Lords Spiritual (Women) Bill
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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.
Freedom of Information (Designation as Public Authorities) Order 2015
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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.
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015
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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.
Freedom of Information (Designation as Public Authorities) Order 2015
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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.
Judicial Pensions Regulations 2015
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Lord Faulks
That the draft regulations and order laid before the House on 8, 11 and 17 December 2014 be approved.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 29 January
Legal Services Act 2007 (The Law Society) (Modification of Functions) Order 2015
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (The Law Society) (Modification of Functions) Order 2015.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, as noble Lords may know, and by way of background, the Law Society of England and Wales is an approved regulator under the 2007 Act. The Solicitors Regulation Authority, the SRA, is the independent regulatory arm of the Law Society, which regulates all forms of solicitors’ practices and alternative business structures—ABSs.
Recognised bodies and ABSs are subject to the same authorisation process by the SRA, which is a one-off authorisation followed by ongoing supervision. In contrast, because of the requirements of the Solicitors Act 1974, sole practitioner solicitors are required to have annual endorsement of their practising certificates. This difference results in regulatory inefficiencies and increased costs for both sole practitioner firms and the SRA. The current differences in regulation also make it more difficult for solicitors to move between one type of practice and another. There are also differences in the way in which the SRA can take regulatory action where difficulty arises with a sole practitioner firm as compared with other firms.
This order therefore removes the requirement in the Solicitors Act 1974 for a solicitor who is a sole practitioner to obtain an annual endorsement on their practising certificate. The order therefore establishes a single method of authorisation and regulation of all solicitors. The effect of the order is to remove the concept of a sole practitioner from both the Solicitors Act 1974 and the Administration of Justice Act 1985 and instead create the concept of a “recognised sole solicitor’s practice”.
Recognised sole solicitors’ practices will be subject to the same type of authorisation and ongoing supervision process as recognised bodies and alternative business structures. This order is therefore a welcome deregulatory measure. It comes before the Committee following a public consultation by the Legal Services Board. No objections were raised during this process. The order was welcomed by the Sole Practitioners Group, which advised that it welcomed efforts to reduce the current burden of regulation of sole practitioners and welcomed the harmonising effect of the order.
In conclusion, the Legal Services Board is satisfied that there will be no lessening of consumer protection as a result of this order which will make it easier for the SRA to regulate solicitors more effectively and proportionately. I commend the order to the Committee, and I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, I do not intend to detain the Grand Committee for long on any of the orders before us today.
As the noble Lord, Lord Faulks, has explained, this order removes the requirement on a solicitor who is a sole practitioner to obtain an annual endorsement on their practising certificate and so establishes a single method of authorisation and regulation for all solicitors. That is welcome and we are very happy to support it from these Benches.
I notice from the impact assessment that there is a small financial saving to solicitors as a consequence of this change. It is not huge and would not be the dominant consideration in making these changes. However, I see the benefits of making the change in the methods of authorisation and regulation.
I note from the impact assessment that the proposal was originally consulted on between December 2010 and March 2011, but nothing was taken forward. Three years later a policy statement was issued, which again attracted support. Here we are at the end of January 2015 with the measure finally being brought into effect. Can the noble Lord shed some light on why four years have passed since this measure was first suggested and subsequently enacted? However, I am content to support the order.
Lord Faulks
I am grateful to the noble Lord for his observations. On his second point, these measures were, as he said, first proposed in 2010. Following a detailed consultation, the SRA stopped work on these proposals as it had to concentrate on various other priorities, including preparing to be designated as the licensing authority for alternative business structures which was, as he will appreciate, a fairly major piece of work. The SRA took up this work again last year in conjunction with my officials, and this order has been brought before the House at the earliest opportunity. The delay was because of other priorities rather than for any sinister reason. As to the noble Lord’s question on cost, this measure will remove some costs and bureaucracy. One hopes that that will be passed on in due course in some way to the client. I am grateful for those observations and I beg to move.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015
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Lord Faulks
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the regulations before us today are needed to accompany the commencement of Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO as it is commonly called. Section 85 has not yet been commenced. It provides for all fines and maximum fines in the magistrates’ courts of £5,000 or more to become unlimited. This includes the level 5 maximum on the standard scale of fines and all exceptional summary maxima for environmental and health and safety offences, which can be as high as £50,000. It means that magistrates will be able to impose, if they so choose, a higher fine than they previously could.
I should make it clear that the way in which magistrates calculate the appropriate fine to be imposed in each individual case will not change. Sentencing decisions in individual cases are a matter solely for our independent courts. Parliament sets the maximum penalty for an offence and the courts sentence within that maximum, taking account of all the circumstances of each case. Where the sentence is a fine, the courts are required to take account not only of seriousness, but the known financial means of the offender. How the amount of a fine relates to these factors is covered in some detail by the sentencing guidelines issued by the Sentencing Council, which is also independent of government. None of these things will change.
I should also make it clear that dangerous criminals will always belong in prison, and there are others who will need to be made subject to community penalties. However, it is important that magistrates, who sentence the majority of offenders who come through our courts, have the power to hand down the appropriate fine with the severity they see fit for the most serious cases that come before them. They include summary crimes such as making and selling realistic fake guns, assaulting a police officer, using threatening behaviour and not making a property safe before renting it out.
Other offences that will be liable to unlimited fines in the magistrates’ courts will be harassment without violence, the sale of alcohol to children, and the unauthorised sale of football tickets, an offence introduced to help prevent violence at matches. The Government believe that it is important that magistrates should not be limited in the amount they can fine for serious offences such as these. Where appropriate, the courts will of course continue to be able to impose custodial sentences.
