Transfer of Tribunal Functions (Transport Tribunal) Order 2014
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Lord Faulks
That the draft Orders laid before the House on 10 and 27 November 2014 be approved.
Relevant documents: 13th and 16th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 13 January.
Assisted Dying Bill [HL]
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Lord Hunt of Kings Heath (Lab)
My Lords, I was rather taken aback by this being such a short debate. I very much welcome the noble Lord’s amendment. We discussed this matter at a little length on the first day of Committee. As he said, applications to the High Court in the circumstances of the Bill, if enacted, could, but not always necessarily, involve complex procedures. The noble Lord is not able to quantify the cost and that is entirely understandable. However, I recognise that for any Government there is then a problem in not knowing that potential cost.
On the first day in Committee, I thought that the Minister was reasonably sympathetic to the point. He referred to the LASPO Act, which has,
“an exceptional cases provision which deals with questions of the Human Rights Act and the convention requirements”.—[Official Report, 7/11/14; col. 1879.]
He said that that was as far as he could then go on the question of legal support. Without entering into any question of financial commitments, which will no doubt haunt both sides of the Committee, I just ask whether he can go a little further and become a little more sympathetic on this issue.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, it is not a question of sympathy. As the noble Lord well understands, it is a question of not committing a future Government as to how they would respond to this position.
It might help if I clarify that the scope of civil legal aid is set out in the LASPO Act 2012. It provides that civil legal services are to be made available subject to satisfying the means and merits and the matter or type of case being within the scope of the civil legal aid scheme. In order to bring a matter within the scope of the civil legal aid scheme, an amendment to Part 1 of Schedule 1 to LASPO would need to be made. The power to make such an amendment by way of affirmative secondary legislation is already set out in LASPO. It would therefore be unnecessary and not usual practice for separate provision to be made in other primary legislation to provide such a power.
That is the position quite apart from the question of exceptional funding, which is concerned, as I said when we were last in Committee, with matters where it could be said that there was a violation of the convention right or, alternatively, a violation—although I do not think it is relevant—of some provision of EU law. That remains an uncertain provision, but it could potentially be relevant, so that is my answer.
Lord Falconer of Thoroton (Lab)
I am grateful to the Minister for his clarification saying, in effect, that there is already power to make sure that this is covered so far as legal aid is concerned under existing legislation. Three points are worth making. First, the key point is that anyone in the situation of considering an assisted death should feel that they would have access to proper legal advice so that the application would not appear to be a burden. Secondly, I completely agree with the noble Lord, Lord Phillips of Sudbury, that it is difficult to identify what an individual case might cost and involve. Some cases will involve no opposition, it being completely agreed and clear that this is the right course to take but nevertheless it should still go to the High Court. It would be very helpful to have a lawyer to help the family through that process. Others may involve more. I suspect that most cases would be on the uncontested end of the spectrum, but we have to provide for the other end of the spectrum as well.
I submit that the appropriate course to take would be that this is covered by legal aid. We should also try to build in easy access in hospitals and with doctors so that people know where they can go to get this help. The key thing is that the family should know that if they need legal help they can get it, it can be obtained easily and quickly and if they cannot afford it it will not cost them anything. I agree in principle with the approach that the noble Lord, Lord Phillips, is taking. I suspect that it will not need an amendment to the Bill.
Lord Faulks
My Lords, this has indeed been a passionate and well informed debate. Your Lordships have shown colossal restraint in the debates we have had so far and have shown great respect for the arguments of the opposing side. I hope that will continue to be the way we approach all the amendments in future. There were a few moments of strain during this debate, perhaps understandably.
At this stage, I should perhaps repeat the position of the Government, which is that we remain neutral. These Benches will have a free vote, should the Committee divide on this or any other amendment, and I shall, of course, endeavour to assist the Committee on any matters of law, without compromising that position.
