Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 27th October 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that there is always a sigh in this House when a debate is dominated by lawyers. However, I remind the House that sometimes it is lawyers who know the pain that citizens in our country experience, because we represent them, and that this is about the actual lives on which judicial review has an impact. It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.

When your Lordships come to vote in our Lobbies, as I am sure you will be asked to do, I say to those of you who are not lawyers that this is really about people’s lives and about the law coming into play to protect citizens. That is why lawyers and organisations such as the Bar Council, the Law Society and Justice—cross-party and no-party organisations—know why the rule of law matters in our nation and our democracy. This is not, I say to the Minister’s noble friend Lord Tebbit, about judges somehow usurping the power of Parliament. This is about justice, fairness and the things that we hold dear, so I say to my colleagues in this House who are not lawyers that this is not a festival of lawyering. It is about ordinary people.

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

My Lords, we now turn to Part 4 of the Bill, which has proved to be one of the more contentious areas at Second Reading, in Committee and today. The debate has ranged far and wide and it has been magnificent. We have discussed the constitution of the United States, the merits of the European Union, the Council of Europe, King Charles I, fracking, the Severn barrage and HS2, to name a few topics. I am sure that noble Lords will understand if I do not deal with all of them.

Similarly, there have been speeches of an omnibus nature, particularly by the noble Lord, Lord Beecham, and my noble friend Lord Marks, in the sense that they have covered matters beyond Clause 70. I will deal with those arguments when we come to the relevant groups. We are focusing on Clause 70 at this juncture. The Government have listened with great care to the arguments raised by noble and learned Lords and noble Lords during those debates. I assure my noble friend Lord Cormack that I have listened carefully again this afternoon to the speeches made by a large number of your Lordships. However, we do not resile from our central contentions, which I trust the House will allow me to set out briefly.

First, it is our contention that judicial review, when used properly, is an essential component of the rule of law. It allows individuals and businesses to invite the court to test the lawfulness of public bodies’ actions. Secondly, judicial review as it presently stands is not always perfect. On several occasions, the Government have set out some of the examples of delay and cost which can be caused, such as the challenge to the exhumation licence concerning the mortal remains of King Richard III which the noble Lord, Lord Beecham, described as “ludicrous”, despite his own view that York is the more appropriate resting place.

Thirdly, while we have taken some steps, working with the judiciary where appropriate, to rebalance the current approach, such as through the creation of the planning court, some further reform is needed. Noble Lords may be aware that the use of judicial review has increased more than threefold in recent years from around 4,200 in 2000 to around 15,600 in 2013.

The noble and learned Lord, Lord Woolf, was kind enough during our Committee debates to offer me a copy of De Smith’s Judicial Review, of which he is a distinguished editor. I have to say that he honoured his pledge most generously. I have been in receipt of De Smith and I have done my best to reacquaint myself with its contents. The preface to the seventh and most recent edition reads as follows:

“English administrative law is now one the most celebrated products of our common law and doubtless the fastest developing over the past half century”.

We accept that many judicial reviews will be well founded and brought in good faith, and that much of the growth has been driven by the number of immigration and asylum cases, but it remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even years. Even when decisions are perfectly in line with due process, months can be spent preparing for and defending claims when that time would be better spent taking forward the reforms that the country needs.

The debates have been, perhaps predictably, dominated by those with long experience of the law and, of course, on the government Benches we welcome the expertise which has been brought to bear, even if we do not always welcome the contents of all the speeches. However, there is another side to judicial review—one which pertains to what happens, or does not happen, outside the courtroom as judicial reviews proceed. As they proceed, arguments are made and countered; witness statements are prepared and probed; and fine points of law are weighed and determined. Crucial projects with direct implications for jobs are delayed, perhaps lost.

For example, a judicial review was initiated by a competitor to the proposed development of a supermarket in Skelton, North Yorkshire. That challenge was described by the judge at the earliest possible opportunity as “a hopeless case”. Yet work was delayed for six months. Irrespective of the rights and wrongs of the case itself, is it right that a hopeless judicial review can be used to such effect? The risk of this happening was recognised by that great judge Lord Diplock who, when emphasising the importance of the permission stage in judicial review said:

“The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge”.

I quote from Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses 1982 appeal case 617 at page 643.

It is important that we do not ignore the fact that such cases place a considerable burden on the public purse in terms of the time of judges, lawyers, Ministers and officials. Overall figures are not recorded, and are probably not recordable, but by way of illustration, I can report that the total legal costs of the Richard III case to the Ministry of Justice alone have been put at more than £90,000, none of which is recoverable. Consequently, we make no apology for having taken some sensible steps already, and none for making a few more small but important changes.

Outside your Lordships’ House the debate about these reforms has been rather long on hyperbole. Reference has been made during the debate today, and indeed in Committee, to left-wing causes. Of course, I entirely accept that it is irrelevant whether a cause is left-wing, right-wing or apolitical. What matters is whether the challenge is justified and whether it has merit. However, I have seen it suggested that the Government wish to do away with judicial review altogether and even that these reforms will lead to imprisonment without trial. As I will explain, these fears are entirely ill founded. The Government believe that the roles of Parliament and the courts should exist within a relationship of mutual respect and co-operation. In that context, I should emphasise what the provisions do not do: they do not seek to undermine or fetter judicial discretion; they do not seek to challenge the basis on which judges approach questions of judicial review; and we have not altered legal standing, much as that was open to criticism. That was a response to the consultation paper.

--- Later in debate ---

[Lord Beecham]

My Lords, the Opposition will support the amendment moved by the noble Lord, Lord Pannick. It seems to me quite possible, within the framework of that amendment, to proceed along the lines mentioned by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Lester.

[Lord Faulks]

My Lords, Clauses 71 and 72 are about transparency. They require an applicant for judicial review to provide, with their application, information on funding for their case and that the court considers this information when exercising discretion to order costs. It is important to emphasise that, while permission will not be granted until information has been provided, there is no question of preventing permission if the applicant’s funding is insufficient, and the judiciary continue to have complete discretion in relation to the making of costs orders against third parties disclosed in that information.

Requiring the applicant to provide this information to the court will give the court the information necessary to achieve flexibility in apportioning costs fairly, and to prevent a third party from using a front man or shell company to shield themselves from incurring their share of costs. Your Lordships have heard that there is a potential problem, and although it is not always easy to know what the situation is, this provision should enable the courts to make their decision based on evidence. We say that the judges do not always have all the relevant information available or presented to them, which has the potential to hinder their ability to order costs in a just and equitable manner.

Amendments 157 and 158 would stop the provision of information about financial resources being mandatory, allowing for permission to be granted where no information has been provided but permission is “nevertheless appropriate”—which is undefined. The Government consider this unnecessary, as the clause does not stop permission being granted if insufficient finances are available. It requires only that the court should be provided with an accurate picture. The court still has discretion.

The clauses will not require onerous or invasive information from applicants, and the information requested should always be information that the applicant would have, even if they did not have funding at that stage. The clauses are designed to promote transparency in court proceedings, not to provide for a time-consuming forensic examination of an individual’s financial affairs.

The noble Lord, Lord Beecham, has not moved Amendment 156. The amendments tabled by the noble Lord, Lord Marks, and Amendment 162, tabled by the noble Lord, Lord Pannick, seek to change when the court should have regard to funding information, and what that information should be. My understanding is that they rely on Clause 71 being removed from the Bill and set out the power for the court to require the applicant to provide certain information about funding when the court is determining, or intends to determine, costs. They also limit the information to sources of funding that are actually available to the applicant, rather than sources that are likely to be available, and rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.

Amendment 161A would mean that those who are likely to fund and drive litigation could escape the appropriate costs liability simply by not promising to provide the support. Amendments 160 and 161 seek to instate a position where the court need not consider financial information provided by the applicant, even if it considers it appropriate. In my view, these amendments are unnecessary and defeat the point of Clause 71 in making sure that the court has clear and transparent information early in proceedings.

The key to Clauses 71 and 72 is they do not create new cost liabilities for claimants, nor does the sufficiency of funding they demonstrate have an impact on the progression of the case. In answer to the noble Baroness, Lady Lister, the courts would not be expected to make an award against a third party who was simply funding the litigation and not seeking substantially to control, influence or benefit from it. I said words to that effect in Committee; I say them again now, and I hope those words will be useful when anyone comes to interpret this provision should it become law. It is clear that the applicable case law requires more than only funding; as in the case law referred to by my noble friend Lord Lester, the person must be seeking to drive the litigation or to benefit from a potential remedy in the case. I should emphasise that.

Under those principles, costs awards are not prescriptive, nor is it our intention that they should be. We are simply allowing the court to make decisions with the appropriate information available to it. For example, the court will not have to make an award against a parent in a school challenge case and would not be expected to do so. We do not agree with Amendment 162 that prospective funding or the ability of company members to provide financial support can be excluded from this consideration, nor do we agree that the court should consider only those who have promised to provide funding. In our view, that creates an easily avoidable threshold.

We also do not agree that this information should be provided only on the making of an order by the court, as stated in Amendment 159B. There is no reason why the court should not be informed of the parties driving litigation early on in proceedings, as this would enable the judge to make decisions on costs without having to order the parties to provide information. Essentially this amendment seeks to favour the opaque, rather than the transparent. What information an applicant should provide will be set out in court rules. The rules will not require invasive financial information but will require the claimant to be clear about the sources of their funding. It will be perfectly acceptable to update the court if funding does not materialise; that was a point made in Committee and I would like to make that clear. The requirements will not be burdensome for claimants. The Government have on many occasions stated that they wish to see a light-touch approach, and I am sure that any rules will be fair and proportionate to the court’s need for transparency.

The noble and learned Lord, Lord Brown, made reference to the judiciary’s response. I am sure he has read carefully what it is and I am in no position to contradict it. My understanding was that the judiciary had welcomed transparency, although, having revisited what I said in Committee, I did not seek to rely specifically on that as the only basis for this argument. He may well be right that the comments were directed more at non-parties than in the situation of an applicant. If I inadvertently misled Parliament, I make it absolutely clear that that was not my intention.

The requirement for transparency is wholly understandable and wholly consistent with judges making decisions on the best possible information. The question is: is this going to be chilling? I suggest that it will not be chilling to those who have good reasons for bringing claims and who are, as one would expect, open and frank about what, in financial terms, is driving the challenge.

This has been a useful debate and I hope it has enabled me to be clear about what lies behind Clauses 71 and 72 and to allay any remaining concerns. The Government take the view that these clauses do not take away the judge’s discretion. As is always the case, he or she will make the decision on the basis of the facts of each case. These clauses enable the judge to have better information before exercising the discretion. No judge wants to exercise a discretion in the absence of all the information that could reasonably be made available to them. It is not obvious to me why this is as objectionable as it is said. With that reassurance, I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Pannick]

My Lords, the purpose of Amendments 157, 158, 160 and 161, which are all of a piece, is simply to ensure that the court has a discretion rather than a duty in relation to information about the funding of judicial review. It is very important to be clear in the Bill that the court retains a discretion in relation to these matters. That is what these amendments seek to do in relation to funding issues. I wish to test the opinion of the House on Amendment 157.

--- Later in debate ---

[Baroness Campbell of Surbiton (CB)]

My Lords, I wish to add my support for the amendments proposed by my noble friend Lord Pannick. This provision will, indeed, deter interventions from organisations with limited resources—organisations, as my noble friend Lord Low suggested, that are likely to have the best and most pertinent expertise about the more vulnerable sectors of our society: children, disabled people, elderly people. Judges have publicly recognised the value of specialist knowledge in helping them to make informed decisions, as demonstrated by my examples in Committee. I had the privilege to be involved in interventions in two landmark cases where my organisation and individual knowledge could contribute to the outcome, which everybody heralded as a great success. I know that the Government’s reforms would have deterred me and my organisation from intervening. I believe that cases will be very poor for that.

It is critical that intervention remains readily available and that we do not deter weak charities and individuals who are quite sceptical about getting involved at all. Let us face it, intervening in a High Court case is a scary prospect. I know because I remember I was terrified. Therefore, I believe that these provisions will have a devastating effect, particularly on the community that I know best, disabled people—the very people who need the most support, protection and expert advice, coming from maybe some of the people who know them best and who have themselves experienced what they might have been going through or might go through. Clause 73 cannot be allowed to stand because there will be no interventions of such knowledge and value—interventions that have literally changed the lives of some disabled individuals and interventions that will change the lives of those who come before the courts in the future.

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have taken part in the debate on interveners. The position is that any person may apply to the court to give evidence or make representations in judicial review proceedings. However, we think it is right that people who intervene in judicial reviews should have a fairer financial stake in the case and do so in a way that does not cause the true parties to the judicial review additional costs.

Clause 73 aims to strengthen the costs rules in relation to third parties who voluntarily apply to join in judicial review cases as interveners. It does this by establishing two presumptions: first, that the court will order an intervener to pay their own costs—that is normally the position now; secondly, that it will order an intervener to pay the reasonable costs that they cause a party to the judicial review to incur by their intervention. However, neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for that presumption to be rebutted. Neither presumption will apply when the court invites an intervention—and courts do quite often invite interventions. The clause will not affect the judge’s ability to invite whichever interventions, from whichever interveners, he or she sees fit.

The clause has been subject to significant debate and, as I said at Second Reading and in Committee in this place, and as my honourable friend Shailesh Vara said in the other place, the Government wanted to look again at how best to ensure that interveners consider carefully the costs implications of intervening, while not deterring appropriate interventions in appropriate cases, and, as a result, whether any changes to the clause were required. We have taken into account the views expressed in this House and the other place. The Government have listened to the concerns raised in Parliament and by stakeholders but consider that the current clause is right and are not persuaded that amendment is needed. The Government have considered and discussed the clause in some detail. I know that my ministerial colleagues have also discussed it with fellow Peers. I regret to say that we have been unable to agree an alternative formulation. The Government recognise that interveners can add value to a case and we do not want to stop that. However, interventions should be made in the right cases after careful consideration beforehand. That means that interveners should have a fair financial stake in the case.

--- Later in debate ---

[Lord Deben]

My Lords, I am grateful to my noble friend for giving way. I am listening very carefully. The tiny bit that I do not understand is why the judge should not have discretion to decide whether the case merits payment of costs or not. The discretion is very bound, because he has to maintain that these are exceptional circumstances. I find that difficult. Why cannot he be given the right to say, “In this case, they ought to pay because they have been in one way or another negligent”, or have overcharged, and in another case that they should not? Why cannot we leave it to the judge? It is his court and he should make the decision.

[Lord Faulks]

My Lords, of course that is the burden of the argument in favour of the amendment, and that is the current situation. The clause is intended to place a higher burden—we accept that it is a higher burden—on interveners to think carefully about the intervention that they intend to make as to whether it is truly worth while.