These regulations do not amend the text of every piece of legislation that provides for an offence to be subject to a maximum fine expressed variously as level 5, “the statutory maximum” or “the prescribed sum”, all of which mean £5,000. When Section 85 comes into force all these offences will automatically become fines of an unlimited amount. However, these regulations were needed to amend the text of legislation governing fines expressed as numerical amounts of £5,000 or more. The noble Lord, Lord Kennedy, may have seen the considerable extent of the draft statutory instrument carrying myriad different offences. There was a considerable amount of work for parliamentary counsel to try to tie up these issues.
As well as removing the £5,000 cap, Section 85 allows the Secretary of State to specify any exceptions in regulations. These exceptions are included in the draft regulations that we are debating today. But not only do they exempt certain offences from the general provision removing the £5,000 cap, they need to make additional provision if Section 85 is to work properly in practice. For example, some penalties are currently expressed as a proportion of £5,000. If we commenced Section 85 without amending such provisions, they would become meaningless as we cannot have legislation specifying a proportion of an unlimited amount, so we need to make changes there too.
These regulations achieve a range of objectives that will allow us to commence the LASPO provision. In total they do the following. First, they disapply the removal of the £5,000 cap in some cases, mainly for customs and excise offences, and substitute alternative figures, generally £20,000. These can be found listed in Schedules 1 and 2.
Secondly, they deal with penalties that were previously expressed as a proportion of level 5. These are generally daily fines. The regulations deal with these by setting an alternative figure for them to be calculated against. So, for example, instead of being expressed as a fifth of level 5 they are changed for the time being to a fifth of £5,000, although the provisions are future-proofed so this amount could rise in line with increases to other fines. These changes can be found listed in Schedule 3.
Thirdly, as I have already mentioned, they make specific provision for fines currently expressed as a numerical amount of £5,000 or more by providing for these to become a fine of any amount. Similar provision is made for powers to create offences subject to such fines. These are listed in Schedule 4.
Fourthly, they deal with certain non-criminal penalty schemes which operate by reference to the amount of a fine on summary conviction. Changes here will make sure these continue to work once Section 85 is in force. These are listed in Schedule 5.
I hope that noble Lords will appreciate that the Government needed to trawl all legislative provisions to check whether changes needed to be made before we could commence Section 85. This was, as is apparent, a significant task, which accounts for the time it has taken to compile the regulations and for their considerable length. I hope that the Committee will consider these regulations, which are necessary in order to commence the provision in LASPO that Parliament has already provided. I appreciate that they are lengthy and complex, but they are essential before we can give magistrates the increased powers that Parliament intended. I therefore commend these draft regulations to the Committee.
Lord Kennedy of Southwark (Lab)
My Lords, as the Minister has explained to the Grand Committee, the regulations before us today will, when Section 85 of LASPO is enacted, remove the cap on fines imposed in magistrates’ courts on summary conviction. The regulations are to ensure the section works sensibly, and they provide for some exceptions.
I have a couple of points to raise with the Minister, but generally I am happy to offer our support to these regulations. I noted in paragraph 3.3 of the Explanatory Memorandum that an order was laid and then withdrawn in respect of levels 1 to 4 fines and that there are no plans to reintroduce it in the foreseeable future. It would be useful if the Minister could tell the Grand Committee a little bit more about that.
Paragraph 7.7 in the Explanatory Memorandum explains that magistrates are obliged to follow the sentencing guidelines, unless that would be contrary to the interests of justice. I know this is an aside to the regulations today, but I have recollections from my time as a magistrate sitting in Coventry. I used to do a lot of fines on Thursday mornings. We would spend a lot of time with people who had been fined by other magistrates’ courts and could not pay the fine. It was a ridiculous situation with fines often grossly disproportionate to the person’s means. It was not a proper punishment because they could not pay the fines. We all want to see punishments handed out that actually punish offenders on conviction, but they also have to be realistic to have the required effect. Does the department have any plans to ask the Sentencing Council to look at fines and their suitability as punishment in terms of their scope, size et cetera? With that, I am happy to support the regulations before us today.
Lord Faulks
I am grateful to the noble Lord, Lord Kennedy, for his observations in relation to these regulations and for his agreement on the part of the Opposition in relation to them. It is true that we were responsible for laying regulations in June 2014 and then withdrawing them. They would originally have uprated the amounts of levels 1 to 4 fines as well as level 5 fines. The Government took the view that further consideration was needed in relation to the appropriate amounts at levels 1 to 4, but the priority was to give magistrates the power to deal with the most serious level 5 offenders, which is why we have taken the most important step first in removing the £5,000 barrier. We are giving further consideration to levels 1 to 4 fines, which cover the less serious offences. We are also giving consideration, by way of a review, to driving offences and penalties, many of which would be within levels 1 to 4, although an offence such as driving without insurance is a level 5 offence. Any proposal to change these fine levels requires agreement from both Houses of Parliament. It does not mean—if that was the inference, and I am not suggesting it was—that we are taking a soft line on levels 1 to 4 offences, it is simply a question of prioritising level 5.
The noble Lord identified the dilemma that faces many sentencing tribunals in finding the right penalty and, in the case of repeat offenders, the unreality sometimes of having to impose fines that reflect both the seriousness of the offence and the sentencing guidelines. The problem is very often that those who commit these offences do not necessarily have the means to pay, the fines become unrealistic, and whether it is appropriate to continue imposing fines at that level becomes questionable.
Of course, the Government do not purport to tell sentencing tribunals what is appropriate in a particular case, and among the matters taken into consideration will be the means of the particular offender, not withstanding the guidelines, which are only guidelines. The courts will sometimes have other options, such as community penalties or even imprisonment, if the imposition of fines that are not being paid is becoming unrealistic. It is a matter for the individual tribunals. The Government respect the independence of the judiciary in this and any other field. I understand the dilemma the noble Lord identifies, but we feel that this change will give magistrates in appropriate cases the power to impose large fines, often on people who are, in fact, in a position to pay them.
