Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015

Lord Faulks Excerpts

Wednesday 11th March 2015 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments

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

My Lords, the purpose of this order is to bring into force a revised code of practice under the Criminal Procedure and Investigations Act 1996, setting out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation.

The revised code that this order will bring into force replaces the current one that was introduced in 2005. The changes to the code are not extensive but they are a crucial element in an initiative that is designed to make summary justice more efficient. This is the transforming summary justice programme—TSJ for short.

The objective of TSJ is to enable guilty plea cases to be dealt with wherever possible in one hearing, and contested cases to be properly managed at the first hearing and actively progressed and disposed of at the second. One of the elements of TSJ is that summary cases that are likely to be guilty pleas and those that are expected to be contested should be treated differently, the former being listed for a hearing after 14 days, the latter after 28 days.

Last May, the senior presiding judge received the report of a review that he had asked His Honour Judge Kinch and the chief magistrate, Senior District Judge Riddle, to carry out into disclosure of unused material in summary cases. This magistrates’ court disclosure review made several recommendations that complement TSJ, including that the relevant code of practice should be amended to enable a streamlined but proportionate procedure to be used in disclosing unused material in summary cases.

The review endorsed the separate treatment of likely guilty and not guilty cases. It recommended that the code should be amended to remove any implication that a guilty plea might be expected simply on the basis of the defendant not having denied the offence. However, where a guilty plea was expected with good reason—typically because the defendant had admitted the offence—then a schedule of unused material need not be served.

Even in these cases, however, there remains a duty on the prosecution at common law to disclose any material that might assist the defendant in a bail application or in preparing his case. This is often referred to as “ex parte Lee disclosure”, after the case in which the principle was set out. It is perhaps unlikely to be required in a straightforward summary case, but the review recommended that in the rare cases where the need for such disclosure arises, the police must draw the material to the attention of the prosecutor. Where on the other hand there is nothing to disclose, as will ordinarily be the position, that fact should be declared.

These recommendations are reflected in the revised code. Annexed to the code are three forms, the first of which is for use in cases where a guilty plea is anticipated, declaring that there is nothing to disclose at common law.

The review noted the intention of the CPS,

“to replace the unused schedule with a short disclosure report in anticipated not guilty plea summary cases”,

which it observed would require an amendment to the code of practice. This, too, is reflected in the new code and in the second and third forms annexed to it. These are streamlined certificates for use in anticipated not guilty cases, one certifying that there is nothing to disclose under the 1996 Act or at common law, the other certifying that there is disclosable material and specifying what it is. These forms are quicker, simpler and less bureaucratic than the ones they replace.

The amendments incorporated in the revised code were drafted in consultation with the national police lead on unused material, as well as with representatives of the Law Society, HM Courts and Tribunals Service and the office of the senior presiding judge. In accordance with the process set out in the Criminal Procedure and Investigations Act 1996, the revised code was published in draft for consultation in October last year. Six responses were received, and the draft was further slightly revised in the light of them.

The resulting revised code was laid on 28 January and the draft order to bring it into force, which your Lordships are considering today, was laid the following day. This slightly unusual process is in accordance with Section 77(5) of the 1996 Act. The order was subject to scrutiny by the Joint Committee on Statutory Instruments and has been amended slightly in the light of it. The code will come into force on the day after the day on which the order has been approved by whichever House approves it last.

The revised code introduced by the order under consideration today does not alter the criteria for disclosure. Rather, it seeks to help to ensure that defendants receive the disclosure to which they are entitled earlier than at present, including an assurance that the prosecution’s obligations at common law have been met. As the review observes, late compliance with disclosure obligations, or failure to comply with them,

“frequently leads to ineffective trials, delay and the incumbent costs in both financial and human terms … Many practitioners observe that there is a procedural rather than substance difficulty in most cases. The material listed on the unused schedule (and often any items disclosed) frequently has limited, if any, bearing on the outcome of cases tried summarily. With that in mind, it is all the more frustrating for procedural failures in the disclosure process to lead to a case collapsing, or suffering delay”.

The purpose of the revised code is to prevent such procedural failures and to reinforce the effect of the TSJ programme in speeding up summary justice. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, the order before us today replaces the code of practice issued in 2005 under the Criminal Procedure and Investigations Act 1996. I understand it is being brought forward following the Magistrates’ Court Disclosure Review in 2014, which recommended the adoption of a streamlined procedure in summary cases and, I think, in those either-way cases that are likely to remain in the magistrates’ court, so that a schedule of unused material need not be served in such cases, when it is anticipated that a guilty plea is going to be entered.

The present procedure is outlined in the magistrates’ court review, which I have looked at, with particular reference to paragraph 49. The recommendation that this order is seeking to bring into effect is listed as point 220 in the summary of recommendations. It would be helpful if the noble Lord, Lord Faulks, could just set out for us how we get to this position of an anticipated guilty plea. Clearly, someone can admit, at the first opportunity, that they have committed the offence and are guilty, but what about other cases? What sort of assessment will actually take place? Is there an expectation or assumption that, on the evidence already there, they will be getting legal advice from their own solicitor that the wisest course of action for them would be to submit a guilty plea at the earliest opportunity? I just want to be clear on the process that will be followed.

It would also be helpful if the noble Lord could just outline for us what will happen if the anticipated guilty plea does not materialise after all that. As the noble Lord said, I have served as a magistrate. I was on the Coventry bench for many years, and most cases that come before you, especially summary offences, result in a guilty plea and there are very few trials. However, things do not always go to plan, and it would be useful for that to be outlined for the Grand Committee.

I am grateful to the noble Lord for confirming when he spoke earlier that material that is of assistance to the defence and that meets the appropriate tests must be disclosed to the defence. As he said, that is the rule of common law disclosure. He referred to the ex parte Lee case, which is helpful in this respect. With those few points, I am very happy to support the order.

[Lord Faulks]

I am grateful to the noble Lord for his careful consideration of the order, informed of course by his own experience as a magistrate. He is quite right that the question of a plea is not simply a binary one or an automatic process at a particular juncture. People change their minds, and it is important that their right to do that is respected by the procedure rules and that we do not become too much a servant of process, at the risk of in any way jeopardising the important choice that a defendant has. Of course, it is important to stress in that context that defendants, whatever their intended plea, are entitled to know the case against them. They receive that in the form of the initial details of the prosecution case. Under the proposed arrangements they will receive that information earlier.

This is about disclosure of unused material. However, as I have endeavoured to stress, defendants are still entitled through the ex parte Lee case to the disclosure of material by common law which might potentially assist them. If, for example, a witness had a previous relevant conviction or had refused to give a statement, the police would have to reveal that before or at the first hearing. Such information is vital for the defence in making a bail application—quite apart from anything else—and the amended code reminds the police of the importance of making such disclosures even in a guilty plea case.

The noble Lord asked what would happen if an expected guilty plea did not materialise. In those circumstances the appropriate certificate must be prepared and served as soon as possible. The procedure is outlined in paragraph 6.4 of the code, which embraces the possibility quite reasonably and sensibly suggested by the noble Lord. Experience tells him that defendants sometimes get cold feet for one reason or another.

The importance of the order is that the defendant will be protected by this process. Important material which may assist will still be disclosed, but not a considerable amount of unused material which would have no relevance to a decision or to the outcome or strength of a case. Such material would simply slow up the process, causing additional expense and inconvenience, not only to the court but, importantly, to the defendant.

This order meets the desire to streamline the process —the transforming summary justice programme. It means that there will be fewer hearings but none the less protects the defendant and his or her freedom to choose whether to plead guilty or not guilty.

Motion agreed.

Mental Capacity Act 2005 (Select Committee Report)

Lord Faulks Excerpts

Tuesday 10th March 2015 Lords Chamber

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

My Lords, I thank the noble and learned Lord, Lord Hardie, for securing this debate, albeit that it has taken a little time to get it to the Chamber.

The Mental Capacity Act is a positive piece of legislation. The noble Baroness, Lady McIntosh, is absolutely right: calling it “capacity” rather than “incapacity” was an important change. The legislation empowers and protects individuals, and has the potential to transform lives. The Government welcome the committee’s report and its recommendations.