Before my noble friend’s intervention, I was stressing that the judge has discretion over both aspects: causation and quantum. The intervention may have caused only a degree of additional costs, rather than the entire costs of the action, which will modify the intervener’s exposure to costs. That will be a matter for the discretion of the judge. Of course, it is ultimately up to the judge to decide what are exceptional cases. Judges have different views as to what constitutes an exceptional case, but ultimately it is for the judge. It is very rare, if at all, that one sees appeals on questions of costs having any success. Amendment 164 would remove both presumptions that the clause creates, replacing it with a general discretion, which my noble friend would like, for the court to award costs either for the intervener against a party or to require the intervener to pay the parties’ costs. That is the status quo.

Clause 73 has been criticised for being too broad and meaning that interveners could be expected to pay costs in any circumstances. Critics have said that that means that an intervener would not be able to intervene in important cases and provide assistance to the court, as the risk of adverse costs is too unclear and potentially too great. Under Clause 73, what amounts to exceptional circumstances will ultimately be set out in court rules. That will provide clarity for an intervener at the point where they are considering whether to intervene on the manner in which they should carry out their intervention or risk costs.

Clause 73 does not mean that in every case where an intervener is involved they will be forced to pay all the costs of all of the parties, but it is right that they have a fairer financial stake. All those with experience will confirm that, just as interveners can add value, they can delay and hinder and make arguments that simply amplify or repeat—

[Lord Lester of Herne Hill]

I am grateful to the Minister, and I apologise for intervening at this late stage, but I do not understand from his reply how he can cite cost saving as a justification for giving detailed instructions to the courts about matters that are well within their discretion. Nor do I understand why a different rule should apply to the Supreme Court from that applied in others or in Northern Ireland from that applied in England and Wales.

[Lord Faulks]

I think that I have answered my noble friend’s point on the difference between the Supreme Court and the courts at a lower level. On costs, as I said, with this clause we hope to deter inappropriate interventions and also to make interveners think about the scale of their intervention so as to reduce the costs for all parties, whether applicants or respondents, and to ensure that those interventions are relevant and genuinely assist the court.

These clauses apply to judicial review in England and Wales. Scotland and Northern Ireland have separate legal jurisdiction on this question because it is devolved, but of course if they intervene in a court in England and Wales that would be a different matter.

Interveners can also, as I think is accepted, make arguments that go beyond what is necessary. The changes that Clause 73 introduces reflect the Government’s intention of ensuring that they do so in an appropriate manner. We submit that the overall effect of the clause, while not drastic, will reduce the number of cases—and the noble Lord, Lord Pannick, says that there are very many cases where interventions take place—in which the taxpayer is expected to shoulder the burden.

That is what Clause 73 does and why the Government, having considered the issues, are of the view that the provision represents a sensible, workable and balanced position that takes proper account of the role of the judiciary, which will remain at the centre of this issue. Therefore, having provided an explanation of the Government’s thinking, I ask the noble Lord to withdraw the amendment, and I commend Clause 73 to the House.

[Lord Pannick]

I am grateful to the Minister and to all noble Lords who have spoken. This short debate has, I think, illuminated and emphasised just how bizarre Clause 73 is, because there is no dispute that interventions by third parties at all levels of judicial review assist the court by the provision of information. That is simply not in dispute.

There is also no dispute that interventions by third parties are already under the control of the court. They are under the control of the court as to whether they are allowed, on what grounds, and with what consequences on costs, having regard to the issues in the case. It is true, as the Minister says, that there have been more interventions in recent years, but that is only because courts find them helpful and have allowed third parties to intervene. If interveners act inappropriately —and I am not aware of any cases where this has occurred, with the exception of one possible case in the Appellate Committee, which, as it is now the Supreme Court, would not be covered by this provision in any event—the judge has ample power, at present, to order the payment of costs. That point was correctly made by the noble Lord, Lord Deben, who also rightly referred to the limited scope of the exceptional circumstances provision. The problem is that there is nothing exceptional about interveners assisting the court. That is what they normally do.

When an expert body is deciding whether to intervene and assist the court, it will know, if Clause 73 is enacted in its present form, that there is a strong presumption that it must pay the costs. The inevitable consequence is that it is unlikely to intervene. This will not achieve the Minister’s policy aim of, as he said, deterring inappropriate interventions; it will deter interventions, however helpful they may be to the court.

Clause 73 makes no sense whatever. It makes no sense, with great respect, to speak of a need to make interveners have a financial stake in the proceedings. The court has ample power to penalise them in costs. Amendment 164 will maintain judicial discretion in Clause 73, just as your Lordships have decided that judicial discretion should remain in Clauses 70, 71 and 72. I wish to test the opinion of the House.

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 27th October 2014 Lords Chamber

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

My Lords, I am grateful once again to noble Lords for their contributions—brief but helpful. Your Lordships will understand that the amendments tabled by the noble Lord, Lord Pannick, seek significantly to undermine Clauses 74 and 75. I will begin by reminding the House what the clauses do. They build on case law, in particular the Corner House case, to establish a codified costs capping regime for judicial review proceedings with the aim of governing what we ordinarily refer to as protective costs orders.

The Government’s position, which I made clear throughout Committee, remains clear. We believe that costs protection should be available in appropriate cases but costs capping orders should not be made widely or, indeed, routinely. Alongside Clause 76, to which the noble Lord, Lord Pannick, referred, which excludes certain environmental cases from the new regime, these clauses ensure that costs protection is granted only in cases where there are serious issues of the highest public interest that would not be taken forward without an order. It is only in these cases that a public body defendant should have to pay its own costs regardless of whether it wins or loses.

As noble Lords have explained already, part of Amendment 166 would remove the effect of Clause 74(3), which provides that costs capping orders should be made only where permission to proceed to judicial review has been granted. I do not believe this is correct. It would mean that claimants with weak cases would benefit from costs protection even if the court subsequently decides that their case has no merit and that it should not be given permission for judicial review. This would leave the public body paying the costs of dealing with an ex hypothesi unmeritorious case.

As it stands, the clause does not mean that the costs of applying for permission will not be covered by the order. As is the situation now, if made, an order will be able to cover costs incurred prior to the grant of permission. This, I think, is the answer to what the noble Lord, Lord Pannick, described as a particular vice of these provisions. The claimant can, as now, ask the court to make the order as part as the permission application. But we feel that it is right that a claimant should bear the financial risk of bringing a weak claim.

Amendment 166 once again seeks to remove the requirement for the court to be provided with information on funding available, as well as what is likely to be available to a claimant, for use by the court when deciding whether to make a costs capping order, and for court rules to set out what that information should include.

As I have said, it is the Government’s position that a claimant should be required to provide information on how their case will be funded. Under the current regime, and as set out in the Corner House case, courts are required to consider the financial resources of those who request costs capping orders. This is the very essence of why we have costs capping orders, something that we should, of course, replicate in this new regime.

Furthermore, setting out what information is required in court rules will give clarity to applicants about exactly what they need to provide. We cannot prejudge what the rules will say; I am sure noble Lords will be aware that this is a matter for the Civil Procedure Rule Committee. During the course of debates, some doubt seemed to be cast on the independence of the Civil Procedure Rule Committee. With respect, I think that doubt was misplaced. It is a committee chaired by the Master of the Rolls and contains, among others, Lord Justice Richards, all of whom, I am sure, with their experience and independence, will provide rules entirely independent of what the Secretary of State might or might not want. Of course, we expect that the information requested will be proportionate.

I turn to Amendment 167, which seeks to remove the third requirement in subsection (6), which is that an order can be made only if, without an order, it would be reasonable for the claimant to discontinue the judicial review. Again, this was a requirement of the Corner House case, and it is right that this remains. Doing anything other than this would make no sense. It would mean that well resourced claimants, including large companies, would be eligible for a costs capping order provided they could show that, without one, they would discontinue the claim, even though it would be entirely unreasonable for them to do so. This simply cannot be right. Indeed, it would mean they could be granted a costs capping order despite not being eligible under Corner House and the current regime.

Amendments 168 and 173 of the noble Lord, Lord Pannick, seek to remove entirely from Clauses 74 and 75 powers afforded to the Lord Chancellor to amend lists of matters within these clauses through statutory instrument. It is the priority of the Government to respond at pace to any future developments. These amendments would simply prevent our doing just that. It may well be that, in future, developments mean that it is considered necessary to make changes to the matters set out in these lists. Of course, as I have said, Parliament will still be able to scrutinise any changes as both powers are subject, not to the negative, but to the affirmative resolution procedure.

Turning now to Clause 75, which sets out in subsection (1) five non-exhaustive factors that the court must consider when deciding whether to make a costs capping order and its terms, Amendment 170 seeks to make it optional for the court to have regard to these factors. With the exception of paragraph (e), these factors are based on the principles taken from the Corner House case, and all five factors are important in ensuring that a costs capping order is not awarded where it is unnecessary, as is the Government’s case.

The courts retain significant discretion, as the clause does not dictate how much weight, if any, should be given to each factor. Furthermore, the list is not exhaustive, so the court may consider any other factors that it considers relevant.

The other amendments proposed by the noble Lord, Lord Pannick, would amend that list, first, so that the courts would not be required to have regard to whether the applicant might receive funding in the future and, secondly, so that the courts would not have to consider whether someone who might provide future funding would benefit from the judicial review. They would be told to ignore factors which, I respectfully suggest, are relevant. This would mean that the court would not have available to it a full picture of the claimant’s financial position when deciding whether it was appropriate to grant costs protection and, if so, at what level that protection should be set.

It is vital that the courts are made aware of the full financial underpinnings of a claim. This allows the court to assess whether a claim, although notionally brought by a claimant of limited means, is sufficiently well resourced not to require taxpayers’ subsidy by way of costs protection. It also allows the courts to ensure that, if they do make a capping order, the cap is made at the right level. Otherwise, it could result in the taxpayer being asked to pick up the bill for the defendant’s costs when the claimant would in fact have been in a position to pay.

If—and this is an important point—future financial support is not forthcoming, the claimant will be able to inform the court so that it can take the change of circumstances into consideration. We will invite the Civil Procedure Rule Committee to include this safeguard, which may be necessary, in court rules.

On removing the requirement that the court consider the benefit to a potential third-party funder, the Corner House case recognised that a claimant’s private interest in a case is a relevant factor when considering whether to grant a costs capping order. This requirement reflects that principle and the court should consider it as part of the full picture.

The clauses retain the principle that costs are a matter for the judiciary, a theme which has run through our debates today. When considering an application for a costs capping order in an individual case, it will be for the judge to decide whether the particular proceedings are in the public interest, whether an order should be made and, if so, what the terms of that order should be. That represents no change to the current position.

The noble Lord, Lord Pannick, effectively posed the question, “What’s wrong with the current position?”, and he did not understand there to be many cases concerned. I have asked for further data on this. I have to confess to the House that the Government’s data on costs capping orders are limited, but we have indicative figures from the Treasury Solicitor’s Department which estimate that, between September 2010 and August 2014, it was involved in at least 38 cases where protective costs orders were awarded, of which 14 related to non-environmental cases. However, these figures will not represent all judicial reviews, as the Treasury Solicitor’s Department does not represent all government departments, nor will the figures cover non-governmental defendants such as local authorities, so that the actual number of such orders may be that much higher. The noble Lord, Lord Beecham, may be fed up with references to the Richard III case, but a protective costs order was made there and, as he will well know, the Government were unable to recover any money from the claimants because it was a shell company. It was created entirely to pursue the litigation, which turned out to be entirely baseless.

These are unusual orders. They should be made where the judge has as much information as he or she should have in order to be able to make them. Any other provision is simply saying, “The judge shouldn’t take into account matters which most people would think were relevant”. These clauses are to ensure that costs capping orders are made only in cases that genuinely need them—we are talking about public money here—and are set at a level that properly reflects the financial position of the claimant. With that perhaps rather overlong explanation, I ask noble Lords not to press their amendments and to agree to Clauses 74 and 75 standing part of the Bill.

[Lord Pannick]

I am grateful to the Minister for his detailed explanation, which, far from being overlong, was very helpful, because I see the force of what he says—except in relation to Amendment 166, which addresses the removal of a power in the courts to make a costs capping order at the outset of the proceedings. There is no question of a costs capping order being made routinely, which was the Minister’s concern. These orders are in the discretion of the court. The court will not make such an order unless it is satisfied that the claim is sufficiently well founded to justify such an order.

I do not think it is any answer for the Minister to say that if leave is granted, a costs capping order can then be made. The problem, as the Minister knows, is that if a costs capping order cannot be made at the outset then these public interest claims will be deterred. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out, Amendment 166 has precisely the same purpose and effect as the three amendments already debated and voted on in your Lordships’ House this afternoon—that is, to retain judicial discretion, in this case as to when it is appropriate to make a costs capping order. In relation to Amendment 166, I wish to test the opinion of the House.

--- Later in debate ---

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

My Lords, I moved amendments in these terms in Committee and so I will try to be brief, although the area they cover is quite complicated. Clause 76 is in the Bill because the Aarhus convention of 1998, which was ratified by this country in 2005, committed the United Kingdom to ensuring that environmental litigation will be,

“fair, equitable, timely and not prohibitively expensive”.

My amendments are founded on the principle that Parliament has a duty to ensure that this country acts in a way that is compliant with its international obligations.

Clause 76 recognises that the restrictions on costs capping orders as proposed in the Bill have the effect of making environmental litigation prohibitively expensive in any case. That is true ex hypothesi, because in a case where a judge would decide that a costs capping order is needed in order to enable an applicant to pursue the application, it follows that the application, if pursued without such an order, would be prohibitively expensive. It is for that reason that rules of court have already introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums. Those sums are £5,000 against an individual applicant, £10,000 against a corporate applicant and £35,000 against a defendant.

However, the costs capping provisions are not the only provisions of the Bill that would put us in breach of the Aarhus convention: so would the provisions on disclosure of actual and likely financial resources and on the consequential orders for costs based on that information, as disclosed. Those provisions would have the effect that sources of support for judicial review applications would be choked off, making them prohibitively expensive for applicants without means, who would be left without the support of those people deterred from giving such support. The provisions on interveners and on costs capping would also have the effect of making environmental cases prohibitively expensive. Our amendments are therefore directed at broadening Clause 76 to exclude Clauses 71 and 72 on information about resources, and Clause 73 on interveners, for environmental cases as well as the costs capping provisions.

A further difficulty with Clause 76 is that it is permissive only and not mandatory, so that the Lord Chancellor is not required to make any regulations excluding the operation of the restrictions on costs capping. The provision is limited to ensuring that he is entitled to do so, if he chooses. Any such regulations that he chooses to make may also, under Clause 76(2), be as wide or as narrow as he chooses. Regrettably, this Lord Chancellor has given us little confidence that he is concerned to make challenges on judicial review less expensive.

