Counter-Terrorism and Border Security Bill

Debate between Lord Elystan-Morgan and Lord Faulks

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

[Lord Elystan-Morgan (CB)]

Is not the Foreign Enlistment Act 1870 still extant? I think it is.

[Lord Faulks]

I am not sure about that, and I am grateful to the noble Lord for assisting. There is, of course, a Treason Act of 1351, but that is not often relied on—or not at all relied upon. The noble Lord may be right, but I was genuinely inquiring what legislation the noble Lord was referring to.

Article 50

Debate between Lord Elystan-Morgan and Lord Faulks

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

I noted that the noble and learned Lord made that point during the debate on the EU referendum last week, and of course he is right. I hope that I have reflected what this House and indeed the House of Commons would expect by way of parliamentary involvement. Clearly this House, as well as the House of Commons, has much to offer.

[Lord Elystan-Morgan (CB)]

My Lords, will the Minister be so kind as to confirm that, until such time as Article 50 is triggered, nothing of any legal consequence occurs at all, and it does not lie in the gift of the other 27 members of the European Union to take any action at all to seek to force the British Government into that position?

[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.

Criminal Justice: Secure College

Debate between Lord Elystan-Morgan and Lord Faulks

Tuesday 14th July 2015 Lords Chamber

[Lord Elystan-Morgan (CB)]

The Minister will know that for many years we have been incarcerating far more young people per 100,000 of the population than almost any other country in Europe. Do we still hold that unmeritorious accolade?

[Lord Faulks]

I am afraid that I cannot give the noble Lord the statistics off the top of my head. At the moment we certainly incarcerate something like 85,000 of the overall adult population. As I said, we have reduced the number of young people in prison, and I shall write to the noble Lord with the comparative figure in due course.

Public Protection Sentences

Debate between Lord Elystan-Morgan and Lord Faulks

Wednesday 3rd December 2014 Lords Chamber

[Lord Faulks]

The Government have increased the number of commissioned completions of courses in relation to the core sexual offenders course and in relation to the healthy sex course. The party opposite has adopted a surprising posture. We are doing our best to clear up some of the mess caused by the IPP sentence. We are clearing it up in a responsible way. We are making sure that courses are made available where they can be, where there are suitably qualified people to provide them, but not releasing dangerous prisoners into the population.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that Mr Justice Dingemans, sitting a month ago in the Queen’s Bench Division in this case, made it clear that he found that the Lord Chancellor had deliberately abandoned—indeed reneged upon—his obligation in relation to providing courses and that it was not a matter of whether the resources were available but of whether a reasonable level of resources was provided for these courses, which were part and parcel of the judgment in relation to an indeterminate sentence? Furthermore, he found that the Lord Chancellor had habitually ignored his obligation over the years. Lastly, in adjourning the issue of relief for the claimants, he said that he would adjourn the matter in order to see what the attitude of the Lord Chancellor would be towards his duties. Can the Minister tell us what the Lord Chancellor’s reply is going to be?

[Lord Faulks]

The Answer I gave to the first Question was that the Secretary of State has committed the additional funding necessary to remove the current backlog for this programme. The noble Lord’s interpretation of the judgment of Mr Justice Dingemans, which he has in front of him, is one which he might arrive at. The judge decided that the Secretary of State should have provided these courses. It has to be said that all those individuals had already been on a core offending course. The noble Lord will have read the history of these offenders and will realise that the Parole Board would have been extremely concerned before releasing any of them.

Social Action, Responsibility and Heroism Bill

Debate between Lord Elystan-Morgan and Lord Faulks

Tuesday 18th November 2014 Lords Chamber

[Lord Faulks]

At the moment we are debating Clause 2. I gather that we are to have the delight of a debate on Clause 4 in due course. The position is that, were the Bill to be enacted, a judge would have to have regard to the matters contained in, among others, Clause 2. It has been said, rightly, that judges would normally be expected to pay attention to the matters in Clause 2 in any event, but I suggest that it is sometimes useful for a judge, perhaps faced with a seriously injured claimant, to bear in mind a specific statutory provision when considering what is often an extremely hard task for a judge—to turn down a badly injured person—because the injury was sustained as a result of the act of someone acting for the benefit of society or any of its members. It should not change the law, but it is sometimes useful to put into statutory form what is often difficult to find in the morass of common-law decisions.