I was asked by the noble Baroness, Lady Campbell, whether the Government have considered a rise in suicide rates as a result of this Bill. I should tell the Committee that we have collected no evidence about the effects this Bill could have on suicide rates, were it to be enacted, but nothing about the Bill in any way compromises the cross-department suicide prevention strategy.
We generally use “assisted dying” as a portmanteau term to cover both assisted suicide and voluntary euthanasia. Ultimately, as many noble Lords have said, it is a matter of tone and message. Your Lordships will decide whether it is appropriate that any of these amendments should be reflected. It is entirely a matter for the Committee.
Lord Faulks
In this context, it is for the Committee to consider the appropriate term. I decline to go any further.
Lord Falconer of Thoroton
My Lords, this has been a very impressive debate. I completely agree with what the noble Lord, Lord Faulks, said about it being in the right tone.
I shall make three points. First, I acknowledge the speech by my noble friend Lord Cashman, which was of immense power and immense pain. He made the incredibly important point that in the circumstances in which he found himself, he was very clear about the distinction between assisted dying and suicide. I understand the difficulty and the pain that must have been involved in making that speech. All Members of Committee appreciate that.
Secondly, there are two separate groups in this group of amendments. One group is those amendments which wish to change various bits of the wording of the Bill to refer more often to the word “suicide”. Not one of those points has been pursued in detail except for the point made by the noble Lord, Lord Mawhinney, as regards Clause 4, in which he sought to suggest that the use in the draft Bill of the word “self-administration” was in some way euphemistic. It was not. It was used because a vital brick in the Bill is that the person has to do the last act to himself or herself. They have to do it to make clear that it is not euthanasia. That is why that word is there; it is not in any way intended to be euphemistic.
As regards the other matter, the Title of the Bill—which is the key point in the debate—I have thought very carefully about what the Bill should be called. I am always wary when I think to myself, “What will other people think I mean?”. When I hear noble Lords speculating about what the public may think, I am always rather wary; all we can do is to go by the words.
I have used the phrase “assisted dying” for three reasons. First, it is accurate. The purpose of my Bill as drafted is to:
“Enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life”.
That is the wording of the Long Title. Nobody in this debate has questioned its accuracy. What is the right way to convey a Long Title in a short title? In my view the right and most accurate way is by using the words “assisted dying”. That is why, after very considerable thought and having discussed it with people—not just people in favour but also lawyers—I wished to convey accurately what the position was.
The second reason is that to call the Bill “the Assisted Suicide Bill” would, as a matter of law, give the wrong impression. The words “assisted suicide” would give the impression that assistance could be given in any category of suicide. The third reason was that touched upon by the noble Lord, Lord Purvis, who said that those engaged in helping people as regards suicide are very antipathetic to the words “committing suicide”. There is a moral opprobrium attached to it. For those three reasons I decided that the right wording was “assisted dying”. I urge the Committee to accept the Title as it is.
Lord Carlile of Berriew
If a patient is not registered, they are not registered. If a patient goes as a temporary resident—as I think the term used to be; I am not sure if it still is—to see a particular doctor, a general practitioner, they are then registered for the period of the temporary residence, which from memory is, or at least used to be, one month, and which may be renewable for the purposes of that treatment.
To deal with the broader aspects of the noble Lord’s question it might be worth making the further point, while I am on my feet, that it is very difficult to imagine that a patient would be in the situation described in the Bill but had not been treated for at least six months by a practitioner, such as the practitioner who was treating their cancer. That is the general experience that people have.
Lord Faulks
My Lords, I do not have anything to add on that particular point.
This has been an excellent debate which has gone to the heart of some of the most difficult parts of the Bill. Why is six months the right period? Of course, we have heard plenty of informed opinion about how difficult it is to make a prognosis of any accuracy. In Amendment 21, a period of six weeks is suggested as a better period. It may be that that enables a clearer prognosis to be given, but it seems extremely short for the various practicalities and safeguards to give the Bill any real meaning. Inevitably, six months is something of a compromise; the question is whether it is a satisfactory compromise. It will not, of course, suit everybody.