Standing at the Dispatch Box, I am in the unusual position to be able to pay tribute, not just in formal but in practical terms, to the secretariat, the expert advice, and in particular all the evidence, oral and written, that was obtained and the various visits, including a memorable one referred to by my noble friend Lady Barker. All this contributed to the committee’s report. One thing that has emerged from the debate is just how difficult this subject is, and how it needs to be challenged and tackled in all sorts of different circumstances. There is no question of complacency on the Government’s part, as some noble Lords suggest.

Parliament showed considerable leadership in bringing forward the legislation to shape the way that individuals were treated. While I recognise what the committee has to say about implementation, we should not for a moment underestimate the complexity of the challenge involved in changing cultural attitudes towards mental capacity. I am glad that a number of noble Lords referred to the difficulty of assessment. The noble Baronesses, Lady Warnock and Lady Finlay, emphasised how mental capacity can fluctuate. Performing an adequate assessment is difficult. Instruction is variable, as we have found in the course of investigating this matter.

Changing attitudes is not as simple as a flick of a switch, especially when we consider the number of people in the healthcare and social care sectors whose roles are affected by the act, together with those in countless other sectors in society. While the Government, of course, bear an important responsibility, the principles of the Act are not solely a task for government. They require the support of everyone: those responsible for running services, professionals and the public. My department, the Department of Health and those organisations responsible for implementing the Act have worked together to bring life to the committee’s recommendations, but there is still a long way to go.

In my brief remarks, I shall focus on the two main recommendations of the report. Acting on a request received from the noble Lord, Lord Beecham, I have taken the opportunity to write to colleagues to provide an update on all the actions taken since the publication of the government response in June 2014. I hope that colleagues have found it useful and that they will note the considerable amount of work that has been undertaken over the past 12 months. That letter and the enclosures have been deposited in the Library, and I hope the House will forgive me if I do not go over all the answers in that letter but try to respond to some of the specific points that have been made during the debate.

I shall first deal with the national mental capacity forum. The committee recommended the implementation of a single independent body with responsibility for the implementation and monitoring of the Act. On 27 November 2014, it was announced that we would set up a national forum with an independent chair. I appreciate that this has been described by more than one noble Lord as a talking shop only. The Government are painfully aware that a talking shop is not enough. The purpose of the forum—and one should not be too affected by the name as it is what it does rather than what it is called that matters—is to inform the Government’s understanding and take the positive message of the Mental Capacity Act out to professionals and the public. The Mental Capacity Act implementation group will be a Department of Health and Ministry of Justice arm’s-length body and statutory agency. The chair of the forum will also be on the implementation group which will deliver what the forum has obtained by way of information and what is being disseminated. Ultimate responsibility will rest with the Department of Health and the Ministry of Justice which will oversee these matters at the highest level.

We hope to launch the recruitment process for the independent chair in the next few weeks and to have the chair in place by the summer. The chair will work with officials to agree the membership and composition of the forum, which we propose will meet for the first time in the autumn. We are anxious, for obvious reasons, to engage with as wide a range of stakeholders as possible. We envisage that there will be a large virtual network which will contribute to the work of the forum, but we will need a smaller core group of stakeholders, led by the independent chair, to co-ordinate the work and advise government. Enthusiasm for the national mental capacity forum is clear already. In the three months since it was announced, the Department of Health alone has received in excess of 50 applications for membership from a wide range of implementation bodies. We anticipate this to rise further over the coming months as we accelerate the formal recruitment, and we intend to launch the recruitment of the independent chair of this forum imminently. The terms of reference stress the need for a high-calibre individual who can bring together different organisations and focus on specific actions that will help support local implementation. We would be grateful if noble Lords— and a great deal of expertise was evidenced in the course of this debate—disseminated news of this advertisement to ensure that we attract distinguished applicants.

The aim and recommendations of the committee were clear. The aim and the aspiration of the Government are similar, although I accept that the recommendation does not tally precisely with that made by the committee. However, I assure the committee that great heed has been paid to what animated and lay behind that recommendation, and a great deal has been learnt from it.

On the deprivation of liberty safeguards, the committee made nine recommendations, including a comprehensive review of the legislation itself. The history of the matter is well known, and I do not need to repeat it now. The fact that the system did not work satisfactorily was, I think, evident to all those who had any part in the committee.

Members of the committee are, of course, aware—it has been discussed during the debate—that almost a week after the publication of the report, the Supreme Court issued the judgment in the Cheshire West case, which set out a clarified test for what constitutes a deprivation of liberty. The test is whether that individual lacks the mental capacity to consent to the arrangements for their care, and is under continuous control and supervision, and is not free to leave their place of residence. All three elements must be present. An individual’s compliance or objection is not relevant in judging whether a deprivation of liberty might exist.

This revised test means that significantly more individuals are now considered to be deprived of their liberty than were under previous practice. As a number of noble Lords have pointed out, the use of the safeguards is now considerably greater than when the House of Lords Select Committee looked at this matter. The Supreme Court judgment adds further weight to the Select Committee’s recommendation that the deprivation of liberty safeguards should be reviewed.

The Care Quality Commission report of 2 February 2015, which was included in the helpful briefing pack provided by the House of Lords Library, illustrates the significant increase in applications after the Supreme Court judgment. One of the reasons may be that the Supreme Court said that those in doubt should err on the side of caution in deciding to make such applications: that advice seems to have been very much heeded.

I am pleased to say that the Government have initiated a fundamental review by the Law Commission of the deprivation of liberty safeguards legislation. We expect its detailed consultation paper this summer. The Law Commission’s work will be completed in summer 2017, when it will present the Government with draft legislation. That may seem too slow for some people’s entirely understandable aspiration for there to be clarity in this area. However, I respectfully agree with the noble and learned Lord, Lord Hardie, that this must be got right. After all, it was not a perfect piece of legislation hitherto and there are a number of stakeholders to consult, so this process will inevitably take more time than ideally one might like.

The noble and learned Lord asked why the Government had delayed in setting up the forum. As we stated in the government response, the range of stakeholders was wide, and we have taken time to get, as we think, the governance structure right. As I have said, the independent chair will play a key role in this.

My noble friend Lady Browning asked about the use of the Mental Health Act in connection with learning disability. I agree wholeheartedly that the failings at Winterbourne View were completely unacceptable, and use of the Mental Capacity Act there was poor, if not non-existent. The Government strongly believe that better implementation of the Act will greatly reduce the likelihood of a future Winterbourne View situation. The noble Baroness may well be aware that the Department of Health has just launched a public consultation on increasing independence and improving care for those with learning disabilities, which specifically considers the use of the Mental Health Act.

My noble friend also spoke about a halfway house to cover vulnerable individuals before the Law Commission’s report. I sympathise with the view that these basic human rights must be protected: that is the matter of ensuring that a deprivation of liberty is in a person’s best interest. But we believe that one cannot take one group of individuals—for example, those with learning disabilities, although I accept that this is a lifelong condition and there are many, many of them in the population—and consider their rights in isolation. These are universal human rights, and if we are to have a future system to replace DoLS that works for everyone, we must afford the Law Commission time to consider all this in the round.

The noble Baroness, Lady Finlay, referred to advance decisions, including those recorded in electronic records. I agree that it is key that the NHS has systems in place to ensure that, when an advance decision or a lasting power of attorney exists, professionals can easily find such information. The Department of Health is progressing the steps to improve such information-sharing; for example, the MyNHS programme seeks to put patients’ information at their control and allow it to be shared with professionals. We believe that greater awareness of the relevance of advance decisions among professionals will go together with a better understanding of the Act itself.

My noble friend Lady Barker referred to the criticism that had been received of Section 44 as a criminal offence. I take her point and the reference to the opinion that it was not a particularly well drafted or useful provision. It is right to say that prosecutions have increased over time, however, and I believe that that does at least demonstrate an increased awareness among police and prosecutors of the nature of the offence, albeit that it may have limitations.