The Secretary of State can ask the Sentencing Council to consider amending guidelines on specific matters if necessary, and the council is independent of the Government. Guidelines already cover in detail how fines are set in relation to income, and we like to follow carefully the way the Sentencing Council works and its sentencing guidelines. In fact, I am attending one of its meetings tomorrow, although not on this particular subject. It is important that the Government are at least aware of what it is doing. I hope that the noble Lord is satisfied with the answers to his questions.
Judicial Pensions Regulations 2015
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Lord Faulks
That the Grand Committee do consider the Judicial Pensions Regulations 2015.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the regulations before us today create the New Judicial Pension Scheme 2015—NJPS—establishing the pension scheme itself and also providing for its governance structure and the operation of its employer cost cap. The NJPS is a defined benefit scheme which provides a guaranteed pension based on average pay over a judge’s career. Each year, a percentage of a judge’s salary is notionally put aside. On retirement the cash value of all these annually calculated percentage pots is added up and that is the annual pension. To protect the accumulating pension against inflation, each individual’s notional pension is uprated each year. Employee contributions remain the same and there is transitional protection for those closest to retirement. Unlike previous judicial pension schemes this scheme will not have an automatic lump sum and will be registered for tax purposes in line with the practice elsewhere in the public sector.
The Government announced at the time of the emergency Budget in 2010 the establishment of an independent review of the provision of public service pensions. The judiciary was included in the scope of this review. The review by the Independent Public Service Pensions Commission, led by the noble Lord, Lord Hutton of Furness, made recommendations for reform to public service pensions in order to make them both affordable and sustainable in the long term as well as offering certainty and fairness to public service pension scheme members and taxpayers. The Government’s response adopted many of the review’s recommendations. This included a guarantee that benefits accrued before the date of the change would be protected. It also introduced protections for those within 10 years of retirement.
On 5 February 2013, the Lord Chancellor announced to Parliament the intention to reform judicial pension arrangements in the form of the NJPS under the statutory framework of the Public Service Pensions Act 2013. The reforms to judicial pension arrangements will apply to eligible members of the judiciary in Scotland and Northern Ireland, as well as those in England and Wales. There are a number of devolved judicial offices in Scotland and Northern Ireland to which these reforms will not apply. The NJPS will be open to eligible fee-paid and salaried judicial office holders. This will be set out in a separate instrument.
The principles of the Public Service Pension Act 2013 have already been approved by this House; these regulations apply those principles, introducing a new pension scheme for the judiciary. The Government believe that the reforms to judicial pensions constitute a fair balance of costs and benefits between judicial pension scheme members and other taxpayers. I therefore commend these draft regulations to the Committee and I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, as the noble Lord, Lord Faulks, has explained to the Grand Committee, the regulations before us today establish a new and reformed pension scheme for the judiciary. They are one of a number of instruments which are coming before your Lordships’ House on the matter of pensions.
I should say that as a general rule I am always sorry to see the end of final salary pension schemes, but I accept that that has been the trend in recent years, and I fully understand that pension schemes have to be reformed in order to ensure that they are sustainable in the long term. That has involved a change in the distribution of costs between the employer and the members of the scheme, along with a move from final salary schemes to other types of scheme and equalising the normal pension age with the state pension age.
I have only a couple of brief points. On looking at the Explanatory Notes, I see that the Lord Chancellor, after consulting with the judiciary, announced the intention to establish a stand-alone reformed pension scheme open only to the judiciary, although initially he had talked about bringing it into the Civil Service scheme. Can the noble Lord tell us why in the end the other options were not proceeded with, in particular the decision not to include the judiciary within the scope of the reformed Civil Service pension scheme? Further, will there be any additional costs to the taxpayer as a consequence of that decision?
I would appreciate a little more information regarding the tax concerns which have been raised by a number of members of the judiciary here in terms of the sums of money involved and whether that will result in additional costs which will have to be borne by the scheme and/or the taxpayer. Also, looking at the scheme itself, can he tell us a little about the governance arrangements? Will they differ in any material way from the governance of the Civil Service scheme? It would also be helpful to the Grand Committee if the noble Lord could highlight where in particular the scheme differs from the new Civil Service pension scheme? With those points, I am content to support the regulations before the Committee.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Kennedy, for his observations. He will know that the judiciary had some concerns about the scheme, one of which turned on the importance of the independence of the judiciary and of attracting appropriate candidates to posts within the judiciary at whatever level. I am sure that Members of the Committee will understand both of those points. A particular concern that was expressed by many in the consultations was about the changes that were to take place to ensure that the judiciary came under the scheme which embraces all other senior civil servants. There was a particular provision which followed the judiciary’s own stand-alone scheme that is set out in paragraph 8.2 of the Explanatory Memorandum. It concerned in particular those whose existing arrangements for their pensions were unregistered so that when they came to accept a judicial appointment, they did so on the basis that their then pensions were unregistered, only to find that as a result of these provisions, the pension in their new post became registered. The result of that was a significant disadvantage to them, and therefore after some consideration, it was thought appropriate for there to be a special arrangement for the judges in that particular position.
The result of the special arrangement was that those who had previously had an unregistered pension could opt out of the government scheme and they would not receive the pension to which they would normally be entitled. However, during the time that they sit as judges, they will receive an increased salary to reflect the fact that their employer—the Government—would be paying a proportion of their income for pensions in the same way that they would in ordinary circumstances, and will be doing for judges in all other cases. This means that although there is an advantage to the individual, it is in fact neutral in terms of the effect on the tax take as a whole. That was the position.