It is something of an irony that one of the spurs behind this Bill and our debates is the Supreme Court’s decision in Nicklinson, which was concerned with the desire of two men with locked-in syndrome—an almost totally paralysing but not terminal condition—to request assistance to die. The Committee might like to be reminded that the President, the noble and learned Lord, Lord Neuberger, commenting in the judgment on the Falconer commission and the six-month period, said:
“That would not assist the applicants”.
I am sure that that is not in dispute. He went on:
“Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.
These are very difficult questions and I look forward to hearing the answer from the noble and learned Lord.
Lord Falconer of Thoroton
I am again grateful for a very good debate. I agree with the noble Lord, Lord Faulks, as ever, that this goes to important issues in the debate. I accept the definition given by the noble and right reverend Lord, Lord Harries, of these issues, which go to the safeguards.
In looking at the safeguards, it is important to put into context the safeguards in the current draft of the Bill: two doctors, independent of each other, certifying that the patient has a terminal illness which they reasonably expect will end their life within the next six months; the two doctors, independent of each other, certifying that the person has made a voluntary decision, that they have the capacity to make that decision and that it is their firm and settled intention that they wish to take their own life in those circumstances; and that decision is not to be given effect without the consent of the Family Division of the High Court of Justice. Those are the safeguards.
Let us look at the proposals in the light of those existing safeguards. First, the noble Lord, Lord Carlile, proposes, in effect, that a person must have as one of the doctors a general practitioner with whom he or she has been registered for the last six months—I understand that registration is a concept that only has relevance to a general practitioner. That proposal, as the noble Baroness, Lady Brinton, has pointed out, appears not to deal with people in the following circumstances: somebody who, for example, moves to live near their relatives, then gets ill and is not registered for six months; somebody whose general practice, for example one run by a sole practitioner, packs up; or somebody who, for example, has a general practitioner who has a conscientious objection to the use of the provisions of the Bill.
If Parliament were to pass a Bill giving people the right to an assisted death, I venture to suggest that it would be a very odd conclusion that your ability to access that right would depend on the adventitious circumstance of whether, for example, you had moved one month before to be near your son and daughter, as my own stepmother did. That does not seem a sensible basis. However, a very powerful thread in this—which has been mentioned in particular by the noble Lords, Lord Cormack and Lord Empey—is the idea of a doctor who does not, as it were, properly consider the merits of an individual case but is, as suggested by the noble Lord, Lord Empey, available for hire. That is something that I would wish to avoid as much as possible. I venture to suggest that there may be three ways to deal with it.
First, I would expect the medical bodies to produce guidance. That can be given effect to, because a High Court judge would have to be satisfied that an appropriate process had been gone through. In addition to that, I note that, according to Clause 3(7), the independent doctor has to be “suitably qualified” in that he,
“holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.
I would anticipate that the Secretary of State would be able to make in regulations provisions that make it clear that the independent doctor could not be the sort of doctor that the noble Lords, Lord Cormack and Lord Empey, and others referred to. If there are better ways of dealing with the doctor for hire situation, I am very willing to hear and discuss them and bring them forward at the next stage, but I am absolutely clear that the way in which the noble Lord, Lord Carlile, is suggesting it be dealt with is unworkable and unfair and cuts at the heart of the Bill.
Criminal Bar: Funding
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I congratulate the noble and learned Lord, Lord Morris, on bringing forward this debate and on attracting such a very high calibre of speakers, as was acknowledged by the noble Lord, Lord Bach. A great deal of experience and expertise has been brought to bear on what is an extremely important subject. It is important because it goes beyond the interests of the criminal Bar as such and has important ramifications for our country, for our system and for the future. I found very little to disagree with in what was said in the debate.
