Transfer of Tribunal Functions (Transport Tribunal) Order 2014
Lord Faulks Excerpts(9 years, 5 months ago)
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Lord Faulks
That the Grand Committee do consider the Transfer of Tribunal Functions (Transport Tribunal) Order 2014.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I will refer to this order as the transfer order. The purpose of the order is to transfer the quality contract scheme jurisdiction of the Transport Tribunal into the Upper Tribunal. The Transport Tribunal currently sits outside the unified tribunal structure. Most of the jurisdiction of the Transport Tribunal was transferred to the First-tier Tribunal and the Upper Tribunal in 2009. However, the Transport Tribunal could not be abolished at that time as it remained necessary to hear appeals resulting from proposed quality contract schemes, introduced by the Transport Act 2000, as amended, and to hear appeals under the Transport (Scotland) Act 2001 for bus timetabling.
Article 2 of the order transfers the functions of the Transport Tribunal that relate to quality contract schemes to the Upper Tribunal. Schedule 1 makes consequential amendments to the Transport Act 2000, and Schedule 2 contains transitional and saving provisions. Transitional provisions ensure that if any existing case were to start before this order is approved, it would start in the Transport Tribunal and would not be adversely affected by the transfer. A case that has begun but is incomplete will be determined by a panel comprised of the same judicial members. Directions and orders made by the Transport Tribunal prior to the order coming into force will continue in force as if they were directions or orders of the Upper Tribunal.
Under powers in the Transport Act 2000, local authorities are able to determine local bus services by establishing a quality contract scheme, which suspends the deregulated bus market in a defined area and specifies what bus services will run in that area. Other than specific exceptions, no other bus services are then permitted. Before doing so, the authority must undertake a consultation exercise with affected parties. If the local authority wishes to pursue a quality contract scheme after consultation, its final proposal must satisfy a public interest test that involves the proposal being examined by a quality contract scheme board chaired by a traffic commissioner, who determines whether the making of a quality contract scheme by the local authority is the only practical way of implementing its transport policy in the area in an economic and effective manner. Statutory consultees currently have a right of appeal to the Transport Tribunal, as does the local authority.
Why are the Government taking this action? Integrating the quality contract scheme jurisdiction into the unified tribunal structure will provide the flexibility to utilise the pool of Upper Tribunal judges and panel members who already have the necessary expertise in the law of their jurisdiction to hear transport-related appeals as the need arises. The Senior President of Tribunals could ticket appropriate judges to hear the quality contract scheme cases.
Although it would still be necessary to retain the Transport Tribunal to deal with any potential appeals under the Transport (Scotland) Act 2001 for bus timetabling, it is expected that these will be transferred to a suitable devolved tribunal in Scotland in due course via secondary legislation made under the Tribunals (Scotland) Act 2014, once the necessary structures are in place.
The Government are committed to the ongoing transformation of our tribunals, placing the user at the heart of the service. This order further implements the legislative changes enacted by the Tribunals, Courts and Enforcement Act 2007 by transferring the quality contract scheme jurisdiction of the Transport Tribunal into the Upper Tribunal. The Government believe that the transfer of the quality contract scheme jurisdictions to the unified tribunals structure will benefit all users of the jurisdiction who seek judicial redress and will provide access to a more coherent, swift and responsive system. I therefore commend this draft order to the Committee.
Lord Kennedy of Southwark (Lab)
My Lords, I have no wish to detain the Grand Committee any longer than necessary. I have no issues with the order. As the noble Lord said, the transfer of the functions of the Transport Tribunal which relate to the quality contract schemes to the Upper Tribunal is another step along the way to a unified tribunal service which, as the Minister said, came from the previous Government which put the Tribunals, Courts and Enforcement Act 2007 on the statute book.
Will the Minister tell the Grand Committee why the Government opted for the Upper Tribunal as the preferred outcome, which was suggested by a number of responders, including local authorities, rather than the First-tier Tribunal, which was the bus operators’ proposed option? The hybrid option was ruled out by the Government, which was sensible and right as it would not provide clarity but would have caused confusion. I note that two schemes are going to come forward. I will not make a joke about two coming at once on the day of the bus strike but will leave it there.
Lord Faulks
I am grateful to the noble Lord for his support for this proposal. As he rightly said, this is pursuant to the previous Government’s attempt to bring all the tribunals under one umbrella.
In answer to his question about why the Upper Tribunal of the unified tribunal system was chosen to hear quality contract scheme appeals rather than the First-tier Tribunal, the Upper Tribunal was considered the appropriate appeal designation to hear these appeals as it would avoid two rounds of appeal within the tribunal system, which could unduly delay the implementation of schemes where they are in the public interest.
Taken together, the quality contract scheme board and the other tribunal will provide two levels of independent scrutiny and will utilise the existing Upper Tribunal judges and panel members, who already have the necessary legal expertise, to hear these transport appeals. There will also of course be an onward right of appeal on a point of law and exercisable only with the permission of the Court of Appeal, which provides an additional safeguard.
This instrument supports the Government’s continuing commitment to implement the provisions of the 2000 Act and to provide a unified tribunal structure to meet the needs of users. In those circumstances, I commend this draft order to the Committee.
Youth Justice Board for England and Wales (Amendment of Functions) Order 2014
Lord Faulks Excerpts(9 years, 5 months ago)
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Lord Faulks
That the Grand Committee do consider the Youth Justice Board for England and Wales (Amendment of Functions) Order 2014.
Relevant document: 16th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the order before us today amends the Youth Justice Board for England and Wales Order 2000, which was made under Section 41(6) of the Crime and Disorder Act 1998. The order gives the Youth Justice Board for England and Wales—the YJB, as it is customarily known—additional functions so that it can more effectively and efficiently fulfil its statutory role to oversee the operation of the youth justice system in England and Wales.
This draft order deals with four provisions. These relate to the YJB’s grant-making powers, its role in the temporary release of young people from secure training centres, its power to commission education provision in young offender institutions and its ability to assist in the development of IT systems underpinning the youth justice system. I will briefly describe for the Committee the effect of each provision and our reasons for making these changes.
The first provision, set out at Article 2(c), extends the scope of the YJB’s function to make grants to local authorities and other persons, allowing it to respond more effectively to the evolving needs of local youth justice services. The YJB’s current grant-making function dates from when the board was established by the Crime and Disorder Act 1998. At present, the board, subject to the approval of the Secretary of State, may provide grant funding to local authorities and other bodies for the purposes of developing good practice and commissioning research on issues affecting youth justice. One such example of a grant provided by the board is the annual youth justice good practice grant made to all youth offending teams in England and Wales.
At the time of the establishment of the YJB and local youth offending teams, the scope of the board’s grant-making powers was appropriate. However, the Government’s triennial review of the YJB, laid before Parliament in November 2013, concluded that the purpose of the grant-making power was now outdated and limited. This order acts on the review’s recommendation by widening the YJB’s powers so that it can make grants to local authorities and others for the purposes of the operation of the youth justice system and the provision of youth justice services. This will increase the scope of services for which the grant money can be used, thereby better responding to the evolving local priorities of youth justice and promoting improved front-line delivery.
Noble Lords may well be aware that at the same time as we are seeking to broaden the YJB’s powers to make grants to local authorities, we are also conducting a stocktake of youth offending teams, or YOTs. The aim of this stocktake is to establish a clear picture of how YOTs are operating and to make sure that we are providing the best support possible to young people and their communities. While the details of the stocktake are being finalised, we nevertheless believe that now is the right time to amend the board’s grant-making powers so that funding can be better targeted to the evolving needs of youth justice services locally and that there should be no delay in bringing about this important reform.
The second provision, set out at Article 3(3)(a) of the draft order, gives the YJB a new power, concurrent with the Secretary of State, to release young people temporarily from secure training centres—STCs—a form of youth custody. Where young people are risk-assessed as suitable for temporary release without compromising security or public protection, permission will be given for them to leave the establishment for an agreed period to undertake constructive activity with the aim of supporting their effective resettlement in the community after release. Temporary release from custody can be used to enable young people to attend interviews and training courses or to arrange accommodation ready for their release. Making more effective use of temporary release to support resettlement is an objective of the Government’s Transforming Youth Custody programme.
At present, the process of temporary release from STCs is overseen by a combination of the National Offender Management Service—NOMS—on behalf of the Secretary of State and the directors of STCs. As it is the YJB rather than NOMS that is responsible for commissioning and monitoring the delivery of youth custodial services in STCs, we believe that the board is better placed to oversee the temporary release process. This instrument will enable the board to release trainees from STCs temporarily. Under this proposal, STC directors, in conjunction with youth offending teams, will assess a young person’s suitability for temporary release and submit applications for the YJB to approve. The YJB’s expertise and knowledge will ensure that there is greater consistency in the use of temporary release and that activities properly balance the benefits to the young person with public protection considerations.
The third provision, set out at Article 3(3)(b) of the draft order, has also arisen from the Government’s Transforming Youth Custody programme. In line with our aim to put education at the heart of youth detention so that young offenders can equip themselves with the skills to lead productive, crime-free lives, the provision gives the YJB a concurrent power with the Secretary of State to contract for the provision of education in directly managed young offender institutions.
The YJB currently commissions custodial provision in YOIs from NOMS, while the education provision in these directly managed establishments is commissioned and managed by the Education Funding Agency, an executive agency of the Department for Education which manages funding to support all state-provided education for children and young people up to the age of 19. The result of having separate commissioners of custodial and education provision in YOIs is a lack of integration between the two services. As a consequence, young people in YOIs receive an average of only 12 hours’ education a week, with classes frequently disrupted to facilitate appointments and other interventions.
Giving the YJB the power to commission and manage the provision of education in directly managed YOIs will promote the more effective integration of custodial and education services by creating clearer and stronger accountability arrangements. The board has considerable experience in commissioning and managing contracts in the youth custodial estate, and this change will ensure that the new education contracts in YOIs, which we announced in December and which will more than double the number of hours that young people spend in education, will be robustly managed and better meet the needs of young people.
The final provision, set out at Article 2(c) of the draft order, is intended to enable the YJB to make the best use of its skills and knowledge of the information technology systems used in the youth justice system. The provision will enable the board to provide assistance to local authorities and others in relation to the development, management and maintenance of IT systems. Youth justice IT systems are in place to facilitate the flow and management of information between local authorities, youth custodial establishments, the YJB and others who work directly with children and young people. This exchange of information, and the IT systems that underpin it, are therefore vital.
The important role that the board plays in overseeing the operation of the youth justice system means that it is highly knowledgeable about the needs and requirements of these information technology systems and their users. The board ought therefore to be in a position to assist local authorities, the Secretary of State and others to make adjustments to these systems to fit the evolving requirements of the youth justice system. This draft order will give the board a clearer remit to assist local authorities and others, such as IT suppliers, in the development, management and maintenance of these systems. For example, the YJB would be able to help local authorities co-commission services from case management suppliers.
As a whole, the provisions in this draft order will enable the YJB to discharge its functions more effectively, thus improving the overall operation of the youth justice system. Our intention is to give the YJB the powers it needs to tackle offending and reoffending by young people. The challenges the board faces now are not identical to those it faced when it was established in 1998, and it is right that we amend its powers to reflect this. Fewer young people are entering the criminal justice system and fewer are ending up in custody, which I am sure is welcomed on all sides. These are significant achievements, and this draft order will ensure that the YJB is able to continue building on this success while supporting new approaches to tackling what can be stubbornly high reoffending rates. I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, I thank the noble Lord, Lord Faulks, for setting out the details of this order for the Grand Committee to consider this afternoon. As the noble Lord explained, the order both amends the functions of the Youth Justice Board for England and Wales and grants it new powers. Of course, we can look back to earlier in this Parliament when the Government were talking about the bonfire of the quangos and the Youth Justice Board was firmly in their sights. Thankfully, we on these Benches saw off that threat and now the noble Lord’s predecessor, the noble Lord, Lord McNally, is the chair of the Youth Justice Board—how things change!—and we wish him well.
I would like to put on record my thanks to the Youth Justice Board for the work it does in England and Wales and its many achievements. I have a number of points to make and a few questions for the noble Lord. First, I welcome the proposals to extend the ability of the Youth Justice Board to award grants to local authorities or other bodies working in the youth justice system. Will the Minister say something about the level of funds that are going to be available to make grants from? Is there any new money here or is it just new powers and grants from existing budgets, with no new money?
Secondly, the order gives the Youth Justice Board the new function of assisting other relevant bodies with IT support. Anything that involves IT always worries me as I have seen so many things go wrong due to poor planning, poor procedures and problems around IT. The words “overpromise” and “underdeliver” are usually in my mind when it comes to IT projects. Will the noble Lord tell the Grand Committee a bit more about what is planned here? What assurances can he give the Grand Committee about the protection of data? These are people’s data and, in this case, young people’s data. How can we be assured that these data will be protected and kept secure? Will the Youth Justice Board have the necessary funds to ensure that this important function is done properly?
I welcome the proposal to allow the Youth Justice Board to enter contracts for the provision of education in young offender institutions. Good quality education and purposeful activity for the young people held in these institutions is of paramount importance and more must be done in this area. Will the noble Lord tell the Grand Committee how he sees standards being improved in the coming period? There are lots of data and other pieces of evidence about the education level achieved and the number of people who suffer from some form of learning difficulties going through the criminal justice system. It is essential that educational achievement is improved as part of rehabilitating these young people—I am delighted to hear that fewer young people are going through the system now—so that they can return to make a proper contribution to society and not be in a revolving door in and out of these and similar establishments. With those points, I am happy from these Benches to support the order.
Lord Faulks
I am grateful to the noble Lord, Lord Kennedy, for his observations about the Youth Justice Board, which will be conveyed to it. Of course, the noble Lord, Lord McNally, the distinguished chairman of the board, has previously stood where I now stand and has had many of his proposals thoroughly scrutinised by the party opposite, including the proposal to get rid of the Youth Justice Board altogether. However, wise counsel prevailed on that occasion, and it continues to perform its function well, as the noble Lord quite rightly said.
He asked me a number of questions about the grants, including whether there be more money for the YJB for grants. This is really not about extending the function of the YJB or the YOI; the aim is to increase flexibility in how the YJB awards grants and how the money is spent. On the question about youth justice grant levels, the grant is allocated from within the Youth Justice Board’s overall budget, and there are significant challenges in meeting the savings, as the noble Lord will be aware, that all departments and arm’s-length bodies must make next year. We need to get this right. However, I am aware that youth offending teams need to plan their resources. We are close to reaching an allocation for the board, and we expect that youth offending teams will be informed soon.
I am sure that the noble Lord will accept that the youth justice IT system is a vital communication tool enabling information about young people to be shared across the youth justice system. He was concerned about the protection of data. This is, of course, not something that has been overlooked. The YJB will not be handling additional personal data as a result of these reforms, so there is no change in the risk in terms of data. This will give the YJB greater freedom to assist in the development of its systems.
There is a great deal I could say about how the youth justice IT systems are currently working, although I am not sure that the Committee would thank me for a lengthy answer. Perhaps I may just say that examples of the current systems include Connectivity, which provides a secure information-sharing mechanism between agencies in the youth justice system. I hope that the security of the programme will reassure him on the question of data. The eAsset sentence management system is used to support the placement and ongoing case management of young people in custody. The Youth Justice Management Information System collects, shares and analyses end-to-end management information, supporting better decision-making about vulnerable young people.
Lastly, the board currently has the power to identify, make known and promote good practice within the youth justice system, but at the moment this does not extend to providing assistance directly to local authorities and other persons in relation to the operation of the youth justice system and, in particular, in relation to their IT systems. Contracts for central IT systems—that is, those which are not held by local authorities—are and will continue to be held by the MoJ. The costs information we have shows that Connectivity and annual running costs are put at £835,480. The eAsset system and YJMIS annual running costs are £626,764. Examples of the type of assistance which the YJB will be able to provide under the new function are the maintenance and management of IT systems, assisting local authorities in co-commissioning from their case management IT suppliers and helping to procure changes to IT systems.
These are minor changes to the powers, although I bear in mind the noble Lord’s general wariness about any alteration in IT systems, and given his experience he has much to teach a government body. However, I think that he will be able to see that the YJB will be very much on top of this and the data will be sufficiently secure. I hope that he can accept that the YJB will continue to do the useful job that it has been doing so far. I hope that it will be able to do it somewhat better with these increased powers. These are reasonable amendments and the board will be able to fulfil its statutory role to oversee the operation of the youth justice system and continue to make what I think are improvements. Nevertheless, one accepts that there are some difficulties which have proved to be particularly intransigent. The increase in the provision of education, the sharing of information and the capacity to have more powers in relation to grant are important ancillary powers that will enable the board better to fulfil its functions. In those circumstances, I hope that the Committee will agree that these are proportionate and sensible measures.
Social Action, Responsibility and Heroism Bill
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this issue has not occupied a great deal of time in your Lordships’ House but it has been the subject of vigorous debate. It has been assumed that these matters are discussed in the Dog and Duck from time to time. Before today, I do not think that it was even envisaged that the discussion extended as far as Antarctica.
This is a small but important Bill, as the Government have said on a number of occasions. First, I wish to deal with the government amendment. In the course of the debates on Clause 3 at previous stages, concerns were raised from a number of perspectives regarding the use of the phrase “a generally responsible approach”. The noble Lords, Lord Beecham and Lord Pannick, expressed concerns that using this phrase might suggest that a court should give weight to a defendant’s track record on safety, rather than focus on his or her conduct in the specific activity giving rise to a claim. My noble friends Lord Hodgson of Astley Abbotts and Lord Hunt of Wirral supported the clause but took the view that the word “generally” is capable of bearing a broad range of definitions and, conceivably, may serve to confuse.