Judges choose representatives to the pension board —I am talking now of governance—and make recommendations to the scheme manager on the question of discretion. The scheme was at the judiciary’s request. There is an increase in costs in the administration of that special scheme. On the scheme generally, the Government’s principle was to develop a scheme that is fair and sustainable for public sector workers and the taxpayer generally and, save for this fairly limited exception, the judicial scheme will bring the judiciary in line, for the first time, in fact, with the reformed Civil Service pension scheme Alpha, while there are some differences, which I have explained. There are also some slight differences in ill health provision, but any benefits to the department will be long term in nature due to the transitional protection provisions which apply to a considerable proportion of the judicial office holders in scope. However, there is a long-term financial benefit to the MoJ in the form of savings from the service award. This is a salary payment to judges upon retirement which compensates them for tax liabilities on their retirement lump sum. The cost to the department of the current annual service award is around £17 million per year. As the new scheme requirements will remove the need for service awards in the long term, this cost will be a saving to the department, and thus to the country in general. There is harmonisation. There are one or two exceptions.
We think judges have satisfactory pension arrangements. In the view of judges, they are not quite as satisfactory as they were before, but in view of the recommendations of the noble Lord, Lord Hutton, which were accepted by the Government, all public servants have had to accept some reductions in their entitlement in view of the overall financial situation, and judges are not considered an exception, but there is some reflection of their particular circumstances in those special arrangements. I hope that that is a satisfactory answer to the noble Lord’s questions.
Criminal Justice System: Autism
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am grateful to the noble Baroness, Lady Uddin, for securing this debate, and raising the important issue of access to, and support from, the criminal justice system for those with autism spectrum disorders. It is, of course, a spectrum. As has been rightly said, those with higher functioning autism can be particularly difficult to identify. Generally, autism can sometimes be difficult to identify or diagnose.
A lot of information is available about Mr Faruk Ali’s case. However, as a number of noble Lords have indicated, the two police officers were cleared after a trial relating to the incident which took place on 20 February. Both officers remain suspended pending the outcome of a misconduct investigation. In those circumstances, it would be inappropriate for the Government to comment further. However, I have no difficulty at all in saying that we expect the highest standards of professionalism in all aspects of policing and across the criminal justice system and I am extremely happy to condemn any racist or discriminatory behaviour by any police officer in any circumstances. The decision as to whether to take further action against these officers is a matter for the Independent Police Crime Commission and the Crown Prosecution Service.
I am well aware of the need for all parliamentarians, and especially those who work in public services, to be more conscious of the needs and experiences of people with autism. This issue is particularly important as regards the criminal justice system. It is thought that around 2% of the general population have autism, but I recognise that the figure within the offending population could be much higher as a percentage.
The Government’s autism strategy, which was updated in April 2014, contains specific actions in relation to criminal justice. The Ministry of Justice is a signatory to that strategy. The update contains new obligations for the Ministry—obligations which I am pleased to say we are taking forward. These include the commitment to establish a cross-government group to take forward issues with autism and the criminal justice system. I am pleased to say that although the system encompasses a large number of players, as noble Lords will understand —for instance, the police and prosecutors, to which the noble Lord, Lord Kennedy, referred, as well as courts, prisons and probation—my department is leading on this work and chairing the group.
We also agreed, as part of our commitments in the strategy, to examine and share good practice in prisons towards prisoners with autism. We are also considering whether autism awareness training can be made available to probation staff. We are having conversations with the new independent Probation Institute about this. As part of our strategy, we agreed to make information available to potential bidders for contracts for the new providers of probation services under our transforming rehabilitation programme.
All the strategy objectives have one thing in common: they are helping with our aim to ensure that the criminal justice system can adapt to cope with people with autism, whether they are suspects, victims or witnesses. As a number of noble Lords have said, training is key to this. All staff in the criminal justice system cannot be expected to be subject experts in every disability they may encounter, as my noble friend Lord Addington said, but they should at least be on notice that there might be a problem, which I think was the burden of his remarks. For example, a person whose possibly different perception of social norms may get them into trouble and the chances of someone in the criminal justice system encountering someone with autism is therefore significant.
As part of the autism strategy, the Home Office has committed to ensuring that the College of Policing develops better training for the police in recognising autistic spectrum disorders. I am pleased to update noble Lords on the fact that the college now has a full-time mental health co-ordinator and, arising from that role, it has set in train important streams of work around the development of new authorised professional practice guidance on mental health, including autism. The new guidance should be available to consult in the near future and we hope will go live and be public by autumn 2015.
The guidance for police will be underpinned by the first comprehensive package of training, pitched at different levels of detail and relevance for different ranks and roles of officers across the service. These training packages will be relevant for the promotion process and professional development, right up to the Police National Assessment Centre, which selects senior officers. This training is delivered through a formal training board, including the police national curriculum manager, and has already highlighted the need to understand the extent to which police training should confirm condition-specific awareness.
It has been recognised that these disorders may need to affect a policing response. The work is at an early stage and will develop in 2015, with a view to training products being ready for piloting in 2015 and completed for consumption nationally by the end of the first quarter of 2016.
As to prison officers, NOMS has a Prison Service instruction, a set of binding rules for prisons which covers autism. It includes a specific section to help people understand autism as well as a section on communicating with people who have learning difficulties or related disorders because it is sometimes the case that there is comorbidity, as it were. There may be autism and other difficulties within one person.
Some prisons have developed their own autism strategies and sets of training materials—for example, the excellent work that is being done at Dovegate prison. As I mentioned earlier, my department is very keen to find best practice among local practitioners and to share and promote this more widely.