The noble and learned Lord, Lord Brown, helpfully told the House about the decision-making process in the Cheshire West case and effectively asked what was happening in the mean time, given that the Law Commission was going to take some time to produce the legislation. In the short term, we have taken steps to simplify the existing process as much as possible. We have funded a review of the existing DoLS forms by the ADASS. That resulted in a reduction in the number of forms from 32 to 13, which will reduce the bureaucratic burden on providers and local authorities. We have also requested comprehensive guidance as to what constitutes a deprivation of liberty from the Law Society, which is due. We have also issued DoLS guidance notes, which have been well received by the field; and a new streamlined court process, together with new court forms for DoLS cases, was introduced in November. The case law guidance is in its final stages of preparation and will be published by the end of this month. We have extended the scope of the guidance to cover acute hospital settings, A&E, care homes, hospices and community settings.

The noble Baroness, Lady McIntosh, asked what was being done to increase knowledge of lasting powers of attorney, and told the House about some of the difficulties that she had confronted when seeking advice in this area. My ministerial colleague Simon Hughes is chiefly seized with this. The provision of online services for making LPAs should make them more attractive to a wider range of people and make it simpler and quicker for them to make an LPA. I hope that that will encourage more people to plan ahead at an earlier stage, rather than leaving it until the onset of a lack of capacity is imminent. She was right to talk about the fact that these things can happen very suddenly. I have experience of cases in which people have brain-acquired injuries when it is all too late to consider these matters.

What is being done to increase knowledge of LPAs? A current awareness campaign, Choice not Chance, is aimed at encouraging people to consider making an LPA to ensure that their choices count and decisions are not left to chance. The Public Guardian has appeared regularly on the Radio 4 programme “Money Box Live” to give advice and answer questions about LPAs, and he was recently involved in a webinar for the nursing profession. The OPG has carried out extensive work with the banking profession and has developed guidance to help financial institutions to recognise LPAs and understand what they mean and how to work with attorneys. The noble Baroness, Lady Warnock, spoke of the need for better information available in GP surgeries, and I am sure that that is right. The OPG prepares a quarterly report to the financial institutions highlighting feedback received about the customers’ experience in using the LPA or court order, and bank-specific feedback is provided to each institution to assist them in shaping their services.

The noble Baroness, Lady Hollins, stressed the need for more information for service users. I very much agree that it is vital that we provide all necessary support to those who lack capacity. That is, of course, fundamental to the Act. The MCA directory referred to is still receiving submissions, and I believe that local NHS and social care organisations have produced specific material for service users. However, I would be happy to commit now on behalf of the Government to ensuring that the new MCA directory has a dedicated service-user page. If the materials do not already exist at a local level, the Department of Health will explore options for commissioning those resources.

I am conscious that there may be some other queries that have been raised during the course of the debate that I have not answered. I can assure noble Lords that we will study Hansard and try to deal with any outstanding queries that have not been answered either in the letter or in my response.

The committee’s report has served a very vital task. It has brought mental capacity to the forefront of people’s minds. This is particularly important with the growing numbers of people living longer, with learning disabilities or with dementia. No statistics, or at least no hard statistics, exist on people who lack capacity. But around 2 million people are affected, based on 800,000 people with dementia and 1,200,000 with learning disabilities. All those with an interest in mental capacity, be they professionals, carers or the individuals themselves, have an interest in raising awareness of the Act and its ethos of empowerment.

We will continue to work with everyone to ensure that the awareness-raising and implementation continue. I reiterate my thanks to the noble and learned Lord and his committee again for raising this report as a subject of debate and to all noble Lords who have participated in this debate—and, I should add, for their continued, valued contribution to the advancement of knowledge and understanding of this difficult but very important subject.

Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015

Lord Faulks Excerpts

Wednesday 4th March 2015 Lords Chamber

Moved by

[Lord Faulks]

That the draft order laid before the House on 19 February be approved.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments

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

My Lords, the purpose of this draft order is to introduce enhanced fees to commence certain proceedings for the recovery of money in the courts of England and Wales. Enhanced fees are fees that are set above the costs of the proceedings to which they relate. The order prescribes a fee of 5% of the value of the claim for all claims with a value of £10,000 or more, up to a maximum of £10,000. It also provides for a discount of 10% for applications initiated electronically.

The order also fixes three fees that are already currently above cost: the fee for an application for a divorce; the fee to fix a hearing of a case allocated to the fast track; and the fee for a multi-track hearing. These fees have come to be at a level above cost due to the adoption of a new mechanism for modelling the way that cases progress through the courts, and a new methodology for apportioning costs to those cases. These were first used to prescribe the court fee changes introduced on 22 April last year.

I reassure noble Lords that these fees are not being increased. But we made it clear, when we responded to the consultation on fee increases to achieve cost recovery, that we could see no justification for reducing any fee in the current financial climate. These fees are therefore being remade at their current levels explicitly using the enhanced fee power. The normal rule for public services is that fee income should cover the full cost of delivering those services. For many years, the civil and family courts have operated on that basis.

Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 provides the Lord Chancellor with a power to prescribe fees above cost. In December 2013, we set out our proposals for using this power in a consultation paper, and on 16 January we published the government response setting out the fee increases that we intended to take forward. The order gives effect to those fee increases.

Why are the Government taking this action and why is it necessary? The principal reason for bringing forward this order is financial: to ensure that the courts are properly funded. The courts fulfil a crucial function in our society. They ensure access to justice for those who need it. This is vital to an effective democracy, helping to maintain social order and an effective and functioning economy. It is critical that these principles are preserved, so that people who need it have ready access to the courts.

A strong economy is a pre-requisite for effective and affordable public services. Noble Lords will be well aware of the state of public finances that this Government inherited, with a growing budget deficit, increased public sector debt and an economy in recession. We made economic recovery our first priority. That required some difficult choices. The action that we have taken is working, and the recovery is now well under way. But further reductions in spending are essential if we are to eliminate the deficit and reduce overall levels of public debt.

There can be no exceptions for the courts. The challenge, as with many other public services, is to do more with less. The Government will invest £375 million over the next five years in the courts on much-needed modernisation. This investment is expected to release long-term, sustainable savings worth over £100 million per annum. There is, however, only so much that can be done through cost-efficiency measures alone. In the current climate, we must also look to those who use the courts to contribute more towards the running of the courts, where they can afford to do so.

We consulted on our proposals and we have taken the time to consider the responses very carefully. The consultation produced some very strong views. We listened and we have decided not to take forward some of our original plans. We are not increasing the fee for a divorce, nor are we taking forward either of the proposals for raising fees for commercial proceedings. This has not, however, changed the financial imperative, and we have set out our further proposals for raising fee income from possession claims and from general applications in civil proceedings.

The measures in this order will, we estimate, generate £120 million per annum in additional income, with every pound collected retained by the courts. That is a matter specifically provided by Section 180 of the Anti-social Behaviour, Crime and Policing Act. Fee increases will never be welcome or popular. But I am sure that those who choose to litigate in our courts will continue to recognise the outstanding levels of service and excellent value for money we offer. I therefore commend this draft order to the House and I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

I want to be able to be proud of being a citizen of this country. A measure such as this adds to the growing perception that, for our rulers, money is the only value that counts, that government is for the rich and for the powerful, that the law serves the rich and that justice for the poor and the rule of law are marginal. I am ashamed to be a citizen of a country in which such a measure is introduced and I very much share the regret expressed by the noble Lord, Lord Pannick.

[Lord Faulks]

My Lords, I am grateful to all noble Lords for their contributions to this debate, passionate as they have been. All noble Lords who have taken part—I hope that noble Lords will forgive me if I include myself—are passionate about access to justice and about the rule of law. I hope that in that sentence I have answered two of the questions posed by the noble and learned Lord, Lord Scott of Foscote. Of course, I very much include the noble Lord, Lord Howarth, who, although not a lawyer, has a long history of involvement in access to justice and stressing its importance in our constitution.

