and is not specific either to cases of corruption or to police officers. It is not always well suited to dealing with or deterring the pattern of corruption in today’s information age, so we are introducing the new police corruption offence, which will ensure that the small number of officers who are corrupt are properly punished and face the appropriate penalty for their crimes. However, we also recognise the special role that police and prison officers play in routinely coming into contact with dangerous offenders in difficult situations. That is why we are raising the starting point for sentencing a murderer of a police or prison officer in the course of their duty to a whole-life order.

Part 2 of the Bill deals with the critical matter of youth justice. Under this Government, crime and offending by young people is down, with fewer entering the criminal justice system and ending up in custody. At present we pay around £100,000 a year for a place in youth custody, yet almost 70% go on to reoffend within 12 months. No current youth custodial establishment—young offender institutions, secure training centres and secure children’s homes—is providing good enough outcomes. For young offenders where custody is necessary, we want to make the best use of the opportunity to help to turn their lives around. We need to be better at rehabilitating young offenders.

Secure colleges will have education at their heart, with all other services designed in support of raising educational attainment and tackling offending behaviour. Figures suggest that 86% of young men in young offender institutions have been excluded from school at some point, and more than half of 15 to 17 year-olds in YOIs have the literacy and numeracy level expected of a seven to 11 year-old.

Secure colleges will provide the support and skills that young offenders need to stop reoffending and to contribute positively to society in adult life. The Bill establishes the statutory framework for secure colleges, with further detail to be set out in the secure college rules. Operators of secure colleges will be invited to deliver a broad, intensive and engaging curriculum to support and motivate the full range of ages and abilities of young people accommodated in these establishments.

The Government recognise that there are likely to be some detained young people who will continue to require separate specialist accommodation, either on the grounds of their age, acute needs or vulnerability. We are therefore committed to continuing to provide separate specialist accommodation, such as secure children’s homes, for this group of young offenders.

On 9 June my right honourable friend the Lord Chancellor and Secretary of State for Justice informed both Houses that the Ministry of Justice had selected a preferred provider—Wates—to design and build the pathfinder secure college in the east Midlands. Subject to parliamentary approval, if this pathfinder proves effective it will be a model for a future network of secure colleges across England and Wales. I can assure your Lordships that construction will begin only if this Bill receives Royal Assent.

Before this Bill reaches Report, we will launch a public consultation on our plans for secure college rules, which will set out the core requirements to ensure that the establishments operate safely and securely. I will inform the House of the details of this consultation in due course. We also intend to hold a meeting prior to Committee, to which all Peers will be invited, to show in more detail what the plans are, in physical terms, for the pathfinder college.

I hope that all noble Lords will at the very least keep an open mind and not resort to describing these establishments as “fortresses” or “Titan” prisons. Such rhetoric hardly helps in our quest to help some of our most vulnerable young people and is surely not the approach that should be adopted in your Lordships’ House.

This part also makes sure that all 17 year-olds have access to an appropriate adult when they receive a caution, and we are changing the law regarding referral orders to provide greater flexibility and powers for the court when punishing a breach or dealing with further offending.

Part 3 is very much about increasing the efficiency and flexibility of the courts to keep pace with the modern world. At present, much court time is wasted in hearing cases in open court when the defendant fails to attend; the only people present are magistrates and prosecutors. We could make better use of this valuable time elsewhere. This Bill allows one magistrate to deal with low-level regulatory cases away from traditional magistrates’ courtrooms. The types of cases that we are concerned about are the likes of failing to register the new keeper of a vehicle or depositing litter. We are ensuring that the defendant’s right to request a hearing is preserved, as the procedure will apply only when a defendant has either expressly or impliedly waived that right. We are also enabling more cases to bypass the Court of Appeal and go straight to the Supreme Court, again saving valuable court time. I reassure noble and learned Lords from the Supreme Court that that will be only with the consent of the Supreme Court.

The use of the internet has had a profound impact on how we carry out our daily lives, so we are also modernising the law on juror misconduct to bring it into the 21st century. Some of your Lordships might have seen that the Attorney-General has today announced that the Government intend to table an amendment to omit the provisions to update the law of contempt of court as it relates to publications. The measures were intended to provide clarity, to allow the media time to take down material, and to provide a defence until that point. The media, however, raised strong objections. Since the existing law gives protection for the integrity of court proceedings, we have decided not to pursue these measures.

This part also introduces a charge, payable by adult offenders on conviction, to contribute towards to the costs of the criminal courts. We already recognise that those who bring cases in the family and civil courts should bear some of the court costs in those jurisdictions. These provisions make that a reality in the criminal sphere, so that those who give rise to the costs of the criminal courts share the burden of those costs, rather than it solely being the burden of the taxpayer. Repayments can be set at an affordable rate, and we are encouraging rehabilitation by allowing the charge to be remitted after a certain period without reoffending provided that the offender has also taken reasonable steps to pay off the charge. To ensure that we have maximum flexibility, we are also extending the powers of fines officers to vary repayment of financial impositions after default, as well as prior to default.

Finally, I turn to Part 4, on the matter of judicial review, which is one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions. However, judicial review has grown significantly over recent years, and while there are many important and valuable judicial review cases brought every year there are also too many that are not. We have taken a detailed look at judicial review and concluded that there is a case for some proportionate and common-sense reform.

Part 4 will provide a better balance, ensuring that judicial review continues as a check on the Executive while limiting the potential to abuse it for collateral purposes, such as delay. The clauses in Part 4 deliver two things. The first is a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails, rather than expecting a subsidy from the body they are challenging. This is the position in other civil litigation.