I am glad to say that within the Ministry itself training is available for staff on autism. I know that a number of charities offer training on interacting with people with autism, written specifically for criminal justice professionals. I hope that this will mean a real improvement in the experiences that autistic people have when they interact with the criminal justice system.
Liaison and diversion schemes, mentioned by the noble Lord, Lord Ponsonby, and others, are key to this. It is, of course, crucial that we are able to identify autism. Twenty- five million pounds has been invested across England to fund mental health professionals in police stations and courts to establish liaison and diversion services. These services identify people when they first come into contact with the youth and adult criminal justice systems and help support the most appropriate outcomes. They are available 24 hours a day and ensure that across the trial areas they will be provided with the same level of care and service.
By identifying someone with a health problem such as autism when they are brought into a police station or involved in court proceedings, liaison and diversion schemes can ensure that an individual is supported through the criminal justice system and into the right mental health or social care service. We have strong anecdotal evidence that they can reduce the overall length of court proceedings—a point raised by the noble Lord, Lord Ponsonby—through the provision of timely reports to magistrates, limiting the number of court hearings, and probably adjournments, and therefore avoiding periods on remand. They should be passed between authorities and should follow the individual through the criminal justice system to probation or prison services, so that from the first encounter, quite apart from the question of flagging this on a computer—that important point was raised and is being looked into—there is not, as it were, a gap in people’s awareness.
There is a real opportunity here for the liaison and diversion service to help courts do their job. The case mentioned by the noble Lord, Lord Ponsonby, was a considerable challenge to the court, by the sound of it. It almost sounded like an exam set for a judge in all the most difficult problems a court would have to confront. Even the question of unfitness to plead, I dare say, would have come before the court on that particular occasion. I am sorry that there were delays. Of course, delays can sometimes be encountered in finding the appropriate expert to make the diagnosis or identify the disorder. It can still take too long. I have had briefings from the Department of Health on this issue. It has commissioned the National Institute of Health and Care Excellence to produce guidance which will lead to quicker diagnosis. There is a role for NHS England in looking at people’s experience of diagnosis, and the importance of timely and effective services will be highlighted in a forthcoming statutory guidance on autism for local authorities and the NHS.
The new model—the liaison and diversion model—has already seen more than 10,000 children, young people and adults, come through the service while going through the justice process. The model will be independently evaluated to inform a business case for services to cover all of the English population by 2017-18. As to victims and witnesses—as in the case raised by the noble Lord, Lord Ponsonby, there can be times when both a victim and a defendant may need support—it is very difficult for a court and all those taking part in the criminal justice system to come to the truth and nevertheless respect the rights of all those involved in the process.
The Government are committed to providing support for all types of vulnerable and intimidated victims and have a range of special measures in place to support them in the criminal justice system. Of course, the courts have an inherent right to ensure that someone on the autistic spectrum has appropriate facilities to assist them in their defence, including the use of intermediaries. There is guidance given to judges as to this use of special measures and the access to materials on the private judicial websites. If they are confronted with difficulties they should be aware of the possibility—and indeed they are—of helping those who have difficulties, although, as I said, the information should be conveyed by the liaison and diversion services or through the probation service in any event.
The registered intermediary should help them communicate their evidence. Intermediaries are communication specialists to help vulnerable witnesses provide their best evidence. They are one of the special measures introduced in the Youth Justice and Criminal Evidence Act. In 2014, 499 requests for a registered intermediary to help witnesses with disorders such as autism were received. In addition, victims and witnesses can also expect to be able to use communication aids, devices such as books and symbol boards to help them communicate when giving evidence in court.
A new victims’ code implemented in December 2013 sets out the support and services that victims can expect to receive from agencies throughout the criminal justice process. It also sets out that victims in the following three priority categories of crime are entitled to receive enhanced support and information: victims of the most serious crime; intimidated or vulnerable victims; and persistently targeted victims, which can be a particular feature of those who are on the autistic spectrum. The code entitles them to receive this enhanced support including the referral to specialist organisations.
The police and the Crown Prosecution Service have a duty under their code to assess the victims’ needs at an early stage—this is a partial answer to the noble Lord, Lord Kennedy—and to refer any eligible victims for enhanced services for pre-trial therapy where appropriate. So every single player in the criminal justice process should be equipped—and should be better equipped—to identify and help those with autism. In addition, of course, victims with disabilities, or a close relative, can nominate a family spokesperson as a single point of contact to receive services under the code.
The conclusion that I invite the House to reach is that there is an increasing appreciation by the Government —increasing joined-up thinking—that the criminal justice system must respond to the challenge of autism. I genuinely think that the Government are taking this seriously and that the access to and experience of the criminal justice system for those who have these disorders should improve in the future.
This is a very sad case, whatever ultimately may be the determination of the facts. If it has done anything, it has perhaps helped stimulate this debate and further reinforced the importance for all those in the criminal justice system to be aware of autism, the challenges that it confronts, and responding appropriately to them.
I thank all noble Lords for their contribution to this useful debate.
Criminal Justice and Courts Bill
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Lord Faulks
That this House do not insist on its Amendment 74 and do agree with the Commons in their Amendment 74C.
“(6) Subsection (7) applies to an order under this section the effect of which is to bring into force the Secretary of State’s power to provide secure colleges for the detention of any or all of the following—
(a) persons who are male and aged under 15;(b) persons who are female. (7) A statutory instrument containing the order may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) The reference in subsection (6) to the Secretary of State’s power to provide secure colleges is to the power under section 43(1)(c) of the Prison Act 1952 (as inserted by section 29 of this Act).”
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, in speaking to this Motion, for the benefit of the House I should say that, with the agreement of Her Majesty’s Opposition, it is proposed that Motions B and C be put together and be debated together.