The noble and learned Lord, Lord Lloyd, referred to the evidence that was given in Committee in the House of Commons, commented on what my ministerial colleague had said and asked, and pointed to so-called horrific unintended consequences that were not challenged. I am not entirely clear what the horrific unintended consequences were, and although I understand what he meant by saying that they were not challenged, we should be a little careful in drawing an analogy between not challenging something in court, which is often of great significance, and the rather less structured method in which evidence is adduced in committees. None the less, I take his point that the cross-examination was perhaps less than ideal and not particularly illuminating.

I respectfully suggest that there is evidence to support the clause. A survey of volunteering and charitable giving carried out in 2006 and 2007 by the National Centre for Social Research and the Institute for Volunteering Research found that worries about risk and liability were one of the significant reasons cited by 47% of respondents to the survey who volunteered. The National Council for Voluntary Organisations confirmed that these concerns remained a real issue for many voluntary organisations when it gave evidence to the Public Bill Committee following the introduction of the Bill.

In terms of people being deterred from helping others in emergencies, a recent survey, carried out in August 2014 by St John Ambulance, showed that 34% of more than 2,000 adults questioned said that they might be deterred from intervening due to worries about legal repercussions. Evidence also suggests that responsible employers worry about spurious or speculative claims being brought by disgruntled or opportunistic employees. We heard at Second Reading the speech from my noble friend Lord Cotter. Then there is the report by the noble Lord, Lord Young, Common Sense, Common Safety, and the report of the red tape task force under the chairmanship of my noble friend Lord Hodgson, from whom the Committee has heard today. I submit that there is evidence, of a positive sort, of a perception.

We should not underestimate what acceding to the amendment to remove Clause 2 would do: it would emasculate the Bill. At the moment, it is broadly drafted so it would apply in a wide range of situations where people are acting for the benefit of others, whether they are doing so on a voluntary basis or in a paid capacity. For example, it could include organised charitable activities such as running a village fete or informal, individual activities such as helping an elderly neighbour with their shopping. It could also cover workers such as teachers, doctors and members of the emergency services, who are acting for the benefit of society as part of their jobs.

The clause does not tell the court what conclusion it should reach and will not prevent a person engaged in socially beneficial action being found negligent if the circumstances of the case warrant it. It will be for the court to determine whether a person was acting for the benefit of society and, if so, what weight it should give to that factor in all the circumstances of an individual case. I accept what the noble Lord, Lord Blair, said about trying to frame appropriate legislation in the context of health and safety. It is very difficult to cater for the myriad circumstances that arise. However, the idea is that this will give the courts the maximum flexibility to reach fair and just decisions, while sending a strong signal to give reassurance to the public that they will, in all cases, consider the wider context of the defendant’s actions, prior to reaching a conclusion on liability.

I have already addressed the Committee on the difference between the Compensation Act 2006 and this Bill—the use of the word “may” and the requirement that is contained in this Bill. I do not think the Committee would like me to repeat that. There are, of course, similarities, but the Bill requires the court to consider in every case.

Reassurance is important: we want to encourage volunteering. I am glad to say that volunteering is increasing, but it could increase still further. As my noble friend Lord Hodgson said, it is a desirable trend and it is tragic if people are deterred by the fear of litigation. I do not apologise for saying that this is a difficult target to hit. The noble Lord, Lord Pannick, may fire bullets at me all afternoon, but we are trying to identify, through this legislation, matters that it is hoped will reassure, by legislating in a way that is in tune with how the public see the current situation. I respectfully submit that the Bill, which may be unusually short and unusually drafted, in the sense that it uses ordinary language—

[Lord Elystan-Morgan (CB)]

My Lords, I am preoccupied by what the Minister said earlier: that the effect of the Bill, essentially, would be to cut through a morass of various decisions in the common law and, thereby, clarify the situation for the assistance of the judge. I think I have paraphrased what he said reasonably well. Could the Minister deal with a technical point? Is there not a presumption in our law that the common law will be changed by statute only where statute makes it clear, beyond peradventure of doubt, that it is changing the common law? In other words, what common law is being changed by this particular clause that was not already dealt with by the 2006 Act? In other words, what specific common law, now extant, is being changed, if at all? If not, can there be any validity to the clause at all?