We will therefore ensure that the courts have the information they need to use their existing powers to reach through, say, a shell company when awarding costs against an unsuccessful party. That does not mean that everyone who donates to a campaign will be at risk, but it is right that there should be a proportionate liability for those who in reality control, guide and stand to benefit from a judicial review.

[Lord Clinton-Davis (Lab)]

Is it not evident that judicial review will be enormously affected by this and that it will be beyond the scope of people to pay? In other words, it will become the province of the rich and not of the poor.

[Lord Faulks]

My Lords, we do not think so. The argument over legal aid is a debate that we have already had in your Lordships’ House. It is the Government’s view that the changes in the legal aid provisions were an entirely proportionate and sensible approach to legal aid, given the scarce resources that are available. As to the availability generally of judicial review, the Government are concerned to ensure that it remains a realistic remedy, but nevertheless that appropriate modifications are made. We will scrutinise those modifications during the course of the debate.

We are affirming in statute the court’s ability to make orders protecting an unsuccessful claimant from a successful defendant’s costs. But it must be right that such protection, almost invariably at a cost to hard-pressed taxpayers, should be reserved for cases with merit and which concern matters of high public interest.

Those who intervene in a case to make arguments or adduce evidence can certainly add value to the proceedings, but we think it right that they should face the financial consequences of their decision to intervene. However, having listened to arguments in the other place we are persuaded that there may be a case for some modification of the provisions and we look forward to considering possible amendments.

Secondly, Part 4 limits the scope to use minor technicalities as a foundation for a judicial review designed to bring about delay by building on an existing approach taken by the courts. This will bite on claims based on a minor flaw in a process, where the outcome of that process for the applicant was highly unlikely to have been changed by the flaw. Our change will mean that, in those situations, the court should not grant permission to continue, or a remedy.

By taking that approach, other more meritorious judicial reviews, in which it is likely or probable that there would have been a difference, can proceed more quickly, given the freeing up of scarce judicial resources. Where there is any significant doubt in the court’s view over whether a procedural failing would have made a difference to the end result—perhaps the grant of a licence or the positioning of a pedestrian crossing—the clause would of course have no effect. Consequently, this clause will be very far from a “get out of jail free” card for poor administrators. I trust that, through the consideration of the Bill, I will be able to demonstrate these points to the House’s satisfaction. However, I cannot stress too strongly that we are not abolishing judicial review.

The shadow Lord Chancellor in the other place invoked the impending anniversary of Magna Carta and said that the Government were,

“depriving citizens and communities of their rights to challenge power”.—[Official Report, Commons, 17/6/14; col. 1073.]

I am confident that the noble Lord, Lord Beecham, has a rather more secure grasp of legal history—judicial review, as we know, started in the 1970s—and that he and others of your Lordships will accept that acknowledging the value of judicial review does not preclude Parliament carefully scrutinising the extent to which it should be used to frustrate the legitimate exercise of power by a democratically elected body. The Government consider that ours is a balanced package of measures which will ensure that judicial review will continue to operate effectively and appropriately.

The Bill contains a wide range of important proposals to ensure that we deliver a justice system that people can be proud of. It ensures that offenders and claimants take responsibility for their actions and that our laws reflect the 21st century. I feel confident that the great expertise that can be found in your Lordships’ House will be brought to bear on the Bill. I look forward to debating it and benefiting from that expertise. I hope that noble Lords will support the outcomes it seeks to achieve. I commend the Bill to the House. I beg to move.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clinton-Davis and Lord Faulks

Monday 12th March 2012 Lords Chamber

[Lord Clinton-Davis]

I follow my noble friend on this issue. I apologise for confusing the amendments in the previous debate.

I hope that the Liberal Democrats will abandon their rather erratic behaviour on this occasion. The unfair dismissal amendment is vital for employees who are not unionised or where the trade unions are unable to act. I do not think there is any real chance of such employees being able to pursue their remedies effectively. That is the crux of the matter. Quite often the claims they wish to make are complex and they need professional advice. Unfair dismissal affects their livelihoods—make no mistake about that—and what is proposed in the Bill represents a bonus for unfair employers. That is wholly out of accord with what we on this side seek to achieve.

As to unemployment disputes, the significance of this proposal places an unfair burden, again, on the employees. How are they going to pursue their claims without the necessary machinery provided by the trade unions where this is not possible, or where they are expected to pursue their claims themselves without any professional advice? It is a wholly illusory and complicated procedure and ought not to be considered by any respectable Government.

Having been a lawyer for some 50 years, in both cases—unfair dismissal and employment disputes—there is no doubt in my view that professional advice is imperative. Otherwise, people will pursue claims that ought not to be pursued and eventually it will cost the taxpayer far more than if they were able to pursue the policy envisaged by these amendments.

[Lord Faulks]

My Lords, as a young barrister I had quite a lot of experience of going to employment tribunals. It has now become fashionable to talk about equality of arms but on those occasions when I represented the employer I dreaded the moment when the employee was unrepresented. This usually meant that, quite rightly, extra steps were taken by the chairperson and those assisting him or her to make sure that everything possible could be said on behalf of the employee. On the whole, while I am sympathetic to what underlies the amendment, these tribunals were designed for access by ordinary people without lawyers and, while I should be the last person to stress the fact that lawyers are not always the answer, on this occasion I need some convincing.