Data Protection: Legislation
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Baroness Ludford
To ask Her Majesty’s Government what is their assessment of the case for updating domestic data protection legislation in the light of the reported comments by the Information Commissioner that European Union law requiring notification of data breaches is three years away.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government do not have any plans to update domestic data protection legislation in respect of data breach notification in advance of agreement and implementation of the proposed EU regulation. The Government take the protection of personal data very seriously and believe that a strong system of breach notification will be an important element of a revised EU data protection framework, but that the changes should be made only once the package has been agreed in full.
Baroness Ludford (LD)
I thank my noble friend for that Answer. However, should the Government not act with greater urgency to incentivise organisations, from which we have seen a series of major scandals of lost data—whether through lost discs or laptops, or hacking—such as from HMRC, Sony, or health organisations? Would it not be salutary for them to have to report major breaches to the regulator and to customers, who might suffer fraud or identity theft? We cannot wait possibly three years until we get EU law. We need to prioritise this so that we encourage companies to get their act together on security.
Lord Faulks
In fact, companies, conscious of their reputation, do—and quite rightly, should—report any breach of security, as indeed Sony did. That would be good practice. The proposed regulation would provide an obligation to notify the breach no later than 72 hours after it occurs to the ICO or equivalent in the relevant country or the subject, but only where there has been a serious breach. I entirely accept the noble Baroness’s concern, but these things must be approached as a whole, which is what the Government intend to do.
Lord Pearson of Rannoch (UKIP)
My Lords, have we become incapable of organising our own data protection? Why must we wait for the famous and inevitable incompetence of the EU to make a mess of it for us?
Lord Faulks
Data do not respect boundaries in quite the same way that the noble Lord does. We do indeed take a number of steps to protect our data—the ICO has a number of powers which it exercises regularly to control data. However, it is appropriate that our data protection legislation should be in harmony with that of the rest of the European Union.
Lord Deben (Con)
Would my noble friend not accept that it would be quite difficult to explain to companies which work all the way across the European Union that we were so fed up with the European Union that we did not do the sensible thing for them, which is to do through Europe the things that are best done in Europe?
Lord Faulks
My noble friend takes a slightly different view of this country in Europe. Certainly that is the approach that the Government take, although of course they make a major contribution themselves to the development. Indeed, I shall be attending on Friday a meeting at which we will discuss the final version of European data regulation, or at least the partial general approach to it over the forthcoming year.
Lord West of Spithead (Lab)
My Lords, last year 81% of firms above SME level lost data and had data breaches, primarily by cyberattack, and the average cost to each firm was about £1.5 million to get that sorted out. Our voluntary agreement in terms of telling people that they have been attacked seems to be working well, but at board level there are still companies that do not have a CIO or board responsibility for data. Does the Minister not agree that that absolutely has to be done in every company if we are to stop this sort of thing happening?
Lord Faulks
The noble Lord makes a valuable point. He will know that the ICO monitors security breaches, and that if it finds that an organisation has failed to put in place measures to avert a security breach, it has powers to issue monetary penalties of up to £500,000. None the less, I entirely accept the essence of what he says.
Lord Kakkar (CB)
My Lords, I declare my interest as professor of surgery at University College London. What assessment have Her Majesty’s Government made of the potential implications for biomedical research of the proposed revision to the data protection regulations from Europe?
Lord Faulks
The noble Lord makes a valuable point. One of the difficult tasks that have to be performed in assessing the appropriate stance to take on data is ensuring that medical research is not in any way compromised, while at the same time making sure that individuals’ data are adequately protected. This issue does not have a simple answer, but it is very much a relevant consideration.
Lord Foulkes of Cumnock (Lab)
Has the Minister seen the interesting data published today entitled Government Expenditure & Revenue Scotland, which shows exactly what I predicted in this House a few weeks ago—that if we had voted for an independent Scotland it would by now be bankrupt?
Legal Services Act 2007 (Warrant) (Approved Regulator) Regulations 2015
Lord Faulks Excerpts(10 years, 4 months ago)
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Lord Faulks
The Grand Committee do consider the Legal Services Act 2007 (Warrant) (Approved Regulator) Regulations 2015.
Relevant document: 22nd Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I shall speak also to the draft Legal Services Act 2007 (Warrant) (Licensing Authority) Regulations 2015.
By way of background, as noble Lords will know, the Legal Services Act 2007—the 2007 Act—governs the regulation of legal services in England and Wales and established a new regulatory framework for legal services. The 2007 Act enabled the widening of the legal services market to allow for different regulators to regulate legal services and for different types of legal businesses to provide those services.