Our amendments would also allow for costs capping orders in any case where the court considers that without such an order, the proceedings are unlikely to be,

“fair, equitable, timely and not prohibitively expensive”,

so as to bring the provisions squarely in line with our obligations under the convention. In our Amendment 174A, subsection (4) of the proposed new clause would introduce an objective test which would,

“prescribe … terms upon which a costs capping order may be made”,

to ensure compliance, once again by using the words of the convention. This is particularly important because the compliance committee established under the Aarhus convention has already found the United Kingdom to be non-compliant in a number of respects. The safe course is to ensure that the statute complies with the convention specifically and that there is a requirement that the regulations and rules of court do the same.

A further problem arises regarding definition. Clause 76(1) says that the definition of environmental cases is those cases which are environmental,

“in the Lord Chancellor’s opinion”.

Amendment 174B, which introduces a definition squarely based on the convention, is intended to address that difficulty and introduce an objective test. I beg to move.

[Lord Faulks]

My Lords, Clause 76 allows for judicial review claims on issues which relate entirely or partly to the environment to be excluded from the revised costs capping regime established by Clauses 74 and 75. This is to ensure continuing compliance with our obligations under the Aarhus convention and the various European directives which implement it. The requirements include that relevant procedures must not be prohibitively expensive. This is relevant to judicial reviews in certain environmental cases. Consequently, Clause 76 allows for environmental judicial reviews to be excluded from the approach in Clauses 74 and 75.

--- Later in debate ---

Moved by

[Lord Faulks]

175: Before Schedule 11, insert the following new Schedule—
“Reporting restrictions: providers of information society servicesChildren and Young Persons Act 1933 (c. 12)1 After Schedule 1 to the Children and Young Persons Act 1933 insert—
Schedule 1AProhibition on publication of certain matters: providers of information society servicesDomestic service providers: extension of liability1 (1) This paragraph applies where a service provider is established in England and Wales (a “domestic service provider”).
(2) Section 39 applies to a domestic service provider who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales.(3) In the case of an offence under section 39, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales, and (b) the offence may for all incidental purposes be treated as having been committed at any such place.(4) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 39 may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits3 (1) A service provider is not capable of being guilty of an offence under section 39 in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or(b) the transmission in a communication network of information provided by a recipient of the service,if the condition in sub-paragraph (2) is satisfied.(2) The condition is that the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and (b) the transmission of information in a communication network,includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 39 in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and(b) the condition in sub-paragraph (3) is satisfied.(3) The condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) where sub-paragraph (4) applies, expeditiously removes the information or disables access to it. (4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.Exception for hosting5 (1) A service provider is not capable of being guilty of an offence under section 39 in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 39.
(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Publication” has the meaning given in section 39.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”, (4) “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of interpreting references in this Schedule to a service provider who is established in England and Wales or an EEA state—
(a) a service provider is established in England and Wales or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in England and Wales or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider‘s activities relating to that service.”Youth Justice and Criminal Evidence Act 1999 (c. 23)2 After Schedule 2 to the Youth Justice and Criminal Evidence Act 1999 insert—
Schedule 2ARestriction of reporting of criminal proceedings for lifetime of witnesses and victims under 18: providers of information society servicesDomestic service providers: extension of liability1 (1) This paragraph applies where a service provider is established in England and Wales, Scotland or Northern Ireland (a “domestic service provider”).
(2) Section 49, so far as it relates to a publication falling within subsection (1A)(a) of that section, applies to a domestic service provider who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales, Scotland or Northern Ireland.(3) In the case of an offence under section 49, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales, Scotland or Northern Ireland, and(b) the offence may for all incidental purposes be treated as having been committed at any such place.(4) Section 49, so far as it relates to a publication falling within subsection (1A)(b) of that section, applies to a domestic service provider established in England and Wales who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales.(5) In the case of an offence under section 49, as it applies to a domestic service provider established in England and Wales by virtue of sub-paragraph (4)—
(a) proceedings for the offence may be taken at any place in England and Wales, and(b) the offence may for all incidental purposes be treated as having been committed at any such place. (6) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits3 (1) A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or(b) the transmission in a communication network of information provided by a recipient of the service,if the condition in sub-paragraph (2) is satisfied.(2) The condition is that the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and(b) the transmission of information in a communication network,includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and(b) the condition in sub-paragraph (3) is satisfied.(3) The condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) where sub-paragraph (4) applies, expeditiously removes the information or disables access to it.(4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.Exception for hosting5 (1) A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 45A(2).
(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Publication” has the meaning given in section 45A.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”,and “the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).(4) “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of interpreting references in this Schedule to a service provider who is established in England and Wales, Scotland, Northern Ireland or an EEA state—
(a) a service provider is established in England and Wales, Scotland, Northern Ireland or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in England and Wales, Scotland, Northern Ireland or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider‘s activities relating to that service.””

--- Later in debate ---

[Lord Faulks]

My Lords, this has been a passionate debate. We heard from the noble Lord, Lord Pannick, in close co-operation with the noble Lord, Lord Beecham, who, to continue the football analogy, persisted with his tactic of man-marking the Lord Chancellor. The debate was also enhanced by the contribution of the noble Baroness, Lady Campbell. My noble friend Lord Deben made a number of criticisms of ministerial colleagues for announcements. I must, and will, deal with those. My noble friend Lord Phillips told us about bygone days, when the way legal practices functioned was very different. I have, through my relations, memories of rather a different approach to the law than that which pertains now. Legal aid was certainly commonplace in the provinces then and people were charged what solicitors thought they could afford. We live in a very different era now. The noble Baroness, Lady Lister, repeated her concern at the effect of the residence test on some children in some circumstances.

Amendment 180 would bring the new clauses into effect at the end of the period of two months beginning with the day on which the Act is passed. Amendment 176 seeks to prevent the Government making future changes restricting the availability of legal aid for judicial review through secondary legislation under LASPO. Specifically, the amendment would prevent future changes being made through the powers conferred under Sections 2 and 9 of LASPO. It is important to pause here as there is a danger of confusion. Section 2 deals with remuneration and Section 9 with scope, where these have the effect of imposing further eligibility criteria for legal aid in judicial review cases, or of restricting the scope of legal aid for judicial review. The amendment also seeks to annul any statutory instruments that have previously been made through the powers available under Sections 2 and 9 of LASPO, in so far as they restrict eligibility or scope in relation to judicial review.

As noble Lords will already be aware, remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO so that where an application for judicial review is issued, the legal aid provider will undertake work on the application at financial risk, unless permission is granted or a discretionary payment is made. This point was elegantly made by my noble and learned friend Lord Mackay of Clashfern. There is, of course, a difference between scope and remuneration in this context, and that is a partial answer to the point made by my noble friend Lord Deben. A theme correctly adopted by the Government, throughout the difficult period that has persisted since they came into power, is that limited legal aid resources should be properly targeted, particularly at judicial review cases where they are needed most. The legal aid system is there to command public confidence and credibility. It was in that context that we introduced amendments to the Civil Legal Aid (Remuneration) Regulations to limit the circumstances in which legal aid providers should receive payment for work carried out on an application for permission.

It may be helpful if I explain that our figures suggest that there are a significant number of unmeritorious cases—751 in 2012 and 2013 alone—which receive public funding but where permission is refused. Therefore, they have apparently satisfied the Legal Aid Agency that there is sufficient to justify legal aid. In fact, on the old test, they have failed to surmount the rather low hurdle of permission. This change was introduced to incentivise providers to consider more carefully whether to commence judicial review proceedings and hesitate before commencing claims that are unlikely to receive permission. In genuinely meritorious cases, the provider is still paid because the case is granted permission, the case concludes prior to permission and their costs are paid by the defendant, or, where the case concludes prior to permission and they cannot get costs, the provider can apply to the Legal Aid Agency for discretionary payment. Unfortunately, I do not think that my noble friend Lord Deben was able to be present when we had a lengthy debate on these issues, and the question of legal aid for judicial review and its limits in relation to remuneration and scope was debated.

Remuneration continues to be paid in the usual way for the earlier stages of a case to investigate the prospects and strength of a claim and to engage in pre-action correspondence aimed at avoiding proceedings under the pre-action protocol brought in by the noble and learned Lord, Lord Woolf, who is in his place, to discourage proceedings where the matter could be sorted out through an exchange of letters pursuant to the protocol.

I should stress that the regulations made under Section 2 of LASPO do not affect the availability of civil legal aid to individuals, the scope of civil legal aid for judicial review or the eligibility of applicants for legal aid in judicial review proceedings. Where a client is in receipt of legal aid, he or she will remain so for the life of the case unless it is withdrawn for other reasons. These changes relate only to the remuneration of legal aid providers. To put it more simply, it is the lawyer who loses out. The client does not lose legal aid.

As the amendment seeks to prevent the Government using Sections 2 or 9 of LASPO to impose further eligibility criteria for receipt of civil legal aid or to restrict the scope of legal aid, the amendment would therefore not achieve what appears to be the intended effect of, among other things, annulling the recent amendments I have referred to on remuneration. The amendment would however have the consequence of preventing the Government imposing additional eligibility criteria or restricting the scope of legal aid for judicial review, other than through primary legislation. It would also annul previous amendments debated and passed by Parliament in relation to the scope of legal aid for judicial review.

The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers, and the eligibility for and scope of civil legal aid, are subject was considered only recently by Parliament during the passage of LASPO. We continue to believe that the level of parliamentary scrutiny is appropriate.

Perhaps I may remind the House about what happened during the passage of the LASPO Bill. Parliament was assured that the scope of judicial review would not be amended, which is entirely correct, but we do not accept that the proposals we are discussing are inconsistent with LASPO. In other words, the issue of bad faith, which is effectively alleged by my noble friend, simply does not arise. LASPO contains a very clear power to amend the scope of civil legal aid, as per Section 9, to which I referred earlier. There is no exception for judicial review.

Therefore, it is wrong to say that LASPO was enacted on the basis that the scope of legal aid would never be amended to create some sort of estoppel, as my noble friend seems to suggest.

[Lord Deben]

My noble friend will entirely solve my problem if he can say absolutely directly that nothing that the then Lord Chancellor said is in any way inconsistent with what we are now doing. In other words, what Kenneth Clarke said as Lord Chancellor, and what he promised, are entirely carried through and there is no contradiction whatever. In that case, I have no problems at all and will be happy to support him, but that is what we want to know.

[Lord Faulks]

I am sorry that my noble friend is not satisfied with the explanation that I have been rather laboriously making—which is that it all depends on the difference between scope and remuneration. The scope of legal aid has not been altered; we are simply talking about an amendment to remuneration at one stage of the process—a particular regulation which was considered in Committee. It was the subject of a debate on these matters. Admittedly there was opposition to it on the basis that this could stifle people from bringing judicial review, but it was not then suggested that there was some violent inconsistency between the LASPO Bill and what was said during its passage, and the change pursuant to Section 9. Now, however, it is being suggested that there is some bad faith on the part of the Government.

[Lord Beecham]

Did the Minister really say that the application of a residence test does not—

[Lord Faulks]

I am not talking about the residence test at all. I shall come to that shortly, but it is a different issue. Noble Lords are perfectly entitled to ask me questions about it at that stage. I am talking about the suggestion that—regardless of the residence test, which is a separate issue that I shall come to later —the provisions on legal aid for judicial review in some way breach an undertaking that was given to Parliament. That seems to be the burden of what is being suggested.

The power to make changes in the future should not be unnecessarily constrained as proposed. Any changes made to scope, under Section 9, and eligibility, under Section 11, are subject to the affirmative procedure, ensuring full parliamentary debate as appropriate. I am sorry that the affirmative procedure is not considered to be as satisfactory as primary legislation. Nevertheless, it remains a proper way to bring such matters before Parliament.

As I said in Committee, making such changes by primary legislation would be a cumbersome process and a disproportionate use of this House’s time. It would stop the Government of the day making necessary changes without primary legislation, even where change was necessary to ensure that the provisions remained up to date. The House may possibly remember—the noble Lord, Lord Pannick, may well remember—that during the passage of the previous Bill, certain noble Lords, of whom I was one, were anxious that the power should include both improving and increasing the scope of legal aid, if it was considered appropriate, and that became part of the LASPO Act.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend, but does he not accept that the procedure of dealing with changes via statutory instrument offers no protection whatever? There is no power to amend a statutory instrument; one can only reject it. I simply ask my noble friend: when did this House last reject a statutory instrument?

[Lord Faulks]

I am unable to answer that specifically. I am afraid that I do not know. I accept that there is a difference in the process, and I am sure that rejection is very rare indeed. However, that does not mean that a statutory instrument is not scrutinised. It is scrutinised, but there just happens to be a different method of scrutinising it—as my noble friend knows only too well.

Furthermore, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. The approach envisaged by LASPO remains appropriate and effective, ensuring that any restrictions—indeed, any changes to eligibility or scope—whether technical or major, will get the scrutiny they require, but this should not necessitate primary legislation.

Finally, the amendment would have the serious effect of annulling any previous instruments made under Sections 2 or 9 of LASPO that restrict eligibility for, or scope of legal aid for, judicial review, including the provisions of an order debated and approved by Parliament in 2013 to ensure that the exclusions relating to judicial review agreed at the time of LASPO function as Parliament intended. Noble Lords will recall that the relevant amendment made under the 2013 order, which made it clear that legal aid for judicial review is governed by paragraph 19 of Part 1 of Schedule 1 to LASPO—and not any other provision—passed without opposition. The effect of the noble Lords’ amendment would be to annul the provisions for judicial review within the 2013 order, undermining the intention of Parliament.

--- Later in debate ---

[Lord Pannick]

I am very grateful to the Minister. As I mentioned in opening this short debate, Amendment 176 raises an issue of considerable constitutional importance. I am particularly grateful to the noble Lord, Lord Deben, for explaining so clearly and powerfully the nature and the importance of the constitutional issues.

As far as I am concerned, the constitutional issue is very plain: whether Ministers should be able to reduce legal aid for judicial review by the use of LASPO powers. Despite emphasising when the LASPO Bill was being debated that the scope of legal aid for judicial review was not being altered, the regulations certainly have reduced the scope of legal aid for judicial review. There is now no legal aid until leave to move is granted, other than in exceptional cases.

[Lord Faulks]

I am very grateful to the noble Lord for giving way, but does he accept that there is a distinction between the scope of legal aid and the remuneration of one stage of that scope? Legal aid can be available. Whether the lawyer is paid, in the case of an unsuccessful application for permission, does not remove the individual’s essential right to legal aid.