I think it would also be accepted by all those who have taken part that we need a properly funded court system. I said in opening this debate that we are investing more than £375 million over the next five years but that we consider that those who use the courts should make a significant contribution to the cost. The Opposition in the House of Commons did not disagree with the aspiration of full cost recovery, or, and I quote Mr Andy Slaughter, that,

“in some cases the fees should be more than full cost recovery”.—[Official Report, Commons, First Delegated Legislation Committee, 23/2/15; col. 4.]

Of course, I accept that no litigant will welcome increased costs and I also acknowledge that no litigation solicitor will be applauding increased costs either. I acknowledge that concerns about access to justice are entirely legitimate and should be very much a part of any movement in this direction.

The statutory instrument can perhaps be safely divided into those smallish claims—90% or so—where there is no increase in the fees, and the very large claims, which I will come to later. I think that it is fair to say that the main focus of the debate has been on the middle-size claims—those perhaps brought by SMEs or by those seeking damages for personal injuries or clinical negligence. The question is whether the court fees, as a proportion of the sum claimed are such as to be a deterrent and would prevent people having access to justice. It is true that in percentage terms there is potentially a significant increase. For example, as a proportion of £150,000, court fees are now £7,500; they were £1,315. In percentage terms that is significant. But, of course, the original fees until this statutory instrument was introduced, should it proceed, were very modest.

It is also worth bearing in mind that litigation is very much an optional activity. Anybody who is deciding whether or not to sue will have all sorts of factors that they bear in mind. There are plenty of reasons for not bringing proceedings, one of which is uncertainty of outcome. Anyone advising a claimant will probably need to satisfy that claimant that there is at the very least a better than even—probably a 75%—chance of success before they commence proceedings. Another relevant factor is the solvency of the defendant or the likelihood of recovery. All those are matters that will inhibit somebody in deciding whether or not to sue. Of course, there is also the factor of the cost and extent of their lawyers’ fees.

What is important is that the court fees generated here would be recoverable from any defendant in the event of a successful claim. They are a disbursement and cannot be challenged. The same could not be said for solicitors’ or barristers’ fees, which are always potentially subject to challenge. If a claimant has a sound claim and if satisfied about the solvency—of course, one can never be sure about these things—of the defendant, these sums will be recoverable. That is relevant, first, to the question of access to justice, whether an individual will seek access to justice, and also as to whether a solicitor will feel able, as is often the case in personal injury or clinical negligence cases, to provide assistance with the upfront costs on the basis that they will be recovered in the fullness of time.

Of course, there are fee remission provisions. No noble Lord has mentioned those, but they may be provided. Where there is a household income for couples without children of less than £1,085 per calendar month, there will be full remission—more with children—and there are also provisions for partial waiver. Capital will be taken into account, but this excludes the principal dwelling-house and compensation payments and pensions. The waivers are more generous for those over 61. In suggesting that access to justice will be denied, one should bear in mind all those factors.

When dealing with the top end of claims, the original consultation, as has been said, suggested a higher figure—twice the figure of £10,000. After consultation the Government changed their mind about that and listened to the consultation. The arguments about recoverability apply likewise. But, of course, the larger the claim, the less significant the court fees will be as a proportion of the prospective expenditure.

The quality of our judicial system, of which my noble friend Lord Phillips is rightly proud, is very high, and I am sorry that the noble Lord, Lord Howarth, at least in terms of access to justice, feels so little faith in it. Certainly I do not understand him to be criticising our judges in any way. The quality of justice is, of course, a significant attraction to litigants and will, I suggest, continue to be an attraction. The Government bear in mind the possibility, where there is a choice of jurisdiction, of New York, Singapore or Dubai, but are satisfied, having consulted widely, that this is a reasonable and proportionate increase for these large claims.

Mention has been made of arbitration, and even mediation. Where arbitration is an option, it has to be borne in mind that you have to pay for the arbitrator’s services. Here, were a case to go the entire distance, the judge is provided, as it were, as part of that court fee. In those rare cases where a case goes to trial, frankly, the fee for the use of court premises, court infrastructure and the services of a high-quality judge is very good value indeed. Then there is the 90% below £10,000, where there is no difference. Those are the smaller claims. Those with smaller pockets, perhaps, will have to pay no more than they already pay. How do we get to 90%? The information comes from Her Majesty’s Courts and Tribunals Service, which states that 90% of claims are for less than £10,000. That is currently the case and the basis on which we reach that figure.

The noble Lord, Lord Beecham, mentioned employment tribunal fees, as indeed he did at Questions last week. We estimate that the employment tribunal fees will generate about £10 million per annum, and our current forecast is that income is broadly in line with expectations. I share the view of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on the fees for employment tribunals.

The question of personal injury claims was raised by the noble Lord, Lord Beecham, and other noble Lords. Conditional fee arrangements have been changed as a result of the LASPO Act, but “after the event” insurance still exists and the “after the event” insurance market still exists. In appropriate cases where an insurer thinks that a claim has merit, it enables court fees to be incurred, which are, as I said earlier, recoverable from the other side.

The noble and learned Lord, Lord Brown, asked why we considered the possibility of making higher fees for commercial claims. We did, and we considered the responses and reduced the figure because we bear in mind that a balance has to be struck between trying to recover some of the money that we think is expended and attracting potential litigants. We did not seek judicial consent; that is a matter for the Government. The question that I was asked during Oral Questions by the noble and learned Lord, Lord Mackay, was about whether the judges had been consulted. He also suggested that he had experienced the possibility of them being judicially reviewed in connection with this. I think noble Lords might agree that, ultimately, the Government are accountable for these matters, and it would be somewhat invidious for judges to have to decide things. They are, of course, entitled to have their opinions taken into account and they have expressed them, as a number of noble Lords have said, in pretty firm terms.

It was said, I think by my noble friend Lord Phillips, that there is no mention of justice in Section 180 of the Anti-social Behaviour, Crime and Policing Act; but he will have seen from the statutory instrument that Section 92 of the Courts Act refers specifically to considering access to justice.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

The Minister mentioned that Section 92(3) of the Courts Act 2003, which is the requirement that when making one of these orders, states that,

“the Lord Chancellor must have regard to the principle that access to the courts must not be denied”.

I thought the Minister said that that had found its way into the actual Order. I have been looking at this and of course I am sure I shall be corrected, but an awful lot of provisions are referred to there but rather oddly not Section 92(3). One might have thought that it would be, because the second paragraph in the recital says that he has had regard to matters referred to in Section 180(3) of the 2014 Act. That is actually where one would have hoped and expected it to appear. I do not know that he makes any reference to having had regard to that provision, which the earlier statute required him to have regard to. As I said, I am open to correction, and apologetic in raising this point today.

[Lord Faulks]

I am grateful to the noble and learned Lord. He is quite right: the recital refers to the fact that there is an exercise of the power conferred by Section 92(1) and (2) of the Courts Act and the consultation in accordance with Section 92(5) and (6). There is no explicit reference to Section 92(3). However, in purporting to exercise those powers, it would be said, although not specifically recited, that he was exercising them in accordance with the remainder of that section.

[Lord Pannick]

I am very grateful to all noble Lords who have spoken—and spoken passionately—in this debate. The Minister said that the order contains sensible and proportionate provisions. As your Lordships have heard tonight, these proposals are going to do inevitable and substantial damage to access to justice. It is simply perverse for the Government to dispute that many small businesses and many personal injury claimants are going to be unable to pay an up-front £10,000 fee as the price of access to the courts.

The noble Lord’s and the Government’s argument comes to this. Funds are needed to pay for the court system, but there is no point in having a civil court system if ordinary people are to be charged an entry fee which they cannot afford to bring basic claims for breach of contract and personal injuries. The Minister described litigation—I wrote this down, because it was a very striking phrase—as an “optional activity”, like a skiing holiday or a visit to a three-starred Michelin restaurant. As the Minister well knows from his experience as a very successful barrister, for many people—those suing for debts or to recover compensation for personal injury—litigation is often a necessity to keep your business alive or to maintain any quality of life. The Minister is absolutely right that there are already many impediments to access to justice. That is surely no justification—no excuse—for the state to erect further high barriers.