The intention of the 2007 Act was to put the consumer at the heart of legal services and deliver a more effective and competitive market. It established a number of regulatory objectives which the Legal Services Board and the approved regulators must promote, including protecting and promoting the public interest and the interests of consumers, encouraging an independent, strong, diverse and effective legal profession and promoting competition in the provision of legal services by authorised persons.
The Legal Services Board was established under the 2007 Act to be the independent oversight regulator with responsibility for overseeing the approved regulators. Under the 2007 Act, approved regulators are under a duty to act in a way that is compatible with the regulatory objectives set out in the Act. Where acts or omissions of an approved regulator are likely to have an adverse impact on these regulatory objectives, the LSB has a range of enforcement powers that it can exercise, including issuing performance targets and directions, public censure and imposing financial penalties.
Where an approved regulator’s acts or omissions cannot be adequately addressed by these other enforcement powers the LSB can, in appropriate cases, issue an intervention direction providing for certain functions of the approved regulator to be exercised by the LSB or a person nominated by it; or it can recommend to the Lord Chancellor that he cancel the approved regulator’s designation. Similarly, the LSB may recommend that the Lord Chancellor cancel an approved regulator’s designation as a licensing authority in relation to one or more reserved legal activities, but only if it is satisfied that it cannot address the issue through its other enforcement powers. This is intended to ensure that the power to issue an intervention direction or to cancel a designation remains reserved for the most serious or persistent infractions.
Where an intervention direction is made under Section 41 of the 2007 Act or an approved regulator’s designation is cancelled under Section 45, the LSB or a new regulator will assume some or all of the approved regulator’s functions. In order to provide continuity of regulation in these circumstances, the LSB, or a person nominated by it, can apply for a search warrant for the approved regulator’s premises under Sections 42 or 48, as appropriate.
Section 79 makes similar provision for licensing authorities to that made by Section 48 for approved regulators, in that it makes provision for search warrants which may be issued following the cancellation of a designation. It applies where a body has had its designation as a licensing authority cancelled, either automatically under Section 75 of the Act because its designation as an approved regulator has been cancelled under Section 45, or by an order made by the Lord Chancellor under Section 76 of the Act.
The 2007 Act permits the LSB to apply for a warrant in certain circumstances authorising it to enter and search the premises of an approved regulator or licensing authority and take possession of any written or electronic records found on the premises. There are two separate powers under the 2007 Act which are set out in Sections 42 and 48. These allow search warrants to be issued for an approved regulator’s premises, and one power in Section 79 which allows search warrants to be issued for a licensing authority’s premises. Regulations must be made by the Lord Chancellor under each of those three sections specifying further matters which a judge or justice of the peace must be satisfied of or have regard to before issuing a warrant, and also regulating the exercise of a power conferred by the warrant. That is the purpose of these two sets of regulations before the Committee, one of which relates to approved regulator warrants and one to licensing authority warrants.
The intention in exercising a warrant under Sections 42, 48 or 79 will be to provide continuity of regulation in specific circumstances of regulatory failure by an approved regulator or licensing authority. If both sets of these regulations come into force, they will enable the LSB or a person appointed by it to apply for warrants as part of its enforcement strategy. As required under the 2007 Act, the Lord Chancellor has also formally consulted the LSB about the making of these regulations.
Finally, I regret to say that there is a small error in the version of the approved regulator regulations before the House—the result of a computer glitch. In Regulation 1(2) the paragraph lettering is incorrect in that it runs through from (a) to (g) rather than restarting for each definition. I take it that no confusion has been caused. This error will be corrected in the final “made” version of the regulations.
In conclusion, these regulations enable the LSB or a person appointed by it to apply for a warrant as part of its enforcement strategy, enabling the LSB to assume effectively the functions of the relevant regulator. Overall, this has the potential to act as a deterrent against poor regulation, to improve the standard of regulatory practice and to strengthen the LSB’s regulatory powers, leading to greater consistency and better protections for consumers. I commend both sets of regulations to the Committee and beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, I can say at the outset that we are not opposing either of these two sets of regulations. As the noble Lord, Lord Faulks, has outlined for the Grand Committee, the Legal Services Act 2007 permits the Legal Services Board to apply for a warrant in certain circumstances authorising it to enter and search the premises of an approved regulator or licensing authority. The Lord Chancellor must make regulations specifying further matters which a judge or justice of the peace must be satisfied of, or have regard to, before issuing a warrant and regulating the exercise of a power conferred by a warrant.