[Lord Pannick]

If you give an assurance that the scope of legal aid for judicial review is not being reduced or altered by LASPO, it seems that then introducing regulations which provide that there will be no remuneration for legal aid unless and until leave to move is granted and that there will be no remuneration for legal aid in residence regulations—although I appreciate they have been quashed—is indeed tantamount to reducing the scope of legal aid for judicial review. There is no point in saying that we are protecting legal aid as to scope for judicial review if you do not pay lawyers for providing the legal advice and assistance. That is what legal aid is about. So, with great respect, I do not accept the distinction between scope and remuneration. That simply will not wash, in my respectful submission.

Tonight I am not concerned with inviting the House to consider the merits or otherwise of the Government’s policies. We will all have our own view on the merits of the policy and whether legal aid is too wide or not wide enough. My concern is the constitutional one of whether it is appropriate to amend this important area of the law by secondary legislation in the light of the assurances we were given and when, I suggest, but for those assurances the Government would have had even more difficulty than in fact they had in getting the LASPO Bill through this House.

--- Later in debate ---

[Lord Beecham]

My Lords, it will come as no surprise to noble Lords that I support the amendment of the noble Lord, Lord Pannick, and the observations that both he and the noble and learned Lord, Lord Woolf, have made. It was interesting to reflect on the defence that the Minister made in Committee on these matters. He said:

“In particular, there is the sense, expressed by a number of noble Lords, that this particular Secretary of State and Lord Chancellor does not have sufficient regard for the rule of law and, essentially, there is a lack of confidence that he will exercise his powers in a way that Parliament would find satisfactory”.—[Official Report, 30/7/14; col. 1670.]

I think that summed up the position very well, not merely of your Lordships’ House but of the Joint Committee on Human Rights and many other bodies, not least the Divisional Court in the case about which we have heard and which is currently the subject on appeal.

The Minister, on that occasion, and in dealing with virtually the same amendment as that which we are now debating, described the situation created by the Bill—Clause 73—as “a pretty commonplace provision”. He said that,

“it is commonplace because noble Lords might like to know that Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains”,—[Official Report, 30/7/14; col. 1670.]

a similar provision, as does Section 53 of the Pensions Act 2014, and Section 20 of the Offender Rehabilitation Act 2014.

It is perhaps not surprising that that should be the case, given that it is precisely the same Government who have enacted all those measures. Whether there are antecedents under previous Governments, I do not know. Even if there were, the crucial point is that judicial review relates to the fundamental rights of the citizen. These other matters, important as they are—the noble Lord referred to other items of legislation last time—may well be significant, but there can be nothing more significant than the application of the rule of law and access to justice to test whether decisions have been made lawfully. That is an absolutely fundamental right. Even if there were precedents in respect of other legislation, that does not for a moment justify their extension to this very sensitive and important area.

The noble Lord, Lord Deben, has demolished any case for the robustness of the affirmative procedure as a process that allows effective scrutiny, and other noble Lords are, of course, aware of the limitations of the affirmative procedure. It is simply impermissible to frame legislation in such a way that the Secretary of State could act by secondary legislation without in any way defining what it might be, how far it might go, who might be affected and what it would do to the core principle we have debated for much of today about the right of the citizen to protection against unlawful decision-making by the Executive in any form—not merely the Government but other forms of executive agency. That strikes me as a very poor argument indeed.

The Minister is no doubt unable to depart from the stance that he has hitherto adopted. I, frankly, cannot believe that his heart is in it, whatever he will say at the Dispatch Box. It is a blot on the Government’s bona fides in this area to proceed with legislation in this form. Clearly, there is no way we can take it further tonight, but I hope that the Minister will report back to the Secretary of State and encourage him to redeem his reputation.

[Lord Faulks]

My Lords, the final speeches at this stage of our scrutiny of the Bill have very much echoed what was said in Committee. As I explained then, it is often necessary to give full effect to the provisions of an Act by making further provision in secondary legislation. Indeed, the noble Lord, Lord Pannick, acknowledged as much in his remarks in that debate. However, he and other noble Lords questioned, as they seek again to do in Amendment 178, the inclusion of a power to make supplementary provision.

Concern was expressed in Committee that the drafting would permit the power to be exercised to make provision about anything which the Lord Chancellor considered fell within the scope of the general area or subject matter of the Bill. This evening, the focus has been on judicial review. The noble and learned Lord, Lord Woolf, rightly stressed its importance and that of the independence of the judiciary. Of course I entirely accept that, and I hope that nothing I have said during the course of our debates has sought in any way to undermine those core principles of our system. However, Clause 79 refers to any provision of the Bill. As noble Lords will be aware, that is a final provision to deal with all the various provisions, which cover quite a wide field, it has to be said. Our debates have ranged over many areas of law and many provisions.

[Lord Woolf]

I am grateful to the Minister for giving way. Is he suggesting that Clause 79(1) would not as a matter of practice be applied in the case of Part 4?

[Lord Faulks]

No, I am simply saying that it is not exclusively directed at Part 4. It is to do with any provision in the Bill; it is a general provision for implementation. It would include it, but it would include anything else that came within the scope of Clause 79.

I explained in Committee the narrow construction given to such powers. The noble Lord, Lord Pannick, said that this was an extraordinary provision. The noble Lord, Lord Beecham, however, acknowledged that it found its way into other Acts of Parliament—apparently without demur from the Opposition, including the Coroners and Justice Act 2009, which, as the noble Lord will appreciate, was before this Government came to power. The suggestion that it is somehow the Conservatives or this Conservative-led coalition who have form for introducing such provisions is simply not correct. The Legal Aid, Sentencing and Punishment of Offenders Act and the Offender Rehabilitation Act contain powers to make supplementary as well as consequential and incidental provision. There are recent similar examples within the responsibility of other departments. Those cannot be levelled against the Lord Chancellor, who has been demonised in our debates. They include the Pensions Act, the Local Audit and Accountability Act and the Infrastructure Bill currently before Parliament.

Since Committee, we have considered carefully whether it would be sufficient to rely on that part of the power which is undisturbed by the amendment. Of course, the power is quite wide even without the supplementary provision. It is right to acknowledge, as I did in Committee, that there is a degree of overlap between the various concepts used and adjectives deployed. The fact that the existing powers agreed by Parliament included the power to make supplementary provision suggests that the overlap is not complete. For that reason, we think that the right course is not to amend the provision—with the reassurance as to the possible use of the power, which I mentioned. In other words, this will not be construed as giving any Minister the opportunity to make provisions which are not in the Bill—what he might have liked to have been in the Bill in retrospect—but construed very much in the way that such provisions are customarily construed.

[Lord Beecham]

In that event, is the noble Lord prepared to say that the supplementary power will not be applied to the judicial review provisions of the Bill?

[Lord Faulks]

I am not going to give any such undertaking from the Dispatch Box. It will be construed as a matter of statutory construction, and Parliament will view it if there is a change, but I am not going to limit any future Minister or future Parliament on what they want to do in any part of this legislation. This is a standard measure which the noble Lord’s colleague on the Labour Benches, the noble Lord, Lord Davies, though harshly critical of almost every provision in the Bill, said was absolutely standard in all legislation. He contrasted this with other provisions in the Bill which he found more offensive. He is unfortunately not in his place today to expand on his views.

Noble Lords have been concerned that such powers could be used unchecked. I accept, of course, that it can be difficult to determine whether a particular instrument falls within the power under which it is made, but that is the function of the Joint Committee on Statutory Instruments—which, as I am sure noble Lords will agree, is assiduous in reviewing secondary legislation, and, as part of its remit, specifically considers whether the power to make an instrument is wide enough to cover all that is in it.

I turn now to Amendment 179, which seeks to remove the power for any implementing provision to amend primary or secondary legislation in any way whatever, whether it falls within the category of “supplementary” or within any of the other categories mentioned in Clause 78. The noble and learned Lord, Lord Woolf, previously expressed some concerns about the meaning of this provision. In particular he asked why the drafting referred to both the repeal and revocation of legislation and why Clause 79(5) applied only to repeals but not revocations. I am happy to provide clarification on that score. Proper drafting practice is to refer to the repeal of primary legislation but to the revocation of secondary legislation. There is no practical difference between the two. Subsection (5) refers to repeals and not revocations because that provision is only about the enhanced parliamentary scrutiny for instruments which amend or repeal primary legislation, which I alluded to in Committee.

As I explained before, the removal of this provision from the legislation would be a serious constraint on the implementation of the Bill. It would, for example, prevent consequential amendments being made to primary legislation for provisions which have, despite the department’s best efforts, been missed. It may also impede the consequential amendment of existing secondary legislation, something which it is not normally appropriate to do in the Bill itself. Without such amendments it may not be possible to bring provisions of the Bill into force.

Amendments to existing legislation can of course only be made if they fall within the scope of the power. That means that they can only be made for the purpose of implementing what is already in the Bill. I would remind the House that any instrument which amended primary legislation would require approval both in your Lordships’ House and in the other place. I hope that the reassurance that I have already given about that will also go some way to alleviating concerns about the commonplace power in subsection(2), without which it may not be possible to properly give effect to parliamentary intentions.

I am sorry that my noble friend Lord Deben feels that there has been a lack of transparency in the way that the Government have approached this Bill, if that was what he was suggesting. I have endeavoured to assist the House in Committee and on Report. I am sorry that he, as a supporter, feels that we have not assisted him or the House sufficiently. It is a matter which I very much regret and I hope that it is not a view shared around the House by supporters of the Government. I hope that, with the further reassurance that I have given in this respect, the noble Lord will withdraw his amendment.

[Lord Pannick]

I am again grateful to the Minister. It is not much comfort that Clause 79 applies to a number of subjects, including judicial review, and that it is not the only subject of this odd clause. Nor is it much of an argument that provisions of this sort can be found in some other pieces of legislation. Perhaps we have not as a House adequately addressed the issues when those Bills came before us. That is no reason for not doing so now. Nor, if I may say so, am I much reassured by the Minister’s reliance on the comments of the noble Lord, Lord Davies of Stamford, in Committee. That is perhaps not the strongest point that the Minister has made during our debates tonight, although I recognise that the hour is late and some account can be taken of that. For my part, I still do not understand why the word supplementary is needed in this Bill.

--- Later in debate ---

Moved by

[Lord Faulks]

181: Clause 81, page 75, line 13, leave out “This Part comes” and insert “Section (Appeals from the Court of Protection) and this Part come”

--- Later in debate ---

Moved by

[Lord Faulks]

182: Clause 81, page 75, line 13, at end insert—
“( ) Paragraphs 23 to 25 of Schedule (Mutual recognition of driving disqualification in UK and Republic of Ireland), and section (Mutual recognition of driving disqualification in UK and Republic of Ireland)(6)(b) so far as it relates to those paragraphs, come into force on the day on which this Act is passed.”

--- Later in debate ---

Moved by

[Lord Faulks]

183: Clause 82, page 75, line 23, leave out “and (3)” and insert “to (3A)”

--- Later in debate ---

Moved by

[Lord Faulks]

188: In the Title, line 5, after “drivers;” insert “to create an offence of disclosing private sexual photographs or films with intent to cause distress;”

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Beecham (Lab)]

My Lords, this amendment is an appetiser for the main course that awaits us in the form of secure colleges, about which we will hear a good deal.

Secure children’s homes care for some of the most damaged children, necessitating intensive and, it has to be said, expensive care. The numbers have been reduced in recent years. There are now 138 places in secure children’s homes. In Committee, I suggested adding them to the facilities that might be provided by the Secretary of State alongside existing young offender institutions and secure training colleges and the secure colleges that the Bill seeks to establish.

In his reply, the Minister explained the failure to include secure children’s homes, on the list, on the basis that local authorities had the power to provide such homes, and the Secretary of State does not and never has had that power. He went on to say that it is for local authorities to provide sufficient places as are required in secure children’s homes, and we think it right that they retain responsibility for this.

However, the amendment does not require the Secretary of State to provide secure children’s homes; it gives him the power to do so. In any event, it is surely desirable that such provision is seen as part of a range of different facilities. Given the pressure on local authority budgets and the concerns that secure colleges, if they are to be included under this legislation, might reduce the demand for such places, it is surely reasonable for the Secretary of State to have some involvement—potential, if not immediately actual—with this part of what should be seen as essentially one service aimed at providing for these children of varying degrees of vulnerability and difficulty, albeit in different ways.

I hope the noble Lord will acknowledge that this is meant to be a constructive amendment, which does not impose a duty but opens up the possibility of having a whole-system approach to this group of young people. I beg to move.

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

My Lords, this has been a short debate about the place of secure children’s homes in the youth custodial estate. As the noble Lord, Lord Beecham, said, it is something of an appetiser for what I know is to come during the course of this afternoon and evening.

I recognise on behalf of the Government that much good work is done in secure children’s homes, and that they often accommodate some of the most vulnerable young people in custody. The Government are clear that we will continue to provide separate specialist accommodation for those who need it. We have also made clear that, while we believe the secure college model could cater for the majority of young people in custody—that is, a secure college rather than a secure children’s home—it will not be suitable for 10 and 11 year-olds or for some young people with the most acute needs or vulnerability.

This year, we have demonstrated our commitment by continuing to provide places in secure children’s homes by entering new contracts with nine homes to provide 138 places. I know that many noble Lords will have observed the decline in the number of places in secure children’s homes that the Government contract, but that, as was acknowledged on Monday in your Lordships’ House, reflects a substantial and welcome reduction in the number of young people in custody overall in recent years.

The current arrangement is that the Secretary of State may provide places in young offender institutions and secure training centres; the Bill seeks to give him the power also to provide secure colleges. In addition, he has the ability to enter into contracts for the provision of youth detention accommodation in secure children’s homes. Amendment 107 would change this by giving the Secretary of State the power to provide secure children’s homes directly. The power to provide these homes rests with local authorities, not the Secretary of State, and we think it right that this should remain the position. Secure children’s homes are created by different legislation with the purpose of ensuring that there is provision for children whose welfare needs are so acute that a court decides they must be accommodated securely. Meeting the needs of this particular group of children is the important distinction between secure children’s homes and other forms of custodial provision.

The Secretary of State has a duty to ensure that there are sufficient places in youth detention accommodation for young people remanded in or sentenced to custody, and in discharging this duty he continues to contract places in secure children’s homes for those young people who require them. We think that that is the right arrangement, rather than the Secretary of State providing secure children’s homes, which are intended to serve a greater purpose than simply accommodating convicted or remanded young people.