I indicated on Report that we were attracted to the suggestion made by my noble friends of replacing “generally” with “predominantly”, and, following further consideration, we have concluded that this is the best approach to give greater clarity to the aim of the clause. This amendment makes clear that a body or individual who takes a slapdash approach to safety on a particular occasion cannot escape liability merely by pointing to a previously unblemished health and safety record. Instead, it means that the court must focus on whether the defendant has taken a predominantly responsible approach to safety in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred. As I have previously explained, we believe that this is an important factor that merits the court’s attention.
Perhaps I may deal with some of the points raised during this short debate. The House will not have lost sight of the fact that the scheme of the Bill is that the court must “have regard” to certain matters, including those we are currently concerned with in relation to Clause 3. This does not mean that the court ignores all the other matters relevant in a negligence action; it simply must have regard to certain matters but may decide that they are not of sufficient importance to have a significant effect on the outcome of the case.
I shall deal with the point raised by the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, about an accountant—the subject of an exchange on Report between myself and the noble and learned Lord, Lord Goldsmith. I said then—while slightly exaggerating the longevity of an accountant’s profession —that it did not matter whether previous tax returns had been completed impeccably if a tax return or the advice in question was negligently done. I adhere to that. I might, of course, have given a further answer, which is that the relationship with an accountant is almost always contractual. As well as owing a duty of care in tort, he or she will owe a contractual duty to exercise reasonable care in providing accountancy services. Section 13 of the Supply of Goods and Services Act provides:
“In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill”.
The implied term can be negative or varied, provided that it does not fall foul of the Unfair Contract Terms Act 1977.
However, the real issue here is whether the term “carrying out the activity” is sufficiently clear. We think that this is a matter that judges will have no difficulty in interpreting. The activity in question would be completing the tax return, as I said previously, but I shall endeavour to give an example of what this clause is aimed at. I eschewed giving examples for the fear that they can be misleading. However, many claims are brought against supermarkets for spillages that take place in their aisles. With the best will in the world, from time to time, yoghurt, milk, soft drinks or the like are found on the floor. They therefore present a potential slipping or trip risk; and, apparently, a lot of people have, or have alleged that they have, fallen on these slippages. A well ordered supermarket will have a means of ensuring that these spillages are cleared up as soon as reasonably possible, and that, if necessary, some sort of sign can be put around them while they are being cleared up, or that somebody has charge of the process of clearing them up. Nevertheless, such a short period may elapse between the spillage and the accident that this may be impossible. What the Bill is aimed at is: if you are shopping at a supermarket and if its approach towards your visit is, “We don’t really mind that there is a spillage. We don’t have anything by way of a system. The spillages can remain there in the aisle”, then that is perhaps a relevant factor. On the other hand, if it has a system that is satisfactory and sensible—so that designated people are in charge of clearing up or guarding against these slippages—that is a responsible attitude. It should have the desirable result of limiting the number of accidents. However, it is also a matter that most people would think ought to be taken into account in deciding whether there was negligence.
The argument that this is too broad would have a little more force if the words “carrying out the activity” were not there. As I said, that focuses on the activity of a visit to the supermarket or something rather more specific, but is not quite as narrow as “act or omission”, which is proposed to be inserted in the Bill. I accept what the noble and learned Baroness, Lady Butler-Sloss, said: “act or omission” are words that are very familiar to judges, although “carrying out an omission” is rather an infelicitous concept. It is difficult to know how one carries out an omission. I acquit the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, of poor draftsmanship, because I suspect that their answer would be rather like what the Irishman is alleged to have said to the man lost in Ireland and looking for directions: he “would not necessarily start from here”. However, this clause is likely to be part of the law and we must have an amendment that is helpful and clarifies the law. We say that the proposed amendment does not help. We consider that the clause as worded, and as my noble friend Lord Hodgson said, ensures that the court’s attention is focused specifically on the activity in the course of which the alleged negligence or breach of statutory duty occurred. We think that the clarification of the different adverb that the Government have tabled will remove any residual uncertainty. Therefore, we do not believe that the amendment would improve the clause’s drafting or its effectiveness.
The noble Lord, Lord Beecham, was rather more wide-ranging in his attack on the Bill. I do not think it would be helpful to the House if I repeated the answers that I have given to his many attacks on the Bill throughout its passage. We are dealing with a relatively narrow amendment.
It is possible that the amendment tabled by the noble Lord, Lord Pannick, might narrow the scope of the clause by directing courts to focus on whether a single act or omission in the course of a particular activity was predominantly responsible, rather than on whether the defendant’s approach to the activity as a whole was predominantly responsible. While the Government agree that the term “activity” should not be given an overly broad interpretation for the reasons that I have given, we do not think that the court’s focus should be narrowed to the extent that the amendment suggests. We believe that it must be right in cases such as these to require the courts to take a broader view of the defendant’s conduct by looking at whether his approach to safety—taking into account all he did or did not do—was predominantly a responsible one.
At earlier stages of the Bill, the noble Lord, Lord Pannick, asked me whether this would lengthen cases, as people would look at the overall approach. With great respect to him, in these cases a claimant or defendant will often look at their system generally. If there is an accident, attention will often be drawn to an accident book or an accident record, or the proper approach to a history of accidents. I do not accept that there will be any significant lengthening or complication of litigation as a result of this.
The Government’s approach will help to reassure a wide range of individuals and organisations—whether it will spur them on to the sort of adventure undertaken by my noble friend Lord Hunt of Wirral, I am not sure. However, we hope that it will help to encourage volunteering and to remove, at least to some extent, the shadow that can hang over many activities: the fear of litigation. I simply do not accept the disavowal by the noble Lord, Lord Beecham, of there being a compensation culture, or, at the very least, a perception of one.
We think that the courts will still have every opportunity to come, as they do, to sensible decisions on the facts of each case, using the well established principles of negligence. We regard these changes brought about by the Bill, particularly Clause 3, to be modest in scope, nevertheless representing a change that reflects what most would regard as sensible.
I shall move Amendment 2 in due course, and I hope that, on the basis of the explanation I have given, the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, will agree to withdraw Amendment 1.
Lord Faulks
Social Action, Responsibility and Heroism Bill
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Lord Beecham
There is a lot of competition in that respect. I merely say that on this Bill it is not worth the House taking a position that is a departure from its normal practice. I genuinely fear that the Lord Chancellor will use such a vote to muster support against the much more serious amendments that we have sent back for the Commons to consider. That will not help us in sticking to those amendments, should they come back to us. That is why I will not be in either Lobby this evening if the noble and learned Lord decides to test the opinion of the House.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, in speaking against Clause 2 in Committee and in the debate today, the noble and learned Lord, Lord Lloyd of Berwick, has maintained that the clause adds nothing useful to Section 1 of the Compensation Act 2006 or to the existing common law and is therefore unnecessary. I take this opportunity to explain why the Government believe that the clause has an important purpose, which merits the support of the House.
The clause stems from our wish to ensure that people can feel confident about participating in activities that benefit others without worrying about what might happen if something goes wrong and they find themselves defending a negligence claim. Clause 2 sets out to provide valuable reassurance that if that happens, the court will take careful and thorough account of the context of the defendant’s actions when reaching a decision on liability. Rather as the noble Baroness, Lady Ashton, said when introducing the provisions of the Compensation Act, as I have quoted before:
“They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable”.—[Official Report, 28/11/05; col. 81.]
So two separate Governments have identified a fear.
It is said that there is no solid evidence and that such evidence as there is is anecdotal. I agree with my noble friend Lord Hodgson: it is rather hard to identify and amass solid evidence about this. However, I am not sure that many people would disagree with the proposition that we have a culture where litigation hovers over many activities like a shadow and can genuinely inhibit the sort of things that most people would consider to be desirable.
Lord Forsyth of Drumlean (Con)
Can the Minister help a non-lawyer? Is it the Government’s policy that they are prepared to use legislation to send signals or make declarations of policy? That seems to me what is at the heart of this matter, not whether the courts have found it important to interpret that law as it stands.
Lord Faulks
I think there is something of both, in the sense that very often in the law of negligence, although the principles are clear, when identifying the answer to a particular factual case—one very much on the margins—a great deal of judicial time is spent identifying what is a duty of care, whether there is a breach of the duty of care and whether there is foreseeability. Extracting the principles from the morass of common-law cases is not easy. This Bill sets out in statutory form principles to which a judge may have regard. That is a legal process. It is also not, I suggest, inappropriate for some form of message—I do not like the word “message” but I think everybody in your Lordships’ House knows what is meant by that—or for some sort of guidance and reassurance to be given to the general population, so that they can act in a way they would like to act without the fear of uncertainty that accompanies litigation.
I was addressing the point made the noble and learned Lord, Lord Walker, about the Law Commission. He is right about the immensely valuable role it plays in making the law and how desirable it often is to have a proper review. He would accept, I am sure, that it is not a prerequisite for the making of law that the Law Commission has examined a particular area. In fact, the Compensation Act 2006 followed an inquiry by the Department for Constitutional Affairs. The committee had produced a report—I was a special adviser so I declare an interest—so it was not via the Law Commission. Valuable though that can be, there is a limit to the amount it can do in a particular timeframe because of the immense calls on its services. While not disagreeing with anything the noble and learned Lord has said, it does not, I suggest, prevent there being a change in the law, notwithstanding the fact that the Law Commission has not considered this matter specifically.
I suggest that this is an important, although not radical, declaration of the existing law. It sends an important note of reassurance. I accept that it may not be the most transformative Bill that has reached this House but that does not mean that it does not serve an important function. The noble Lord, Lord Beecham, continued his attack, which I have sustained now for approximately 12 months, on every proposition that the Government have put forward. I normally follow his arguments, which are lucid and clear. On this occasion, I am unable to follow his argument. However, I do not wish to stretch my already stretched synapses even further in an attempt to do so; I will simply accept what he says.
The Archbishop of York
My Lords, I am puzzled. Will the noble Lord tell us whether it is ever worthy to use a statute as a means of giving assurance? I thought that a statute was to state the law, not to assure somebody somewhere. That would be okay. It would be an amazing way of—you know what I mean.
Lord Faulks
I think I know what the most reverend Primate means. With respect, as I said on a previous occasion, describing a statute as sending a message is too simplistic a way of explaining what we do in Parliament. We do not legislate in a vacuum. For example, we identify particular issues, whether they are modern slavery or revenge porn, which became part of an amendment to the Criminal Justice and Courts Bill. We pass laws which serve the purpose of clarifying the law but they also reflect what people in society think we ought to be doing in Parliament. I rely on what my noble friend Lord Hodgson said about the desire for neighbours to be unshackled. We need more volunteers; we need people to be unshackled. This law may make a modest contribution and I ask the noble and learned Lord to withdraw his amendment.
Lord Pannick
Before the noble Lord sits down, perhaps I may ask him whether there is any precedent that he can cite for our legislating not to change the law but to provide reassurance.
Lord Faulks
I am not sure that off the top of my head I can think of a particular legislative provision that provides reassurance, but part of the function of much legislation is to provide reassurance and protection to the vulnerable. There is nothing novel about producing a piece of legislation which, in a difficult area, provides some clarity and a modest degree of reassurance in an area of considerable uncertainty.
Lord Lloyd of Berwick
My Lords, I thank noble Lords who have supported this amendment. I want to say a word about the contribution of the noble and learned Lord, Lord Walker of Gestingthorpe. He said that, as the Bill changes the common law, it ought to have been referred in the first instance to the Law Commission. I entirely agree that from time to time it has not been at all easy to discover what the government case has been, but their final position is that it does not change the common law in any way; it merely confirms what was already the common law and what was included as Section 1 of the Compensation Act 2006. I hope that that answers the noble and learned Lord’s difficulty.
So far as the rest is concerned, I shall say nothing more about the arguments put forward by the noble Lord in answer to the debate. They have already been dealt with very fully. However, I want to say a word about the attitude of the Opposition to the amendment. As I understood it until 2.15 pm this afternoon, the Opposition would be supporting the amendment. That was my clear understanding.
Lord Hope of Craighead
My Lords, another feature of this clause occurs to me: how one is supposed to apply it when the issue of contributory negligence comes up. This is one of the problems that the court must have regard to, but we are not told in this very brief provision to what purpose one is examining. I assume that it is whether the individual or body concerned is liable at all, but assuming it is liable, how does one apply it in the context of contributory negligence? I do not believe that that aspect has been thought through at all.
Lord Faulks
My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.
The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.
The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.
As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.
In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.
The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.
Lord Woolf
I am grateful to the Minister for giving way. I still, I am afraid, cannot understand whether, where there are two defendants, one who can rely on this Clause 3, and one who cannot rely on it, he is saying there could be a situation where it would be proper for a judge to say that one defendant walks out of court scot-free, even though he caused the accident, and the other is found guilty.
Lord Faulks
The answer is yes. There are lots of different circumstances in which two defendants may find themselves sued. They may be sued on the basis that one is much more likely to be liable than the other. The other defendant may be sued because his insurance arrangements may be considered more satisfactory. There will be circumstances in which one defendant is much more likely to be culpable than the other—in which case very often there will be, pursuant to the 1970 civil liability Act, a division of responsibility between those two defendants. A judge will have to perform that process.
By the same token, a particular defendant in a factual scenario, where an accident is caused, might have, on a particular day, been wholly reckless about the cause of the accident insofar as that particular defendant is concerned. Another defendant might have been predominantly or generally extremely careful for the welfare of that individual. I am not saying that that is necessarily a likely scenario, but it is certainly one within the realms of the many possibilities of claims that the noble and learned Lord and I have been involved in, where a judge has to pick his way through a number of different defendants and try to find a fair answer on the facts. My answer to him is that that particular process, difficult though it is, performed by skilful judges, will not be made significantly more difficult by these provisions.
As I explained earlier, the approach that we have taken does not rewrite the law in detail, but it represents a change to the law in that it does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendants’ conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one. I suggest that that would very much tally with what a number of members of the public might think was fair. If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability? Why should it be ignored altogether? The court would be obliged to weigh it in the balance—that is all—when considering the ultimate question of whether the defendant met the required standard of care.
Lord Pannick
Is there some time period over which the court is expected to assess the generally responsible approach of the defendant? How far does this go back? Has the department made any assessment of how much longer court cases are going to take and how much more expensive they will be if the judge has to assess all those matters?
Lord Faulks
With great respect to the noble Lord, considering the activity in question focuses the judge on the activity that is said to have caused the particular injury, or tort, which has eventuated.
Lord Faulks
Perhaps I could finish answering this question before I answer the next one. That would necessitate a judge looking at the activity in question and deciding whether, in relation to the activity in question that is being examined by the court, a generally responsible approach was exhibited by the defendant. What that would not involve would be going through his or her safety record for the previous 10 years, if that is what is being suggested. In fact, as the noble Lord may or may not know from personal injuries claims, very often disclosure of the history of accidents in a factory or documents on previous injuries is done in conventional personal injury claims, as the law is now—there is nothing different about that. So with great respect I do not accept the noble Lord’s suggestion that there would be a lengthening of trial or a greater complication in those terms.
Lord Beecham
The Minister must forgive my impatience again. He has concentrated on personal injury claims, but he would concede that the clause does not restrict itself to such claims. Could he identify some of the other sorts of cases, as his ministerial colleague did in the House of Commons, the non-personal injury cases—contract cases and matters of that kind? Would he say that, if a defendant had demonstrated an approach towards protecting the safety of his staff, that suffices to let him escape from damage to other interests of others? What sort of other interests do the Government intend to be covered by the provisions of the clause?
Lord Faulks
The Bill is described in its preamble as being to make,
“provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.
I do not see any reference to breach of contract there. But the noble Lord is right in the sense that Clause 3 refers to,
“a generally responsible approach towards protecting the safety or other interests of others”.
That would open the door to the possibility of other interests being considered. Having regard to the general structure of the Bill, I would not wish to add anything to what was said in the House of Commons. I imagine that it is going to be focused primarily on conventional personal injury cases.
Lord Goldsmith
I am sorry, but I wonder how the noble Lord can make that observation. If a claim comes before the courts, where there is an allegation of breach of statutory duty or negligence, which as he would readily concede could be negligence arising from a contract, how is that clause to be avoided? For example, the accountant says, looking at the wording of Clause 3, “The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record”. How do the words in the clause prevent that from being done?
Lord Faulks
Let me deal with the hypothetically negligent accountant. As I said in answer to previous questions, the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says.
Lord Goldsmith
It would not be this tax return, surely, but the activity of advising on tax returns generally.
Lord Faulks
I respectfully disagree with that interpretation because it is concerned with the activity in question,
“in the course of which the alleged negligence or breach of statutory duty occurred”.
It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.
I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible” approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—
Lord Faulks
Perhaps I may finish answering this question before I answer the next one. The hypothetically negligent accountant—if he or she has made a negligent error—is going to be liable. This is not going to add anything to that position. It would be no good for them to say, “In the 99 other years in which I did this particular act, I did a good job”, because that just would not bite on this. It does not seem to me that it is very likely that, on the particular hypothesis that the noble and learned Lord put forward, it would have any application.