The fee remission provisions to which the Minister, perhaps somewhat desperately, referred are not going to assist other than in exceptional cases. Nor is it any answer that court fees can be recovered from the other side if the claim succeeds. Claimants need to find the fee up front.

The Minister referred to my earlier Motions of Regret with a reference to Frank Sinatra. To change the music somewhat, “Je ne regrette rien”. Happily, the courts have done more than regret. In a series of cases they have quashed Mr Grayling’s regulations which we have regretted in this House. My regret—my astonishment—that the Government should bring forward an order of this nature is mitigated only by my optimism that the courts will inevitably add this order to the long list of Mr Grayling’s regulations which have been declared unlawful in the past three years. With thanks to all noble Lords, I beg leave to withdraw the amendment.

Lords Spiritual (Women) Bill

Lord Faulks Excerpts

Thursday 26th February 2015 Lords Chamber

Moved by

[Lord Faulks]

That the order of commitment be discharged.

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

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged

Motion agreed.

Court Fees

Lord Faulks Excerpts

Thursday 26th February 2015 Lords Chamber

[Lord Howarth of Newport]

To ask Her Majesty’s Government how much additional money they expect to raise by increasing court fees; what they will use it for; and what is their assessment of the impact of that policy on access to justice.

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

My Lords, we estimate that the introduction of enhanced court fees for money claims may generate around £120 million in additional income annually. There is a statutory requirement that income from enhanced fees must be used to fund an efficient and effective system of courts and tribunals. For the reasons set out in the Government’s consultation response published on 16 January, we do not believe that the policy will have a negative impact on access to justice.

[Lord Howarth of Newport (Lab)]

Did the Minister, whose personal commitment to justice I do not for a moment doubt, notice that on Monday, when the Lord Chancellor was piously quoting Magna Carta to the Global Law Summit—

“to no one will we sell, to no one deny or delay right or justice”,

Mr Grayling intoned—his unfortunate junior Minister, Mr Vara, was attempting to explain to the House of Commons that what the Government euphemistically call “enhanced court fees” are actually intended to protect access to justice? Are not these increases in court fees, ranging to more than 600% and following upon the Government’s assaults on civil legal aid and judicial review, simply the latest instances of how this Government do in fact sell, deny and delay justice, in brazen contempt of Magna Carta and the rule of law?

[Lord Faulks]

No, I do not accept that characterisation of the Government’s policies in general or the enhanced court fees. The Government are committed to providing effective access to justice and a good and satisfactory court system which is paid for by litigants. The qualification to our enhanced court fees is that the 90% who are below £10,000 will not pay increased court fees, and we believe that the cost of the court system should be borne by those bringing larger claims.

[Lord Pannick (CB)]

My Lords, does the Minister recognise that the Lord Chancellor told the Global Law Summit that he is incredibly proud of our legal heritage? The next time the Minister sits down with the Lord Chancellor to discuss our legal heritage, will he point out that the best way to manifest that incredible pride would be to abandon regulations that will do incredible damage to access to justice because they will require traders and businesses who want to sue for £200,000 to pay an upfront fee of £10,000, which many of them will simply be unable to afford?

[Lord Faulks]

On the general point, there was reference in both questions to the Global Law Summit. Many pooh-poohed this enterprise, which noble Lords may now realise attracted more than 2,000 delegates, more than 100 Ministers of Justice and Attorneys-General and representatives of more than 100 countries, all of whom came to celebrate our heritage of the rule of law. I remain an adherent to that, as I am sure other noble Lords are. Nothing about the contents of that conference in any way derogated from that principle.

As to the more specific point, there are different provisions depending on the size of the claim. As the noble Lord will know, court fees usually form a small part of the overall bill compared with lawyers’ fees, which tend to be much higher. We do not believe that the increased court fees will act as a significant inhibition on claims.

[Lord Mackay of Clashfern (Con)]

My Lords, in my time, the consent of the heads of division was required to achieve an order for court fees. That requirement has since been removed, with the result that the heads of division are now no longer in complete control, as they were then. Notwithstanding that, I was successfully judicially reviewed in a court fees order that had the consent of all the heads of division. That could also happen. What is the purpose of dealing with this matter in a way that does not require the consent of the heads of division? I assume that the Government have answered the consultation. Does the Minister have the answer ready to hand?

[Lord Faulks]

My noble and learned friend will know that there were two consultations regarding these proposed enhanced fees, in which the judiciary’s comments were fully taken on board by the Government and certain modifications were made to the original proposals. However, ultimately, the question of fees and the cost of the courts is a matter for the Government to decide.

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant in my former solicitor’s practice. On 15 February, the Observer reported Vince Cable’s request for information about the overall decline of 80% in employment appeal tribunal applications and 90% in sex discrimination cases since the imposition of substantial fees for those applications. Can the Minister tell us what reply the Lord Chancellor has made to Vince Cable’s request for information, and to his question about the Lord Chancellor’s failure to implement a promised review? In the light of this experience, why should we accept the Government’s assurances that increasing fees by up to 600% in the civil courts will not lead to fewer claims being brought there?

[Lord Faulks]

The question of employment tribunal fees is very different. There were, in fact, no fees at all. As a result of a relatively modest fee, there has been a significant decline in the number of claims brought. I am sure the noble Lord would accept that some of the claims brought hitherto were somewhat on the speculative side. That no longer takes place. Furthermore, the intervention of ACAS, as from May 2014, has resulted in a significant reduction in the number of these cases getting to employment tribunals, and surely it is better that tribunals should, on the whole, be avoided. What is more, as a result of our long-term economic plan there has been a significant increase in the number of people in employment. This Government are about hiring, not firing.

Lords Spiritual (Women) Bill

Lord Faulks Excerpts

Thursday 12th February 2015 Lords Chamber

Moved by

[Lord Faulks]

That the Bill be read a second time.

[Lord Taylor of Holbeach (Con)]

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Lords Spiritual (Women) Bill, has consented to place her prerogative, so far is it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

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

My Lords, this Bill will enable female diocesan bishops of the Church of England to become Lords Spiritual sooner than they would under current rules.

The Government have introduced the Bill in response to the welcome change in the law to allow women to be consecrated bishops. That has been a long time coming. As far back as 1975, the General Synod of the Church of England recognised the possibility that women might be ordained ministers. The first female deacons were ordained in 1987 and the first female priests in 1994.

The decision of the General Synod last year finally to allow women to serve as bishops was widely welcomed. The necessary measure was considered by your Lordships last October, when several noble Lords looked forward to the day when we would welcome the first female bishops to this House.

The legislation was completed by the General Synod on 17 November last year and just one month later it was announced that the Reverend Libby Lane would serve as the suffragan Bishop of Stockport. Her consecration on 26 January was an historic occasion in two respects. Not only was it the first consecration of a woman as a bishop of the Church of England, it was the first to be broadcast live on television.

As a suffragan, not a diocesan, bishop, the Right Reverend Libby Lane is not eligible to attend this House as a Lord spiritual. As your Lordships are probably well aware, the 26 bishops who sit here are determined under the Bishoprics Act 1878. They are the most reverend Primates the Archbishop of Canterbury and the Archbishop of York, the right reverend Prelates the Bishop of London, the Bishop of Durham and the Bishop of Winchester, and the 21 longest-serving diocesan bishops of the Church of England.

The Government look forward to the appointment of the first female diocesan bishop. However, under the current rules, it would be many years before she would be able to join the Lords spiritual Bench as one of the 21 longest-serving bishops. Having already waited a long time to benefit from the leadership of female bishops in the church, we would still have to wait some years more to benefit from their presence in this Chamber.

The Government’s Bill addresses this situation. It has been introduced at the request of the most reverend Primate, the Archbishop of Canterbury, on behalf of the church and with the support of Her Majesty’s Opposition. The Bill would alter, for the next 10 years, the operation of the 1878 Act. During that time any vacancy arising among the 21 Lords spiritual whose places are currently determined by seniority would be filled by the most senior female diocesan bishop available. If there are no eligible female bishops, the vacancy would be filled by the most senior male diocesan bishop, as it is under the current arrangement.