I am aware from the guidance that a previous draft of these regulations was originally laid in February 2010 and then withdrawn. That was at the end of the last Parliament and here we are, five years and one month later at the end of this Parliament, with another set of regulations that we are seeking to put through. Quite a lot of time has elapsed. I understand and accept that sometimes when things are drafted, that can highlight problems and defects, but it would be useful if in his response the noble Lord could outline in some detail why have we waited so long for these regulations to be brought back. We are literally in the last few days of this Parliament. It would also be helpful if he could say something about the nature of the problems which have been uncovered.
In looking at the regulations and the helpful Explanatory Memorandum, it appears to me that they have been quite tightly drawn up to limit the circumstances in which they can be used and to ensure that the issue of these warrants is a matter of last resort. That seems right and sensible to me. However, is the noble Lord satisfied that the regulations are proportionate and strike the right balance? Have any problems been caused to the Legal Services Board in exercising its regulatory duties over the past few years by not having these powers? If he is satisfied that there are no problems, perhaps he would inform the Committee of how he has come to that conclusion. With those points, I am happy to support the regulations.
Lord Faulks
I am grateful to the noble Lord for his consideration of these regulations and for his observations in general about them. He asked why there has been effectively a delay in these matters and also asked me to say a little more about whether I was satisfied with the various safeguards which exist.
In a sense both those questions have a common answer, which is that these powers are very much ones of last resort. They follow from the Act; Parliament expressed the view that there should be this residuary power but the circumstances in which the super-regulator—if one can call it that—would actually wish to step into the shoes of the regulator are very hard to foresee. I believe Parliament felt that there should be that power at least, hence the existence of the regulations. This is not, I think, something the absence of which has caused the LSB any difficulty at all in the delay during the five years since the replacement regulations were drafted.
The powers are not to be used, of course, until after all the other LSB powers have been utilised, and the noble Lord and the Committee will realise that there are a range of other powers short of these last-resort powers which the LSB can exercise. It was in those circumstances that these powers were prioritised below other more immediately required orders such as those required in the implementation of the Act and subsequently those recommended by the LSB. As outlined in the memorandum accompanying the regulations, we have produced 11 other legal services statutory instruments since 2013, which perhaps gives the Committee an idea of the scale of recent work. We have therefore prioritised our resources.
Progress on the approved regulator draft has continued steadily. For example we have consulted twice on the content of the regulations with the stakeholders—and there are a considerable number of stakeholders—who will be affected by them. We have made numerous changes as a result and taken their comments into account. The licensing authority regulations have also been drafted during this period allowing the two sets of regulations to be consulted on and progress through Parliament together, given how similar they are. I think the noble Lord will understand that regulators were likely to express a view as to whether the super-regulator should be allowed these powers and if so the appropriate restrictions on them. There is perhaps, one might say, a healthy tension between the interests of the regulators and the super-regulator, which, I think, provides some explanation.
In terms of the safeguards, the word “necessary” or “desirable” is an important one for the exercise of a regulatory function. A judicial officer must be satisfied before issuing a warrant. Specifically, the regulations allow a judicial officer to issue a warrant only if satisfied that the LSB has made reasonable attempts to obtain the records sought by other means. This would be likely to result in the records being removed, hidden, tampered with or destroyed. There is also provision to prevent repeat applications where another of the same substance was refused. There are other safeguards providing for the return of seized documents. A key safeguard is that a warrant may not be used to take possession of or copy records subject to legal professional privilege. That matter was drawn to the attention of the regulators by the Bar Standards Board as a matter of importance and that finds its way into the regulations, as the noble Lord will have seen. Any such record which is taken or copied in error must be returned.
These regulations were drafted in consultation with the approved regulators, whose suggestions were incorporated in the way that I have indicated to achieve the desired balance. I hope I can satisfy the Committee that there are these appropriate safeguards. I do not think it could be said that the LSB is champing at the bit to exercise these regulations—it is unlikely it will do so—but Parliament has envisaged that it should have its power. By providing these regulations, albeit they have taken a little time to produce, we are acting in a way that is faithful to Parliament’s intention. In those circumstances, I hope the regulations can be approved.
Legal Services Act 2007 (Warrant) (Licensing Authority) Regulations 2015
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (Warrant) (Licensing Authority) Regulations 2015.
Relevant document: 22nd Report from the Joint Committee on Statutory Instruments
Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2015
Lord Faulks Excerpts(10 years, 4 months ago)
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Lord Faulks
That the Grand Committee do consider the Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2015.