Lord Hope of Craighead
I am grateful to the Minister for giving way. I wonder whether the Minister could be more precise. He talked about the activity in question, but surely Clause 3 has to be read in the light of Clause 1. The whole of this brief Bill is introduced by Clause 1, which tells us:
“This Act applies when a court … is determining the steps that the person was required to take to meet a standard of care”.
Surely one needs to be very precise if one is to understand Clause 3; it is talking about the steps that the person was required to take. It may be that the court is saying, “Well, I am not going to find that the defendant was bound to take that step because I am applying Clause 3”. It is either yes or no, I would have thought. Using the phrase, “activity in question” is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about, and the rest will then follow—rightly or wrongly.
Lord Faulks
Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,
“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.
It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,
“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,
the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.
I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.
Lord Beecham
I have another question. The Minister’s colleague, Mr Vara, said:
“Narrowing the clause … would mean that … bodies such as voluntary organisations, religious groups or social clubs which demonstrate a generally responsible approach towards protecting the safety or other interests of their clients or members would not be able to benefit from its provisions. That cannot be right”.—[Official Report, Commons, 20/10/14; col. 693.]
That is the argument that he made in opposing an amendment which had been tabled. That seems to suggest that the Government were contemplating situations in which such organisations would be protected in the course of their general functions in the event of a claim arising—rather than, as the noble Lord implied, only in relation to a particular case in which they failed, as it were, to have sufficient regard to the safety or other interests of a client. Surely the noble Lord is in error in advancing the argument that we are looking only at the particular individual who might be involved in such a claim. That seems to me much too narrow an approach to the terms set out in the Bill.
Lord Faulks
I do not have the full context of what my ministerial colleague said in the House of Commons, but I do not believe that I am in error when I give the reasons for my answers to the various questions that have been posed. As I say, these words are not mere surplusage; they are put in to clarify and limit the extent to which “generally responsible” has an application.
I suggest that this provision is an important but modest reflection of what many people would say was a sensible encouragement of employers to adopt a predominantly or generally responsible attitude to the safety or other interests of others—but which, in appropriate circumstances and subject to the court’s overall discretion, allows these matters to be taken into consideration. That is as far as it goes. It is a modest but, I suggest, sensible addition to the law—and it is an addition to the law, as I think is accepted. Given the clarification I have attempted to give the noble Lord on the limit of the measure’s scope, I invite him to withdraw his amendment.
Lord Hodgson of Astley Abbotts
My Lords, I am grateful to my noble friend for returning to Amendment 1A. I thought for a moment that it had been forgotten in the heavy-duty exchange of legal artillery that was flying across the Chamber. I am also grateful for his reassuring remarks about the possibility of something further being introduced along the lines of “predominantly” if the Bill survives the challenge from the noble Lord, Lord Beecham. In those circumstances, I am happy to withdraw the amendment.
Lord Faulks
Lord Faulks
My Lords, I turn now to Clause 4 and the amendment we have tabled relating to it. We noted the concerns raised in Committee by the noble Lords, Lord Aberdare and Lord Pannick, and my noble friend Lord Attlee that the current definition of “heroism” could be taken to exclude the actions of trained first aid volunteers. That is because the current clause says that a person acts heroically if he intervenes to help somebody in danger without regard to his own safety or other interests. Organisations such as St John Ambulance and the British Red Cross would always train their volunteers to have regard to the potential risks to themselves and others before intervening.
I had a very constructive meeting with representatives from those organisations after Committee to discuss these matters further, which culminated in the amendment that we are bringing forward today. We agreed that the simplest thing to do would be to remove the final 11 words of the clause. This will put beyond doubt that the clause applies to anybody who intervenes in an emergency to help somebody in danger, regardless of whether they acted entirely spontaneously or weighed up the risks before intervening. What is more, St John Ambulance and the British Red Cross, as leading first aid organisations reaching hundreds of thousands of people a year, have said that if the amendment is agreed they will use the opportunity to encourage more people to come forward to act in emergencies. I am very grateful to them for their offer of assistance, which will help to reassure many new first aid volunteers that they can intervene in emergencies secure in the knowledge that the law will be on their side. I beg to move.
Lord Lloyd of Berwick
My Lords, I also have an amendment in this group. It may be convenient if I say what I have to say now. In many ways, Clause 4, which we are now dealing with, is the oddest of these three clauses. As drafted, it was strongly criticised by the Fire Brigades Union, St John Ambulance and the Red Cross, among others. To take the instance of the Fire Brigades Union, the clause goes directly contrary to advice that it has given for many years to people involved in a fire: to get out of the way of the fire as quickly as they can and to stay out. If they intervene to try to rescue somebody, then they are only likely to put in greater danger the firemen, who will have to come to their rescue as well.
This was pointed out as a difficulty—indeed, as a serious objection—in the other place, but no notice was taken of that criticism until at a very late stage in this House, when the noble Lord, Lord Faulks, gave notice of his amendment to leave out the last 11 words of the clause. Leaving out the last 11 words of this clause is undoubtedly a great improvement, but leaving out half a clause to save the rest of a clause is an unusual thing to do. It only demonstrates that the clause, like the rest of the Bill, was never properly thought out in the first place. In Committee I suggested that it looked like a clause drafted on the back of an envelope. I now think that that may be going too far in its favour. It must surely have occurred to someone at some stage that a clause that protects someone who takes no thought for his own safety, but does not protect someone who takes some thought for his own safety—that, as it was put elegantly, as always, by the noble Lord, Lord Pannick,
“protects the instinctive hero but not the thoughtful hero”—[Official Report, 18/11/14; col. 416.]
—is surely inherently ridiculous. Be that as it may, the objection to Clause 4 is essentially the same as that to Clause 2. The substance of Clause 4, as it will stand if the noble Lord’s amendment is accepted, is already covered by Section 1 of the Compensation Act 2006.
It is difficult to imagine a,
“person … acting heroically … to assist an individual in danger”,
who is not by that very act engaged in a “desirable activity” as envisaged by Section 1 of the Compensation Act. If so, this clause adds literally nothing to the existing law. If the noble Lord in his reply can think of a single example where the point I have made is not valid because something would be covered by this clause and not by Section 1 of the Compensation Act, I hope he will tell us. In the mean time, I submit that it adds nothing and should be rejected on that ground. In due course I will move my amendment too.
Lord Faulks
My Lords, for the most part the Government’s amendment has been supported. The noble and learned Lord, Lord Lloyd, says that the fact that we had to remove nearly half the clause, because half of it was not worth while, indicates that the clause really was not worth while. That may not do entire justice to his argument, but we say that we responded to the burden of the argument. We listened to the debate and we consulted St John Ambulance. We certainly do not want to do anything that does not realise the main objective of the Bill, which is to encourage people to volunteer, to assist and to provide, if necessary, emergency assistance.
The Government will no doubt take very much to heart the criticism of the use of language made by the noble and learned Lord, Lord Walker. I explicitly do not promise to make any changes before Third Reading but I undertake to revisit the issue in case any further clarity can be attained by the use of “person” or “individual”.
However, I would say to anyone who is not a lawyer that Clause 4 is pretty clear. It states:
“The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”.
I am really not sure that that is a terribly difficult concept to understand. I think that men and women would understand what was meant to be conveyed by that, and it is perfectly reasonable to ask the court to pay regard to it. The noble and learned Lord, Lord Brown, may well be right that judges would take that into account. Certainly most judges would.
However, the outcome of any negligence case, as those of us who have laboured in that particular vineyard will tell the House, is never clear, particularly when there is a very badly injured claimant. Judges sometimes do not sufficiently bear these matters in mind. The court must now “have regard”—that is all we ask—to whether there is heroism as described. We do not believe that heroism needs further definition or examples. We think that judges should be able to recognise it when they see it.
I submit that, while taking on board the criticism of some aspects of the drafting, this very much maligned Bill and this clause serve a sensible, common-sense purpose, and I ask the noble and learned Lord not to press his amendment.
Lord Lloyd of Berwick
Before the noble Lord sits down, I wonder whether he would just deal with the principal point made both by myself and by the noble Lord. In what respect does this clause add anything to Clause 2, as it will now stand part of the Bill, or to Section 1 of the Compensation Act 2006? Will he please give us one single example?
Lord Faulks
I will give the same answer that I gave in relation to the distinction between the Compensation Act and this Bill, which is that the Bill says that the court “must have regard”. That is a distinction. I said in Committee that there may well be an overlap between Clauses 2 and 4. I do not say that they are wholly distinct; they convey an accumulation of concepts which are readily understood, and a judge may find it possible to bear in mind both Clause 2 and Clause 4. That fact does not mean that Clause 4 cannot, in appropriate circumstances, serve a useful purpose.
Baroness Warnock (CB)
Before the noble Lord sits down, will he answer the question raised by my noble and learned friend regarding what exactly the word “heroic” adds to Clause 4? Could it not be left out? Intervening for the sake of saving somebody is surely enough. Is there any reason for having “heroism” or “heroically” either in the Title of the Bill or in Clause 4?
Lord Brown of Eaton-under-Heywood
Before the Minister answers that, the words that are completely surplus here are “acting heroically by”. Why can it not read, “was intervening in an emergency”? Can the Minister whet our appetite as to whether there is any scenario when you can intervene in an emergency and so on, within the meaning of this clause, without acting heroically? If not, for heaven’s sake get rid of it.
Lord Faulks
The answer is that the word is used in the clause to describe a particular circumstance which I think would convey to most people exactly what is intended by that clause. Yes, there may be some circumstances in which it is surplusage, and others when it is useful to describe what is said. I am afraid that the criticisms have now been made, and I have given answers to the questions. It is a matter for the House to decide whether they are satisfactory.
Female Genital Mutilation
Lord Faulks Excerpts(9 years, 6 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, I associate myself with the tributes paid to the noble Baroness, Lady Rendell, first, for giving us the opportunity to have what has been a very thoughtful debate on this issue and, secondly, for her tireless campaigning on an issue that—let us be honest—is so awful that most of us do not even want to think about it. However, we have to think about it and take action on it so her campaigning, and the way that she has drawn the wider public’s attention to this issue, is something that she should be very proud of and we are very grateful for.
I also welcome the Minister who is responding to this debate. As we have heard, there have been some debates that were responded to by the Department of Health. During the many debates on the changes that we were making to legislation on the Serious Crime Bill, it was the Home Office responding. It is appropriate that we also have a response from the Ministry of Justice, as there are specific issues related to that department. That just shows how important it is for those three departments, and others, to work together and be co-ordinated on this.
The scale of this problem is hard to comprehend. We have had some figures from the noble Baroness, Lady Rendell, but there are thousands of young women and girls in this country who have been mutilated. For those who think that it happens somewhere else over there, it does not; it is happening here. There could be a young girl somewhere in the UK today who is being mutilated. It is that serious. The euphemism that we sometimes use of girls being “cut” belies the horror of what is really involved, which I think is the point made by the noble Lord, Lord Berkeley of Knighton. It was right that the noble Baronesses, Lady Tonge and Lady Rendell, were also clear about the horrors of what is involved. When we spoke about this in debate on the Serious Crime Bill, I think that I was the first person to appear on “Yesterday in Parliament” in a programme that was given a certificate and a warning before it went out. I thought that it was important to say exactly what is involved, and in somewhat embarrassing graphic detail.
We are talking about thousands of young girls and women. The noble Baroness, Lady Tonge, made the point about these girls having children. It is estimated that up to 60,000 girls have been born in England and Wales to mothers who had FGM, which means that they have been sealed up after they have been cut and that the process of birth, where they have to be operated on beforehand, is extremely difficult. Whatever the numbers, we are talking about thousands. The process known as infibulation sounds quite a normal word for something that will continue to cause pain and trauma throughout the life of that woman. It is a mutilation that leaves permanent scars, on the mind as well as on the body.
The lack of prosecutions should concern us all. It would be fine if we thought that there was a lack of prosecutions because the law had been so successful that it was preventing this happening. However, we know that that is not the case and that thousands of young girls every year undergo FGM here in the UK.
I would like to raise two issues because it seems to me that the purpose of legislation here is twofold. We have such legislation in place, first, to try to prevent such mutilation occurring and, secondly, to take action against those who break the law. We had discussions in debate on the Serious Crime Bill on female genital mutilation orders, which the Government introduced in response to our proposals for such orders. They seek to protect young women from this vile practice before it happens, so they are similar to the forced marriage orders in their aim being prevention. By recognising all the problems in getting evidence for a criminal prosecution, they take the route that this is a civil measure to protect a young girl rather than a criminal measure.
The Minister was not in the debate because it was not his Bill, but I am sure that he will be aware of the discussions that we had. We have concerns about the process that the Government have chosen. Rather than placing such orders clearly and firmly in family law in a civil process, they are placed in a civil process within criminal law. I will not go into the detail now but all the advice that we have received from lawyers with expertise in this field tells us that this will make the gain of such an order more difficult, for some of the reasons that we have explained before. That is part of why we have had a lack of prosecutions for those who have committed FGM.
The Minister’s experience will tell him that lawyers dealing with family court cases and issues are not the same as those who deal with criminal law. We welcome the orders that prevent this happening and we welcome the Government’s support, but we just want them to be as effective as they possibly can be, because a child’s future depends on us getting this right. We want to ensure that there are no barriers for someone to seek an order to protect a young girl from being mutilated. We want to make it as easy and straightforward as possible, without any loopholes or problems. So before the Serious Crime Bill finishes its passage through Parliament, could the Minister bring his legal expertise to look again at this issue to ensure that we have got it right, because we have serious doubts that the orders as currently proposed will get as many prosecutions as they could if they were wholly within family law courts and not within a criminal prosecution, although it is a civil measure?
Baroness Smith of Basildon
I am not talking about prosecutions—I am talking about the FGM orders that are currently civil orders that the Government have placed within criminal law to keep all FGM legislation the same. It is a very different process from prosecuting afterwards.
My second point is that we wanted these FGM orders to be based on the same principles as forced marriage orders, which have been significantly successful. One aspect on which I sought clarity from the Minister at Third Reading—I have also spoken privately to the Minister and have not yet got an answer—is whether legal aid would be made available for those seeking an FGM order as it currently is with forced marriage orders? The Minister was unclear on that in the House and although I have spoken to him since it seems that there is still a lack of clarity in the Government over whether these orders would attract legal aid. It seems impossible to me that they could proceed in any way without legal aid.
During the passage of the LASPO Bill, because of the changes made to legal aid by the Government, there was a specific provision was made for forced marriage orders, in paragraph 16 to Schedule 1. No such provision has yet been made for FGM orders. I find it strange that the Government would consider bringing in such orders without providing these young girls or those acting on their behalf to prevent them being mutilated with the ability to bring something before the courts and have legal aid. Are the Government intending to make legal aid available? If not, or if the position remains unclear, how does the Minister expect the orders to be obtained and how many does he think that there will be?
We do not think that the Government are wrong on the orders. On prosecutions, we believe that they share our objectives to stamp out this practice and hold those responsible to account. We believe that that is a genuine commitment from the Government. However, the laws that we have at the moment are not working as well as they should, or were intended to do. We have an opportunity in the Serious Crime Bill to make changes and get it right, but as the right reverend Prelate said, we need to have a cultural change as well. If it was made clear that successful prosecutions could be made under the existing law, that would help to drive a cultural change. If the expectation was that this was something that could be prosecuted, that would have an impact in those communities.
We all want to see those responsible for mutilating the genitals of young girls being prosecuted, and we want to see this twin-track approach whereby we prevent it happening in the first place and make a difference to the lives of these girls.
Lord Faulks
My Lords, I join other noble Lords in thanking the noble Baroness, Lady Rendell, for securing this important debate and for introducing it so effectively and economically. The fact that she has returned to this subject so many times is a tribute to her tenacity on what is such an important issue for all of us. This issue is very much in the news now; coverage of it has exploded. However, that was a long time coming and is due to many people, including those such as the noble Baroness, Lady Rendell, who have kept the matter high on the agenda, and I pay tribute to her and to other speakers who have an equal interest in this important subject.
There is, I think, complete agreement that this is an abhorrent crime that affects some of the most vulnerable girls and women in our society. The Government are committed to preventing and ending the harmful and unacceptable practice. I agree that successful prosecutions are a key part of stamping out FGM and would send out a strong message on the rule of law, something to which the noble and learned Lord, Lord Morris, referred. There is a prosecution due in January. It is probably not appropriate to comment on what one hopes the outcome of the case would be, but, whatever happens, the publicity that will attend that prosecution should, I hope, send a strong message in itself.
The DPP announced the first prosecutions of FGM in March of this year. The first defendant is charged with carrying out FGM. The second defendant is charged with intentionally encouraging an offence of FGM and aiding and abetting, counselling or procuring an offence. I am sure that it is a source of frustration to all noble Lords that while FGM has been a specific criminal offence for 29 years—the original Act—no prosecutions were brought. Indeed, the noble Baroness, Lady Rendell, played a significant part in the Prohibition of Female Circumcision Act 1985. The Female Genital Mutilation Act, which she steered through this House, extended significantly the protection that the law affords to victims of this unacceptable practice. The Act created extraterritorial offences to deter people from taking girls abroad, and, to reflect the serious harm caused, it increased the maximum penalty for any of the female genital mutilation offences from five to 14 years.