I recognise the concern about the future of secure children’s homes and we will no doubt come back to that when we consider the substantial group of amendments that follows this debate. The Government are clear that there continues to be a place for them in the youth custodial estate, but we consider that the position is adequately catered for by the current arrangements. Therefore, I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Beecham]

My Lords, as I hinted when moving the amendment, I shall not divide the House on this issue. However, the Minister overlooks a key element in the case that I put, which is that local authority budgets are extremely hard pressed and it will be increasingly difficult for them to sustain the level of investment needed in this provision. Having said that, I shall not press the amendment, but I invite the Government, or perhaps the Minister, to talk to the Department for Education and the Department for Communities and Local Government about the financial implications of continuing provision in, I think, only nine local authority areas now, for which funding is under great pressure. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments and to all those in the Chamber and beyond who have engaged with and helped to shape our proposals for secure colleges. It has been said during the debate that our proposals are rushed and ill thought out, and that there has been a failure to engage.

We have made considerable efforts to engage with a wide range of stakeholders and experts right the way through, from the gestation of this idea to bringing legislation before Parliament and developing plans for a pathfinder secure college. In our Transforming Youth Custody consultation, published in February 2013, the Government engaged with a wide range of organisations in the education, custody and voluntary sectors. Uniquely, we asked them to submit outline proposals for how a secure college might tackle the problems of poor education and reoffending outcomes. What I think there is complete agreement on in your Lordships’ House is that there is far too high an instance of reoffending by young offenders and that education is insufficiently catered for within the secure youth estate.

Those responses directly informed the Government’s response to the consultation, published in January this year. After the Bill was introduced in this House, I hosted an open event in July to outline our proposals, to share our latest plans for the design of the pathfinder secure college—the clue is in the name: pathfinder—and to listen to the views of those with interests and expertise in this area. Peers were assisted by iPads that gave a design and indication of the precise configuration of the secure college and how the various parts would work together. It proved a fruitful exercise, I believe, and the discussion that day with Peers led to substantial changes to our design for the pathfinder secure college.

Following that meeting, we secured additional land for the site, increasing its size by two acres and extending the range of sporting facilities and outdoor space. We also reconfigured the layout of the site to ensure that groups of the more vulnerable young offenders, whom we had already planned to accommodate separately, could access education and health facilities via a different route from older children at the site and would have separate sporting facilities. I was pleased to share those revised plans at yet another open meeting with Peers last week.

Noble Lords will also be aware that, following my commitment in Committee, last week the Government published a public consultation on our plans for secure college rules. It is a substantial document with a considerable amount of detail. I hope that those noble Lords who have felt it appropriate to comment on the inadequacy of the consultation will at least take the trouble to read carefully this consultation and realise the amount of detail that has been provided in order to come to the right final conclusion as to the rules.

The secure college rules set out the proposed policies which will inform those rules, and in respect of the use of force—clearly a matter of considerable importance to the House—set out draft indicative rules to facilitate greater scrutiny of our proposals. Noble Lords will also be aware that the Government have brought forward an amendment to make rules authorising the use of force subject to the affirmative, rather than the negative, procedure.

Throughout the process, Ministers have written to and met with a wide range of stakeholders to keep them apprised of our plans. Only yesterday the Prisons Minister, Andrew Selous, met a range of children’s charities and groups with an interest in youth justice. We also have been working closely with NHS England, the Department for Education and experts in education and custodial provision to test our designs for the secure college pathfinder. Our revised plans are now publicly available and are being scrutinised by Blaby District Council as part of the planning application for the pathfinder.

I hope, therefore, that noble Lords will recognise that considerable efforts have been gone into and opportunities provided for the views of others to inform our thinking. I have to say I was very disappointed to hear the noble Lord, Lord Ramsbotham, whom the House of course greatly respects on this area, suggest in Committee that, notwithstanding our engagement, it was,

“both unreasonable and irresponsible of the Government to expect Parliament to rubber-stamp it until it knows more”.—[Official Report, 23/7/14; col. 1173]

The Ministry of Justice and my officials have worked extremely hard to provide information about secure colleges. There were also lengthy debates in the House of Commons. I hope noble Lords have had a chance to see them. I have read all of them. A great deal of detail was provided at that stage and then in your Lordships’ House in the lengthy Committee stage. The Government have attempted to give answers to all the various points that have been given to them. It is, therefore, with great disappointment, that we are accused of being in contempt of Parliament.

I will now turn to the amendments. They cover the use of force, secure college rules and the powers of the Secretary of State to contract out the running of secure colleges. I will start by addressing the amendment on the use of force, as this is relevant to the government amendment in respect of the secure college rules. Amendment 121 seeks to restrict the circumstances in which a custody officer may be authorised to use force in a secure college. I am aware that a similar amendment was recommended in the recent report on the Bill by the Joint Committee on Human Rights. While the Government share the view that force must only ever be used as a last resort, and that only the minimum force required should be used, we believe it is right that force be available in a wider range of circumstances than the amendment permits.

In addition to preventing harm, we believe that force must also be available to prevent escape, to prevent damage to property and for the purpose of maintaining good order and discipline. I recognise that it is the final category which has attracted most debate. During a constructive debate in Committee, I set out the Government’s view that custody officers in secure colleges should be able to use force for the purpose of maintaining good order and discipline, but that this use would be subject to stringent controls.

In our consultation document on our plans for secure college rules, we have gone into a great deal of detail about our approach to the use of force. I am glad that my noble friend Lord Marks made reference to the instances given on page 23 of that document of particular examples which he, I think, accepted were instances where there would, in exceptional circumstances, have to be force used in circumstances where one would not normally want it to be used.

We have clarified that force, in these circumstances, may be used only where a young person poses a risk to maintaining a safe and stable environment and where there is also a risk to the safety or welfare of the young person against whom the restraint is used or that of another young person. We have set out examples in the document of the types of circumstances in which we believe the use of force for these purposes would be justified. We are clear that force can never be used as a punishment.

The consultation document makes clear our position that the use of force for good order and discipline would be authorised only to the extent that it was strictly necessary and proportionate; that only authorised restraint techniques could be applied; that the use of pain-inducing techniques for reasons of maintaining good order and discipline will be prohibited; that only the minimum restraint necessary for the shortest possible time must be used; that the young person’s dignity and physical integrity must be respected at all times; and that the best interests of the young person against whom the force is used must be a primary consideration. We have also set out safeguards and procedures to be followed before, during and after any use of restraint for maintaining a safe and stable environment.

The Government recognise the sensitivity and importance of provisions relating to the use of force with young people. That is why we are consulting publicly and in great detail, and we will consider the responses that we receive. However, for the reasons that I have set out, we do not agree with the restrictions that the amendment would place on the circumstances in which force could be used in secure colleges.

As a further commitment to ensuring scrutiny of our proposals on the use of force, we are bringing forward an amendment to the process for approving secure college rules. In its third report of the Session, the Delegated Powers and Regulatory Reform Committee recommended that if the Bill is to enable secure college rules to authorise the use of force for the purpose of ensuring good order and discipline, then such rules should, to the extent that they authorise, be subject to the affirmative procedure. We have accepted that recommendation and brought forward Amendment 122.

This amendment will make the entire first set of secure college rules subject to the affirmative procedure, as they will contain provisions authorising the use of force. This will give Parliament additional oversight of the secure college rules, although I cannot agree to Amendment 111, which would require the rules always to be subject to the affirmative procedure—a requirement which does not apply to prison or young offender institution rules, for example.

[Lord Beecham]

I am grateful to the Minister for giving way. I ascribed the wrong number to the schedule to which I referred earlier. It is Schedule 6 which is about the use of force. The Minister has referred to a number of instances which are certainly in that schedule, but he did not refer to paragraph 8(b), which talks about the use of force being permissible,

“to prevent, or detect and report on, the commission or attempted commission by them”—

that is, prisoners—

“of other unlawful acts”.

That seems an extremely wide definition. Nor did the Minister refer to paragraph 9, which relates to use of force in connection with searches.

[Lord Faulks]

I could go through the entire section, which is very lengthy, and deal with all the various aspects seriatim, but I am not sure that that would be a particularly useful process at Report stage, given that I am sure that all those who have been listening to this debate will have had the chance to see the entire detail of the relevant section of the secure college rules. I think that I have summarised fairly the Government’s approach in the rules. I also referred to those two specific examples to which reference was made by the noble Lord, Lord Marks. There have been discussions at the various meetings that we have had. So I would rather not be tied down to specific examples of when force should be used. We believe that the structure is there. We are of course listening to the consultation carefully and we encourage all those who are concerned, of whom there are many in your Lordships’ House, to take part in that consultation to assist us further in arriving at a satisfactory position, which I am sure we will be able to do.

The publication of the Government’s consultation will also reassure the noble Lords and noble Baroness who tabled Amendment 108 that we will certainly make secure college rules before such an institution opens. These rules will be essential to ensuring that young people are detained safely and securely in these colleges, and that they are educated and rehabilitated effectively. However, I strongly believe that this does not need to be placed in the Bill.

It is in the context of creating secure college rules that I turn to Amendments 120A and 120B, which would set out in primary legislation the conditions governing the authorisation of the use of force. I welcome the noble Lord’s amendment, which adopts much of the approach taken in the consultation document. However, I believe that this is a case for the rules rather than for primary legislation. I have provided assurances on how they will come into effect.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I am grateful to the Minister for his careful, thoughtful and wide-ranging response. I know that I speak for everyone in the House in saying that we agree with him both that we need to reduce the dreadful record of reoffending in our young offender establishments and that what is presently provided is not satisfactory and has not been for a long time.

I am very glad that the noble Lord, Lord McNally, is in his place; I would have expected the Minister to have paid tribute to the Youth Justice Board, which has been principally responsible for the reduction of the numbers, and in fact has been a remarkable example of good leadership and carefully researched innovation ever since it was formed.

[Lord Faulks]

I am very grateful to the noble Lord; he is quite right to reproach me for not giving credit to my noble friend Lord McNally, and I am very happy to do so.

[Lord Ramsbotham]

Having said that and witnessed the Minister’s customary graciousness, I agree with him that there has been an enormous amount of engagement and effort by officials and others to engage with people, but that engagement has been not about if the secure college will be established but when. We therefore still know nothing about what is to be done, who is to do it and how much it is to cost. I have quoted a number of times in this House the two definitions of the word “affordability”: first, can you afford it, and, secondly, can you afford to give up what you have to give up in order to afford it? Bearing in mind the current situation, financial and otherwise, I wonder whether it is worth spending the amount of money on this unproven and uncosted pilot when it could be diverted now to doing better by all the young people about whom we have been talking.

I accept that we are talking about a pathfinder and that the affirmative procedure for the rules is being proposed. However, the affirmative procedure will come only after the Bill has become law. Everyone knows that an affirmative procedure that comes after that has no clout anywhere—and certainly not with this.

I thank all noble Lords who have contributed to this debate for the wide and thoughtful contributions that they made. The one that perhaps struck me most was from the noble Lord, Lord Deben, who reflected on the fact that we all know and love people of the same age group as those whom we are talking about, whose interests are currently not well served by the country. Therefore, the country must have a very clear say in what happens to them.

I understand that the secure college pilot is to be rigorously evaluated and will open in 2017. I will return to NHS England and healthcare provision in the next group because I do not think we have had full coverage of it. My feeling is that the Government appear hell-bent on pushing this through, but I do not think that it is the right approach. I am not proposing to divide the House on this amendment, but I give notice that I will do so on Amendment 111, which specifically mentions the approval by Parliament of the rules before they are adopted. I beg leave to withdraw this amendment.

--- Later in debate ---

[Baroness Howarth of Breckland]

My Lords, most of the arguments about girls on this site have been clearly made, so I want to make a quite different point rather than repeat the ones that have been made.

I have looked carefully at both sets of plans for this site. Were one not to accommodate girls and young boys at the far end of the site, the flexibility one would have—maybe for the pathfinder to succeed—would be far greater than one would have with the complication, described by my colleagues throughout this debate, of confining girls who will be claustrophobic, adding to their difficulties. The young boys will simply learn from being on that site all the bravado that comes with it. If one wanted this proposal to succeed at all, one could instead have more space and better capacity provision. The Minister knows I am not in favour of this proposal but I know that it is the wish of those who have visited some of the other establishments to do something better. As I said, one could do even better by using that part of the site to make sure that the pathfinder succeeds.

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have contributed to the debate on these amendments, which are important, although they focus on two narrow but, I understand, critical aspects of these proposed secure colleges.

Dealing first with girls and those aged under 15, Amendments 109 and 117A seek to exclude girls and under-15s from secure colleges, or to prevent girls being accommodated on the same site as boys. I entirely recognise that there is understandable caution about the risks involved in allowing girls and under-15s to be placed in a new type of secure establishment, where the majority of young people will be boys between the ages of 15 and 17. I also recognise the importance of secure colleges being able to address the particular educational, health and emotional needs of these undoubtedly very vulnerable young people.

Let me assure noble Lords that we have gone to considerable lengths in our designs for the secure college to ensure that the younger and more vulnerable groups could be accommodated in separate small units. As my noble friend Lord Carlile told the House, following a meeting in July we made changes to the plans to enlarge the site by two acres, and to ensure that the younger and more vulnerable people have their own sports and recreational facilities. This is not merely tunnels—as he describes it—but separate facilities and separate access routes to the main education and healthcare building. In this way, it will be possible to deliver a distinct regime that caters to these more vulnerable boys and girls. In our consultation on our plans, we have also proposed a rule requiring girls to be accommodated separately from boys. I referred to that consultation earlier this afternoon.

However, I should make clear to the House that no final decisions have been taken on who will be accommodated in the secure college pathfinder. This will be determined in light of the analysis of the make-up of the youth custodial population ahead of the pathfinder opening in 2017. I also gave a commitment in Committee that girls and under-15s will not be placed in the pathfinder from its opening, and that any decision to introduce them would be carefully phased. While I entirely recognise the concerns that lie behind these amendments, I believe that the risks can be sensitively and safely managed. This already happens in secure training centres and secure children’s homes, where boys and girls of different ages are accommodated on the same site.

There have been references to the numbers in the youth custodial estate. I can assist the House by saying that at the moment there are 16 girls in secure children’s homes, and 20 girls in secure training centres. That is a total of 36. There are 25 under-15s in secure children’s homes, and 13 in secure training centres, giving a total of 38. In one of the secure children’s homes there are 24 boys and one girl, so we are not talking about a large number.

We are anxious not to preclude, as a matter of strict law, the possibility of admitting to the secure college girls or those aged under 15. However, the House will know that the Youth Justice Board takes the decisions on where young people who are sentenced or remanded into custody are to be placed. These decisions are taken by specially trained staff and informed by detailed advice from the youth offending teams who have been working with the young people. The Youth Justice Board’s placement decisions are based on the individual needs of a young person. They take into account the whole range of factors that you would expect, such as age, gender, vulnerability, location, offence and any previous history. There is a very nuanced assessment before children are even considered appropriate for the secure college. However, the amendment would absolutely prevent it.