This is, as noble Lords will no doubt have noticed, an exceptionally brief Bill. It is also an important and historic one. It does not seek to make changes or reforms to the composition of this House; it simply provides that female bishops will join the Lords spiritual slightly sooner than they would otherwise have done. Not only are the 26 Lords spiritual active and valued Members of this House, but their presence reflects the enduring constitutional arrangement of an established Church of England with the monarch and head of state as its Supreme Governor.

Bishops sit as independent Members of this House. As well as leading the Chamber in prayer at the start of each sitting day, they seek to be a voice both for people of faith and for the communities they serve. Their presence in the Lords is an extension of the Church of England’s general vocation in its role as the established church. In fulfilling its national mission, it is right that the church should, at all levels, seek to reflect the nation that it serves. That is why we welcome the decision to allow women as well as men to be bishops, and why we believe it right to make arrangements for female bishops to sit as Lords spiritual as soon as possible.

The continued presence of bishops in this Chamber was explicitly recommended by the Wakeham commission. The Government’s House of Lords Reform Bill in 2012 would have retained the seats of the Lords spiritual in this House, although it would have reduced their number in recognition of the reduction in the overall number of Peers provided for in the Bill. Those provisions were endorsed by the Joint Committee’s report on the Bill.

We greatly appreciate the wisdom and valued contributions of the Lords spiritual Bench to this Chamber. On behalf of the Government, I extend special thanks today to the most reverend Primate the Archbishop of Canterbury and the right reverend Prelate the Bishop of Leicester for their support and assistance to the Government in bringing forward this legislation. We are grateful to the Bishops’ Bench for their ministry in the Chamber. This Bill will strengthen and enrich that ministry by the addition of female Lords spiritual as soon as possible. I warmly congratulate the church on extending its leadership to include women, who have already provided valuable service for many years, and look forward to the day when we will benefit from the presence of female bishops in this House. I beg to move.

Probation

Lord Faulks Excerpts

Thursday 12th February 2015 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government whether any emerging risks to the programme to transform the delivery of probation services have been reported to Ministers, and what action is being taken to mitigate any such risks.

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

My Lords, on 1 February, new providers began delivering probation services for low and medium-risk offenders, working alongside the National Probation Service. We conducted comprehensive testing at each key stage of the reforms, reporting and managing risks as appropriate and proceeding to the next stage only when we considered it safe. With the new system established, the National Offender Management Service is providing robust oversight and management of providers to ensure that the public are kept safe.

[Lord Ramsbotham (CB)]

My Lords, I thank the Minister for that Answer. When I was Chief Inspector of Prisons, I used to tell Ministers that they could accept either observed facts from me or unobserved fudge from officials, but that improvements could follow only on facts. Since the Secretary of State denied parliamentary approval of the rushed Transforming Rehabilitation timetable, it has slipped. Among many other problems, community rehabilitation companies have been given only a bare five weeks to mobilise when they say that they need six months, and community probation service officers, for example, are having to perform tasks with high-risk offenders for which they are not qualified. Clearly, all is not well. Will the Minister please tell the House when the Government will give the public the facts rather than fudge about the delivery of probation services?

[Lord Faulks]

My Lords, I do not accept the characterisation given by the noble Lord. The suggestion that Parliament has not had the opportunity to consider this is not borne out by the fact that there were 50 hours of debate in Parliament, including debates on the Bill and a Westminster Hall debate. We have given information to Parliament and the public at every stage of the process, placing key documents in the Libraries of both Houses, including draft contracts, the staff transfer scheme and details of successful bidders. The matter has also been considered by the Justice Select Committee and the Public Accounts Committee. I also do not accept the noble Lord’s characterisation that there are problems. The issue has been carefully monitored. Of course, there may be some difficulties, and we are happy to hear any representations from anybody about how we can respond to these.

[Lord Beecham (Lab)]

My Lords, it is understood that in the course of court hearings over a challenge to the legality of the Government’s proceeding with the contracts for the 21 community rehabilitation companies, a number of concerns were raised. These related to problems with IT, the management of sensitive victim information, lost records of offender contacts, staff shortages, delays in pre-sentence and standard reports, and more besides. To what extent have these issues been resolved and what arrangements are in place to ensure regular monitoring of the situation?

[Lord Faulks]

I presume that the noble Lord is referring to the judicial review instituted by NAPO that was withdrawn by NAPO, which was ordered to pay the substantive costs of that judicial review. As to pre-sentence reports, there is a 97% response rate of timely reports. As all those who have had to sentence offenders will appreciate, from time to time before this transformation there were delays in these reports. It is greatly to the credit of the probation service that it has maintained this standard. It is to be congratulated on the hard work that it is doing in coping with this transformation.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, can my noble friend the Minister tell the House what progress is being made by the Probation Institute—the professional body for which many of us argued and which was established last year by the Probation Chiefs Association, the Probation Association and the two trade unions NAPO and UNISON? What role do the Government believe this institution might have in ensuring the continuing delivery of effective probation services?

[Lord Faulks]

My noble friend is quite right to draw the House’s attention to the Probation Institute, which, as well as providing assurance that existing standards are to be maintained when the various bodies to which he referred are combining, is also there to capture the innovation that we hope will follow the Transforming Rehabilitation programme. It has been going for a year, involves all those concerned with probation, and will help with training, research and the establishment of good practice.

[The Earl of Listowel (CB)]

My Lords, has an assessment been made of the impact of the reforms on the continuity of relationship between probationer and probation officer? In particular, there has been concern that higher-risk individuals moving to a lower risk might suffer from some discontinuity of relationship. Has there been an assessment of this important issue?

[Lord Faulks]

This is an important issue and there are no absolute answers to particular problems. However, all those involved, by their contractual obligations and their general responsibility to adhere to good practice, will try to maintain continuity where possible and ensure that there is not inappropriate transfer between the various categories.

[Lord Judd (Lab)]

My Lords, the noble Lord has emphasised that robust measures will be in place to ensure the safety of the public. However, does he not agree that the ultimate objective of the probation service is to enable people to become rehabilitated, good citizens? Will robust measures be put in place to make sure that the deliverers of service have got their eye on this, and not just on the profit?

[Lord Faulks]

I entirely agree with the noble Lord. What this transformation is achieving for the first time is the ability for offenders who have received sentences of imprisonment of less than 12 months to receive through-the-gate support for a period of 12 months and assistance before their release from prison, as opposed to being released with a mere £46 in their pocket and no support. This should be celebrated on all sides of the House and provide genuine rehabilitation, reduce reoffending and enable offenders to take their full part in society.

[Lord Laming (CB)]

My Lords, because the Minister used the word “transformation”—which it really is to the probation service as it entails enormous change—it is in the interests of us all that the service is effective and does its job well. Will the noble Lord assure the House that the Government will continue to monitor carefully how these changes are implemented so that we know that they are working at the grass roots?

[Lord Faulks]

I entirely agree with the noble Lord about the importance of maintaining proper oversight in the way in which this transformation is effected. The Government are committed to doing that, and whatever the shape of the Government after May, I am sure that that commitment will be maintained.

Freedom of Information (Designation as Public Authorities) Order 2015

Lord Faulks Excerpts

Wednesday 11th February 2015 Lords Chamber

Moved by

[Lord Faulks]

That the draft Orders laid before the House on 8 and 12 January be approved.

Relevant documents: 19th and 20th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 9 February.

Motions agreed.

Freedom of Information (Designation as Public Authorities) Order 2015

Lord Faulks Excerpts

Monday 9th February 2015 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Freedom of Information (Designation as Public Authorities) Order 2015.

Relevant document: 20th Report from the Joint Committee on Statutory Instruments

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

My Lords, the purpose of this draft order is to bring Network Rail’s public functions within the scope of the Freedom of Information Act. This is a significant extension of the Act and the latest step by this Government to expand its scope in the interests of transparency and accountability.