However, there has been increasing public concern at the failure to achieve a successful prosecution. Records indicate that no cases were referred to the CPS for a decision on whether to bring proceedings until 2010. In the last couple of years, a small number of cases have been reported to the police, which they have duly investigated. Some of those cases have since been referred by the police to the CPS for advice. However, the prevalence of FGM here—a study, part-funded by the Government and published in July 2014, revealed that approximately 60,000 girls are at risk of FGM in the UK—clearly should give rise to far more investigations and prosecutions than are taking place.
The CPS can, of course, only consider prosecuting cases of FGM which have been referred to it by the police following an investigation. However, the real problem has always been persuading victims to come forward at all. There are a number of challenges faced by the police in investigating cases of FGM. Many victims may be too young or vulnerable, or too afraid to report offences or to give evidence in court. As referred to by the noble Baroness, Lady Rendell, the consequence of giving evidence and coming forward can be complete ostracisation from family or community: they may seem to pay a very high price. There may be evidential problems and other difficulties if cases are reported many years after the event. And of course FGM may take place out of the jurisdiction, leading to challenges in obtaining reliable and admissible evidence.
The CPS has been working closely with the Government, police, medical professionals and the third sector to address some of these challenges, and is now in a much stronger position to bring successful prosecutions against those who perpetrate this practice. The DPP wrote to the Ministry of Justice and to Home Office Ministers in February 2014 proposing changes to strengthen the legislation. The proposals were informed by a review of cases referred to the CPS by the police in which prosecutors had been unable to charge and prosecute. A number of areas were identified in which legislation could be strengthened.
As has already been mentioned, in July 2014, the Prime Minister hosted the UK’s first Girl Summit. At the summit, a package of measures was announced, including commitments to strengthen the law and improve the enforcement response. There has been reference to legislative changes included in the Serious Crime Bill. While I readily concede that legislation is not of itself the answer, it is nevertheless important that there is the appropriate legislative framework. Some of the cases referred to the CPS highlighted, in the context to which I referred earlier, that a prosecution for FGM committed abroad could not be brought if those involved were not, at the material time, permanent UK residents as defined in the Female Genital Mutilation Act 2003. Clause 67, which was included on its introduction, extended the reach to habitual as well as permanent UK residents. Many textbooks have been written about the different between “habitually” and “permanent”. I will not deal with the issue now, but it certainly covers those who seek to say that they were not permanently resident here. This means that it will in future be possible to prosecute a non-UK national for an offence under Sections 1 to 3 of the 2003 Act where that person is only habitually resident in this country.
More amendments were added on Report. It was thought that victims were reluctant to come forward because they did not want to be identified in the media, so lifelong anonymity is granted by Clause 68. We hope that will help to encourage people. I pay tribute to those who are courageous enough not only to come forward but to identify themselves—there are one or two. We hope that that will be followed.
Clause 69 creates a new offence of failing to protect a girl from the risk of FGM and would make someone who has parental responsibility for a girl who has been mutilated aged under 16, and is in frequent contact with her, or who has assumed responsibility for such a girl, potentially liable if they knew, or ought to have known, that there was a significant risk of FGM.
Of course, we are very keen to see the criminal law being used, but ideally one would want to prevent FGM happening at all. So, following a consultation launched at the Girl Summit, Clause 70 introduces the civil order referred to by the noble Baroness, Lady Smith, to protect those at risk of FGM. She said that she is concerned that in the particular court in which such an order can be obtained the relevant experience may not be there for those who might seek an order and it would be better obtained elsewhere. We will consider that matter and I will pass on the concern that she has expressed. However, what is important is that wherever it is appropriate to seek such an order there is the relevant experience. We will work with the legal profession and others to ensure that the provisions are widely publicised and understood so that they can be proceeded with.
The noble Baroness asked about legal aid. I inquired specifically on this. The position is that we are considering the question of legal aid. I hear what she says about that. It is a matter which will be considered, I hope, in short order.
Safeguarding professionals are key to reporting FGM. The Government have committed to consult on how best to introduce a new mandatory reporting duty to ensure professionals report cases of FGM to the police. Alerting the police to actual cases will allow them to investigate the facts of each case and increase the number of perpetrators apprehended.
The CPS has appointed lead FGM prosecutors for each CPS area in England and Wales and local police/CPS FGM investigation protocols have been agreed with the 42 police force areas. That deals to some extent with the point made by the right reverend Prelate about the need to skill up prosecutors and the police to make sure that there is not just legislation but some practical understanding of the problems that are to be confronted here.
The Government have published multiagency practice guidelines on FGM, highlighting the risk factors that teachers, nurses, GPs, police officers and social workers should be looking out for during their work—matters on which the noble Baroness, Lady Tonge, was keen to establish we were making progress. We are supporting and funding community engagement work to raise awareness of the issue. We are ensuring that NHS acute hospitals routinely record information relating to FGM and use it to support social services and police, as well as sharing it to provide appropriate healthcare for girls and women.
The Home Office has launched an e-learning tool so that all practitioners are able to undertake an introduction to FGM. There are reforms to social work, education and practice to protect children from FGM and other forms of abuse. There is also work to tackle FGM internationally, and DfID has announced a £35 million programme. The right reverend Prelate referred to our response to the Select Committee’s report and the action plan. I think that all noble Lords will agree that we have done all we can to grapple with this issue, although progress is frustratingly slow.
The noble Lord, Lord Berkeley, asked whether this country was in some way particularly attractive to those who might wish to perpetrate this crime on young girls. Of course, one of the problems is that this is a largely hidden crime. However, the Government are committed to trying to stamp it out. They do not keep data on this matter but we are convinced that what we are doing will not do anything other than discourage it because of all the publicity and the various steps that we are taking.
As to the question of compulsory examinations, which the noble Lord raised on a previous occasion, I understand why he thinks that that is important. At the moment, the Government are not convinced that introducing medical examinations to identify FGM should be compulsory. I say “at the moment”; there are no current plans but the Government’s mind is not closed to these things. However, I do not want to mislead Parliament or the noble Lord by saying that they are actively considering that course.
There is very active engagement with foreign jurisdictions. We are learning from other countries, including France and common law jurisdictions in Australia.
The noble and learned Lord, Lord Morris, mentioned discussions between the DPP and law officers. As he will well know, they have regular meetings on a range of matters, including violence against women and girls. There was reference to Keir Starmer and his interest. Although I do not have personal knowledge of this, I am sure that such conversations continue under the current Government, and we know that there is a trial coming up in January.
I know that there was a debate about whether there should be a new criminal offence of inciting or encouraging FGM generally, as opposed to specifically. At the moment—indeed, it is the subject of one of the prosecutions—the Government think that prosecutions should relate to a particular offence rather than more generally, but I entirely take the point that it is important that community leaders outlaw this. Following the Girl Summit, 350 community and faith leaders from all major religions have condemned this practice, and we hope that that will continue.
The noble Baroness, Lady Smith, quite rightly pointed to the fact that this issue goes across government. Of course, the Department of Health, DfID, the Department for Communities and Local Government, the MoJ, the Solicitor-General and the Department for Education are all concerned with this. There are regular meetings, an FGM unit has been established at the Home Office, and the Government’s cross-government strategy is contained—
Baroness Tonge
I see that the Minister is drawing to a conclusion but I am bursting to ask him a question. Does he agree that female genital mutilation is grotesque child abuse? Therefore, why do we have to have all this extra wrapping around it? Why can it not just be dealt with like child abuse? I have had children brought to me in my clinics where teachers have suspected that sexual abuse has been going on. Why cannot the same thing happen with FGM? Why is it all so peculiar?
Lord Faulks
I do not think there is anything peculiar about it. There is no doubt that it is a criminal offence. In fact, France does not have a specific offence of genital mutilation; it simply has offences of assault and the like. Whether it is sexual abuse, assault or FGM, it is a criminal offence. So there is no special precaution about this. One of the points correctly made by the noble Baroness, Lady Rendell, is that we have left the exaggerated respect for cultural norms and traditions and we hear no more about that, I am glad to say.
Across departments, the Government are committed to doing everything we can to stamp this out. We hope its prosecution is a success, that more people come forward and that a complete consensus can be established to stamp out this abhorrent practice. This has been a passionate and well informed debate. The Government fully understand the concerns expressed here and outside and are resolutely committed to fighting FGM.
Mesothelioma
Lord Faulks Excerpts(9 years, 7 months ago)
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Lord Alton of Liverpool
To ask Her Majesty’s Government, following the decision of the High Court that the consultation on mesothelioma legal fees was unlawful, and the lack of new funding for mesothelioma research, what is their policy with regard to combating mesothelioma and supporting victims.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
The Government take the plight of mesothelioma sufferers seriously and are determined to improve their position. We have introduced significant changes through the diffuse mesothelioma payment scheme, established under the 2014 Act. By October 2014 the scheme had made 131 payments, resulting in £16.5 million being paid to sufferers or their families. The Government fully recognise the need to stimulate an increase in the level of research activity and continue actively to pursue measures to achieve this.
Lord Alton of Liverpool
My Lords, I thank the Minister for that reply. Does he recall that, during the passage of the Mesothelioma Act 2014, Ministers said that the levy on the insurance industry would be set at 3%? They said:
“Three percent. is 3% and we have no intention of moving away from it”.—[Official Report, Commons, Mesothelioma Bill [Lords] Committee, 12/12/13; col. 117.]
Why then has it now been set at 2.2%, representing a shortfall of more than £11 million? That money could have been generated and used to undertake sustainable research into a killer disease which will take the lives of another 60,000 British people. This is according to figures which the Government themselves have issued.
Lord Faulks
As the noble Lord will know, the Government responded to the amendment which he tabled during passage of the Act by saying that they were committed as a priority to helping to encourage research by the National Institute for Health Research. We set up a partnership of patients and carers to identify a top 10 list of questions for researchers to answer. The results were published yesterday, as he may know. We now feel that we have identified the questions and funding will be available if there are appropriate applicants. The problem with research is no longer—indeed, it never was—funding, but finding really conceivably successful applications.
Lord German (LD)
My Lords, both the House of Commons Justice Committee and the judgment of the High Court concerning the issue of legal fees in mesothelioma cases are critical of the way that the government review was carried out. It was found to be premature and did not follow the rules of the LASPO Act. We know that the incidence of this disease will peak and then fall away over the years, as the 30 year-old Acts concerning asbestos are put into place and have an effect. Given that there will be a withering on the vine of the numbers suffering this fatal disease, is it not now the time for this legal fees issue to be left alone and kept as it is, rather than coming back to it again and putting people through increased risk and increased delay?
Lord Faulks
My noble friend is right. We expect the peak to start declining and perhaps come more or less to an end in 2024. There is to be a review. There is no immediate timing for it but my noble friend is right in that the status quo is acceptable to the claimants. They are to receive damages. Research will continue, as I indicated, and the pre-LASPO regime for legal support will continue. This will ensure that lawyers are paid adequately, and we are told that they will not take cases unless they are paid adequately. The review will go on.
Lord Giddens (Lab)
My Lords, I watched a member of my family die of this dreadful disease. There are massive advances in medical technology which make it possible, in principle, to find a cure. As the noble Lord, Lord Alton, has indicated, that could mean saving the lives of some 50,000 people. To do this we are going to need an integrated research strategy, with the Government in the lead, co-ordinating with industries and with universities. Where is this strategy? The Government’s approach seems far too piecemeal and far too limited to do the job that is needed.
Lord Faulks
As I indicated, the strategy is to ensure that the right questions are posed so as to elicit appropriate applications. The funding is very much there, but there is no point in having it unless it is directed towards research which can feasibly produce the result which, I am sure, everybody in this House wants to achieve.
Lord Wigley (PC)
My Lords, will the Minister go further on that? There needs to be a certainty that the money is there but the top-level researchers also need to be aware of it so that the money and the level of the research capability are brought together. Is the Minister confident that that certainty now exists? What can be done to make sure that the best researchers in the land are aware of it and can get engaged with this problem?
Lord Faulks
I can do no better than quote what Professor Dame Sally Davies, the Chief Medical Officer and chief scientific adviser, said yesterday. She thanked all those who provided information and said:
“With their help I believe we have built a genuine consensus—and a real impetus. I hope the research community will now respond by generating new research proposals that will provide robust evidence to help people with mesothelioma”.
The Lord Bishop of Chester
My Lords, I encourage the Minister to answer the first part of the Question asked by the noble Lord, Lord Alton, about why the percentage of the precept was reduced from the promised 3% to 2.2%.
Lord Faulks
The position with insurers is that they have provided money. I will have to write to both noble Lords and the right reverend Prelate about what has happened to that particular sum. The question of the use of research funds is difficult. We think that research funds should be spent in the most effective way, and we think that publicly funding research is much more appropriate than hypothecating against insurers’ particular sums.
Lord McKenzie of Luton (Lab)
My Lords, would the Minister accept that throughout our deliberations on the Mesothelioma Bill the focus was on a 3% levy? It was 3% because the insurance industry insisted that beyond that it would have to be passed to consumers. By implication, if the levy is now 2.2%, presumably that falls into the pocket of the insurance companies at a time when compensation is not being paid at a 100% level, and, as has been asserted, there is insufficient funding for research.
Lord Faulks
It is absolutely not the case that there is insufficient funding for research. As I have said more than once, the case is that, at the moment, there is not a suitable number of applications for research. The funding is very much there. As to any question of insurers making some profit out of this, I will look into that. It is contrary to what the Government wish to achieve.
Lord Howarth of Newport (Lab)
My Lords, when the noble Lord, Lord Freud, brought in the mesothelioma legislation he did so undoubtedly in good faith. Yet, sufferers from this terrible industrial disease have now been failed not only by employers and insurers but by the Government themselves. Has the Lord Chancellor authorised the noble Lord to apologise on behalf of the Government for his decision to take up to 25% of compensation awards for costs—conduct which has been ruled by judicial review in the High Court to be unlawful? The noble Lord still has not explained to the House why the Government have failed to honour their commitment, given in terms by the Minister, Mike Penning, to set the levy on employer’s liability insurance at 3% of gross written premiums, which would have enabled better compensation and more funding for sustained research.
Lord Faulks
Compensation is full at the moment, as the noble Lord knows. I reject the allegation that the Government have done nothing. Not only are they promoting research; they have also, with their Big Tent meeting in June, encouraged much greater co-operation between lawyers acting for claimants to ensure that medical employment records are swiftly obtained. What is most important is that these claimants obtain compensation quickly and at as high a level as they can.
Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 7 months ago)
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Lord Faulks
That this House do not insist on its Amendment 74, to which the Commons have disagreed for their Reason 74A.
Lords Amendment
“( ) No female, nor any male under the age of fifteen, may be placed in a secure college.”
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, as noble Lords will be aware, the other place was not persuaded last week by the amendment that this House put forward to prevent girls and boys under the age of 15 being accommodated in secure colleges. It voted by a margin of 316 to 194 to disagree with the amendment.
The Government remain of the view that it is not right to prevent girls and boys aged under 15 benefiting from this pioneering approach to educating and rehabilitating young offenders. We are committed to this principle, recognising that girls and younger boys are already safely accommodated together on the same site in both secure training centres and secure children’s homes, which together with YOIs make up the youth custodial estate.
Noble Lords will remember from previous debates that no final decisions have yet been made as to who will be accommodated in the secure college pathfinder that is due to open in 2017. This decision will be taken closer to the time and based on the composition of the youth custodial population. Responsibility for individual placement decisions will remain with the Youth Justice Board, which decides on a case-by-case basis, and is informed by the advice of the local youth offending team, where each young person should be accommodated while in custody. I know that a number of noble Lords remain firmly opposed to secure colleges or, in any event, this secure college. The Government are aware of their concern and respect their views, although they do not agree with them. This amendment is not about secure colleges generally but about under-15s and girls, and I am sure that noble Lords will be focusing on this particular issue.
Noble Lords will be aware from previous meetings that I have held with interested Peers and from discussions in the House that more vulnerable groups—such as girls and under-15s, should they be placed there—will be separately accommodated in smaller living units at the pathfinder secure college, and can also be separately educated. Following earlier discussions with interested Peers, we amended our site plans to provide further protection, and additional and separate outdoor space for the more vulnerable young people accommodated at the pathfinder.
I have also previously made a commitment in this House that neither girls nor under-15s will be placed in the pathfinder secure college from its opening and that, should the decision be taken to place them there, their introduction would be carefully phased. My colleague, the Minister for Prisons, Andrew Selous, reiterated this same commitment to the other place last week. Nevertheless, despite these safeguards and commitments, the Government recognise that some concern remains. In particular, this concern is focused on the potential accommodation of girls and under-15s on the same site as older boys, and how the different groups would be kept safe and their different needs attended to.
To provide Parliament with further reassurance on these points, we are today committing to the Secretary of State laying a report before Parliament, and publishing that report, before either boys aged under 15 or girls are placed in the first secure college where they would be accommodated alongside older boys aged 15 to 17. This report will describe the arrangements in place at the secure college for the detention of girls and under-15s. In particular, it will set out the safeguards in place to protect these groups and the facilities and services available to meet their educational and rehabilitative needs and to promote their health and well-being. This report would therefore include detail on: the accommodation and supervision of girls and under-15s; how they will be educated and the focus of this education; the interventions available to tackle their offending behaviour; the provision for meeting their physical and mental health needs—a particular concern that I know has been expressed in the course of debate—and promoting their emotional well-being; and the safety arrangements at the site to ensure that neither group is at risk of intimidation or violence.
In producing this report, the Secretary of State would consult with the Youth Justice Board, Her Majesty’s Inspectorate of Prisons and Ofsted. The report would be laid before Parliament and published at least two months before the first occasion on which it was intended that boys aged under 15 or girls were to be placed in the first secure college to accommodate these groups on the same site as older boys.