[Lord Carlile of Berriew]

I am grateful to my noble friend for giving way. I accept everything he has said about it not being for the Government to determine who goes to which institution. However, surely he can tell us whether he expects or anticipates any girls being sent to this institution.

[Lord Faulks]

As I said a little earlier, we do not expect this to happen, certainly in the short term. However, we do not want to write into the legislation that it should never happen. This is because, as noble Lords will appreciate, not all 14-year old boys are the same, physically, mentally or in their needs. This is also so with girls. I do not anticipate that this is likely to happen in the short term, but this amendment would completely prevent it happening. Yet there are instances of girls and boys actually deriving benefit from each other’s company.

[Lord Carlile of Berriew]

I apologise for intervening once more. I promise not to do so again, at least in this speech. Does this mean that, although my noble friend is not able to anticipate whether any girls will be placed in this pathfinder college, nevertheless the Government have decided to build a building to accommodate girls, which may lie empty for the next 25 years?

[Lord Faulks]

No, the answer is that by their secure college the Government are trying to provide a college which is sufficiently flexible to allow them to cope with whatever the demands are. Of course, it is impossible to predict precisely the age or the gender of those who will find themselves sent to a secure college, or to whatever the appropriate custodial institution may be. The answer is to set up a college which has the provision for a separate accommodation if that is appropriate.

It appears that we are somewhat damned if we do and damned if we do not. We were criticised for not having a separate accommodation for girls and young men, and we are now being criticised for having it and not using it. I hope that there will be some acknowledgment that we have made considerable efforts to try to find an appropriate way of housing them, should it be appropriate for them to be sent there.

Amendment 110 seeks to place a duty on the Secretary of State to make arrangements for adequate specialist provision to meet health and well-being needs in a secure college, and to make sufficient places available in a secure children’s home. Amendment 117B would impose a number of welfare requirements on secure colleges. These amendments go to the heart of which matters should be for primary legislation, which should be in secondary legislation and which are to be delivered through contractual arrangements. Some of the requirements in Amendment 117B relate to areas of fundamental importance—such as safeguarding, education, health and well-being, staff training and visits—and as such are matters that, rightly, we will address in the secure college rules.

Similarly, Amendment 110 would require the Secretary of State to make arrangements to ensure that secure colleges have adequate specialist provision in place to address young people’s health and well-being, and to ensure that sufficient places are available in a secure children’s home. The responsibility for commissioning health and well-being services, including specialist provision, for young people in a secure college will rest with NHS England. As noble Lords will be aware, this is in line with the arrangements currently in place for the existing secure estate.

Similarly, it is local authorities, not the Secretary of State, which are responsible for providing sufficient places in secure children’s homes. The Youth Justice Board recently agreed contracts with nine secure children’s homes. As I have previously indicated, we remain committed to ensuring that specialist separate accommodation will be available for the youngest and most vulnerable offenders. NHS England will assess the healthcare needs of all those detained in secure colleges, and commission services appropriate to meet their assessed needs. In doing so, NHS England applies the intercollegiate healthcare standards for children and young people in secure settings which were developed by the royal medical colleges at the invitation of the Youth Justice Board.

As we indicated in the recently published consultation on our plans for the rules, the role secure colleges play in healthcare is to provide the right environment where healthcare professionals can carry out their responsibilities for the care and well-being of young people. We therefore propose that the rules should include a requirement to ensure that a young person has safe and timely access to health services in a secure college. I hope that that goes some way towards reassuring the noble Baroness, Lady Finlay, who is understandably concerned about the quite complex care needs that these young people will have.

As I said in answer to an earlier debate, the design of the healthcare facilities has been developed in collaboration with NHS England, which was consulted at that stage. Indeed, it was NHS England which advised us to amend our plans in order to bring the healthcare provision within the main educational block. NHS England assisted in the consultation and the way that the college is to be configured. Not only will this reduce the disruption to education when young people need to attend health appointments, but it will also help to normalise access to healthcare for a group of young people who, as I am sure that the noble Baroness and others will be aware, have not always had regular contact with a GP or with the specialist services they require. In some senses, it is hoped that they will be better off here than they might be in the community in terms of access to healthcare.

--- Later in debate ---

[Lord Ramsbotham]

Will the noble Lord exclude Clayfields from that, where the reconviction rate is 18% and costs are £185,000 a year?

[Lord Faulks]

I am perfectly happy to accept the costs from the noble Lord. As regards the offending rate, one needs to look over a long period. He tells me those rates but I have not had a chance to see those specific rates or for how long a period. However, I am sure that there are variations within the secure college estate. It would cost around £100 million each year to do what seems to be suggested, which is not a viable solution. It is, as we know, easy to forget the deficit, but this Government do not do so.

Although the secure college pathfinder will have a capacity of 320, the site is composed of seven distinct accommodation buildings, with some broken down into smaller living units. Young people can be accommodated in distinct groups, a sense of community can be fostered in each, and the younger and more vulnerable groups can be kept separately if that is considered appropriate. Our plans demonstrate that big does not mean imposing and impersonal. The size will enable a breadth of services and opportunities to be offered.

It is a consequence of the welcome and significant reduction in the number of young people in custody that there are fewer custodial establishments and that some young people inevitably will be detained further from home. This is not a new problem and, for the reasons I have outlined, a network of small, local facilities is not, sadly, a viable alternative. However, distance from home remains one of the factors taken into account by the Youth Justice Board when placing young people in custody. I am sure that that will be very much a factor. Furthermore, there will be visits as well as technology.

I recognise what lies behind these amendments. I acknowledge the very real concern of noble Lords about young people, whether they are under-15s, girls or more widely, but we genuinely believe that we have sufficient flexibility in the system. We do not think that these requirements should find themselves into law. I ask the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, I shall be brief. If the proposal goes ahead, which it might, we will end up with two groups of about 40 young people, boys and girls, from all over the country, in one central location and in an establishment where the vast majority of young offenders, as we have heard from the chief inspector, will be extremely vulnerable and very difficult. The whole atmosphere of the place cannot be compartmentalised in the way in which the noble Lord describes. It is not a satisfactory outcome and I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Faulks]

112: Before Schedule 5, insert the following new Schedule—
ScheduleMutual recognition of driving disqualification in UK and Republic of IrelandPart 1Further provisionCrime (International Co-operation) Act 2003 (c. 32)1 Chapter 1 of Part 3 of the Crime (International Co-operation) Act 2003 (EU Convention on driving disqualifications) is amended as follows.
2 (1) Section 54 (road traffic offences in UK: application of section 55) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), after “Schedule 3” insert “or Part 1 of Schedule 3A”, and(b) in paragraph (b), for “that Schedule” substitute “Schedule 3 or Part 2 of Schedule 3A”.(3) For subsection (3) substitute—
“(3) The minimum period is—
(a) for an offence mentioned in Part 2 of Schedule 3 in relation to which the Secretary of State has by regulations specified a period of less than six months, that period;(b) for an offence mentioned in Part 2 of Schedule 3A in relation to which the Department has by regulations specified a period of less than six months, that period;(c) for any other offence, a period of six months.”(4) After that subsection insert—
“(3A) When determining whether the period of disqualification in respect of an offence mentioned in Part 2 of Schedule 3 is not less than the minimum period, an extension period imposed under any of the following is to be disregarded—
(a) section 35A or 35C of the Road Traffic Offenders Act 1988;(b) section 248D of the Criminal Procedure (Scotland) Act 1995;(c) section 147A of the Powers of Criminal Courts (Sentencing) Act 2000.(3B) When determining whether the period of disqualification in respect of an offence mentioned in Part 2 of Schedule 3A is not less than the minimum period, an extension period imposed under any of the following is to be disregarded—
(a) Article 8A of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6));(b) Article 40A of the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10));(c) Article 91A of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)).”(5) After subsection (5) insert—
“(6) The Secretary of State may by regulations amend Schedule 3.
(7) The Department may by regulations amend Schedule 3A.”
3 (1) Section 55 (duty to give notice to foreign authorities of driving disqualification of a non-UK resident) is amended as follows.
(2) For the heading substitute “Duty to give notice to Republic of Ireland of UK driving disqualification”.
(3) In subsection (1), for “the State in which the offender is normally resident” substitute “the Republic of Ireland”.
(4) In subsection (2)(f), for “the convention on driving disqualifications” substitute “the specified agreement on driving disqualifications”.
(5) In subsection (9)—
(a) in paragraph (b), for “the State mentioned in subsection (1)” substitute “the Republic of Ireland”, and(b) for “the convention on driving disqualifications” substitute “the specified agreement on driving disqualifications”.4 For the italic heading before section 56 substitute “Road traffic offences in Republic of Ireland”.
5 (1) Section 56 (road traffic offences in Republic of Ireland: application of section 57) is amended as follows.
(2) For subsection (2) substitute—
“(2) The driving disqualification condition is met—
(a) in relation to an offence mentioned in Part 1 of Schedule 3B, if the offender is disqualified in the Republic of Ireland as a result of the offence; (b) in relation to an offence mentioned in Part 2 of that Schedule, if the offender is disqualified in the Republic of Ireland for a period not less than the minimum period as a result of the offence.”(3) In subsection (3)—
(a) for “a State” substitute “the Republic of Ireland”,(b) for “in that State” substitute “there”, and(c) for “the law of that State” substitute “the law of the Republic of Ireland”.(4) For subsection (4) substitute—
“(4) The minimum period is—
(a) for an offence in relation to which the Secretary of State has by regulations specified a period of less than six months, that period;(b) for any other offence, a period of six months.”(5) Omit subsection (5).
(6) In subsection (6), for “the part of the United Kingdom in which the offender is normally resident” substitute “the relevant part of the United Kingdom”.
(7) After that subsection insert—
“(6A) In subsection (6), “the relevant part of the United Kingdom” means—
(a) where the offender was normally resident in the United Kingdom when convicted, the part of the United Kingdom in which the offender was normally resident at that time;(b) where the offender was not normally resident in the United Kingdom when convicted but held a Great Britain licence or a Northern Ireland licence, the part of the United Kingdom in which the offender was last normally resident before conviction.”(8) Omit subsection (7).
(9) In subsection (8)—
(a) for “treating” substitute “about when”,(b) after the first “United Kingdom” insert “are to be treated for the purposes of this section”, and(c) for “a member state other than the United Kingdom” substitute “the Republic of Ireland”.(10) After subsection (9) insert—
“(10) The Secretary of State may by regulations amend Schedule 3B.”
6 (1) Section 57 (recognition in United Kingdom of foreign driving disqualification) is amended as follows.
(2) In the heading, for “foreign” substitute “Republic of Ireland”.
(3) In the following provisions, for “the foreign disqualification” substitute “the Republic of Ireland disqualification”—
(a) subsection (1)(a);(b) subsection (2) (in both places);(c) subsection (4)(b);(d) subsection (5)(b);(e) subsection (6);(f) subsection (8) (in both places).(4) In subsection (1)(a) and (b), for “one month” substitute “three months”.
(5) In subsection (2)(b), for “the State in which the offender was convicted” substitute “the Republic of Ireland”.
(6) In subsection (3)—
(a) for “a State” substitute “the Republic of Ireland”, and(b) for “in that State” substitute “there”.7 In section 58(1)(a) and (b) (notice under section 57), for “the foreign disqualification” substitute “the Republic of Ireland disqualification”.
8 (1) Section 63 (production of licence: Great Britain) is amended as follows.
(2) In subsection (4), for “the competent authority of the relevant State” substitute “the competent authority of the Republic of Ireland or the Department”.
(3) Omit subsection (5).
9 (1) Section 64 (production of licence: Northern Ireland) is amended as follows.
(2) In subsection (4), for “the competent authority of the relevant State” substitute “the competent authority of the Republic of Ireland or the Secretary of State”.
(3) Omit subsection (5).
10 In section 65(3) (production of licence: Community licence holders), for the words from “the same” to the end substitute “the Republic of Ireland”.
11 In section 68 (endorsement of licence: Great Britain), for subsection (1) substitute—
“(1) This section applies where a person who—
(a) is normally resident in Great Britain, or(b) is not normally resident in Great Britain but holds a Great Britain licence,is disqualified by virtue of section 57.”12 In section 69 (endorsement of licence: Northern Ireland), for subsection (1) substitute—
“(1) This section applies where a person who—
(a) is normally resident in Northern Ireland, or(b) is not normally resident in Northern Ireland but holds a Northern Ireland licence,is disqualified by virtue of section 57.”13 In section 70(1) (duty of appropriate Minister to inform competent authority)—
(a) for “any State” substitute “the Republic of Ireland”, and(b) for “the convention on driving disqualifications” substitute “the specified agreement on driving disqualifications”.14 (1) Section 72 (regulations: Great Britain) is amended as follows.
(2) In subsection (2), at the end insert “, subject to subsection (2A)”.
(3) After subsection (2) insert—
“(2A) A statutory instrument containing regulations under section 54(6), 56(10) or 71A may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
15 (1) Section 73 (regulations: Northern Ireland) is amended as follows.
(2) In subsection (2), at the end insert “, subject to subsection (2A)”.
(3) After subsection (2) insert—
“(2A) Regulations made under section 54(7) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.”
16 (1) Section 74(1) (interpretation) is amended as follows.
(2) For the definition of “central authority” substitute—
““central authority” means an authority designated by the Republic of Ireland as a central authority for the purposes of the specified agreement on driving disqualifications;”.(3) For the definition of “competent authority” substitute—
““competent authority” means an authority which is a competent authority in relation to the Republic of Ireland for the purposes of the specified agreement on driving disqualifications;”.(4) Omit the definition of “the convention on driving disqualifications”.
(5) In the definition of “disqualified”, after “and” insert “, except in section 71A,”.
(6) Omit the definition of “foreign disqualification”.
(7) At the end insert—
““Republic of Ireland disqualification” means the disqualification mentioned in section 56;“Republic of Ireland licence” means a licence to drive a motor vehicle granted under the law of the Republic of Ireland, including a learner permit.”17 In section 74(2) (interpretation of references to disqualification for life), for “foreign disqualification” substitute “Republic of Ireland disqualification”.
18 In section 74, at the end insert—
“(3) For the purposes of this Chapter, an individual is normally resident in, or in a part of, the United Kingdom, in Great Britain, in Northern Ireland or in the Republic of Ireland if his or her normal residence, as defined in Article 12 of Directive 2006/126/EC of the European Parliament and of the Council of 20th December 2006 on driving licences, is there.”
19 (1) Schedule 3 (offences for the purposes of section 54) is amended as follows.
(2) In the heading, at the end insert “: Great Britain”.
(3) In paragraph 1, for sub-paragraph (2) substitute—
“(2) “Driver” has the same meaning as in the Road Traffic Act 1988.”(4) In paragraph 2, omit “or Article 43(1) of the Road Traffic Regulation (Northern Ireland) Order 1997 (S.I. 1997/276 (N.I. 2))”.
(5) In paragraph 3—
(a) omit “or Articles of the Road Traffic (Northern Ireland) Order 1995”,(b) in sub-paragraph (a), omit “or Article 9”,(c) in sub-paragraph (b), omit “or Article 10”,(d) in sub-paragraph (c), omit “or Article 12”,(e) in sub-paragraph (d), omit “or Article 14”,(f) in sub-paragraph (e), omit “or Article 15”,(g) in sub-paragraph (f), omit “or Article 16”,(h) in sub-paragraph (g), omit “or Article 17”, and(i) in sub-paragraph (h), omit “or Article 18”.(6) In paragraph 5, omit “or Article 167(1) of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1))”.
(7) In paragraph 6, omit “or Article 175(2) of the Road Traffic (Northern Ireland) Order 1981”.
(8) In paragraph 7(a), omit “or Part 1 of Schedule 1 to the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10))”.
20 After Schedule 3 insert—
Schedule 3AOffences for the purposes of section 54: Northern IrelandPart 1Offences where order of disqualification for a minimum period unnecessary1 (1) Manslaughter by the driver of a motor vehicle.
(2) “Driver” has the same meaning as in Article 2(2) of the Road Traffic (Northern Ireland) Order 1995 (S.I. 1995/2994 (N.I. 18)).
2 An offence under Article 168A(1)(c) of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)) (driving while disqualified).
3 An offence under Article 175(2) of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)) (failing to stop after accident and give particulars or report of accident).
4 An offence under any of the following Articles of the Road Traffic (Northern Ireland) Order 1995 (S.I. 1995/2994 (N.I. 18))—
(a) Article 9 (causing death or grievous bodily injury by dangerous driving),(b) Article 10 (dangerous driving),(c) Article 11A (causing death or grievous bodily injury by careless or inconsiderate driving),(d) Article 12 (careless, and inconsiderate, driving),(e) Article 12B (causing death or grievous bodily injury by driving: unlicensed, disqualified or uninsured drivers), (f) Article 14 (causing death or grievous bodily injury by careless driving when under the influence of drink or drugs),(g) Article 15 (driving, or being in charge, when under the influence of drink or drugs),(h) Article 16 (driving, or being in charge, of a motor vehicle with alcohol concentration above prescribed limit),(i) Article 17 (failing to provide a specimen of breath for a breath test), or(j) Article 18 (failing to provide a specimen for analysis or laboratory test).5 An offence under Article 43(1) of the Road Traffic Regulation (Northern Ireland) Order 1997 (S.I. 1997/276 (N.I. 2)) (exceeding speed limit).
Part 2Offences where order of disqualification for a minimum period necessary6 An offence which—
(a) is mentioned in Part 1 of Schedule 1 to the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10)), but(b) is not an offence mentioned in Part 1 of this Schedule.”21 After Schedule 3A insert—
Schedule 3BOffences for the purposes of section 56: Republic of IrelandPart 1Offences where order of disqualification for a minimum period unnecessary1 An offence arising from—
(a) reckless or dangerous driving, whether or not resulting in death, injury or serious risk,(b) wilful failure to carry out the obligations placed on drivers after being involved in road accidents,(c) driving a vehicle while under the influence of alcohol or other substances affecting or diminishing the mental and physical abilities of a driver,(d) refusal to submit to alcohol and drug tests,(e) driving a vehicle faster than the permitted speed, or(f) driving a vehicle while disqualified.Part 2Offences where order of disqualification for a minimum period necessary2 An offence arising from conduct which is a road traffic offence that is not mentioned in Part 1 of this Schedule.”
Coroners and Justice Act 2009 (c. 25)22 In Schedule 21 to the Coroners and Justice Act 2009 (consequential amendments), omit paragraph 93 (uncommenced amendment of section 54 of the Crime (International Co-operation) Act 2003).
Part 2Transition from EU Convention to new agreementTransitional period23 In this Part of this Schedule, “the transitional period” means the period—
(a) beginning with 1 December 2014, and(b) ending with the day before the first day on which—(i) section (Mutual recognition of driving disqualification in UK and Republic of Ireland)(2) to (5) are in force,(ii) the Secretary of State has specified an agreement under section 71A of the Crime (International Co-operation) Act 2003 (“the 2003 Act”), and(iii) that agreement has entered into force.Disapplication of duties and powers to give notices during the transitional period24 During the transitional period, the Secretary of State and the Department of the Environment in Northern Ireland—
(a) are not required to give a notice under section 55 of the 2003 Act (duty to give notice to foreign authorities of driving disqualification of a non-UK resident),(b) are not required or permitted to give a notice under section 57 of the 2003 Act (recognition in United Kingdom of foreign driving disqualification), and(c) are not required to give reasons under section 70(3) of the 2003 Act (duty to give reasons for not giving a notice under section 57).25 Paragraphs 23 and 24 are to be treated as having come into force on 1 December 2014.
Application of duties and powers to give notices after the transitional period26 After the end of the transitional period, the Secretary of State and the Department of the Environment in Northern Ireland—
(a) are required to give a notice under section 55 of the 2003 Act (duty to give notice to foreign authorities of driving disqualification of a non-UK resident),(b) are required or permitted to give a notice under section 57 of the 2003 Act (recognition in United Kingdom of foreign driving disqualification), and(c) are required to give reasons under section 70(3) of the 2003 Act (duty to give reasons for not giving a notice under section 57), only in a case in which the offence referred to in section 54(1) or 56(1) of the 2003 Act was committed after the end of the transitional period.Saving for pre-1 December 2014 cases27 The amendments made by section (Mutual recognition of driving disqualification in UK and Republic of Ireland) and Part 1 of this Schedule do not have effect in relation to a case in which a notice was given to an offender under section 57 of the 2003 Act before 1 December 2014.”