As to Motion A, we have spent a considerable amount of time debating the Government’s plans for secure colleges and our ambition to improve the education and reoffending outcomes of young people in custody. I am pleased that, since the last time we met to debate these provisions, which deal with who should be accommodated in secure colleges, the House of Commons has accepted a government amendment to the Bill to give Parliament a vote on the matter. I therefore beg to move that this House does not insist on its Amendment 74 and agrees with the Commons in its Amendment 74C, and I hope that noble Lords will welcome the Government’s response.
Before I go into the detail of the amendment, I take this opportunity to thank noble Lords for the quality of their scrutiny during the passage of the Bill. There have been many hours of informed and passionate debate on the important and sensitive issue of how young offenders are detained and the support that they receive to become rehabilitated. As well as those who featured prominently in our debates, there were other noble Lords who brought their expertise to bear on the issues, whether in meetings, of which there were a number, or in correspondence, and I acknowledge their contributions also. The co-operation that we have encountered has led us to find a compromise, which I am hopeful and even—dare I say?—confident will satisfy noble Lords.
As the Secretary of State and my other ministerial colleagues have made clear throughout the passage of the Bill, we do not want to prevent girls and under-15s in future being able to benefit from the pioneering approach and enhanced provision that secure colleges will offer. We recognise that these groups are more vulnerable and require tailored support, but as noble Lords will know, girls and younger boys are already safely accommodated together on the same site as older boys in both secure training centres and secure children’s homes, demonstrating that such an approach can work well. Our plans for the pathfinder secure college to open in 2017 have been carefully developed, in consultation with a number of noble Lords, to provide separate and tailored facilities for younger and more vulnerable children, should they be placed there. Of course, their placement will always be as a result of the intervention of the Youth Justice Board.
We recognise, however, that there remains concern about the accommodation of girls and under-14s in secure colleges. While I am confident that secure colleges will be able to meet the needs of these vulnerable groups and achieve improved outcomes for them, I appreciate that noble Lords are, and were, seeking further safeguards and a clearer role for Parliament. When this House last considered amendments made to the Bill in the other place, I made a commitment that, before girls or under-15s were introduced to the first secure college, the Government would lay a report before Parliament setting out the arrangements for accommodating, safeguarding and rehabilitating these groups. Today, I am able to go further and am seeking to amend the Bill to make the commencement of the power to provide secure colleges for the detention of girls and under-15s subject to a resolution of both Houses of Parliament. This will give Parliament a clear role in approving the use of secure colleges to detain these groups and will enable that decision to be informed by learning on how secure colleges are operating. The Government will, of course, fulfil the earlier commitment that I made to produce a report, and this will be laid before Parliament ahead of the debates on the commencement of the power in order to provide further detail on the plans and to inform the debate in both Houses.
I hope noble Lords will feel that their concerns have been recognised by the Government and that our response goes some way towards allaying those concerns. I believe that the amendment before the House represents a practical and common-sense solution that provides Parliament with the safeguards it is seeking, while ensuring that the opportunity remains for girls and under-15s to benefit in future from the enhanced provision that secure colleges will deliver. I therefore ask the House to accept this amendment in lieu of its previous amendment.
Lord Ramsbotham (CB)
My Lords, I am content to agree with Commons Amendment 74C and am most grateful to the Minister not only for the way in which he has presented the Government’s change of heart but for his courtesy in giving me and a number of other noble Lords advance warning, by letter and also in discussion, of what it would contain. I say again how much I, and I am sure many other noble Lords, have appreciated the courtesy and admired the skilled advocacy that he has deployed throughout the passage of this Bill. I do not include the Minister in any criticisms that I make of the secure college proposal, on which he and I may not agree, but which I will continue to oppose as strongly as I am able for as long as it takes. As I have said before, I regard the very idea of building the biggest children’s prison in the western world as a stain on our treasured national reputation for fairness, decency and humanity under the rule of law.
I appreciate that the Minister is under the strict riding instructions from a Lord Chancellor whose jurisprudential credibility has been forensically unpicked by my noble friend Lord Pannick and a Secretary of State for Justice who has wreaked havoc on the ability of the prison and probation services to protect the public. With that track record, noble Lords will appreciate why I pray that that same person never gets his way with his pet plan for the detention of vulnerable and damaged children.
At each stage of the Bill, I have drawn attention to some new development or piece of evidence that adds to the strength of the case against the secure college proposal, and today is no exception. First, last week came the welcome announcement that, thanks mainly to the determined efforts of the Youth Justice Board, there are now fewer than 1,000 children in detention. Does it really make sense to hold one-third of them in one place and plan a repeat with yet more?
Lord Faulks
My Lords, I am grateful to all noble Lords for their contribution to this short debate, echoing to a considerable degree the concerns that were reflected in previous debates. I do not seek to diminish their value, but I hope that I will be forgiven for not replying in full detail to all the points made, for example, by the noble Lord, Lord Ramsbotham. His concern and opposition to the Bill has been thoroughly exposed and well articulated. He knows that the Government do not accept his criticisms but of course respect his expertise in this matter.
I am grateful for the acknowledgment that the Government have listened to the concerns expressed both in and outside the House. Although it has not been made explicit today, in previous debates there has been an acknowledgment that the Government’s proposed reforms, however much some noble Lords think that they are misconceived, stem at least in part—we would say centrally—from our aspirations for educating and rehabilitating young people in custody. With 68% of young people who leave custody going on to reoffend within one year, doing nothing is simply not an option. The secure colleges reflect the Government’s vision for transforming youth custody.