The criminal advocacy market has changed significantly over recent years. I am glad that the noble Lord, Lord Bach, whom I congratulate on his recent appointment, acknowledged that we are not going to return to that golden age. The reduction in cases going to trial and the growing number of advocates, including solicitor advocates, have presented particular challenges to the future of the independent criminal Bar in its current form.
I note what was said about the judicial review and the noble Lord, Lord Bach, told us, quite rightly, that it is ongoing. It refers to the contract in relation to solicitors. It is not appropriate for me to comment on that in view of the fact that is it ongoing. If one reads the Jeffrey report, one can see that it is inevitable that there will be—and there is—a degree of tension between the role of solicitors and the role of barristers in providing advocacy services at the Crown Court. That is one of the challenges that have to be faced in the future: how the public can be best served by preserving the roles of both solicitors and criminal advocates. One of the Jeffrey recommendations, which I do not think anyone would find hard to accept, is the improvement in the teaching of advocacy at the solicitor level if solicitors are going to function in the same field as barristers. There is clearly a disparity that ought to be remedied.
The Government have found it necessary to make reforms to the legal aid system. The financial climate and the tackling of the deficit have forced some difficult decisions on the coalition. It has been important to try to ensure quality public services while balancing the books. But it is clear, and I am happy to confirm this, that the Government want to protect the provision of quality advocacy services. We have engaged extensively with the profession. Clearly, some of the engagement not always been as happily reported as it might have been. The current chairman of the Bar has confirmed that the current relationship is a good one and I hope that the engagement will prove profitable in the future.
Certainly, the engagement that took place led to several adaptations to the original proposals, including the changes to the graduated fee scheme and the commission of Sir Bill Jeffrey’s report, to which there has been much reference. He identified in his report a number of structural problems related to the history and development of the criminal Bar. He found that the criminal advocacy market is not working,
“competitively or in such a way as to optimise quality”.
There are all sorts of reasons for this and time does not allow me to engage with all of them. The decrease in the amount of crime is clearly one. There is now a rather unsatisfactory state of affairs whereby fewer younger barristers are joining professions. There is a bulge of those in their 40s and 50s. This has significant long-term risks, I accept, for the profession in terms of, “Where are we going to get senior barristers from? Where are we going to get judges with the relevant experience?”. However, as has been made clear, it is not obviously attractive for young people to go into the criminal Bar at the moment. I note what the noble and learned Lord, Lord Judge, said about diverting scholarship funds from the Middle Temple; that seems a highly constructive way in which to encourage people through those difficult years.
The Government recognise that this is a period of great transition. They have endeavoured to listen to the profession, and care was taken in developing proposals that would minimise the effect of the changes on the particularly vulnerable section of the profession—the junior part. The consultation paper Transforming Legal Aid, published in April 2013, included proposals for the graduated fee scheme, which covers most advocacy in the Crown Court, and to reduce fees paid on very high cost cases by 30%. Together, these proposals sought to target the fee reductions at the highest earners; we know that barristers who work on the most complex, longest-running type of cases receive more in fee income than others. Furthermore, the original proposals had the effect of protecting the fee income of the most junior members of the Bar. We amended our proposals, following consultation, and have amended the very high-cost cases scheme while still ensuring that the fees were within planned budgets.
The second consultation, Transforming Legal Aid: Next Steps, published in September 2013, included two options. The first was an adjusted version of the original proposal, and the second was a model based on that put forward by the Bar Council, which was based on the CPS payment scheme. The outcome of that consultation was that the Government decided to implement the CPS-like model. This would still have the benefit of focusing reductions on the higher earners.
Following further engagement with the profession in early 2014, the Government announced the deferral of changes to the advocates graduated fee scheme until summer 2015, to align with the second fee reduction for litigators. This will allow us to take into account the outcomes of the review by Sir Bill Jeffrey, as well as any impact on legal aid spend from falling crime rates, and earlier remuneration changes.