--- Later in debate ---

Moved by

[Lord Faulks]

114: Schedule 5, page 95, line 1, after “In” insert “the English language text of”

--- Later in debate ---

[Lord Faulks]

My Lords, I am grateful to both noble Lords who have spoken to these amendments relating to the contracting out of secure colleges. I recognise that at the heart of these amendments is an appetite to know more about the Government’s plans for the secure college pathfinder, which is to open in 2017, as the noble Lord, Lord Beecham, accurately said. Notwithstanding this understandable curiosity, I am concerned that the effect of these amendments would be to limit substantially the ability of the Secretary of State to secure both innovation and value for money from prospective operators of secure colleges.

The noble Lord, Lord Ramsbotham, quite rightly described some of the educational challenges that will exist in relation to this cohort of young people. Of course, they exist now, albeit in different custodial establishments. There is nothing new about the challenge; the question is how you meet the challenge.

Amendment 118 proposes that the selection criteria for secure college operators should be set out in regulations, and that these regulations should be debated and approved by both Houses of Parliament. Noble Lords are aware of our desire to invite innovation in the provision of services to educate and rehabilitate young offenders in secure colleges, and in our view this amendment would undermine that ambition.

Similarly, Amendment 119 proposes a statutory limit of five years on the life of a contract for the operation of a secure college. Again, this would constrain providers in their ability to deliver efficiencies and improved outcomes, potentially undermining the very goals secure colleges seek to achieve. Of course, the Government are ever mindful of expense and this limitation would run counter, we suggest, to the interests of obtaining a satisfactory contractual relationship. It is important to stress that no such constraints apply to the Secretary of State’s powers to commission any other form of custodial provision, and we do not believe that they are appropriate here.

Our intention is to launch a competition next year for an operator of the pathfinder secure college. We will set out our expectations of providers in an operating specification and we will inform bidders of the criteria against which they and their proposals will be evaluated. We will then enter into a period of dialogue with bidders. The dialogue process will be a critical phase of the competition as it will allow us to refine our specification in light of the types of innovation suggested by bidders. I do not want to repeat what is already in the consultation rules that noble Lords will have seen but noble Lords will be aware of what we seek to achieve in terms of blocks of education.

In some areas of secure college provision, such as those identified for inclusion in the rules, the Government will want to clearly specify their requirements; in others, however, we will want to create a degree of flexibility for the experience and expertise of bidders to propose new ways of delivering services and improving outcomes for young offenders. I am sure that all noble Lords would agree that we need to improve those existing outcomes. Requiring the criteria by which an operator will be selected to be set out in secondary legislation would, I fear, both delay and hamper the established processes for procuring services that meet the Government’s expectations.

I hope it reassures noble Lords that we are working closely with the Youth Justice Board as we plan for the opening of the pathfinder secure college in 2017. Its expertise in commissioning custodial services for young people will directly inform both the operating specification issued to the market and the criteria by which successful bidders are to be identified.

To answer the question that the noble Lord, Lord Ramsbotham, effectively posed—how will you assess the bids for the operation of the pathfinder secure college?—we will use a structured and objective evaluation process to identify the most economically advantageous tender. It will involve separate evaluation of the quality of the solutions and price; it will be conducted by a range of personnel with relevant experience—as I indicated, the YJB and the MoJ have extensive experience of objectively and robustly assessing operational service bids—and bids that fail to meet the prescribed minimum acceptable threshold level of the evaluation will be put aside and not considered further.

I understand why the noble Lord, Lord Ramsbotham, would seek more detail than I am giving him but I hope that by outlining the process, and by the words I have used to describe it, he will understand why the Government are unable to accept his amendment. I hope he is reassured about the process by which secure college operators will be selected and will feel able to withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

122: Schedule 6, page 103, line 6, at end insert—
“Prison Act 1952 (c. 52)27A In section 52 of the Prison Act 1952 (exercise of power to make rules etc), after subsection (3) insert—
“(4) A statutory instrument containing rules under section 47 or 47A is subject to annulment in pursuance of a resolution of either House of Parliament, subject to subsection (5).
(5) A statutory instrument containing rules under section 47 that (whether alone or with other provision)—
(a) authorise a secure college custody officer performing custodial duties at a secure college to use reasonable force, or(b) otherwise make a substantive change to the circumstances in which such an officer is authorised to do so,may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament. (6) In subsection (5), “secure college custody officer” has the same meaning as in Schedule 6 to the Criminal Justice and Courts Act 2014.”
Criminal Justice Act 1967 (c. 80)27B Omit section 66(4) of the Criminal Justice Act 1967 (exercise of powers to make rules under sections 47 and 47A of the Prison Act 1952).”

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Wednesday 22nd October 2014 Lords Chamber

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

My Lords, I am grateful to all those who contributed to this debate on these complex issues involving the conflict between a free press, the public’s right to know and the natural desire we have to protect young people from publicity to make sure that they do not suffer for life for any sins they committed in their youth. In acknowledging everyone’s contribution, perhaps I may single out the noble Lord, Lord Ponsonby, who I think, although I may be wrong, is making his debut from the Opposition Front Bench. Noble Lords are shaking their heads and I understand that he is not. Therefore, my congratulations are late but none the less sincere.

Amendment 139 provides the criminal courts with a discretionary power to order reporting restrictions that last for the lifetime of a victim or witness in criminal proceedings who is under the age of 18 at the time those proceedings commence. Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s from print and broadcast media to include online content as well. Amendment 139 tracks the circumstances in which a lifelong reporting restriction may be available to an adult witness. The criminal courts are therefore given an additional statutory discretion to order lifelong protection for victims and witnesses under the age of 18 to secure their best evidence or co-operation. However, if it is not reasonable or proportionate to make use of this power, the court may continue to rely on the existing youth reporting restrictions available to children and young people.

As these amendments have been tabled in response to the High Court judgment and the noble Lord, Lord Ponsonby, bringing it to our attention in Committee, consultation with the Scottish Government is ongoing and the government amendments are not intended to change the situation in Scotland. Some further technical amendments may be required at Third Reading in respect of territorial extent.

The issue of criminal investigations is covered by Amendment 122AA, which is tabled by my noble friend Lord Marks. This amendment seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999. It is similar to an amendment tabled by the noble Lord, Lord Ponsonby, in Committee. On previous occasions, I explained to your Lordships that, given the significant restriction that Section 44 potentially imposes on freedom of the press and the possibility that its aims might be achievable through other means, it was determined by the then Government in 1999 that Section 44 should be commenced in relation to victims and witnesses only after both Houses have been given the opportunity to debate the issue again.

I fear that I must repeat what I said in Committee. The Government do not believe that this is the right time to consider commencing Section 44 in light of the significant changes to independent press self-regulation that we have introduced. The Privy Council granted a royal charter that has been sealed. The Government believe that that is the best way to ensure that independent press self-regulation operates successfully and that we should give this new approach a chance to succeed. I am sorry that my noble friend Lord Marks does not have much confidence in this. Furthermore, we have some misgivings about Section 44 as drafted, as it imposes restrictions on the press that are so broad as to be potentially impractical.

However, I reassure my noble friend that it is unnecessary to amend Section 44 in order to extend it to online content as we believe that it already covers such media. Section 44 adopts a definition of “publication” that is wide enough to include online content. I will explain this further in dealing with the final set of government amendments and, in due course, I will ask the noble Lord to withdraw his amendment.

In respect of online content and youth reporting restrictions, Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s. Through these amendments, and by commencing Section 45 and the relevant parts of Section 48 of the YJCE Act 1999, restrictions will also be applicable to online content. The Government intend to commence the relevant provisions of the 1999 Act when the amendments to this Bill come into force.

Youth reporting restrictions will rely on an existing statutory definition of publication, which includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public, but does not include an indictment or other document prepared for use in particular legal proceedings. By using this definition of publication we will broaden the scope of youth reporting restrictions to create consistency with other reporting restrictions already on the statute book, such as those that apply to adult witnesses and victims of sexual offences. It would also be in line with the definition used in Section 2(1) of the Contempt of Court Act 1981 which the Law Commission recently concluded was,

“wide enough to cover the content of new media and probably in the future too”.

The Government agree with that interpretation and have therefore adopted the same definition of publication when extending the scope of youth reporting restrictions to online content. I hope that that reassures the noble Lord, Lord Ponsonby, that the purpose of his Amendment 123 has been met—and I would therefore ask him not to press it.

During the course of the debate there was some reference to whether there was any justification for the distinction between victims and witnesses and defendants. There are a number of statutory protections within the criminal justice system that are applicable only to victims and witnesses. One example is Section 46 of the YJCE Act 1999, which provides for the possibility of lifetime reporting restrictions for adult witnesses. The Sexual Offences (Amendment) Act provides for automatic reporting restrictions for victims of sexual offences. Similar statutory powers are not available for defendants.