We are committed to achieving greater openness and transparency in order to enable the public to hold those who deliver the services affecting their day-to-day lives to account through both the Freedom of Information Act and the wider transparency agenda. In relation to that Act in particular, the coalition agreement set out this intention, stating that the Government would,

“extend the scope of the Freedom of Information Act to provide greater transparency’.

We have already taken a number of steps to meet this commitment since May 2010. In 2010, we extended the Act to academies, in 2011 to the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service, and in 2013 to more than 100 companies wholly owned by more than one public authority. The order to extend the Act to Network Rail is a further step along this road.

I recognise that some noble Lords may wish to see the Freedom of Information Act extended in further directions. There is certainly a case for its further extension, in particular to more bodies performing public functions through Section 5 of the Act. There is also a case for extending it to other bodies. For example, the Home Secretary has already announced her intention to extend the Freedom of Information Act to the Police Federation. This would require primary legislation and, in the absence of a suitable vehicle in this Parliament, the Home Secretary has registered this as a longer-term commitment which this Government intend should be fulfilled as soon as possible in the next Parliament. I hope, however, that no matter the views of noble Lords about other bodies which might be included in future, this change will itself be welcomed as a significant and positive step.

Turning to the detail of the draft order, Section 5(1)(a) of the Freedom of Information Act enables the Secretary of State to designate a person as a public authority if they appear to the Secretary of State,

“to exercise functions of a public nature”.

Where a body is designated as a public authority under this limb it is also necessary, under Section 7(5) of the Act, for the order to specify each of the body’s functions which appear to the Secretary of State to be of a public nature. Only those functions specified in the schedule to this order will be subject to the Act.

Network Rail is not a single legal entity but is made up of a group of companies instead, hence the need to designate the listed companies separately. The companies affected, which are listed in the schedule to the draft order, are Network Rail Ltd, Network Rail Holdco Ltd and Network Rail Infrastructure Ltd. Network Rail Holdco Ltd, which is the holding company for Network Rail, and Network Rail Ltd, the umbrella company for the group as a whole, are legally responsible for many of the same functions as Network Rail Infrastructure Ltd, so they are also listed in the order. In practice, however, Network Rail Infrastructure Ltd is responsible for the day-to-day delivery of Network Rail’s public functions.

The functions performed by these companies which are considered of a public nature are those relating most directly to the development and operation of the rail network. Network Rail’s network services function covers its ownership of the rail network and the related activities that it is licensed to carry out under Section 8 of the Railways Act 1993. This includes the full range of activities carried out by Network Rail which enable our railways to operate, from large-scale projects relating to the construction or improvement of new lines to more locally focused works on, for example, individual stations, bridges or level crossings. It also includes the provision of information about train movements to train operators to enable them to meet their information obligations to the public.

In addition to owning all UK railway stations, other than those in Northern Ireland, Network Rail operates a number of major railway stations under a further licence issued under Section 8 of the Railways Act. The operation of these stations also constitutes a public function and is covered by the “station services” function listed in the schedule to the draft order. Finally, Network Rail’s provision and operation of light maintenance depots for the purpose of providing services, including the refuelling and cleaning of trains, also constitutes a public function and is covered by the order.

I appreciate that this designation is quite technical but, importantly, it covers rail safety issues in connection with the networks, stations and depots. The designation will also cover information about the management of Network Rail, such as pay. The Secretary of State has accordingly concluded that all these functions are of a public nature, for a number of reasons. Of critical importance to this decision are factors such as: the extent to which these functions are performed in the public interest, given the importance of the services which Network Rail provides to the travelling public; the extent to which Network Rail receives public funding; and the degree to which Network Rail is subject to government control, and is accountable to government and Parliament.

Network Rail provides a variety of other services which do not constitute public functions and are therefore not capable of being covered through this order. As self-funding commercial services provided in a competitive market environment rather than on a monopoly basis in the public interest, it would not be appropriate to include them. In any event, it is not possible to include such non-public functions through an order made under Section 5 of the Freedom of Information Act.

Article 2(2) of the draft order is intended to provide clarity about the services which are excluded from scope on the above basis. With the exception of permitting train companies to access and use stations and tracks, the order does not cover services for which Network Rail charges fees or receives other consideration. This includes, for example, the provision of consultancy or property services, such as the letting of shop units, railway arches and advertising space, not directly related to the operation of the railways.

Network Rail representatives have been consulted about the companies and functions covered in the order. They view its inclusion under the Freedom of Information Act positively and are in agreement with the Secretary of State about the scope of the draft order. Network Rail will handle requests submitted to it as if it were the single organisation that the public generally see it to be. We welcome the constructive way in which Network Rail has engaged with the Ministry of Justice in drawing up this order.

The Secretary of State has concluded that the three companies subject to this order exercise, in the ways I have described, functions of a public nature. As a result, I believe that it is appropriate for them to be subject to the same scrutiny as those performed by other public authorities so that they will become more open, transparent and accountable. Network Rail has taken very considerable steps to become more transparent in the last few years. It already publishes large amounts of information proactively and responds to information requests on a voluntary basis, as opposed to a statutory basis. This is highly commendable. This order builds on those solid foundations by providing a legally enforceable right to request information, so I hope that noble Lords will agree that this order is an important part of the journey towards greater transparency. I therefore commend this draft order to the Committee, and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the Minister has explained, this order designates the companies considered by the Secretary of State to carry out functions of a public nature within Network Rail as subject to the provisions of the Freedom of Information Act. As far as it goes, I welcome this order, but it has taken a long time getting here, and the Government should be going a lot further in respect of freedom of information. We have heard a lot about freedom of information from the Government. As the Minister said, it is mentioned in the coalition agreement, but progress has been slow in this area over the last five years.

Calls for the extension of FOI to cover Network Rail have been made for some considerable time. I am sure the Minister is aware that the Public Accounts Committee has called for it on a number of occasions. Will the Minister name the companies that are part of Network Rail that will not be subject to the provisions? Will he tell the Grand Committee why it has taken so long for the order to get here today? Who in Network Rail was opposed to the extension of these provisions? Was that part of the reason it has taken so long? It would be useful if he could tell the Committee whether this is a settled position or one that the Government intend to keep under review to see whether the scope of the coverage could be broadened in future. As a regular train user, being able to get further information on issues such as the shambles at London Bridge and how we arrived at such poor service for passengers is most welcome.

Will the Minister say something on the Government’s general thinking in respect of freedom of information? I know he said something earlier, but more would be helpful. Do the Government have a view about private sector companies that are delivering public services being subject to FOI, particularly about the public service they actually deliver? I am thinking of train operating companies, which in some cases are delivering such a poor service. I do not know how much train travel the Minister does in London, but my experience of travelling in from south London every day is of a generally poor service from companies who largely think that they are beyond any form of accountability.

I am also an elected councillor in the London Borough of Lewisham and the ward that I represent has dreadful problems with Crofton Park railway station, for example, and neighbouring stations. I have written to the Secretary of State for Transport and invited him to take a train with me from either Brockley or Crofton Park, but I am still waiting for a reply. If the Minister bumps into his right honourable friend, perhaps he could mention to him that I am still waiting for that reply. There is such an awful service at those stations that I would love to show him what goes on there. However, I am content with the order today and welcome it.

[Lord Faulks]

My Lords, I am grateful to the noble Lord for his comments generally, although perhaps not all of them. As he knows, the Freedom of Information Act was part of the coalition agreement. It has now been extended to Network Rail in its various manifestations—those parts where there is a public function.

The noble Lord asked for a list of the subsidiaries that are not to be subject to the Freedom of Information Act because they do not perform public functions. He should stand by for a list. They are Network Rail (High Speed) Ltd, Doddle Parcel Services Ltd, Network Rail (VY1) Ltd, Network Rail (VY2) Ltd, Network Rail Certification Body Ltd, Network Rail Consulting Ltd, Network Rail Development Ltd, Network Rail Insurance Ltd and Network Rail Pension Trustee Ltd. I can give the noble Lord a little more detail of those and of the Solam group, the Station Office Network LLP, Victoria Place Shopping Centre Ltd and West Hampstead Square LLP. Those and other subsidiaries I can provide a little more detail about in correspondence, but he will realise that there are some subsidiaries that are not concerned, as I indicated in my remarks, with matters that we regard of a public nature.