Lord Willis of Knaresborough (LD)
On an important point at this juncture and before he goes any further, will the Minister give an assurance that, when that report is produced, its recommendations will not be implemented in any form until there is an affirmative vote on those recommendations in both Houses of Parliament?
Lord Faulks
No, I will not give that reassurance. I hope noble Lords will none the less welcome this significant commitment, which will provide considerable transparency on the Government’s plans for the accommodation of girls and under-15s in secure colleges. I also remind noble Lords that, in addition to this commitment, there is of course the ongoing scrutiny of secure colleges provided by the inspectorates, Her Majesty’s Inspectorate of Prisons and Ofsted. In light of this commitment, I take the opportunity to reaffirm that keeping young people safe in custody will be the top priority in secure colleges, just as it is elsewhere. The Government are confident that secure colleges will deliver a step change in the culture and outcomes of youth custody and that, with the right facilities and precautions, both girls and under-15s will be able to benefit from this new approach.
I hope that this further significant reassurance demonstrates the Government’s commitment to protecting properly these vulnerable groups in secure colleges, while meeting their specific needs and enabling them to access enhanced provision. I hope this gives the House confidence not to insist on its earlier Amendment 74. I look forward to hearing the views of the noble Lord, Lord Ramsbotham—and, of course, the views of other noble Lords. I hope that, with the assurances I have given, he will in due course be able to withdraw his Motion to insist on Amendment 74. I beg to move.
Motion A1
Lord Storey (LD)
My Lords, I apologise for not speaking before but I have faced two family bereavements. The Government ought to congratulate themselves that the number of young people held in secure accommodation has dramatically reduced. These young people obviously need education. Some 70% are special needs pupils; 20% are statemented. They are also terribly emotionally damaged. They are children; I am not talking about youths or young adults. A 12 year-old child can potentially be hundreds of miles away from the thing they need most—the love of their family and friends. Could the Minister say whether, if this custody provision—we are told it is Europe’s largest—goes ahead, any provision will be made for travel costs for those parents wishing and perhaps hoping to visit their children on a daily basis?
Lord Faulks
My Lords, this has been a lengthy debate in which we have had some important contributions from a number of noble Lords, some of whom have been with us for the whole journey of scrutiny and some of whom have made their first appearance today. I am sorry that more noble Lords were not able to participate in the very considerable number of meetings in which the Government explained what they were doing. We answered many of the questions which have been raised by a number of noble Lords for the first time today. We answered them in correspondence. We also had a number of meetings in which we went through the plans. While I do not wish any disrespect to those noble Lords who have asked a number of questions to which I have already given the answer in various contexts, I hope they will forgive me if I refer significantly to the debates that have already taken place at Second Reading, in Committee and on Report, and to various letters to all Peers. I will try to keep my remarks as short as is consistent with answering the general burden of the debate.
I was disappointed that my noble friend Lord Marks said that there had been no opportunity for parliamentary scrutiny. I accept that the scrutiny may not have satisfied him or other noble Lords that the plans are appropriate, but scrutiny there has been.
Lord Marks of Henley-on-Thames
I am sorry to interrupt my noble friend but he has plainly misunderstood what I was saying. I am not complaining about the scrutiny of this Bill. I am complaining about the lack of a parliamentary approval proposal from the Government before girls and under-15s can be placed in secure colleges.
Lord Faulks
I am grateful for that correction or clarification by the noble Lord. It is important to remember that the context in which the Government are approaching the secure colleges is, as my noble friend Lord Storey correctly pointed out, that we have a reduction in the youth estate, which is to the credit of the Government, the Youth Justice Board and all those concerned with the criminal justice system. However, we have a small number of young people who, for various reasons—and those reasons have been touched on by a number of noble Lords—present many different problems and issues and need to be detained in one form or another on the youth custodial estate.
We cannot be satisfied with the fact that 68% of young people reoffend after leaving custody. Nor can we be satisfied that education is not a greater focus of the efforts to turn these young lives around. In fact, it is 74% where secure children’s homes are concerned. For these reasons, we do not wish to exclude any groups from accessing the benefits that we believe the new model of custody will deliver.
I wonder how much there is, in fact, between the Government and many noble Lords who have spoken. The Government are indeed careful and wary, for all the reasons that have been outlined, before sending those aged under 15 or young girls to these secure colleges. That is why I gave a commitment to the House that we would not cause them, in any circumstances, to be sent there at the beginning. It is also extremely important to emphasise that they will be sent there only if the Youth Justice Board and the youth offending teams think that it is appropriate, because all those bodies and the Government recognise precisely the points that have been made, namely that these young people are extremely vulnerable and that it should only be—
The Earl of Listowel
I am grateful to the Minister for giving way. I have heard him make this assurance previously. I ask him to bear in mind the case of Joseph Scholes. This was a young man in care. He was in a children’s home. He was involved in a gang that stole a mobile phone. It was determined that he should be placed in custody. The court recommended that he should be placed in a local authority secure children’s home. There were not sufficient places available, so I think he was placed either in an STC, a secure training centre, or in a YOI. He took his life after that. Realistically, one has to recognise that the YJB and others are under severe financial constraints and will perhaps be even more so in future. While they may wish to do the very best for every individual child, if these spaces become available there will be great pressure for them to be used.
Lord Faulks
These institutions are important. Those who have seen the plans will appreciate that they are bright and barless. In answer to some of the points made, they also provide a separate, small group of 10 to 12 units for girls and under-15s, if they are placed there, to ensure a degree of separation for them. As for the provision of medical attention, there is to be, as those who have seen the plans will know, a rather sophisticated provision of mental health, provided by NHS England, as well as physical health and dentistry—which should in fact, I respectfully suggest to noble Lords, more effectively address health needs than they probably are in the community or in any of the other institutions that currently exist in the youth custodial estate.
I was asked a large number of questions, particularly by the noble Lord, Lord Carlile, and my noble friend Lord Lester, essentially saying, “What is the hurry? What is the foreseeable future? Why do you want to have this provision approved now? Can we not wait until there is a subsequent Bill?”. The answer is this: we have parliamentary approval to set up these secure colleges. I know that many noble Lords do not approve of this, but that issue is now no longer before the House. If the colleges are satisfactory and meet the approval of the inspections, we wish to allow those who may benefit—provided all the safeguards have been followed—to take advantage of that institution.
My noble friend Lord Lester asked where my friend the Minister, Andrew Selous, answered the points made by the noble Lord, Lord Ramsbotham. I refer him to cols. 101 and 102 of Commons Hansard, rather than reading it all out. During the course of his peroration, Mr Selous said that, as the father of three daughters, he would not wish to deny them the opportunity to go to a secure college. I would not, perhaps, go that far. However, the point that he makes is an important one. We should not, provided that the secure colleges are satisfactory, discriminate against girls having the possibility of taking advantage of what we solemnly believe will be a satisfactory educational provision.
Of course the noble Lords say that there should be an affirmative or a negative procedure. It will not be forgotten that this was a case in which there was a loss by one vote in your Lordships’ House, and then it was reversed by a significant number in the House of Commons. It might have been thought that the Government would simply ask this House to think again. We have been endeavouring to provide some assurance. The Secretary of State will indeed provide a report. As I have indicated, he can consult whomever he thinks is appropriate before providing a report as to why he thinks it necessary, if indeed he comes to that conclusion. He may well come to the conclusion that it is not appropriate; that remains an option.
I am sorry that there has not been an acknowledgement that the Government have tried to engage with interested Peers on this issue. I know that the noble Lord, Lord Ramsbotham, is extremely hostile to secure colleges as a whole, but we ask him to bear in mind the essential failure—we regretfully say—in the current arrangements to answer the real problems that have been identified in that relatively small number of people who are in the youth custodial estate. We urge him to ask himself whether it is really appropriate to deny this vulnerable but important cohort of people the opportunity—if it is appropriate, with all the safeguards that we have examined—to take advantage of those secure colleges. We want them—if it is appropriate—to have that opportunity. We can assure the House that these safeguards will be gone through and furthermore that there will be a report that will make the Secretary of State’s reasoning transparent.
Lord Richard (Lab)
My Lords, I plead guilty to the indictment framed by the noble Lord of not having taken part in any of the previous debates. Having listened to the debate this afternoon, I wish that I had. The noble Lord keeps saying “if it is appropriate” and that we must not deny young girls the great opportunity that these colleges might provide. Will the Government say that they will not put any girls under 15 in these establishments until the Government have established that these colleges work and would be of benefit to those children?
Lord Faulks
As I indicated, there are inspectorates —HM Inspectorate of Prisons, Ofsted, the Youth Justice Board and youth offending teams—and now we have a prospective report by the Secretary of State. The noble Lord, Lord Ramsbotham, said that the Secretary of State wished to put these people in the secure colleges. With great respect to the noble Lord, what happens is that if they commit offences and a court has decided that it is appropriate to send them there, subject to all the other safeguards, they will be sent there. The Secretary of State has nothing to do with them being sent there. His task is to provide appropriate establishments.
I respect the concern that noble Lords have quite rightly shown for this cohort—and I fully accept that they have exhibited it not just now but at various stages during the examination of these legislative provisions. They have expressed their view, those views will have been communicated to the Secretary of State, among others, and this House has made its position clear. Nevertheless, having considered the matter carefully, I ask the noble Lord to decide not to press his amendment.
Lord Glenarthur
My Lords, before my noble friend sits down, perhaps he would reconsider the issue of whether it is more appropriate to go to the affirmative resolution rather than the negative. I have sat on the Front Bench for many years with many of my colleagues here and have been through the same debate, but often it is wiser and more sensible to try to pursue something that allows Parliament to have that debate rather than simply to brush it aside. I understand the negative procedure only too well, and I hope that on this point my noble friend will reconsider.
Lord Marks of Henley-on-Thames
My Lords, before my noble friend answers that question, will he confirm to my noble friend Lord Glenarthur and the whole House that the present proposal is that there would be no parliamentary procedure at all apart from the laying of a report for consideration—no vote, no regulations and no SI is proposed?
Lord Faulks
I thought that I had made it reasonably clear that there will be the laying of the report. That is the limit to which I committed and I commit to it now. It is beyond what we committed before. It may not be enough for some noble Lords but none the less the report, informed as I have said that it will be, will enable Parliament to consider whether it is appropriate.
Lord Ramsbotham
My Lords, I am very grateful to the Minister for his summing up but, as he will no doubt understand, I do not find it convincing at all because he has answered absolutely nothing. We have heard nothing about the details of this college and we have never heard any evidence of why the Government think that it is appropriate. We have heard yet again about education, and about a healthcare centre, but we have not had an acknowledgement of treating all the multiplicity of problems that these children face.
We keep hearing the word “might”, because there is no evidence to show that this approach has worked. In the absence of that, it would be irresponsible of us not to press further. I am extremely grateful to all noble Lords who have taken part in this very stimulating debate. They have shown yet again not only the vast amount of expertise in this House but the degree of compassion felt for the people we are talking about. I was particularly struck by the noble Baroness, Lady Williams, questioning why it was that this Government chose to rule Parliament out of any consultation on these issues. Here again, the offer of a compromise was thrown down and rejected by the Minister. I feel that I have no alternative than to seek to test the opinion of the House.
Lord Faulks
My Lords, we turn to Part 4 of the Bill, and specifically the clause concerning procedural defects highly likely to have made no substantial difference to the outcome of a judicial review. I pay tribute to this House, and the expertise shown in many corners, which has been brought to bear on these clauses. We have heard from my noble and learned friend Lord Mackay of Clashfern, who brought his unrivalled experience to the debate. He referred to comments of a former Secretary of State, the noble Lord, Lord Adonis, who wrote in his book, Education, Education, Education:
“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial reviews as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions”.
My noble friends Lord Horam and Lord Tebbit told us that judicial review does not exist in isolation and has an impact on projects in the real world that deliver employment to people and can significantly affect actual problems. There have, of course, been many contributions far less supportive of the Government’s proposals. For example, the House has heard from a number of distinguished judges with enormous experience of judicial review, including the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf. We heard from the noble Baroness, Lady Campbell of Surbiton, of the important role that judicial review can have when used properly.
Throughout, the Government have listened carefully—more carefully than some of our more trenchant critics suggest. The amendments that we propose in later groups bear, I hope, testimony to that. In the case of financial information we have proposed an amendment, despite having won a substantial victory in the other place. However, I must say to the House that on the matter of this clause the Government have not been persuaded that any amendment is required.
When used appropriately judicial review is an essential part of the rule of law, by allowing for the lawfulness of public bodies’ actions to be tested in court. But it is an area that has been misused, with claims brought with no real prospect of success, and with a view to delaying and adding expense to perfectly lawful acts that are simply disliked. Such challenges place significant burdens on the public purse and strike at the economic development that the country badly needs.
The Government want to restrict judicial review, not abolish it—I must emphasise that. Rather, we want to restrict it to cases that have real merit. Judicial review should not be used as a campaigning tool. It should be concerned with unlawful activity that has or is likely to have a real effect on outcome.
Clause 64 is intended to filter out claims brought on technicalities highly unlikely to have made a substantial difference to the claimant’s position earlier and at a lower cost. Your Lordships’ amendments would, in the Government’s view, undermine the clause. The elected Chamber rejected the House of Lords amendment, voting by 319 to 203 last Monday.
As this House amended it, Clause 64 would permit the court to refuse permission or a remedy where it was considered highly likely that a complained-of flaw would have made no difference to the outcome for the applicant. The Government’s formulation would require the judge to consider an argument that it was highly likely that a complained-of flaw would have made no substantial difference to the outcome for the applicant, and to refuse a remedy or permission where he or she was satisfied that the argument was made out.
Although the clause introduced duties on the court, it retained significant judicial discretion—primarily, of course, in deciding when the “highly likely” threshold is met in a particular case, and where the court is of the view that there is any significant doubt that it is, it can act as it thinks fit. Indeed, we have deliberately avoided defining “highly likely” in the statute, meaning that the judiciary will determine how it will apply in practice.
In the House of Commons, in speeches pitched against the Government’s original position and in favour of the amendment made by your Lordships’ House, it was said that we would be putting the judge in the position of the decision-maker. I simply fail to understand this point. The judge is not being asked to second-guess the decision of the administrative body; he or she is being asked simply to consider whether it is likely that there would have been a substantially different outcome if the impugned decision or the conduct had not occurred. This is very much judicial territory. Judges perform such assessments in all sorts of different circumstances.
The second point made in the House of Commons was that the judge would not be able to come to a decision without a mini-trial or dress rehearsal. I do not accept that point either. At the moment he or she will have to decide in appropriate circumstances whether it is inevitable that the outcome would have been unchanged. Now the bar is slightly higher but the process by which the judge arrives at the conclusion will be very similar, if not the same.
The noble Lord, Lord Pannick, referred to public interest. Of course, public interest plays a part in a number of different legislative provisions in different contexts. But we believe that the threshold established in this clause does best serve the public interest. It will ensure that judicial review cases that progress beyond permission stage are not purely academic and are not based on minor technicalities highly unlikely to make any difference. We therefore think that this strikes the right balance. Indeed, the House’s amendments to the clause could serve to undermine the intended effect, and underestimate the significant safeguards built into the clause as agreed by the other place.
There is a balance between imposing appropriate duties to ensure that these reforms have the intended effect and preserving the important role of judicial decision-making. I strongly believe that this clause gets the balance right between allowing judges to decide matters of judicial review and nevertheless providing appropriate safeguards to ensure that inappropriate and meritless judicial reviews do not proceed further. I beg to move.
Lord Phillips of Sudbury (LD)
Before my noble friend sits down, will he be so kind as to give a little more information about the underlying justification, as he puts it, for the rejection of this amendment? That is, he put it in terms of abuse of the judicial review process, technicalities, academic applications and so on. Has he any statistics or indications as to the extent of that abuse?
Lord Woolf (CB)
My Lords, it is always important to listen to what is said by the noble Baroness, Lady Campbell of Surbiton. She has an insight into these matters that Members of the House who come from a legal background, as I obviously do, do not have personal experience of. It is very apposite that she should have said what she just said. I hope that the House will heed her plea.
Knowing that the noble Lord, Lord Pannick, would have to go to Moscow, I am bound to say that I had prepared for him not to be here, and therefore had prepared a much longer speech than I am going to give. But I would like to add just one or two things. As I am sure your Lordships understand, this is a very important issue. If noble and learned Lords have any ability to assist and advise the House, then it was clear in the earlier stages of the Bill that this was something they thought was wrong. They gave their reasons, and I played a leading part in that. The reason we did so was that we thought it was going to be bad for justice, for the citizens of this country and for the reputation of this country as a leading adherent of the rule of law. Judicial review is all about the rule of law. Every application that has any prospect of succeeding initially has to prove that something happened which the Lord Chancellor and the judges would regard as being unlawful. So if you are refusing relief in this situation, you are doing it with regard to something which has been illegal, or is in a position where there could be illegality.