Beyond the review by Sir Bill Jeffrey requested by the Secretary of State, the Lord Chief Justice has asked Sir Brian Leveson to undertake a review of the length of criminal proceedings. He has been tasked with suggesting ways to streamline the trial process, identifying ways to reduce to the minimum the number of pre-trial hearings that necessitate advocates attending court. However, the review goes much further and is likely to produce some real gains in terms of the criminal process as a whole. I note that the noble Lord, Lord Bach, committed his Government—should it be his Government after the election—to look again at criminal procedure. I suspect that whichever Government come to power will find the report of Sir Brian Leveson on criminal procedure a valuable basis on which to review this vital part of our system. The report will also impact on the further consideration of the advocates graduate fee scheme.
We have also recognised the need to regularly monitor the criminal legal aid market. That is why the Government have committed to publishing regular data reports on fee payments received by criminal advocates from public sources. The data gathering collated from the CPS and the Legal Aid Agency will help us to meet the need to collate more data on the market and facilitate a better understanding of the way in which the market is operating. I know how irritating it can be for information that is only partially accurate about barristers’ fees to be published, which can give a rather misleading picture of what are relatively modest earnings for most barristers. I have conveyed that to officials, who confirm that, in fact, much of the information is published as a result of freedom of information requests by journalists, who are not, of course, terribly interested in providing a full and accurate picture, including the facts that there are chambers’ expenses and clerks’ fees. The figures may be out of kilter because payment is made over several years. It is important that the Ministry of Justice should be responsible for accurate figures, so that the public appreciates the nature of the payments that are in fact received and gets a real picture of the criminal Bar.
It is undoubtedly true that fees have fallen in real terms. It is the Ministry of Justice’s case that they remain reasonable, although I entirely accept that compared with the other opportunities in the legal profession—at the Bar and elsewhere—they remain extremely modest. In 2013-14, mean fee payments for barristers doing publicly funded legal aid work was £70,200, including VAT and disbursements, and the median was £57,400. In the last financial year, 18% of advocates received less than £10,000, while 25% received more than £100,000. That gives a very rough picture of the range. Those are modest sums.
The Government’s response to Jeffrey is that he identifies a number of challenges for the advocacy market, but he does not in fact put forward any positive suggestions, apart from the education factor, and not all of his recommendations are for the Government to address—they are largely matters for the professional regulators of both the Bar and the solicitors’ profession. The Lord Chancellor has made clear that he is committed to working with the profession in the first half of this year, and I am sure that any future Lord Chancellor will also wish to do so. The cab rank rule referred to by the noble and learned Lord, Lord Morris, is a cardinal principle of the Bar. Of course, it is subject to exceptions, but as a principle it is very important and must be respected in the way that legal services are provided.
We are particularly anxious to ensure that defendants are aware of the choices available to them in representation. That was a factor identified in the Jeffrey report as an unfortunate by-product of the way that cases were assigned to solicitors, and is something that the professional bodies need to look at, because it is in everybody’s interests that individuals have their best opportunity to be represented.
This is a time of unprecedented change in a context of continuing financial pressure. I am glad that the noble Lord, Lord Bach, did not make any extravagant promises as to the future. It is imperative to reform the system to adapt it to the modern reality of reduced public funds and greater efficiency. The Ministry of Justice welcomes the engagement that we have with the Bar on the issue. We are concerned to maintain those constructive discussions over the coming months. At a time of major financial changes which are being felt by businesses and households across the country, the criminal advocacy profession cannot be immune from the Government’s commitment to get better value. However, while committed to finding savings within the system, we are also committed to maintaining the high standards of the criminal Bar, which, as many noble Lords pointed out, plays a vital part in our society.
Property Boundaries
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I, too, am grateful to the noble Earl for raising this important issue for debate and for the clear way in which he outlined the problem. I am grateful to him also for acknowledging the fact that he, I and Charlie Elphicke, who brought forward a Private Member’s Bill, had a number of meetings in which he helpfully outlined of the nature of the problem as he sees it, and the possible solution presented by the Bill. This has been a useful exercise informing the ministry and my officials.