[Lord Faulks]

I do not think that one would find any common law decision the ratio of which was precisely what we find in Clause 2. My point was simply that in deciding a particular case of negligence, judges will, on the whole, have regard to overall principle. There may or may not be another case sufficiently on all fours on the facts to be worth drawing to the attention of the judge. This does not overrule any of those cases, but it provides a clear statutory provision to which the judge could be referred in approaching the facts of a case. There may well be some authority on the facts which could also be provided for the assistance of the court which would not conflict with this provision. That is my answer to the noble Lord.

I submit that this clause should remain part of the Bill and that this Bill serves a useful purpose.

Prisons: Overcrowding

Debate between Lord Elystan-Morgan and Lord Faulks

Monday 16th June 2014 Lords Chamber

[Lord Faulks]

My Lords, the Government take no pride in the increase in the prison population, of course, but it is a matter for the judges to decide the length of sentences and whether an individual is sent to prison. It is the Government’s job to ensure that there is prison capacity to deal with the sentences that are passed. The Government are indeed anxious to prevent the cycle of reoffending. As my noble friend quite rightly says, the Transforming Rehabilitation programme is particularly designed to deal with the many short-term prisoners—less than 12 months—who have unfortunately simply gone in and out of prison as a matter of routine. He is right to refer to the fact that the Transforming Rehabilitation programme, which went on stream in June, is going to mean that for the first time those prisoners have support outside prison from the probation service and that they receive contact with the probation service before they leave prison. That should help to reduce the prison population in the long term.

As to his observation about IPP prisoners, to whom I know he was referring, of course there is some anxiety about this. The Government, as he correctly acknowledges, repealed the relevant legislation. Steps are being taken to ensure, in so far as it is possible, that prisoners can be released when it is safe for that to happen. That will sometimes involve prisoners going on appropriate courses, but it should not be thought that simply going on a course automatically makes them appropriate for release. It is a matter for anxiety and the Government are particularly concerned that those who should be released are released and that the prison population should be kept as low as it can be, commensurate with public safety.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that there are many ordinary, decent, right-thinking members of society representing all manner of political persuasion or none who find their minds exercised by two considerable ironies? One is that while for many years the level of crime has been falling substantially, the prison population has nevertheless been going in a totally different direction. Secondly, and perhaps more fundamentally, despite the historical traditions of decent and law-abiding attitudes in the United Kingdom, of all the major countries of Europe we, per 100,000 of population, incarcerate many more than any other major country. I am not entirely certain of the figures for France, Italy and Germany, but they are far below ours. The figure for Britain, I remember, is 149 per 100,000. Is there no possibility of a deep and searching study into those two considerable ironies?

[Lord Faulks]

My Lords, as the noble Lord says, the level of crime has gone down under this Government. Sentences are longer than they were, as the sentencing guidelines suggest. Unfortunately, while serious crime remains a problem, that is unlikely to change. I take the noble Lord’s point, but I cannot announce any investigation from the Dispatch Box.