The second thing to remember is that the procedure for judicial review is an exceptional procedure, designed initially by the judges, but then enacted in what was the Supreme Court Act and is now the Senior Courts Act 1981, in Section 31, which sets out the position as to the jurisdiction of the courts. That section makes it clear that heavy responsibilities are placed upon the judiciary with regard to its operation. The safeguards are there, because they have a very heavy responsibility of holding the balance. The amendment we are now considering is a small one. It is in relation to the first amendment, which I am addressing. As required by the Government, the judge—the word in question is— “must”. As required by the amendment, the word is “may”. The difference between us is “must” and “may”. As you have already heard, in the House of Commons—and I am going to come back to this—the Lord Chancellor misled the House. I have to say that. I am sure the Minister will accept it. He said to it that each of the amendments—
Lord Faulks
I am only interrupting to agree absolutely with what the noble and learned Lord said. The Minister has in fact written to say he was in error. The letter has, I believe, been placed in both Houses of Parliament, but there was a mistake and the noble and learned Lord is quite right to draw attention to that.
Lord Woolf
I am grateful to the Minister for making that clear. I was not aware that the Lord Chancellor had done so, and I thought it was very regrettable that he should have failed to do so. It is extremely important that the one Member of the lower House who has a statutory responsibility of a particular nature with regard to the rule of law and the administration of justice should have made that mistake, because he dealt very summarily and quickly with the position which was before this House in some detail. We have heard the relevant passages of what he said.
I recall that on, I think, 5 December—I have the reference to it if it is required—the Minister took care to say that there was a convention that the courts, Parliament and Government each respected each other and therefore did not unnecessarily criticise each other. I was well aware of that convention but I would suggest that it is much wider than that. It is a convention that, in respecting the other arms of government, each of them—I include the judiciary here as an arm of government—will not trespass on the other’s area of territory or a different part of the arm unless there are particular reasons for doing so. One can see why that should be so. In the courts, we are very particular indeed not to trespass on the privileges of this House and the other place—and they should be equally sensitive.
Knowing what had been done by this House, which appeared to me at any rate to be so clearly necessary, I read with great care what was said in the lower House. I must say that I was very concerned that the Lord Chancellor in the lower House had indicated the three reasons that noble Lords were told about by the noble Lord, Lord Beecham, when he read the speech, including one that clearly amounted to a reflection on the judiciary. I have heard many protestations that the Lord Chancellor greatly respects the independence of the judiciary. However, when he talked about its difficult task of administering judicial review, as it does, day in and day out—and the task of presiding over judicial review is allocated to earmarked judges, so we can be sure that the matter will be properly considered—he was concerned that it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. That is one of the problems that the Chancellor was concerned about. I would gently suggest to the Lord Chancellor, if he is writing apologies, that that is another matter that certainly calls out for an apology. It is wholly inconsistent with his statutory responsibilities under the Constitutional Reform Act. That is something that, having been said, either persuades the House or does not. However, if the other place was misled as to the background, what is at first sight a very difficult decision to understand is explained. I suggest that, because the matter was not put fairly to the other place, that is another very good reason why the matter should be returned to it.
Lord Deben (Con)
My Lords, I do not want to disappoint the noble Lord opposite but it does not need to be a particular party to see that there is something deeply wrong with what is being presented today. I am sorry about the tone that he adopted. I think it was entirely wrong and he may have done his cause and my cause a great deal of harm as a result.
The Government have not distinguished themselves by the way in which they have listened to this House or by the way in which they have thought through what they have presented. I remember the comments of the late Harold Macmillan that it is a mistake to revolt on more than one thing at a time because it confuses the Whips. I am concentrating on this particular issue because it is the most important issue of all. I think my noble friend misunderstood something I said earlier as criticising him. I do not criticise him at all. I think he has presented the case in this House as well as humanly possible, with a courtesy which one would expect and which he has fully expressed. The trouble is that there is not a case for what is being proposed. That is the difficulty. I do not think I have ever heard so damaging an apology as the one which was revealed during the course of the speech of the noble and learned Lord, Lord Woolf—that the Minister got wrong the only argument of any importance that he presented and then tried to uphold in this House the decision of the other House which would not have come about except with the exercise of the Whip. That would have done credit to the Chief Whip on the Benches opposite during his period in the House of Commons. It is very serious indeed. We have to say no to the Government’s determination. We have to support the proposal of the noble Lord, Lord Pannick, because we have to give the other House an opportunity to reverse the decision that it made when it was not in full possession of the facts. That is the first thing we have to do.
My noble friend said that all that is happening is that the bar is being raised slightly higher. I am not a lawyer. I am proud of not being one and am keen to enter into this discussion because sometimes it seems as if the only people who understand these things are lawyers. I think that most normal people understand these things and they understand them very simply. With the greatest of respect, the bar is not being raised slightly higher. Its nature is being changed. What is being asked now is that judges must make a decision which does not seem to be a proper decision for the courts in any case. Decisions of courts should fundamentally be on the facts of the law—on what something means. But that is not the decision that is being asked for here. The judge is being asked to decide that somebody’s unlawful act was highly unlikely to have affected the people who would otherwise have been affected. That is a curious thing to ask a court to do. Surely a court ought to be asked to say whether a proposal is so unimportant or vexatious that it should not occupy the time of the court. That is a perfectly reasonable thing to say. If judges had constantly allowed people who wanted to argue how many angels danced on the point of a pin, then I would have accepted that we needed to do something about it. However, when my noble friend was challenged for the statistics on which this very serious proposal was based, he honestly said that he had not got any.
Your Lordships might reflect that if I were presenting a proposal to a board of directors of a public company and I said I wanted fundamentally to change the product they had—its constituents, the way it was advertised, the market for which it was being manufactured—I would have to present some figures. I would have to say how many people did not like the product and thought that it needed to be reformulated. I would have to say how often the product had poisoned people or upset their stomachs. I would have to produce some kind of basis.
Lord Faulks
I am grateful to my noble friend for giving way on this point. I said that I had no statistics; I did not say that I had no examples.
Lord Deben
I have listened carefully to the examples that my noble friend put forward, but has he any more? I do not think that any of them have been convincing so far. I am happy to give way to him if he is prepared to give us some new examples.
Lord Faulks
If the noble Lord had looked at the website in which all the examples were set out in the build-up to the Bill, he would have read them. I cannot read them all out now; it would be an inappropriate use of the House’s time.
Lord Deben
I am sure that most of my noble friends, and noble Lords generally, have seen those examples. I have to say to my noble friend that they are not very convincing. They are not sufficiently great to suggest that we should change the law of the land in this very particular way. That is my concern. I can see that it is easy to say, “Look, there have been a lot of judicial reviews that have not really been necessary”, or to say that we really need to shorten the time to build and to develop. I have a long history of being keen on building, developing and getting this country ahead of its neighbours, and of being unhappy about the way that we seem to take such a long time to do things. I am therefore a natural voter for this. I am on the side of the Government; I would like to be with them. However, this is not the way to do it. There are ways in which it could be done that would not break the fundamental reason for judicial review.
I come to my third point. During an earlier debate I said that the foundation of British law is that no one is above the law. I am a great enthusiast for King Charles the Martyr, but it was perfectly right to say that he should not be above the law. I think it extremely dangerous—I say this to my noble friend very carefully—if Ministers should feel it reasonable to break the law because it is not really very important, or because it does not really have much effect. Breaking the law, if one is in a position of authority, is ipso facto a serious thing to do. Having been a Minister for 16 years, I would expect my civil servants to tell me very clearly if I proposed something that would break the law. I would take that very seriously indeed. I do not believe that ordinary people will respect the law in the same way that they do today if they think that Ministers have a special arrangement, which is that when they do things somebody has to show that it was really serious, really upset somebody or really made a difference before the courts can adjudicate on it.
I come to my fourth point, which I must say is, to me, very serious indeed. We have to be very careful about legislating in a way that suggests that we do not have trust in the judges who make decisions. Of course, this might be thought to be a dangerous place to say this as there are so many judges here, but it is the thing that distinguishes us from many Administrations: there are very few people who will not say that the judges in this country make decisions without fear or favour. If judges have made decisions that judicial review cases should be heard, I would prefer to rely on them than on people who are parti pris—that is, the Ministers—who find those decisions embarrassing. Ministers of any political party ought to be embarrassed if they break the law. That is an essential part of defending the law.
Lord Faulks
My Lords, I begin my concluding remarks, which will be short, by saying how much I agree with much of what has been said during the course of the debate. First, the Government and I have great respect for our judges and their capacity to deliver justice in the course of judicial review and in any other field. I also have, of course, profound respect for the rule of law. In particular, I respect the role of judicial review in upholding the rule of law. I do not for a moment believe that anything that we do in Parliament should provide any form of carte blanche to a Minister or any other public body in how they conduct affairs.
The Government very much appreciate the careful consideration of the Joint Committee on Human Rights and the Lords Constitution Committee and their respective reports. They were not referred to by anybody on either side during the course of the rather truncated House of Commons debate. I do not know the extent to which they were taken into account sub silencio, but they are important and I fully acknowledge that.
Nor do I suggest that failures of consultation are not—or are not capable of being—serious matters. It is not the Government’s contention that failures to consult should be regarded necessarily as trivial—far from it. The clause refers to “substantially” and the Government’s intention is to ensure that judicial review focuses on issues that might have made a difference, not mere technicalities. We do not consider that the clause will give public authorities carte blanche to act unlawfully. No decision-maker will deliberately do something unlawful on the basis that they might hope that they can survive judicial review on the basis of the inevitability of the outcome or the outcome being “highly unlikely”.
I accept what the noble and learned Lord, Lord Woolf, said about the importance of declaratory relief and how it can play an important part in ensuring that public bodies understand their rights and responsibilities. If a judge looking at a particular case considers it important that there should be a declaration, he or she is most unlikely to decide that the case should not go further forward.
However, as my noble and learned friend, Lord Mackay, so correctly said, there is nothing revolutionary about a judge looking at a case on the question of what the outcome would have been. In particular, I refer the House to the well known case of Cotton v Chief Constable of Thames Valley from 1990 and a number of other cases that had the same effect. It was decided that the courts should look beyond the narrow question of whether the decision was taken in a procedurally improper manner and consider the wider question of whether a decision properly taken would or could have benefited the claimant.
Much of the law in this area is concerned with consultation. While consultation can be very important, if it is a trivial omission, it is appropriate that the court should look and be capable of looking at a particular case and saying, “I do not think it is an appropriate use of public resources or an individual’s resources for a judicial review to proceed, notwithstanding the putative unlawfulness, if in fact it would have made no difference or was highly unlikely to make a difference”. That is why I agree with much of the rhetoric around this important point of principle because what the Government are inviting the House to approve is a minor change to the existing law. We are not abandoning judicial review. We are not inviting the Government, local government, Ministers or public authorities to ride roughshod through the law. We are simply saying that judicial review may be reviewed. Judges can be relied on to prevent abuse in this regard, but I suggest that it is not inappropriate for Parliament to say, “If you, as a judge, consider it is highly likely that it would make no difference, we invite you, on reviewing the facts and not fettering your discretion, to decide that the case should go no further”.
Baroness Butler-Sloss
Before the Minister sits down, I wish to ask one question: how does he answer the second part of the comments of the noble and learned Lord, Lord Mackay of Clashfern?
Lord Faulks
It is a matter entirely for the House. The whole of the speech was before the House of Commons. It was clearly regrettable. The Lord Chancellor has written a letter which is deposited in both Houses. This House will take the view that it thinks appropriate.
Lord Pannick
My Lords, I am very grateful to the Minister. He has been put in a quite impossible position, not, I think, for the first time, and I sympathise with him.
There are two central points here. The Minister very fairly accepted that the Lord Chancellor inadvertently misled the House of Commons when it considered the amendment that was approved by your Lordships. The Lord Chancellor misled the other place on the very issue that is at the heart of this amendment. He wrongly suggested that there is an exceptional circumstances provision in this clause which confers discretion on the judge. That alone is reason enough for this House to invite the other place to think again, and to do so on the basis of an accurate statement by the responsible government Minister as to the terms and effect of the clause that he was putting before the House of Commons.
However, that is not all. The public interest amendment is essential to the rule of law. That a Lord Chancellor should regard the need for a fair procedure and legality as unimportant technicalities which should be excluded from judicial control is, to my mind, profoundly depressing and alarming. I say to the Minister that that is not a matter of rhetoric but of substance.
The noble and learned Lord, Lord Mackay of Clashfern, suggested that this clause is a development of the current law. However, the change is not merely to alter the test of inevitability to a test of highly likely; the vice of the clause that we are debating is that it imposes a duty on the court in all circumstances to throw out judicial reviews without retaining any discretion in the public interest. The Lord Chancellor and the other place should be invited to think again about the need to retain judicial discretion in the public interest, as Motion B1 states. I wish to test the opinion of the House.
Lord Faulks
That this House do not insist on its Amendments 103, 104, 105 and 106, to which the Commons have disagreed for their Reason 106A, but do propose Amendments 106B and 106C in lieu.
Lords Amendments
“(3AA) Tribunal Procedure Rules under subsection (3)(b) that specify information identifying those who are, or are likely to be, sources of financial support must provide that only a person whose financial support (whether direct or indirect) exceeds, or is likely to exceed, a level set out in the rules has to be identified.
This subsection does not apply to rules that specify information described in subsection (3A)(b).”
Lord Faulks
My Lords, we now come to Clause 65 and its sister clause, Clause 66. As introduced, Clause 65 would do no more than see a person provide financial information with their application for judicial review. This will prevent others from sheltering from their proper costs liability at, almost invariably, the expense of the taxpayer. As introduced, Clause 66 would do little more than require the court to consider that information.
The House’s amendments to Clause 65 would allow an applicant to be granted permission where they had not provided financial information with their application for permission, with nothing more said about the circumstances in which that would be appropriate. Similarly, the House’s amendments to Clause 66 would mean that, even where that information had been provided, the court need not consider it, nor consider whether a person identified should have costs awarded against them. Therefore, conceivably, a person might control a judicial review’s course while sheltering behind a shell company, precisely to avoid proper costs liability, and the judge could be given no information about that.
We think that those amendments, although undoubtedly well intentioned, simply go too far. The Government have, however, been persuaded to table an amendment, even after the other place so resoundingly supported the Government’s original clause, to give noble Lords additional reassurance that the Government do not intend Clause 65 to apply inappropriately or unhelpfully. I trust that the Government’s actions with regard to this clause, and the amendment itself, will give noble Lords the comfort they need to support the Government.
We have been clear throughout that we intend an approach which strikes a balance between the court having the information it might find helpful when deciding costs and avoiding providing it with too much information. The amendment provides comfort on that, by requiring any procedural rules which give effect to the clause to include a de minimis threshold. When providing the court with information, an applicant would not have to identify any person who had provided contributions below that threshold.
I am sure that noble Lords will understand that we are not in a position to bind the hands of the procedural committees that will make the rules as to what the figure will be. That would be as inappropriate here as it would be with regard to any other procedural rule. I am comfortable that, whatever figure is ultimately adopted, it will ensure that the rules are not overly burdensome or require an excessive level of investigation. Quite simply, setting the threshold too low would result in flooding the courts with unhelpful paper that would not suit the Government’s purposes. I can happily confirm that the Government will, of course, take into account evidence and views appropriately as they come to a view on what figure is appropriate.
It is important to emphasise that nothing in Clause 65, which would make mandatory the provision of information on an application for permission, would require any level of financial resources to be available before permission can be granted. This is not about taking discretion away from the judges but about giving them the information to enable them to take fully informed decisions.
We have not tabled an amendment to Clause 66 as we are satisfied that it continues to strike an appropriate balance. The clause as the Government wish to see it would not require the courts to award costs against a person or a type of person. It simply does not affect the judge’s discretion as to costs, but it would place the court under a duty to consider the information that has been provided and whether persons identified in that information should face costs—something that they would inevitably do in any event. What decisions it takes having considered that information is a matter for the court.
For the sake of absolute clarity, I am happy to repeat that there is nothing obliging courts to make costs orders against a person identified in that information; we require only that the courts have the full picture. The alternative is to say that the judge should make an order with a less than full picture and with less than full transparency, and I am not convinced that that is desirable.
Perhaps I might make one further thing clear. These clauses and the amendment do not alter the court’s existing powers on costs. The common-law position would remain. More than mere funding will be required before a third party is made liable for costs; for example, those parties who are not only funding but are seeking to drive the litigation or to benefit from a potential remedy in the case might be ordered to pay costs. We are concerned that the courts have the wherewithal to identify who is driving litigation—that people cannot shelter behind matters—but, equally, small contributions to a fighting fund, where those individuals do not expect to control the litigation, should not bring with them an obligation to declare that you have put a modest sum into a fighting fund. Therefore, you would not inevitably be liable for costs. In fact, you would probably not be liable for costs anyway but you do not have to disclose that information.
I hope that the House will not insist on its Amendments 103 to 106 but will accept Amendments 106B and 106C in lieu. I beg to move.
Motion C1
Lord Pannick
My Lords, the amendments that were approved on Report by your Lordships’ House by a majority of 33 arose out of two concerns about these clauses on financial information.
The first concern is that the judges would be prevented in all circumstances from granting permission to bring an application for judicial review unless the relevant financial information has been provided. As with Motion B1, on which your Lordships have just voted, so with this Motion C1 a degree of discretion is appropriate to permit the judge to decide that a case should be allowed to proceed in the public interest, even if some financial information has not been provided. An absolute bar is inappropriate in this context and the removal of all judicial discretion is inappropriate.
The second concern is about the effect of the provisions on people who contribute to the funding of a judicial review. The Minister’s helpful letter of 4 December to noble Lords explained that the Government wish to ensure that there is no “chilling effect” on contributions because of a fear by potential contributors that they will be ordered to pay the defendant’s costs. Therefore, as I understand him, the Minister has said that it is not the Government’s intention that those who provide small amounts of funds should be subject to costs rules, and that that will be ensured through rules of court.