The noble Lord was concerned that it has taken some time to bring forward an order of this sort, having regard to the coalition parties’ pledge. The issue has indeed been under consideration for some time. The decision to extend the Act to Network Rail was ultimately taken together with its reclassification to the public sector in September 2014. The order was prepared as quickly as possible following that decision.

On the argument about what our approach should be towards freedom of information generally and whether it is the Government’s plan to extend it further, given the limited life left of this Parliament there is of course not a lot of time to do that. It might help the noble Lord and the Committee if I explain that we agreed with the Justice Committee in its post-legislative scrutiny recommendation that contractual transparency provisions often provide a more appropriate means of ensuring openness than the formal extension of the FOI Act to contractors. Indeed, the noble Lord may have heard me explaining that in the context of the Criminal Justice and Courts Bill in respect of some aspects of what the Government do. We think that this approach strikes a balance between transparency and reducing burdens on non-public sector service providers, including charities and small businesses. Information about contracts between public authorities and private companies is already available from public authorities that are in any event subject to the FOI Act. That is the general direction of travel.

The noble Lord asked about problems with the railways generally in London, and he would probably accept that that is better directed to the Department for Transport. I can tell him that the Office of Rail Regulation is carrying out an investigation into the Christmas engineering overrun at King’s Cross and how it was managed, and a report will be published after it has been considered by the ORR board. The chief executive of Network Rail, Mark Carne, has launched an industry-wide review into the timing of major works programmes and the passenger contingency arrangements for such works. The Government welcome this review and look forward to its conclusions. If I bump into my ministerial colleague, I shall of course be sure to mention the noble Lord’s discontent with the rail service as a whole.

I think that that answers all the questions posed to me by the noble Lord, Lord Kennedy. As I promised, I can provide a little further detail of those companies not to be subject to the Freedom of Information Act. There are contractual provisions and, where they are not subject it is because, essentially, they are not performing a function of a public nature.

Motion agreed.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015

Lord Faulks Excerpts

Monday 9th February 2015 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015.

Relevant document: 19th Report from the Joint Committee on Statutory Instruments

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

Noble Lords will be aware that the Rehabilitation of Offenders Act 1974 is the primary legislation concerning the disclosure of criminal convictions and cautions. It seeks to help the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified period, as “spent”. Once a conviction has become spent, an individual is not required to declare it when, for example, entering most employment or applying for insurance. The reforms we made to the Rehabilitation of Offenders Act, which allow many convictions to become spent sooner, were commenced in March last year and widely welcomed.

We are concerned today, however, with the exceptions order to the Act. This acts as a balance to the Act to maintain public protection. The exceptions order lists activities and posts which may present a particular risk of harm—for example, regular contact with particularly vulnerable groups, such as children—and exempts them from the protection of the primary legislation. This allows certain employers, bodies and proceedings to ask for the disclosure and to take into account certain spent cautions and convictions as well as any unspent convictions. In these sensitive areas, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their fuller criminal record.

I should explain that the Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates. Standard disclosures contain details of a person’s spent and unspent cautions and convictions, where there are any such convictions and cautions, with the exception of certain older and minor convictions which are protected from disclosure. Enhanced disclosures include, in addition, any locally held information which the chief officer of police considers is relevant to the purpose of the application. These criminal record certificates are issued by the Disclosure and Barring Service.

Having set out that background, I will now explain the two amendments which we propose to add to the exceptions order. The first deals with individuals seeking counterfraud, investigatory and security management posts in NHS Protect; the second concerns individuals seeking to engage in regulated activity relating to children and vulnerable adults.

As to counterfraud, investigation and security management in the NHS, staff in the NHS undertaking the investigation of fraud, bribery and corruption, and the safeguarding of patients, staff and NHS assets, will have access to confidential information and medicines. They may also have contact with vulnerable persons. In addition, those who are engaged in counterfraud investigations have responsibility for the preparation of prosecutions and can be called to give evidence in court proceedings. In these circumstances their character history is relevant to the issue of witness credibility, which can prove critical in obtaining successful prosecutions.

These activities clearly give rise to public protection considerations and justify the disclosure of certain spent cautions and convictions so as to determine the suitability of an individual applying to do this work. To date, this area of activity has been dealt with under a wider provision in the exceptions order, which covers working in health services more generally, including contact with patients. Investigations into fraud and other criminal activity in the health service may not involve patient contact but will nevertheless require access to sensitive material. Recent changes to counterfraud and security management in the health service mean that certain administrative staff may now assist in investigations. Consequently, they will have access to some sensitive material. In the light of these developments, we consider that there should be a distinct provision in the exceptions order which not only deals with the new administrative group of staff undertaking this work but covers the area of activity so that the exception is both precise and clear.

The second amendment in this order relates to regulated activity. While this area of work is, of course, already covered in the exceptions order, there have been changes made to the definitions of regulated activity relating to children and vulnerable adults. The Protection of Freedoms Act 2012 made changes to the definitions set out in the Safeguarding Vulnerable Groups Act 2006. We now need to reflect those changes in this instrument. The exceptions order currently covers all individuals engaged in regulated activity relating to children, and all individuals engaged in regulated activity relating to vulnerable adults as defined prior to the amendments made by the 2012 Act, which in the most part narrowed these definitions. The earlier definition of regulated activity was kept for the purposes of the exceptions order, as the Government had made a commitment to ensure that employers would still be able to obtain criminal record certificates for those individuals who no longer fell within the amended definition of regulated activity.

However, while the 2012 Act generally reduced the scope of regulated activity, its definition of relating to children was also expanded to a limited extent. This remains the case today. For example, a person who provides healthcare or personal care on an occasional basis now comes within the definition of regulated activity relating to children. These individuals would not previously have been covered because this activity would not have met the relevant frequency conditions for it to fall within the definition of regulated activity relating to children.

In addition, the Safeguarding Vulnerable Groups Act 2006 provides the Secretary of State with the power to amend the definitions of regulated activity in that Act by order, subject to the affirmative procedure. In the future, it is therefore possible that the definitions of regulated activity could be amended to cover new roles. These would not then be covered by the current provision in the exceptions order, which refers to the definitions of regulated activity as they were at a fixed point in the past.

This amendment will therefore ensure that all those engaged in regulated activity can be asked about unprotected cautions and convictions when their suitability for this work is being assessed and that that remains the case for any future changes to the definitions of regulated activity made by order under the Safeguarding Vulnerable Groups Act 2006.

I assure noble Lords that any such changes to the definition of regulated activity will be subject to debate in the House. I therefore believe it is unnecessary for an express amendment to made to the exceptions order for each new role added to that definition on the basis that any debate in respect of the order amending the definitions of regulated activity would provide the House in any event with the opportunity to consider the appropriateness of such changes, including the implication of those changes in respect of the ability of employers to seek information about certain spent convictions and cautions.

These amendments, while relatively minor in scope, are important for public protection purposes. They make sure that all those who are responsible for protecting the NHS and all those engaging in regulated activity are properly covered by the exceptions order. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I will not detain the Committee very long. As the Minister told the Grand Committee, this exceptions order makes amendments in relation to those concerned with counterfraud work, the investigation of offences and security management and to current regulated activities under the Safeguarding Vulnerable Groups Act 2006. I have read the order and the Explanatory Memorandum very carefully. I am content with this order which takes account of legislative changes and ensures that individuals in a position of trust, as defined in the order, can be asked about their unprotected spent convictions and cautions. This is a very good balance between helping individuals who have offended to return to meaningful work and the need to protect the public, as the Minister said. This is a very sensible move, and I am very happy to support the order before the Grand Committee today.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for his constructive and helpful observations. As he said, this is not a party-political issue. These are necessary and proportionate amendments endeavouring to strike the balance in a difficult area, and they form part of this Government’s—I dare say any Government’s—ongoing commitment to keep safeguarding measures in step with developments elsewhere. I commend the draft order to the Committee.

Motion agreed.