Concerns have been expressed today, as in previous debates, about the geographical issue: effectively, that young people may find themselves a long way from home, which may be contrary to their interests. Noble Lords will aware that the YJB operates an assisted visits scheme in the existing youth custody estate which contributes towards travel and subsistence costs for families and carers visiting a young person in custody. The scheme also covers childcare and modest accommodation costs where required. The noble Baroness, Lady Howarth, conceded that not all families want to remain in very close contact with the young people, but, where they do, this has enabled and should continue to enable there to be contact.
We also anticipate that the operators of secure colleges will utilise a range of technological solutions that will allow young people to contact their families more easily. These will be supplementary to, not in place of, the proposed entitlement of one visit per week. We expect providers to forward innovative solutions that address the individual needs of young people in secure colleges, including a visits scheme that enables young people to remain in close contact with their families or carers. In designing the secure college pathfinder, we have considered how we could facilitate visits for young people, and the site has numerous flexible areas where the operator could choose to accommodate visits. Details of the visits scheme, including a booking system and any incentives, will be developed with the secure college operator in due course.
The noble Lord, Lord Beecham, repeated questions that he had asked previously about who would be consulted. The position is that I am not from the Dispatch Box going to commit a future Secretary of State to consult any specific body, but the noble Lord has given the House and any future Secretary of State a useful list of those who might be consulted. I can see that any Government coming before the House seeking approval, through affirmative resolution, would be well advised to consult widely and to provide evidence of that consultation to Parliament.
Apart from the report which I have undertaken on behalf of the Government to provide to Parliament, there will be a report from Ofsted and the Inspectorate of Prisons. However, I bear in mind the advice that the noble Lord has effectively given to any Secretary of State that a number of people could usefully contribute to the consultation—and, no doubt, those who have different views from a putative Government will seek consultation and advice from those bodies and bring before the House their views.
The Government are not guilty of unseemly haste. They have been enthusiastic about continuing to press forward with secure colleges and intend to begin the process of building before the general election. The question that I think lay underneath the questions asked by the noble Lord, Lord Beecham, was whether this was a sensible way to proceed given that a Government not of the current complexion might conceivably not proceed to build secure colleges—indeed, it was said in the House of Commons that the Labour Party, if it was in power, would not do so. The question is what would happen.
Ministry of Justice officials are committed to providing value for money for the taxpayer, which includes ensuring appropriate termination rights in contracts, and the costs attached to terminating a contract, should that happen, would vary depending on when the contract was signed and how far the construction had progressed. The standard termination provision for these types of industry-standard contracts will be included within the commencement agreement. These provisions will represent a reasonable and balanced position for the Ministry of Justice in relation to such contracts and will meet the standards set out in Managing Public Money. The Treasury is considering the pathfinders business case, and this is very much in line with the Government’s process and project timelines. A decision will be made shortly.
The noble Lord, Lord Beecham, also asked whether the Government would bring forward separate statutory instruments in relation to under-15s—not under-14s; I am sorry that I inadvertently referred to under-14s—or to girls. I anticipated that there might be some questions in that regard. The position is that it is probably unlikely that any Government would decide to bring forward such a proposal at the same time—in which case, there would be two separate statutory instruments. However, if it is was prudent and wise to consider whether there was a proper case for addressing under-15s and girls at the same time, on that assumption I do not think that we would bring in separate statutory instruments because it would be perfectly open for Parliament to view them as a whole. That said, I will bear in mind what the noble Lord said and, while not giving any commitment to that effect, I can see that there could conceivably be different arguments that pertain to those different groups. So I respond in that way—I hope positively, but not giving any commitment on behalf of the Government.
I hope that that is a sufficient response to the debate, and that the noble Lord, Lord Ramsbotham, will forgive me if I do not go into the merits of the scheme as a whole, having regard to the responses I have given to various debates in the House and the various meetings that we had with him and other concerned Peers. In those circumstances, I ask noble Lords to join me in accepting the government amendment in lieu of their previous Amendment 74.
Lord Faulks
That this House do not insist on its Amendment 102B and do agree with the Commons in their Amendments 102C to 102M.
“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.””
“(6B) If the tribunal makes an award in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (6A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied.””
Lord Faulks
My Lords, as I indicated, Motion B and Motion C will be debated together for the convenience of the House.
These clauses have been the centre of much highly intelligent debate in this House. I am grateful for the scrutiny and valuable insight that noble Lords have given to the Bill, though I firmly hope that today will mark the end of that process for this particular Bill. Our amendments draw on those debates and the many other discussions that have taken place in less formal settings. The general arguments around these clauses are well rehearsed, and I do not intend to detain your Lordships unnecessarily by going over old ground. Instead, I will focus on the Government’s specific amendments, turning first to Clause 64.
Our ambition for this clause is relatively modest: it is simply to limit the time and resources spent on judicial reviews brought on grounds highly unlikely to make a substantial difference to the outcome for the applicant. However, we accept that there have been and are concerns that, exceptionally, even these types of case could engage crucial issues which should be heard by the courts. That is why we have tabled an amendment that permits the court to grant permission or a remedy where it considers that reasons of exceptional public interest mean that that is appropriate.
I accept that “exceptional public interest” is an unusual formulation, and I will limit myself to two observations on this that, I trust, will give noble Lords the comfort they might require as to how it will operate. First, a high degree of public interest specific to the case is required for the exception to be met. We think that that is a fair compromise in the light of my second observation: we have purposely not defined the term “exceptional public interest”, meaning that the judiciary will apply the term in practice to the facts at hand. For fear of appearing to seek to fetter that discretion, I will forbear from setting out further detail on how the Government would wish to see the term applied in future.
I simply add this: in one regard it could be said that it is always in the public interest for a government body, local authority or anybody amenable to judicial review to follow to the letter the law. One can see the force of that argument.