Property boundary disputes relate to the legal position of a boundary between two properties and the ownership of the relevant land. There are many millions of boundaries between properties in England and Wales. This is not a hyperbola—there are 24 million registered properties. The vast majority are probably never the subject of a dispute. However, as we have correctly heard, where neighbours disagree about the line of the boundary, the disputes can be very difficult indeed to resolve.
We cannot realistically create a world in which neighbours do not from time to time fall out over the precise position of a boundary. There are all sorts of reasons for the disputes, not all to do with a precise evaluation of the boundary itself. What we can aim to do is provide effective ways to resolve the disputes that occur. A first step is to try to identify why they seem to be so difficult to resolve.
It is perhaps regrettable that boundaries are rarely precisely defined in England and Wales, and the standard of property descriptions in conveyances and the matching of plans to the situation on the ground has historically too often been poor. In addition, boundaries may be changed by the application of the principle of adverse possession, to which there has been reference in this debate. Those rules are complicated and the time periods applicable depend on whether the title to the land is registered but, basically, a person can become the owner of land by uncontested continuous use over a lengthy period of years. The noble and learned Lord, Lord Hope, correctly referred to the Latin maxim. If this happens, the line of the legal boundary will change.
The fact that adverse possession involved evaluation of the facts is one of the reasons why the Government respectfully agree with what the noble and learned Lord, Lord Hope, said about the difficulty in the otherwise initially attractive solution of having the matter determined effectively by surveyors. An undesirable side effect of this lack of precision is that, unless a certain give and take is observed between neighbours, the resultant boundary disputes are often bitter, protracted and expensive. On occasions, the costs, as the noble Lord, Lord Kennedy, rightly said, can be out of proportion to what is at issue. There are all sorts of reasons for this.
As we have heard, it was concern about the disproportionate cost and bitterness of disputes based on the experience of his constituents and others that prompted Charlie Elphicke to bring forward his Bill. It proposed—if I may condense a 17-clause Bill, which I know has been amended—that disputes relating to the exact location of a boundary between adjoining properties in England and Wales must be referred to an independent adjudicator for final determination at the earliest opportunity, subject only to a right of appeal to the county court. In the light of the concerns raised, the Government decided to carry out an initial scoping study on the issue. The result of the study was published today; it is on the Blackberry of the noble and learned Lord, Lord Hope, I think the noble Earl has received it, and if the noble Lord, Lord Kennedy, has not received it, he will do so shortly. We have placed a copy in the Library, but I will briefly summarise its content.
The study took the form of interviews with a small number of key stakeholders and the distribution of a questionnaire to 30 organisations with an interest in land law issues involving boundary disputes. Input was also received during the period of the study from a number of individuals who had themselves been involved in such disputes. The study reflects the views expressed in the responses received on the nature, frequency and causes of boundary disputes, the effectiveness of the resolution methods, the problems that arise and what could be done to address them. It discusses a number of options for legal or procedural change. Incidentally, I accept that it is difficult to calculate quite how many disputes there are because they can vary between a full-blown boundary dispute which reaches the High Court and even beyond, and an initial disagreement which may be relatively easily resolved, and there are very many steps along the way.
Boundary disputes can be mediated by a range of methods, either through the county court or the land registration division of the Property Chamber of the First-tier Tribunal, as part of legal proceedings or separately by mediation, as referred to by the noble Lord, Lord Kennedy. Independent expert determination is also used in a very small number of cases. I noted from the RICS document, which was part of the very helpful Library Note put together for this debate, that there is a RICS Neighbour Disputes Service, which provides access to a specialist panel of expert members with experience of resolving neighbourly boundary disputes. The service can involve expert determination and mediation of a dispute, and therefore there is an alternative to formal litigation if any doubt or uncertainty exists between parties on the correct boundary line. The RICS advises those who might wish to seek a slightly cheaper way to resolve their problems.