Relevant document: 21st Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
The draft rules amend the Special Immigration Appeals Commission—which I will call SIAC—rules of procedure, giving effect to two provisions contained within the Immigration Act 2014. These are straight- forward—being consequential to the new Act—but, none the less, important amendments. One will amend a current right of appeal to SIAC and introduce a new power of statutory review to ensure that all cases that should be dealt with by SIAC remain there, while the other will tighten up its bail processes.
Your Lordships will be aware from previous debates that SIAC is a specialist tribunal dealing with the most serious immigration and asylum appeals where there are issues of national security or other matters of public interest. For instance, it has heard cases under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists. SIAC heard the deportation case of Abu Qatada, for example. Unlike other immigration tribunals, it has processes in place designed to control the disclosure of material which, if released into the public domain, could be damaging. These are its closed material procedure and its use of special advocates, whereby some of the Home Secretary’s evidence is withheld from the appellant and his representatives. The purpose in both instances is to avoid compromising intelligence sources and the UK’s national security. The appellant’s interests are instead represented by a special advocate—a lawyer of the highest experience and ability and who has access to all the material withheld from the appellant.
The Immigration Act 2014 is being implemented by the Home Office on a phased basis, starting last July, with full and final implementation on 6 April this year. It contains a number of provisions to improve and streamline immigration processes. We have already considered and debated all of the Act’s provisions during its passage last year, so today is not about revisiting those, but rather about the consequential procedural rule amendments that are now required.
The Immigration Act provides that there will be a right of appeal to a tribunal only where fundamental rights are involved. From next month, the Act will remove the current right of appeal to SIAC against deportation decisions where the individual does not claim that removal would breach their human rights. Although it is likely that an individual will claim deportation would breach their human rights, there may still be cases where an appellant does not want to challenge their deportation on that basis, but rather that the reasoning behind the deportation decision itself is flawed. The Act allows for that by introducing a further power of statutory review to SIAC’s jurisdiction.
The number of cases that we are talking about is likely to be very small indeed. SIAC is a low-volume jurisdiction: it currently has only 17 appeals, although it has some other work. Although this does not represent a significant extension to the use of the closed material procedure, we must still make provision to allow SIAC to continue to consider these cases. Without the new review, the only route of challenge once the statutory appeal is removed would be by way of a judicial review to the High Court. This would not be satisfactory for two reasons. First, the High Court has only limited provision for the closed material procedure. Secondly, SIAC is the tribunal with the greatest judicial and panel member expertise in immigration matters and national security cases, and is the specialist in deciding and using closed material procedure.
SIAC is a superior court of record. It is presided over by a senior and experienced judge of the High Court, so this is not a lesser option. SIAC already deals with two other types of statutory review: to set aside a direction by the Home Secretary to exclude a non-EEA national from the UK and to set aside a decision by the Home Secretary in relation to naturalisation and citizenship applications. In both instances, SIAC is required under primary legislation to apply the same principles that would apply in judicial review proceedings; namely, the principles of natural justice and general public law. This further statutory review will also apply these principles, so SIAC will, as it does now, give full and proper consideration to any request for the closed material procedure.
In mandating those two statutory reviews in SIAC, Parliament has decided that it is the appropriate forum for all immigration challenges involving matters of national security or other public interest. I am sure noble Lords will agree that we would not want to go back on that decision when deciding whether to approve this amendment today.
The Immigration Act also tackles repeated bail applications, which are often made in an effort to delay someone’s removal from the United Kingdom. Before the new Immigration Act there was no limit on the number of bail applications that someone could make, and an identical application could be filed the day after one had been refused. These all currently require a hearing, which can be costly and time consuming. From April, these draft amendment rules will allow SIAC to dismiss a repeat application without a hearing if it is made within 28 days of an earlier unsuccessful application and there has been no material change in the applicant’s circumstances. Similar rules are in place in the First-tier Tribunal Immigration and Asylum Chamber, as required by the Immigration Act provisions which were commenced in October last year, so these amendments provide parity in the rules of procedure.
The draft rules have been produced on behalf of the Lord Chancellor following a short period of consultation by the Home Office and the Ministry of Justice with several of the bodies most familiar with SIAC, including the Law Society, the Bar Council, special advocates and the SIAC chairman and judiciary. We are therefore satisfied that they meet the needs of SIAC users and adjudicators.