As I understand it, the rules will state a threshold so that people contributing less than the specified amount would not need to be identified by the claimant and so would not be liable to be ordered to contribute to the defendant’s costs. That is all very laudable. The problem, however, is that the Minister has not told the House what the threshold level will be. If the level is too low, it will inevitably deter people from contributing to judicial reviews brought in the public interest because of the risk that the contributor will have to pay the defendant’s costs.
Funding judicial review has become much harder in recent years with the decline in legal aid. It is very regrettable that the Government should now wish also to impede the ability of claimants to fund judicial review applications by private contributions. I am not satisfied by what the Minister says unless he can assure the House that the threshold level will be sufficiently high that it will not deter modest or reasonable contributions to the funding of judicial reviews.
Lord Faulks
I am very grateful to the noble Lord for giving way. Perhaps he could assist the House by saying what he would consider a modest contribution.
Lord Brown of Eaton-under-Heywood (CB)
I wish to support the Motion of the noble Lord, Lord Pannick, and resist the Minister’s Motion on rather a broader basis than perhaps has been suggested so far. The problem, or one of the problems, with the Minister’s Motion is that it leaves intact the central thrust of Clauses 65 and 66, which were of course objected to and disagreed with by the Commons on the basis set out in Commons Reason 106A:
“Because it is appropriate to impose duties, rather than confer discretions, on the High Court”,
et cetera. My deep disagreement with that basis of rejection is that I do not believe it is appropriate in this jurisdiction to impose duties and to narrow or eliminate discretions on the part of the judiciary.
In Committee in July, I suggested that it is difficult to think of any area of law less suitable than this one for this sort of legislative interference. We are here concerned with the inherent supervisory jurisdiction of the courts to hold the Government to account; to ensure that the rule of the law is observed when the Executive take action. Yet here is another example of the Government seeking to weaken those powers with the inevitable chilling effect, and in many cases making it practically impossible to bring a challenge. The fresh ministerial amendments still leave intact the provision that you cannot bring judicial review unless you give a whole series of particulars about how the process is to be funded.
In that same debate, the noble and learned Lord, Lord Mackay of Clashfern—my respect and admiration for him is second to none, not least since he had the sagacity 22 years ago to promote me to the Court of Appeal—rightly pointed out that it was the judges themselves who had originally sought to underpin the rule of court under which judges had previously exercised their judicial review jurisdiction by giving it legislative form. Thus was enacted the section of which the noble and learned Lord, Lord Woolf, spoke a little earlier: Section 31 of what used to be called the Supreme Court Act but, since the invention of a Supreme Court, is now called the Senior Courts Act. However, it must be recognised that Section 31 merely facilitated the exercise of the judges’ supervisory jurisdiction; in no way did it seek to constrain, limit or inhibit it. It imposed no duties on the judges and you will search it in vain to find such.
Now, though, in this clause, as in the one that we discussed a little earlier, the Government are intent on seeking to eliminate the judges’ powers and to impose duties upon them. I echo what the noble Lord, Lord Deben, said about the earlier proposal: this is an amendment of constitutional importance. In truth, it is not a party political matter. It is a question of where the boundary should be drawn between the Executive and the judiciary. The judiciary in this country, unlike its American counterpart, has always fully recognised the sovereignty of Parliament. We do not strike down primary legislation. Parliament, in turn, has not hitherto sought to whittle down the judges’ supervisory jurisdiction, and it is really inappropriate that they should now start to do so.
If the Government have their way on this or, on reconsideration later, on the previous or the next amendment, the constitutional balance will have shifted. The fact is that the Motions that the noble Lord, Lord Pannick, is advancing are ones that are truly worth fighting for.
Lord Faulks
My Lords, this has been a very useful debate. The questions of the information available to judges are difficult. Most judges would say that the more information that they have, the better, to enable them to exercise any discretion in any context. When it comes to making orders for costs, which can be extremely serious in their consequences, it is important that they have information. By the same token, the Government take the view that it is only fair that people who seek the remedy of judicial review, who will inevitably cause costs to be incurred—often by a public authority, so indirectly by the taxpayer—should not be able to hide behind shell companies. That much, I think, is agreed. Where there is still some disagreement is over whether those who want to contribute to a fighting fund or a potential claim—however one likes to characterise it—should have to disclose that information.
The amendment is regarded by some noble Lords as being unsatisfactory because the Government do not specify a particular figure or percentage. Although, as the noble Lord, Lord Pannick, quite rightly says, it is the Government’s amendment and he does not have to put anything forward, he said helpfully that it might be helpful if the figure was by reference to the overall costs of the judicial review. Our view, and I rely on the support of the noble and learned Lord, Lord Mackay of Clashfern, is that these are pre-eminently matters for the Civil Procedure Rule Committee. It is of course not a committee of which the Lord Chancellor—the subject of much criticism today and throughout the Bill—is the chairman or has control, but it has considerable experience.
The important thing, I suggest, is to consider what is really at stake here. I respectfully suggest that actually the noble Lord, Lord Rooker, put his finger on exactly the dilemma here: whether we are talking about people who are making small contributions to a community project or about quite large sums of money where there is a pooling of resources to take forward a claim. I shall try to characterise what we are trying to get at by these rules. We suggest that there is a difference between an amount of money that by most people’s standards would establish a vested interest in the outcome of a case and someone who, in support of a cause, wishes to make a small contribution to a fighting fund. It is the latter that our clause seeks to exclude. That is the difference. We have adhered to that as an approach. We are not seeking to exclude people who are making substantial sums. I respectfully suggest that £10,000 to £15,000, as referred to by my noble friend Lord Marks, is a substantial sum of money.
The amount that individual lawyers charge is of course often much criticised, but I am asked to give some idea about the sort of costs that may be involved in judicial review. For cases that proceed to a full hearing, the Public Law Project estimated in 2007 that, for a straightforward case, costs to a claimant could be in the region of £10,000 to £12,000—adjusted for inflation, that is £11,000 to £22,000. In 2012, Guildhall Chambers published information estimating this at £5,000 to £10,000. In relation to defendants’ legal costs, the Treasury Solicitor’s Department estimates that in 2013, in cases that it was involved in, the defendants’ costs ranged from £8,000 to £25,000 for non-immigration and asylum cases, and from £1,000 to £15,000 for immigration and asylum cases. For an oral permission hearing, the Treasury Solicitor’s Department estimates an average cost to a defendant for preparing and attending the hearing at around £1,000 to £1,500.
It is important to bear in mind that Clause 66 requires the court to consider the funding information and whether to make costs orders. Of course the noble and learned Lord, Lord Brown, is quite right: the funding must be provided for them to go on to consider how to exercise their power over costs. Importantly, though, whether to make any costs order against a third party, provided that the prerequisite is there, will be entirely for the court to assess. The clause itself, provided that Clause 65 is satisfied, does not affect the judge’s discretion. We think it is right that the judge, in exercising his discretion, should have regard to what information would reasonably be expected to make a proper judgment about whether costs should be paid.
There was a reference to the possibility that privacy would effectively be invaded by having to provide costs. The information would be made available to the court but not publicly available, in line with existing practice when the courts deal with information that concerns personal finances or is otherwise confidential. It is right that there is transparency in the more generally used sense, and that the courts are aware of the nature and extent of funding provided to a claimant from those directly party to, but not potentially controlling, the litigation.
The judiciary itself responded to the consultation on judicial review. So that I cannot be accused of misrepresenting what it said, I shall quote from paragraph 179:
“The court is already empowered to make costs orders against non-parties … We support the proposal that it should be mandatory for a claimant to provide details of how a case is funded … to assist the court in assessing whether to make a cost orders against a non-party. We welcome the acknowledgment that the court should retain full discretion in relation to the making of these orders”.
That is a point made by the noble and learned Lord, Lord Brown; he says that there should be no obligation on the part of those who are funding matters to provide information.
Lord Brown of Eaton-under-Heywood
My Lords, as I understand Clause 65, it involves an insertion into Section 31(3) of the Senior Courts Act. That will provide that no application for judicial review shall be made unless, as at present, the leave of the High Court has been obtained—that is fine. But then you insert these provisions—“unless the applicant has provided the court”. In other words, the court has no discretion left to grant leave to move unless this whole rigmarole is gone through and whatever it is ultimately decided has to be disclosed by way of the financial basis of the claim has been disclosed. That is the respect in which I suggest there is no longer going to be any discretion for the court to allow proceedings to go ahead.
Lord Faulks
That is entirely correct. The discretion would exist on whether to award costs. This is the discretion which is fettered, I entirely accept, to the extent that the Government think it is appropriate for it to be fettered because they consider that, because of what results from bringing a judicial review in terms of cost consequences, it is perfectly reasonable to provide within the realms of privacy the basis on which you are funding. That excludes those small contributors whom I have characterised, and whom I accept would be covered by the rules. Beyond that, however, we consider it to be an appropriate obligation. It is there to prevent what has been a potential evil. I will not go over the Richard III case again; the noble Lord, Lord Beecham, is relieved. Undoubtedly there have been cases where shell companies have been used; the case is lost; there is nobody for anybody to recover costs from and again the taxpayer loses. This can happen. This is not a draconian matter: we have made a concession which, I suggest, is a reasonable one. The rule committee can be trusted to come up, with its experience in the matter, with an appropriate compromise reflecting the principles that I have endeavoured to outline on the Floor of the House.
Lord Marks of Henley-on-Thames
I have two questions for the Minister. First, will he clarify that the figures for claimants’ costs—and it is, of course, the claimants’ costs that are important when considering financial information—are those related only to straightforward cases? Secondly, will he confirm that I am right in saying that the level that the Government intend as a matter of principle should be reflected in the rules is a level of only a few hundred pounds—in other words, very small contributions rather than significant contributions from larger contributors?
Lord Faulks
In answer to my noble friend’s first question, I did use the word “straightforward” and that is entirely correct; I adhere to that. On the second question, I am reluctant to give figures because, for the reasons I have given and in terms of what we are talking about, it relates to a small contribution to a fighting fund. That would not be £10,000 to £15,000. I do not think it is appropriate to go beyond that. That is a matter that I will leave to the rule committee: it will arrive at an appropriate figure in the light of its experience.
Lord Pannick
My Lords, this is a really puzzling matter. The Minister accepts that a threshold figure should be included in the rules below which a contributor to the funding of a judicial review should not be liable to be identified or pay costs. That is a vital concession, because without it, private funding of judicial reviews in the public interest would not be able to continue. However, the Minister is unable to say what the threshold figure will be; he is not able to state any criteria by reference to which that figure should be determined, and he is reluctant, in answer to the noble Lord, Lord Marks, to say more than that it will be a figure less —significantly less, as I understand him—than £10,000 to £15,000. That, I suggest to noble Lords, is quite unsatisfactory in relation to the Government’s attempt to persuade this House not to insist on its previous amendment.
The noble and learned Lord, Lord Mackay of Clashfern, said that the rule committee will deal with this in an independent manner. However, the rule committee will no doubt be heavily influenced by what the Government say is the purpose of this. I am not suggesting that the rule committee is bound by what the Government say, but the Government will have a very considerable influence, particularly when there are no criteria set out in the amendment. In any event, there is also—as emphasised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood—a vital need in these clauses to retain a degree of judicial discretion in this sensitive context. The Government wish to impose absolute duties again and I, in this context, as in the previous context of Clause 64, suggest that judicial discretion should be retained. I wish to test the opinion of the House.
Lord Faulks
That this House do not insist on its Amendment 107 and do agree with the Commons in their Amendments 107A, 107B, 107C, 107D and 107E in lieu thereof.
Lords Amendment
“( ) The High Court and the Court of Appeal shall have a discretion whether to order an intervener to pay the costs of a relevant party to the proceedings, and shall have a discretion whether to order a relevant party to the proceedings to pay the intervener’s costs.”
“( ) If a person who is an intervener in judicial review proceedings becomes a relevant party to the proceedings, the person is to be treated for the purposes of subsections (2) and (4) as having been a relevant party, rather than an intervener, at all times when involved in the proceedings.”
Lord Faulks
My Lords, Clause 67 concerns those who intervene voluntarily in a judicial review and would see the court award reasonable costs against them—both their own and those their intervention causes a party—in most circumstances. Your Lordships’ Amendment 107 to this clause would provide absolute discretion to order an intervener’s costs against a party, or a party’s costs against an intervener, or not. That is effectively the current position, which in practice allows interventions to be made with very limited risk of any cost implications of how that is done, often with the taxpayer left to meet the bill.
As this House acknowledged during the Bill’s previous stages, the Government accept that Clause 67 as introduced caused concern, and we listened with care to the arguments raised. However, we think your Lordships’ amendments to the clause go too far, and so we have brought forward our own amendment in lieu. Our amendment strikes a proportionate and sensible balance: giving interveners the right incentives to ensure that they do not intervene inappropriately and more certainty about when they will face costs; giving taxpayers the protection they need; and giving the judges the scope they need to apply Parliament’s will to the circumstances of the case at hand.
Our amendment in lieu would place the court under a duty to award costs against an intervener if one or more of four conditions were met. The first condition is that the intervener has usurped a party’s proper role, perhaps because they want to drive the litigation without accepting the responsibility for costs which this entails. The second is where the intervener has simply not been of significant assistance to the court. Perhaps the intervener has argued at length, placing the parties at considerable expense, without advancing the court’s understanding of the issues. The third is that the intervener will meet a party’s reasonable costs of dealing with the intervention where a significant part of their arguments are not germane to the court’s consideration of the case. They may, for example, spend much of their time in court pressing the importance of a cause in which they are expert, or indeed their own importance, with only a small amount of time spent focusing on the issues really at hand. Finally, the court will be under a duty to order costs where the intervener has acted unreasonably.
Following the amendment in lieu, Clause 67 will continue to give the court significant leeway when it comes to making costs orders. First, it will be for the court to consider whether any of the four conditions has been met, so it will look at the facts in every case. Secondly, and importantly, the amendment preserves the court’s role in deciding whether costs were in fact caused by the intervener and incurred by the party reasonably. Thirdly, where the court is of the view that there are exceptional circumstances which would make the award of costs under the clause inappropriate, it need not make an award. I am happy to be entirely clear that the exceptional circumstances carve-out would remain in the clause in light of the Government’s amendment in lieu. In fairness, that was not particularly clear in the debate in the House of Commons. Nobody said anything to the contrary, but it was not emphasised with sufficient clarity. Finally, Clause 67 quite purposefully would not affect the court’s discretion to invite an intervener to participate in a judicial review, which would take the intervener outside the ambit of the clause.
In the Government’s view, your Lordships’ amendments to this clause went too far in undermining their intended effect and perhaps underestimated the significant safe-guards built into the clause as agreed by the elected House. As such, the Government continue to be of the view that the first presumption in the clause—that a party must not, unless there are exceptional circumstances, be made to meet the costs an intervener accrues when making their intervention—should be retained as it was introduced and without amendment.
Nobody doubts that interveners can and do make a valuable contribution in a number of cases. They make a valuable contribution and can assist a court in deciding a case, but equally we think that it is appropriate that interveners should pause long and hard to think about whether they can truly add anything to a case and to make sure what they add is proportionate and sensible and provides assistance to the court. They should not act simply as a cheer-leader because it is an issue about which they feel strongly, and repeat all of the arguments that have already been made by one party; they should not expand the scope of the case beyond that which is before the court; and they should not, as a matter of routine, simply join in the case because it is the sort of thing that they feel strongly about.
We encourage focused interventions, but we do not wish to deprive judges of the interventions that are appropriate, nor do we wish to deprive them of the discretion which they have. We simply ask them to make up their mind whether these four conditions are satisfied. If one of those four conditions is satisfied, then they must order costs, unless there are exceptional circumstances. Judges are best placed to decide whether they have been given assistance, and we do not seek to usurp that discretion. We think that interventions can be useful; they can also be overlengthy and expensive. This is a moderate compromise, and a reflection of the anxiety which has been expressed by a number of noble Lords, and indeed, some Members of the other House, and I ask that the House accepts the amendments of the Government. I beg to move.
Motion D1
Lord Pannick
My Lords, I shall be brief, given the time, given that your Lordships’ House has debated this issue on two substantive occasions already, and because I apprehend that your Lordships’ House will be anxious to move speedily to a vote on this matter.
Judges have repeatedly emphasised how helpful they find the contributions of interveners to be. Courts already have ample powers, which they exercise to control who can intervene on what subjects and with what costs consequences. The Government have at no stage in the debates on this Bill in either House identified any cases whatsoever in which the courts currently lack adequate power to deal with abuse or misuse of interventions. This clause, even with the amendments approved in the other place, will inevitably deter interventions which the courts will regard, and do regard, as valuable in determining the results of judicial review. I simply cannot understand what the Lord Chancellor hopes to achieve by this clause. I suggest that this House should ask the other place to think again. I beg to move.
Lord Faulks
My Lords, it has been a short debate. The issues have been fully covered at previous debates and at previous stages. I am not going to prolong this debate, but the noble Lord, Lord Pannick, says that the Government have not identified any issue. I made a rather more lengthy speech at an earlier stage in which I did identify—or at least attempt to identify—what the Government were driving at by this amendment. It was indeed based—I have to declare an interest—on personal experience of lengthy interventions, which no doubt a judge with all good intentions envisaged being very minor, which turned out to be extremely major in terms of their volume. These involve lengthy skeleton arguments, volumes of authorities and lawyers no doubt seeking to justify their existence. This is not helpful.