The core conclusions reached in the study are that there is merit in the Government carrying out further work to assess the feasibility of improvements as regards a number of aspects of the current system, including the use of mediation and expert determination, the spreading of best practice and the provision of better information, but that more radical reform such as that argued for by the noble Earl, Lord Lytton, would not currently be justified. The particular approach the noble Earl advocates is the introduction of a mandatory system for resolving disputes similar to that used under the Party Wall etc. Act 1996. That would involve the appointment by parties at as early a stage as possible of an independent expert, normally a surveyor, to determine the position of the boundary. In the event that either party was dissatisfied, it would be open to them to appeal against it to a court.
It will be useful if I explain why the Government do not consider that requiring everyone involved to follow such an approach would be beneficial. First, the determination of the legal position of a boundary in the absence of agreement is normally a matter for a judge, as it determines a person’s legal rights. A surveyor, no matter how expert in technical issues—I entirely agree with the noble and learned Lord, Lord Hope, although my own experience with surveyors is that they very often are extremely expert and supplement the often inadequate understanding that lawyers have of these issues—will not necessarily have the legal expertise to deal with cases that involve more complex legal issues such as adverse possession. Allied to this is the fact that, unlike party wall cases, which are essentially based on a mutual need between the owners of the adjoining properties for work to be done efficiently, boundary disputes are much more likely to produce a “winner” and a “loser”. In addition, as contributors to this debate have acknowledged, boundary disputes can generate considerable bitterness.
The combination of these factors means that in our view the likelihood of appeals being brought against decisions would be high. It would mean that in many cases the suggestion would simply add a further layer to the proceedings, which would add to the costs rather than reduce them. In some cases the early appointment of experts could itself front-load costs where the dispute might have been resolved in other ways, and, perhaps, permit stronger and legally astute parties to steal an advantage over more easygoing neighbours. That does not mean that the Government are in any way complacent about the problems that can arise in boundary disputes, or about the possibility of improving relevant civil procedures more generally.
In the course of this Parliament, we have made considerable efforts to rein in the costs of civil litigation in general so that they are more proportionate, including through a new civil procedure rule to ensure that costs which are disproportionate will not be recoverable, even when they are reasonably or necessarily incurred. We have also introduced new provisions for costs management and costs budgeting. These and other steps should help to reduce the amount of costs so that they do not become disproportionate to the issue.
We believe that rather than restricting the flexibility of the current system and the range of methods that can be used to resolve these disputes, it is preferable for us to explore the feasibility of making further improvements. As I have indicated, there are a number of approaches we wish to examine aimed at developing and encouraging the use of mediation or other methods of alternative dispute resolution, supporting robust and timely case management and improving the quality and availability of guidance and information to increase awareness of the issues and the options available. I am grateful to the noble and learned Lord, Lord Hope, for reminding us of what the Land Registry provides by way of assistance to those who wish to have boundaries clarified.
On the question of general boundaries, which was referred to in the debate, I am advised that when land registration was first introduced there was an experiment with general boundaries from 1862 to 1875, when it was abandoned because it caused so many disputes.
On the question of what we can learn from Scotland, of course, it is always useful to learn from other jurisdictions. I am advised that a local deeds registry existed in Yorkshire and Middlesex until the late 20th century. We will consider, among other things, what we can learn from practice in Scotland, and, indeed, from practice in Australia. Our core aim will be to reduce the costs without in any way impeding the proper opportunity for people to dispute boundaries where they must do so. We intend to take forward consideration of how action can best be focused in these areas in the light of the findings of the scoping study in order to reach more definite conclusions on next steps in the year ahead. I thank the noble Earl for his contribution to the debate and all those who have contributed to our enlightenment on this important issue. As I have said, we are by no means complacent about this issue and the debate has been most helpful.
Transfer of Tribunal Functions (Transport Tribunal) Order 2014
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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
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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(10 years, 7 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(10 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.