The rules before us represent straightforward changes but, as I have outlined, they are critical in preserving our national security. Decisions made by the Home Secretary in reliance on sensitive and potentially damaging material should continue to be challenged at SIAC rather than the High Court. SIAC’s hearing time is best saved for dealing with such matters and for the appellants who genuinely need it, rather than being spent on unmeritorious applications for bail. I therefore commend these rules to the Committee, and I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, as the Minister has outlined, these rules make amendments to bring the 2003 rules into line with the provisions of the Immigration Act 2014. The first change to the rules is the removal of the current right of appeal to SIAC against deportation decisions where there are no human rights grounds and the application of a new section of the Special Immigration Appeals Commission Act 1997 allowing SIAC to deal with these by way of a statutory review. Appeal rights properly and rightly remain for human rights matters. Will the Minister comment on whether any thought has been given to whether the restriction of these appeal rights is likely to increase the number of cases claiming human rights as a reason? Has any further work been done on the potential cost in that case? Have the Government taken account of those costs when they looked at the savings they think they will make?
On the forum for appeals, we are always concerned when there is an extension of the use of closed material procedures. Will the Minister say something further about the matters that will be dealt with by SIAC rather than the High Court by a process of statutory review rather than by judicial review? I assume that the terms will be of a similar effect. I was pleased when the Minister confirmed that asylum will be looked at on human rights grounds, using the same criteria as the High Court. I agree with his comments about the members of the judiciary who work in that court.
On the question of bail, some concerns have been raised as to what constitutes material change. Could the Minister say a bit more about that as well? I get his point about renewed bail applications being permitted only when there has been material change. I assume that I am right in thinking that a procedural defect would be a very serious material change. Could he outline any further things that would constitute material change? With that, I accept that these are important and serious matters and matters of national security and I am happy to support the rules.
Lord Faulks
I am grateful to the noble Lord for his observations and for his acceptance, for the most part, of what lies behind these rules. He makes a valuable point in asking whether there could be a perverse incentive for somebody to claim that there were human rights violations and therefore get themselves within SIAC. That is, with respect, a little unlikely. In fact, the purport of the regulations is to embrace those cases where national security is an issue but the person is not relying on human rights grounds. Classically, that would happen on the grounds of Article 3 or Article 8 of the European convention. It has to fall within SIAC because of the national security arguments; it is not a simple incantation of a human-rights based challenge.
I caused some inquiries to be made as to precisely what cases might come within the regulation when somebody was not claiming human rights grounds and would therefore be covered by this measure. I was given to understand that the likely applicant would be someone who was before the court in relation to espionage, who would not want to rely ex hypothesi on Articles 3 or 8 but might want to challenge the underlying assertion that they were, in effect, a spy. In that way, they would still come within the national security ambit of SIAC, involving all the closed material procedures with which we are familiar—the special advocates and well travelled range of things—and not rely on human rights matters.
The noble Lord asked about costs. I do not believe that the human rights element of itself would cause additional costs. In relation to the rules amendment costs, there are minimal costs on the work of drafting and laying the amendment rules and no costs to the SIAC administrator or Her Majesty’s Courts and Tribunals Service in introducing this new statutory review. They already deal with other statutory reviews, so forms, guidance and IT are not affected. The bail amendments will reduce costs for SIAC, because they will save hearing time from being used on unmeritorious applications.
The question of material changes is a fairly well travelled doctrine in terms of bail applications generally, and judges will be familiar with that. It involves something material, as the adjective suggests, not just a minor change that warrants an application—something that may have an effect on personal circumstances, such as their address, giving the court grounds for thinking that the risk was somewhat less than originally appreciated. It might be a matter for SIAC to give further guidance, but of course material change of circumstance is the sort of thing that courts are used to addressing in a number of circumstances. Indeed, the noble Lord may be familiar with it in his guise as a magistrate, with frequent bail applications—although I may be wrong in thinking that he is a magistrate. It might be something that affects the range of considerations which the tribunal thought important when the previous bail application was decided. I would be reluctant to specify precisely what might constitute material circumstances, but it does not mean de minimis matters, things that do not really alter the basis of the application. It would be a matter for the court on the particular facts of the case to decide whether there had been a material change.
I hope that, with those assurances, the Committee is content that the rules should proceed, and I beg to move.
Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015
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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.
Mental Capacity Act 2005 (Select Committee Report)
Lord Faulks Excerpts(10 years, 4 months ago)
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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(10 years, 4 months ago)
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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
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.
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
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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
Court Fees
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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(10 years, 5 months ago)
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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.