Of course, judges are capable—it is perfectly true—of expressing their disapproval, of limiting those interventions by appropriate methods. None the less, those who are involved will have inevitably had to spend time in preparing the case, in the eventuality that all of these interventions will in fact be treated with considerable scrutiny. Perhaps the case may be lengthened.
We consider this is an appropriate compromise. It does no more than identify the sort of cases that judges should be looking at, and probably are looking at, to make an order against interveners in appropriate circumstances. There are exceptional circumstances and judges will know when they are helped and when they are not helped, but to suggest that all is perfect in the world of interventions is simply to ignore the reality.
Lord Pannick
My Lords, it is not an acceptable compromise for the Government to bring forward a clause, with amendments, which will undoubtedly deter the interventions which the courts currently find helpful. There are interventions from all numbers of persons and bodies, many of which have made representations to your Lordships that this clause will deter them from coming forward and assisting the court. I have seen representations from bodies ranging from Liberty to Buglife. They are concerned that they cannot, for financial reasons, seek to assist the court if they fear that, other than in exceptional circumstances, they are going to be liable to pay the costs under this provision. For that reason I respectfully suggest to noble Lords that we should ask the other place to think again about this vital matter. I wish to test the opinion of the House.
Prisoners: Work
Lord Faulks Excerpts(9 years, 7 months ago)
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Lord Ramsbotham
To ask Her Majesty’s Government why there has only been a one per cent increase in the number of prisoners in England and Wales at work since 2010.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the number of prisoners working in industrial activity reported by public sector prisons increased from around 8,600 in 2010-11 to around 9,900 in 2013-14, an increase of 15%. Over the same period, the total number of hours worked increased by 33% from 10.6 million to 14.2 million in public sector prisons. That excludes activity such as cooking, serving meals, maintenance and cleaning, and work placements undertaken by offenders on release on temporary licence.
Lord Ramsbotham (CB)
My Lords, I thank the Minister for that Answer. The derisory increase to 15% in the numbers working in prisons is matched by a decrease by 2% since 2012 in the numbers of those who get work on leaving prison. Despite all the rhetoric we have had, recently a prison governor was brave enough to tell a court of the effects of the imposed new way of working in prisons, which has resulted in staff cuts and not enough work for prisoners to do. Only last week, G4S told the Justice Select Committee in another place that the ability of governors to govern their prisons was being undermined by government policy. Furthermore, the increase by 69% of the numbers who commit suicide raises the possibility of a charge of corporate manslaughter. Can the Minister please tell the House when Ministers—with the notable exception of Simon Hughes, who has been brave enough to admit that there is a crisis in our prisons—will stop fudging the public about what is happening in our prisons?
Lord Faulks
My Lords, I do not accept the noble Lord’s characterisation of what is happening in prisons. We have increased the number of working hours. Our aim is to replicate as far as possible the normal working week in the community, real work experience and the acquisition of skills, which support effective rehabilitation. As to deaths in custody, any death is a tragedy. We have a number of different ways of investigating them. A review chaired by the noble Lord, Lord Harris, is looking into the deaths in custody of 18 to 24 year-olds and we are expecting its report in April next year. We have a number of measures in place to ensure that those unfortunate incidents can be reduced.
Lord Beecham (Lab)
On 27 November I asked about prison overcrowding and staff shortages. In an uncharacteristically peremptory tone the Minister replied that he did not share my gloom, that the work done in prisons is of a very high standard and that we have a dedicated body of prison officers. What is the ratio of officers to prisoners now compared to 2010? What is the Government’s response to the worrying report on work-related stress among prison officers and the well-being of prison officers produced by the occupational health and occupational psychology departments of the University of Bedfordshire?
Lord Faulks
We are always concerned for the welfare of prison officers, who do a very fine job indeed. Benchmark reports incorporate staffing resources for escorting and patrolling activity areas. We are satisfied that prison officers are enabling people to do the work, which was the subject of the original Question. We are recruiting more prison officers but we are satisfied that they are doing an excellent job.
Baroness Sharples (Con)
How many prisons have writers in residence and would it not be helpful if there were more of them?
Lord Faulks
I am not able to give an answer as to the number of writers in residence, but I agree with my noble friend that literature and writers can contribute very considerably.
Baroness Rebuck (Lab)
My Lords, last week the High Court ruled that restrictions on books for prisoners introduced last year by the Secretary of State for Justice were unlawful. Mr Justice Collins further pointed out in his ruling that because of various cuts libraries can be inadequate in meeting prisoners’ needs. I declare an interest in that I was for many years a book publisher. Does the Minister agree that reading can be a vital part of rehabilitation and that improved literacy is crucial for future employment? Is it not now time to end the restriction on prisoners receiving books from family and friends?
Lord Faulks
I thank the noble Baroness for her question. It was a surprising judgment. It related to HM Prison Send, which I recently visited with the noble Lord, Lord Howarth, who sits two places away from the noble Baroness. We visited both libraries there and spoke to the librarian. We attended a readers’ group. Frankly, the provision of books was excellent. There were a number of books written by noble Lords or their relatives. There is no ban on books. There is only an attempt to restrict bringing in drugs, via parcels, inside books. If you are a prisoner you can get books.
Lord McNally (LD)
My Lords, I declare an interest as chair of the Youth Justice Board for England and Wales. Does the Minister not agree that the most effective work in prison is that which leads to employment outside? Would he like to take this opportunity to commend those employers who have participated in Through the Gate training towards getting a prisoner a job after imprisonment as a means of rehabilitation and urge other employers to join this scheme?
Lord Faulks
I am happy to take that opportunity. The Employers Forum for Reducing Reoffending, which includes employers such as Greggs, DHL and Timpson—the forum is chaired by James Timpson—is providing a valuable service. Halfords is also a recent addition. They offer employment, which is usually in prison, which can then provide a bridge into employment in the community. That is a very important contribution and I am happy to acknowledge it.
Legal Aid
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Lord Howarth of Newport
To ask Her Majesty’s Government whether, in the light of criticism from the judiciary, they plan to reconsider their policies for legal aid.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, we have a good working relationship with the judiciary, and I am a strong advocate of the independence of judicial decision-making. When concerns are raised by the judiciary, the Government reflect upon them. The government policy on legal aid continues to be that limited legal aid resources are made available for the most serious cases and to the most financially vulnerable.
Lord Howarth of Newport (Lab)
My Lords, does the Minister acknowledge that in a judgment on 31 October the President of the Family Division made some excoriating observations, of general application, on the unjust effects of the denial of legal aid in a case where parents stand to lose custody of their child for ever? He stated that to “require” them,
“to face the local authority’s application without proper representation … would be unconscionable … it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice”.
In the words of the judge,
“the State has simply washed its hands of the problem”.
What steps is the Lord Chancellor taking to ensure that Her Majesty’s Government are not in breach of their legal obligations under the European Convention on Human Rights and the Human Rights Act to ensure that no parent facing proceedings for the removal of a child is prevented by a lack of resources from getting paid legal representation?
Lord Faulks
It used to be a convention that judges did not criticise politicians and politicians did not criticise judges. I do not propose to depart from that convention. What I can say is that both those litigants have in fact been able to get legal aid. There remain the exceptional funding provisions under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act, which apply to cases in which there is said to be a violation of the convention or an EU provision. In fact there is a difference, and one should not conflate this, between scope and eligibility. Usually there is scope for these things, but the individual applicants nevertheless have to satisfy the tests of eligibility.
Baroness Turner of Camden (Lab)
My Lords, is the Minister aware that the Bar Council has recently reported, after a review of LASPO, that the Act means that poor people generally speaking cannot get their cases heard in courts at all? Many of them try to represent themselves, though not very effectively. It is not a very good way to celebrate Magna Carta, as we shall be asked to next year, when we have a situation in which poor people simply cannot get their cases heard at all. This is particularly true as far as employment issues are concerned.
Lord Faulks
Litigants in person have always been a feature of the legal system. Clearly, any judge—I speak as someone who has sat as a judge—would much rather have a case in which both parties were represented by highly competent lawyers. Unfortunately, we have had to make certain cuts. The cuts, when fully implemented, will reduce the amount that we spend from £2 billion per year to £1 billion. This still makes us one of the most generous countries in the world. We are of course listening carefully to any anxieties that people have about there being injustices. We have committed to review LASPO on a period of three to five years.
Lord Carlile of Berriew (LD)
My Lords, reverting to the question from the noble Lord, Lord Howarth, does the Minister agree that there will be cases in which parents will be unable to be represented on financial grounds in cases in which their children will be removed from them? Does he bear in mind that there was severe criticism in one court last week of the activities of a local authority in relation to just such an issue? Does he think that it is conscionable that there should be a single case in this country in which, because of financial indigence, parents cannot be represented in such cases?
Lord Faulks
I am not in a position to comment on the individual case but, in a number of cases, as the noble Lord will know, the legal aid scope remains. In cases of abuse, for example, it was retained. After careful scrutiny of the provisions by this House among others, we have tried to ensure that in all sorts of cases where it is most necessary there will still be legal aid.
Lord Low of Dalston
My Lords, will the Government give serious consideration to making provision for the continuation of the advice services transition fund when it comes to an end next summer? That would surely be a way to ensure cost-effective provision of a basic legal advice service and, if it is to be maintained when the fund comes to an end next summer, provision will need to be made before the election.
Lord Faulks
The noble Lord has frequently, before this House and elsewhere, helpfully advanced suggestions for providing legal assistance other than through legal aid. The Government are grateful for those suggestions and they continue to consider the report that he provided.
Lord Beecham (Lab)
My Lords, the Lord Chancellor’s fig leaf to conceal the damage he has wrought to the legal aid system was the exceptional funding scheme, which he estimated would attract 6,000 applications a year—in itself, only around 1% of the former case load. In the event, applications are running at only around 1,000 a year, of which only some 14% are granted. Will the Government urgently review that scheme, and if not, why not?
Lord Faulks
My Lords, in fact, the number of applications in 2013-14 was 1,520. It is extremely difficult to anticipate precisely in what circumstances exceptional funding might or might not be appropriate. A considerable number of judicial reviews are taking place with regard to the exceptional funding scheme generally and on specific cases. The noble Lord of course objects to any cuts in legal aid. It must be remembered that despite what was in the manifesto of the party opposite, it has objected to every single cut to both criminal and civil legal aid. I look forward to hearing how it will justify an additional spending of half a billion pounds; that did not feature in the debate on the Autumn Statement.
Lord Horam
My Lords, would it not be better if more lawyers in the legal aid field followed the example of Michael Mansfield QC, who closed his chambers but has reopened a new set of chambers on a lower cost base? Would the lawyers not be better advised to pursue that route, which many others in the public and private sectors have had to do at great cost over the last few years? We could then get a decent service at less cost to the taxpayers within the remit of what the public can afford.
Lord Faulks
It is important to emphasise that nothing will change under the criminal legal aid provisions. Everyone who is accused of a crime is entitled to legal aid. I agree with the noble Lord that the way in which criminal lawyers practise, as was reflected in the report by Sir Bill Jeffrey, will mean a certain agility on their part to make sure that they can continue to provide their very high standard in a more economic way.
Lord Scott of Foscote
Does the Minister agree that access to justice by citizens, either to enforce their legal rights or to defend themselves against claims made by others, is an essential ingredient in promoting and maintaining in this country a healthy respect for the rule of law? Does the Minister also accept that if an individual is unable on account of his impecuniosity to assert his claims or properly defend himself against claims made by others, the consequence will be a diminution in the respect which that individual has for the rule of law and a damage to the cohesion of the rule of law in the country as a whole? It has sometimes been said that the Ritz hotel is open to all, but of course it is open only to those with deep enough pockets. Would it not be a disgrace if the same could be said of the civil justice system in this country?
Lord Faulks
I of course entirely accept that access to justice is an important and fundamental part of the rule of law. Nevertheless, the country has to assess where best to spend the limited amount of resources on legal aid—on which, as I have said, we still spend a considerable amount of money. We will continue to review whether improvements can be made to this, and we will continue to review the situation depending on the financial state of the country.
Public Protection Sentences
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Lord Lloyd of Berwick
To ask Her Majesty’s Government what is their response to the recent decision of the High Court in Fletcher and others v Governor of HMP Whatton and the Secretary of State for Justice that the Secretary of State is in breach of his public law duty in relation to the continued detention of prisoners detained under imprisonment for public protection sentences.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the court did not find any breach of public law duty with respect to the continued detention of those serving imprisonment for public protection—IPP—sentences. The court did, however, find that the Secretary of State was in breach of his public law duty in relation to the provision of resources for the Healthy Sex Programme, a course designed for certain serious sex offenders. The Secretary of State has committed the additional funding necessary to remove the current backlog for places on the Healthy Sex Programme.
Lord Lloyd of Berwick (CB)
My Lords, the only defence to these proceedings was that the Lord Chancellor could not provide the courses that these prisoners needed to go on in order to come before the Parole Board because he did not have enough money. Does the Minister agree that if the Lord Chancellor were to exercise the power that he already possesses to change the release test for these prisoners, he could release forthwith up to 650 prisoners who were given tariff sentences of less than two years—some as little as three months—eight years ago, thereby saving £24 million a year that could then be spent on providing courses for the other prisoners who are waiting to go on them? Why has he not exercised that power?
Lord Faulks
My Lords, the noble and learned Lord has asked me this question before and I congratulate him on his tenacity. There are no current plans to review the release test. The release test is determined by the Parole Board. It decides when someone is safe to release. Attendance on courses can be evidence of their suitability for release. They can be released without attendance on the courses and attendance on the courses does not necessarily qualify them for release.
Lord Wigley (PC)
My Lords, is it not totally unacceptable that 600 people should be in for eight years when they might have expected to be out after two years; that, had this happened before IPP came in, they would not be in these circumstances; and that, if their cases were to arise today, they would not be in these circumstances? It is totally invidious that they should be locked up in this way and that the Government should allow this to happen.
Lord Faulks
That ignores the particular judgment exercised by a judge when sentencing an individual. We do not know precisely what the sentence would have been with the current sentencing powers. Of course, the party opposite introduced IPP sentences. There are now different sentences. These individuals were sentenced to IPP sentences because the judges considered that they represented a potential danger to the public. The Government have to bear that in mind.
Lord Beecham (Lab)
My Lords, the Government’s response to the judgment is welcome in that they are now providing resources for sex offenders, but what has happened in relation to other offenders for whom courses have also been unavailable? How many such prisoners are awaiting courses? What would be the cost of dealing with the backlog and what is the cost of failing to do so in terms of having to continue to house these people in Her Majesty’s prisons?
Lord Faulks
The Government have increased the number of commissioned completions of courses in relation to the core sexual offenders course and in relation to the healthy sex course. The party opposite has adopted a surprising posture. We are doing our best to clear up some of the mess caused by the IPP sentence. We are clearing it up in a responsible way. We are making sure that courses are made available where they can be, where there are suitably qualified people to provide them, but not releasing dangerous prisoners into the population.
Lord Elystan-Morgan (CB)
My Lords, does the Minister accept that Mr Justice Dingemans, sitting a month ago in the Queen’s Bench Division in this case, made it clear that he found that the Lord Chancellor had deliberately abandoned—indeed reneged upon—his obligation in relation to providing courses and that it was not a matter of whether the resources were available but of whether a reasonable level of resources was provided for these courses, which were part and parcel of the judgment in relation to an indeterminate sentence? Furthermore, he found that the Lord Chancellor had habitually ignored his obligation over the years. Lastly, in adjourning the issue of relief for the claimants, he said that he would adjourn the matter in order to see what the attitude of the Lord Chancellor would be towards his duties. Can the Minister tell us what the Lord Chancellor’s reply is going to be?
Lord Faulks
The Answer I gave to the first Question was that the Secretary of State has committed the additional funding necessary to remove the current backlog for this programme. The noble Lord’s interpretation of the judgment of Mr Justice Dingemans, which he has in front of him, is one which he might arrive at. The judge decided that the Secretary of State should have provided these courses. It has to be said that all those individuals had already been on a core offending course. The noble Lord will have read the history of these offenders and will realise that the Parole Board would have been extremely concerned before releasing any of them.
The Lord Bishop of St Albans
My Lords, does the Minister agree that since the abolition of IPP sentences nearly three years ago Her Majesty’s Government have a particular responsibility to these prisoners, especially when their tariff is now well past, in order to reduce the risk of reoffending? Can Her Majesty’s Government assure us that there are sufficient specialist resources for prisoners who are not necessarily able to go on some of the courses because of particular needs, such as learning difficulties or perhaps because they have English as a second language? Will these people be given the help that they need so that they can be released and returned to society to make a contribution for the general good?
Lord Faulks
We are aware of our obligation. NOMS has invested a considerable amount in a number of interventions. We are doing our best to provide a variety of courses in order to ensure that they have the opportunity of showing that they are ready for release.
Lord Marks of Henley-on-Thames (LD)
My Lords, this Government abolished new IPPs and at the same time introduced a power for the Secretary of State to change the release test. This matter has been raised endlessly in debate and in Questions. Can my noble friend now try to provide some justification for not implementing the power so as to ensure that prisoners whose release would be safer are released quickly?
Lord Faulks
I refer the House to the answer I gave to the noble and learned Lord, Lord Lloyd.