However, that, in a sense, is what public law is all about. It could also be said that simply saying that something is in the public interest is almost tautologous, when we are dealing with a public law remedy. Hence the requirement that there must be “exceptional public interest”—although, as I have said, we think that is a matter for the judges to decide. It will also be for the judges to decide first whether, on the facts of the case, the “highly likely” threshold has been met, and secondly, in appropriate cases, whether there are reasons of “exceptional public interest” which none the less make it appropriate to grant permission or a remedy.
Lord Beecham
My Lords, it is a pleasure to follow the noble Lord, Lord Pannick, in his customary forensic and formidable critique of the decisions made, and the manner in which they are made, by the Lord Chancellor. As we have heard, the House has secured an amendment to the “highly likely” test. The courts will be able to allow a case to be brought or to grant relief where they deem there is an exceptional public interest, notwithstanding that it would be highly likely that the defect in procedure would not have affected the outcome.
It is, however, somewhat unclear what is meant by “exceptional public interest”. The Richard III case attracted more public interest than any judicial review case that I can recall, and certainly more interest from the Lord Chancellor, who constantly relies on that one case to justify his assault on judicial review. Would such exceptional interest have allowed the court to deal with that case if it had been demonstrated that it would have failed the “highly likely” test? If not, will the Minister give us some examples, given that the courts are now directed that they must strike down a claim unless such exceptional public interest exists? Further, if judicial discretion remains, it would surely have been better not to substitute “must” for “may” in the injunction to apply the test contained in the amendment.
The final government amendment deals with financial information to be supplied by those contributing to the funding of judicial review applications; and again under pressure from this House, and again, no doubt, with the advice of the Minister, the Government have moved, in this case to promising a consultation on the limits beyond which disclosure would be required. That is, of course, welcome, although it is not clear whether Parliament will have an opportunity to debate the outcome of such a consultation before the rule committee makes its decisions. Perhaps the Minister will give me an indication about that.
I have always acknowledged the need to get behind the facade which can be erected via a shell company or other device, such as was used in the Richard III case, partisan supporter of that much maligned monarch though I am, but it is a pity that the Government have not sought to consult on how to do that, rather than come forward with what originally certainly looked like a device which could have a chilling effect on genuine supporters of a claim for review. Nevertheless the change embodied in the amendment, as far as it goes, is welcome.
It has been striking, as this Bill has gone through both Houses, how little support it has attracted from government Back-Benchers in either Chamber, with the notable exception of the noble Lord, Lord Horam. In the last round of ping-pong in the Commons three Conservative lawyers—Geoffrey Cox QC; the former and widely lamented Attorney-General, Dominic Grieve, and the former Solicitor-General, Sir Edward Garnier—all voiced stringent criticisms. We are, however, where we are, and thanks to deliberations in this House, and, I suspect, to the wise counsels of the Minister, it is a better place than we might have been. I only hope that after the general election we will have, whoever forms the next Government, a Lord Chancellor and Secretary of State for Justice who, if not judicial, will at least be judicious.
Lord Faulks
My Lords, I am grateful to all noble Lords for their contributions to this debate. I am grateful to the noble Lord, Lord Pannick, for his observations about the rule of law and its importance. I find no difficulty in agreeing with his critique of the rule of law, its role and its importance, and judicial review as a part of that.
There is perhaps one area where I would not wholly agree with him, and that is in his submission in relation to “exceptional”. I say submission because, as he will appreciate, those looking for clarification on what “exceptional public interest” may mean, pursuant to the rule in Pepper v Hart, might be interested in what was said in debates. They might have their attention drawn by the noble Lord, Lord Pannick, or indeed by some other counsel, to what he himself said in the course of the debate. I do not think that that is quite within Pepper v Hart. He referred, for example, to what the noble and learned Lord, Lord Woolf, said in one particular case. I think that different judges have used the word exceptional to mean different things in different contexts. I see the noble and learned Lord nodding. I simply say that “exceptional public interest” will depend on its context, and we are content to leave it to the judges to decide what it means. The noble Lord, Lord Beecham, did his best to tempt me into giving examples—even trailing the Richard III case, which he said was a classic case in which the public were interested. The public can be exceptionally interested in something without it being a matter of exceptional public interest. I trust that judges will be able to make that distinction.
As for the rule committee, it is, as noble Lords will know, separate from the Lord Chancellor, who has been much maligned in the course of this debate. It will decide what is appropriate on the basis, I hope, of a wide consultation on the issues. No doubt it will bear in mind, among other things, observations that have been made during the course of this debate. I am grateful for all the contributions to the many debates that we have had.
Lord Beecham
Will the Minister indicate whether there will be an opportunity for this House, and indeed the other place, to debate the outcome of the consultation before the rule committee makes its mind up?
Lord Faulks
No, I will not give that undertaking. The rule committee will have the basis for consultation and the basis of the debate and it will be subject to the usual parliamentary procedure, meaning that each House will have the option to vote against—so to that extent. That is perhaps an answer.
The debate has been of a very high quality. Indeed, I pay tribute, as other noble Lords have, to the scrutiny that the Bill generally—not just the matters that we are dealing with today—has received from every quarter of the House. There have been different fields of expertise brought to good effect in the course of the consideration of the Bill by your Lordships’ House. There have been a considerable number of amendments to the Bill in many different areas. Today, and in the course of the most recent debates, we have focused on the modification of the reforms of judicial review and in relation to parliamentary oversight of under-15s and girls in secure colleges—and, indeed, on the secure college rules, which will now be subject to an affirmative resolution. However, there have been other important amendments, such as the new offence of revenge pornography; the custody arrangement for 17 year-olds; various provisions to clamp down on dishonest personal injury claims; and extending reporting restrictions to young people, to name but a few.