Commonhold and Leasehold Reform Act 2002

Debate between Lord Elystan-Morgan and Lord Faulks

Wednesday 7th May 2014 Lords Chamber

[Lord Faulks]

My noble friend is right that Sections 152 and, I think, 156 of the Commonhold and Leasehold Reform Act have not been brought into force. These deal with service charge information and the right to hold service charges in designated accounts. The Government consider actively whatever form of words is used, regardless of whether it is necessary to intervene by legislation. However, they are concerned with not overburdening either freeholders or leaseholders with unnecessarily elaborate provisions. They are also satisfied that, for the most part, the rights of leaseholders are protected by a number of provisions, some of which were brought in by the 2002 Act, particularly in relation to service charges, enfranchisement and protecting leaseholders from landlords in certain circumstances.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister agree that—despite the attractiveness of the provisions that have been brought into force in the 2002 Act for many joint users of amenity premises, and indeed the popularity of such a system in many other common-law jurisdictions—it seems to have been almost totally ignored, both by practitioners and the general public? Is it possible that the rather ponderous procedures of registration at the Land Registry may be responsible? Have the Government held consultations with the Law Society and other appropriate bodies with a view to simplifying these systems and possibly making them cheaper?

[Lord Faulks]

I hope I understand the noble Lord to be referring to commonhold as one of the options that was made available by the 2002 Act. It is true that it was thought by all those involved with the legislation that there would be much greater take-up than there has in fact been in commonhold, which is popular in other parts of the world. However, the Government do not feel that it is appropriate to force people to go into commonhold arrangements. We welcome any attempt to bring it to people’s attention as an option. It is interesting that it is not taken up by any of those who write about the subject or by practitioners who should be advising their clients on whether it is appropriate. The Government stand ready to encourage it, in so far as it is appropriate for the Government to intervene in private arrangements.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Elystan-Morgan and Lord Faulks

Tuesday 7th February 2012 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I find myself very much in sympathy with the sentiments that lie behind both the amendments. I agree with everything that was put so clearly and in such a balanced way by my noble friend Lord Wigley.

In relation to Amendment 175, it could be said that one is dealing with two sets of reports from two different agencies. In so far as anything deals with the criminal history of the defendant, even though it may not be the subject of a conviction, it belongs to the area of antecedents and to the agencies responsible for those. In other words, a bare statement of conviction on a certain date giving the detail of the conviction but no more would be very inadequate if it did not give the sentencing court—whether it be a magistrates’ court or a Crown Court—the background which is so essential for it to decide an appropriate sentence.

Both the agencies concerned—the probation service and those who prepare antecedent reports—are heavily overstrained. That, it seems to me, is the real problem with which one is dealing. These people dearly wish to devote much more time and effort to the preparation of a report but are simply unable to do that due to the exigencies which exist.

Everything that has been said in relation to dependants by the noble Lord, Lord Wigley, and those who support the amendments is corroborated by what I have seen over the years as a solicitor, barrister and judge. There are two stages when a court has to consider whether or not to impose a custodial sentence. First, it has to decide whether the gravity of the offence in all the circumstances of the case brings it over the bar, as it were, to the point where a custodial sentence is appropriate. Having decided that, it then looks at all the other circumstances of the case. Very material to that consideration will be the situation of dependants. It may well be argued, therefore, that it is not necessary to have the amendment, but I urge the Government to take a different view as it would help to concentrate the mind of the sentencer in that direction.

Any wise sentencer—magistrate or judge—knowing that young children may have to go into care or be dealt with in some other way, will have to look at the totality of the situation, having decided that it is an appropriate case for custodial sentence. In other words, the sentencer has to ask whether the totality of the situation is such that the community and the interests of justice are best served by a person going to prison or avoiding prison in some way or other. It is not a question of what the person deserves because that is a narrow, tunnel-vision approach to the whole matter; it is a question of what is proper and just for society and all concerned. I am sure that it is a precept for the wise sentencing court—magistrate or judge—to ask for a full report from the care authority regarding what exactly will happen to children in the event of a custodial sentence being imposed.

[Lord Faulks]

My Lords, both these amendments are concerned to ensure that the court knows all that it needs to know before sentencing. In my experience as a recorder, the court would be acting very negligently indeed if it were to sentence a woman, or even a man, without knowing the effect of that on the dependants. That is the fundamental point usually made in mitigation. It is very much part of the picture that any sentencing tribunal would have to take into account. If for some reason an advocate or the probation service was not giving sufficient information about this, the court would ensure—by adjourning if necessary—that that information was available. Therefore, although I accept the points made about the necessity to take all these facts into account, these amendments are designed to tell the courts what to do. I respectfully submit that the courts know what to do.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Elystan-Morgan and Lord Faulks

Monday 21st November 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I wish to use the time available to me to speak to Parts 1 and 2 of the Bill, that robustly harrowed area in respect of which we have heard the most distinguished and powerful contributions already.

Unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence. The Government have pleaded three justifications for those proposals. The first is that we live in a society that is overindulgent with eccentric litigants, that legal aid is wasted and, even worse, that in some way or another it encourages and stimulates utterly irresponsible litigation. The second is that, in the context of legal aid, there is every alternative possible that can ameliorate and mitigate any loss that would otherwise exist. Furthermore, they say that, in any event, it is a system that will be greatly improved by the proposals in the legislation.

A few questions should be asked about those propositions. First, is there a litigation culture that menaces the community in which we live? I doubt it very much. I draw all my experience from some 50 years in the law as a solicitor, a barrister and a judge. I have seen many cases of legal aid. There may well be some one would doubt it was utterly reasonable to have granted legal aid—what else would you expect in an imperfect world? But for each one of those, I can think of a dozen cases for which one would think it would have been proper for a litigant to have been granted legal aid.

The first point that I would wish to make in challenge to that proposition of overindulgence and creating a culture of litigation is to be found in the report by the noble Lord, Lord Young, some few months ago, entitled if I remember rightly, A Community and a Safe Society.

[Lord Faulks]

My Lords, it was Common Sense, Common Safety.

[Lord Elystan-Morgan]

I am most grateful and obliged to the noble Lord. In that report, the noble Lord, Lord Young, made it perfectly clear that the conclusion that he came to, from all the evidence that he had heard, was that there was no such thing as a litigation culture in society but there was in the minds of tabloid editors. Of course, there are eccentric litigants. Let us just think of how poor the reports of the law of tort and the law of contract in the 19th century would have been were it not for eccentric litigants. However, they were rich and they were certainly not on legal aid. That is what we have to consider. There is no evidence whatever that we live in a situation where legal aid has stimulated a culture of litigation.

Secondly, we ask whether the effects of what we see now are going to be destructive or benign. So much has been said here today that it needs me only to ask that particular question for it to be answered. It is perfectly clear that the whole foundation, the whole ethos, of legal aid is being challenged and attacked. In those situations, the scope of the cuts and the very nature of the deprivations are such that it is inevitable that there will be very considerable destruction. There will be no legal aid generally, but only in that cluster of sparse areas referred to in Schedule 1. Six hundred thousand people who are now eligible for legal aid will be taken out of that system. There will be no legal aid for private family cases apart from domestic violence—and it seems that the gateway to that has already been deliberately created as a massive obstacle course for likely applicants.

Thirdly, I look to the question of whether amelioration is possible. I doubt it. No doubt mediation has its part to play. Even if we had an army of persons trained, skilled and experienced in mediation—and I hope that some day we might very well come to that; a great deal might be done—some cases, especially family cases, as I well know, could take days but would otherwise be utterly impossible. Again, so much has been said about no-win no-fee to make it obvious that, although that may fill some of the gap, a huge and yawning chasm will still remain.

Lastly, I ask a question about the cost to the Exchequer. In its third report on legal aid, the House of Commons Select Committee on Justice expressed amazement that there was no comprehensive study of the knock-on effects. These knock-on effects will show themselves in one of two ways: either people will retreat from defending or asserting their rights altogether, or there will be a knock-on effect in massive expenditure in other departments.

It has been calculated by the CAB that for every £1 that is spent on legal aid, £2.34 will be spent on housing, £7.18 on employment, and £8.80 on benefits. Where is the gain? What is the gain commensurate with the anguish, the loss and the injustice? At Second Reading of the Bill in the other House, the Secretary of Justice said:

“I accept that access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise”.—[Official Report, Commons, 29/6/11; col. 986.]

It is not by their words but by their deeds that they will be judged, as far as this matter is concerned.