I respectfully agree with what the noble Lord, Lord Ponsonby, said about the position of someone who is 17 and then becomes 18. He asked why there should be a difference so that if someone is 17 they have lifetime anonymity. Of course, there are remedies available. If your Lordships accept the Government’s amendments, it is argued that the current position reflects a fair balance between the various considerations that apply in this field. More clarity may be needed in this area of concern, which we will be considering.

I understand that Impress, the second potential self-regulator, is currently appointing its board. We would respectfully suggest that these are matters for the industry and not for government. I also understand that David Wolfe QC has been appointed chair of the independent Recognition Panel and that the board appointment process is also under way. This is a matter for the Commissioner for Public Appointments and not for government. Therefore, for the moment the Government have done all that they need to do.

[The Earl of Listowel]

My Lords, I am grateful to the Minister for his reply. I note the emphasis he puts on the charter and the institution that is set in place to improve the way in which the media control themselves. From what he said, I take it that he has an open mind to a certain extent. These are new developments. The charter is a new thing. He will keep looking at it to see if it provides sufficient protection for young people. I am grateful for that open-mindedness.

I was grateful for what the noble Lord, Lord Ponsonby, said. He referred to 17 and a half and 18 year-olds and that it seemed unfair to distinguish so much between the two when there was such a small gap. My response might be: can we not be generous to children? They are still children until the age of 18: can we not err on the side of generosity towards them? I am grateful to all noble Lords who have taken part in this debate and I beg leave to withdraw my amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

124: Before Clause 44, insert the following new Clause—
“Time limit for bringing certain criminal proceedingsOffence of making improper use of public electronic communications network
(1) In section 127 of the Communications Act 2003 (improper use of public electronic communications network), at the end insert—
“(5) An information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.(6) Summary proceedings for an offence under this section may be commenced in Scotland—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.(7) A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.”
(2) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”

--- Later in debate ---

[Lord Faulks]

My Lords, I am grateful for the speeches made by my noble friend Lord Marks and the noble Lord, Lord Ponsonby, in this group of amendments concerning the criminal courts charge. There was lengthy debate in Committee, and I responded at some length, so I hope they will not consider it any disrespect to their arguments if I summarise the Government’s position fairly briefly.

The question of discretion has arisen once more. My noble friend Lord Marks seeks to vary his original suggestion by fettering the discretion somewhat but nevertheless importing a degree of discretion, as was discussed at length. It is the Government’s position that that is inappropriate.

The point was made in Committee and this evening that many noble Lords consider the charge unfair in the case of poor offenders. The Government believe that it is right that all adult offenders, whatever their means, pay towards the cost of running the courts, alleviating the burden on the taxpayer. I know that noble Lords who are concerned about this area will have seen the figures published on the website before Committee stage about the charges by band. They are quite modest, but it is nevertheless hoped that they will reflect some compensation to the country for defendants who use the courts because they have committed offences. As I said previously, offenders can apply to vary payment rates if their financial circumstances change. In addition, offenders who comply with their payment terms and who do not reoffend can have their charge remitted after a specified period. The imposition of this charge is not designed to be a punishment, so confusing it with the various discretionary powers that the court has rather misses the point.

Amendment 125D would stipulate that the charge cannot exceed the amount specified by the Lord Chancellor in the regulations. The Bill is drafted so that a charge to be paid is of an amount specified by the Lord Chancellor, so I am sure that my noble friend Lord Marks will agree that this leaves no room for charges exceeding the amount specified to be imposed, which should mean that the amendment is unnecessary.

Amendment 126A would omit the requirement for a specified period of time to have passed before the court charge debt can be written off. If accepted, it would provide the court with wide discretion to remit the charge early, as and when it sees fit. The clause as it currently stands has the benefit of allowing a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This is a powerful incentive for offenders to repay the charge and refrain from reoffending, ensuring that a specified period is a fundamental feature of the remission provisions—a key aspect of this policy which I hope the House will not overlook.

Amendment 125E seeks to specify that where a charge can be remitted it can include the remission of interest. I respectfully point out to my noble friend Lord Marks that Clause 42 gives the magistrates’ court power to remit the charge under particular circumstances. It is intended that this provision be used where an offender has paid accordingly and has not gone on to reoffend. It can also be remitted where the debt is unenforceable.

New Section 21D(4) of the Prosecution of Offences Act 1985, inserted by Clause 46, makes it clear that interest payable under the regulations is to be treated as part of the charge. It therefore follows that any remission of the charge would comprise the whole debt, including the interest. I hope that reassures the House that the Government have carefully considered this provision and will satisfy my noble friend such that he might not press his amendment.

I stress, however, that this is a novel scheme and the Government have already agreed to review the policy after three years. Of course, we will monitor its impact closely until then. The Lord Chancellor must repeal the provisions if he considers it appropriate, having regard to that review. I am sure that the noble Lord will agree that this further safeguard demonstrates the Government’s commitment to getting this right.

I turn finally to the Criminal Procedure Rules and the amendments tabled by the noble Lords, Lord Ponsonby and Lord Beecham, which seek to widen the conditions that must be met for the courts charge to be remitted. The amendments would broaden the court’s power to such an extent that the charge could be remitted also in cases specified in those rules.

The effect of the amendments would be to confer on the Criminal Procedure Rule Committee a jurisdictional power by enabling it to set rules concerning substantive legal matters and by giving it a significant level of discretion to prescribe the circumstances in which the charge could be remitted. This would of course contravene the Government’s position that it is an administrative charge.

If I understand the noble Lord’s arguments correctly, he is seeking to afford the committee the power to determine the instances in which the criminal court charges might be remitted, although he does not give a clear indication as to which cases would be specified in the rules to which discretion may be applied.

The Bill as it stands already allows for the courts to cancel the charge, as I have indicated, but we submit that it is inappropriate to use these rules as a means to set the criteria for remission. I am sure noble Lords are aware that the function of the Criminal Procedure Rules is to govern the practice and procedure of the criminal courts. The responsibility of the Criminal Procedure Rule Committee is to make those rules. With great respect, this amendment would afford that committee a power beyond its current jurisdiction. The choice of criteria for remission should be one for Parliament itself. I fear I cannot agree that it is appropriate for this power to be attributed to the committee.

I understand the noble Lord’s concern about the impact of the charge on particular offenders whom he encounters in his capacity as a magistrate. The Government are aware of that risk and are monitoring any adverse impacts. I also confirm what the noble Lord said about his discussion with my officials in relation to Section 135 of the Magistrates’ Courts Act 1980. I hope that I have satisfied the noble Lord and that he will withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I will of course seek leave to withdraw the amendment in a moment. Very briefly, the point of tabling further amendments on Report, following the debate in Committee, which move slightly towards the Government’s position, was in the hope that the Government might have considered the debate and moved towards our position. So I make no apology for repeating the position that I took in Committee.

I also want to make it clear that I think all of us in this House agree with the general principles stated by my noble friend that there is a very strong case for ordering defendants who can pay a criminal courts charge on conviction so to pay it. Our concern is with those who plainly cannot pay it or cannot pay all of it. I entirely accept and appreciate the support of the noble Lord, Lord Ponsonby, for my position. However, I am not sure that the traditional punishment meted out to those who are drunk and brought before the magistrates’ court of £1 or a day—that kind of formulation of giving a period of custody in default of payment right at the outset—will mitigate the mischief at which my amendments are aimed.

I shall also simply say two further things. First, the point of my Amendment 125D and the words “no greater than” is to make sure that the amount specified in the regulations is the maximum that can be charged, but that the court would have the power to impose a lesser charge. I believe that the amendment, if implemented, would have achieved that end.

Finally, I suspect that when it comes to the review of the operation of this charge in three years’ time, Parliament and the Government may well find that the procedure for remitting the charge and having hearings as to whether or not a charge should be cancelled at a later date is unduly unwieldy, cumbersome and expensive. With those observations, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Faulks]

My Lords, I am most grateful to all those who have spoken in the debate. This is not, I readily concede, a straightforward provision. Our debates both in Committee and on Report have been illuminating. The stance taken by the noble Lord, Lord Beecham, tonight is somewhat different from that which he took in Committee—but I commend him on his mental agility in that regard. Of course, the fact that his arguments have somewhat changed—

[Lord Beecham]

My Lords, will the Minister take it from me that I can count?

[Lord Faulks]

The noble Lord’s arguments do not deserve lesser consideration for their recent arrival in our debate. He asked, for instance, why personal injuries, rather than other fields, should be singled out for attention. The answer is simply this. Of course fraud has a role in the law of contract, the law of property and other areas of the law. But this is a provision to deal with a particular mischief, of which we are all aware in one form or another. Unfortunately, the explosion of claims, with dishonest claims and people calling others to invite them to participate in dishonest claims, has become widespread, and the Government are responding in a variety of different ways, including by regulating claims management companies—I am glad to see the reduction in the number of such companies—and by introducing this provision.

Amendment 128 was tabled by my noble friend Lord Hunt of Wirral, to whom the House listens very carefully on all things, but perhaps particularly in areas such as this. It would extend the scope of Clause 49 to cover claims for items linked to the personal injury claim. As he has indicated, this could typically include items such as damage to property and the cost of credit hire. The effect of the amendment would be that where the court was satisfied that the claimant had been fundamentally dishonest, its order would dismiss any such related elements, as well as the claim for personal injury—when, for example, a claim for personal injury is used as a vehicle for other fraud.

I understand precisely what my noble friend says, and I have considerable sympathy for what lies behind the amendment, which is to make the clause as strong a deterrent as possible. However, after careful consideration by my officials and myself, I believe, on balance, that it would unnecessarily complicate the clause, and could have unintended consequences that would not be desirable.

The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the claimant’s insurer, and are then recovered by them from the defendant’s insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the claimant’s insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.

The complexity of the law on subrogated rights means that the potential for this type of unintended consequence would be high. In any event, I do not consider the amendment necessary. The existing focus of the clause on personal injury claims avoids complexities of this nature, and ensures that the core matter in relation to which the claimant has actually been dishonest, and where the main scope for dishonest behaviour arises—the personal injury claim—will be dismissed whenever the court considers it appropriate. We are confident that this should provide a sufficiently powerful deterrent to discourage claimants from seeking to bring fraudulent and exaggerated claims, and believe that the amendment could on balance run the risk of creating uncertainty in the law and would make the clause unnecessarily complex in practice.

On Amendment 128A, the noble Lord, Lord Beecham, said that it would be more appropriate to have not the civil standard of proof but the criminal standard of proof. I think that he refers—if not explicitly, implicitly—to a recommendation of the Joint Committee on Human Rights on this, which based its recommendation on the view that the inclusion of the relevant measure is indicative of the quasi-criminal nature of the sanction imposed by the dismissal of the claim. The Government strongly disagree that that is the case. Subsection (7) simply ensures that the order for dismissal can be taken into account by a court hearing any proceedings against the claimant in relation to the same dishonest behaviour, whether they be civil or criminal proceedings for contempt or a criminal prosecution. This is to ensure that the claimant is dealt with fairly and that any punishment imposed in those proceedings is proportionate given the overall effect of the consequences of the claimant’s dishonest behaviour upon him or her. This approach is also reflected in other aspects of the clause—in particular, subsection (5) in relation to costs sanctions.

As we have set out in the ECHR memorandum accompanying the Bill, we consider that the adoption of a civil standard of proof can be fully justified. The sanction of deprivation of property involved in the dismissal of the claim would occur in the context of civil proceedings in relation to civil compensation, proceedings which are brought by the claimant, not the state. No criminal conviction could arise from the dismissal process itself, and it does not involve anything that could be said to be a criminal charge. We consider that the analogy drawn in the ECHR memorandum with the approach of the European Court of Human Rights and the domestic courts to confiscation proceedings under the Proceeds of Crime Act 2002, in which a civil standard of proof has been upheld, is a valid one, and that the adoption of the civil standard of proof in Clause 49 is both fair and appropriate.

Amendments 128B, 128C, 128D, 128E, 130A and 130B tabled by my noble friend Lord Marks are similar but not identical to those tabled by him in Committee, save that the court is given a discretion to reduce the award of damages rather than dismiss the claim entirely, or, it would seem, take no action at all, in circumstances where the genuine part of the award is £25,000 or more. We do not believe that it is appropriate to impose a financial limit of this nature. I endorse what the noble Lord, Lord Beecham, said about this. Although the widening of the court’s discretion not to dismiss the claim is of a lesser extent to that which the noble Lord previously suggested, the amendments would still weaken the effect of the clause and interfere with its effective operation by imposing what is inevitably an arbitrary dividing line.

As I explained in Committee, the sanction imposed by this clause—the denial of compensation—is a serious one, and will be imposed only where the claimant’s dishonest behaviour goes to the heart of the claim. If the court, having heard all the evidence, is satisfied that that is the case, I believe that it is right that it should be required to dismiss the entire claim unless doing so would cause substantial injustice to the claimant. People who behave in such a way should not be able to get compensation regardless, whatever the amount involved.

The amount of compensation which the claimant would otherwise have been awarded, and the proportion of the overall claim which that represents, will, of course, be matters that the court may wish to take into consideration in deciding whether the claimant has been fundamentally dishonest and, if so, whether its discretion not to dismiss the claim should be exercised. Where the effect on the claimant might be particularly harsh or unfair on the facts of the case, the substantial injustice test will provide sufficient protection. The addition of a further discretion simply waters down the deterrent effect of this provision.

On Amendment 129, during the debate in Committee some uncertainty was expressed about the policy intention underlying subsection (5) of Clause 49, and whether the existing drafting of the subsection clearly and accurately captured that intention. In the light of those concerns, we have tabled government Amendment 129, which clarifies the position by replacing the existing subsection with a new subsection. This provides that when assessing costs in the proceedings, a court which dismisses a claim because of the claimant’s fundamental dishonesty must deduct the amount of damages that it would have awarded to the claimant from the amount of costs which it would otherwise order the claimant to pay in respect of the defendant’s costs. The intention underlying this provision is, as I have previously explained, to ensure that claimants are not excessively sanctioned by both losing the genuine element of the award of damages and having to pay the defendant’s costs without any credit for what the defendant has saved by avoiding payment of the genuine element of the award. I should add that one of the main intentions behind this provision is to deter people from bringing these claims at all, or at least deter them from being dishonest when advancing them.

Beyond that, it is not our intention to interfere more generally with the court’s discretion on whether to make a costs order and, if so, in what terms. We believe that the court should be able to make whatever orders it considers appropriate. In many cases the court will doubtless decide to award the defendant’s costs in full, apart from the sum deducted under this subsection. However, in some cases, it may decide only to award the defendant some of its costs in circumstances where it considers that certain costs have been unnecessarily incurred—for example, where the defendant had spent money pursuing an irrelevant issue.

Amendment 129 preserves the court’s discretion to do this, or indeed to decide, in the circumstances of a particular case, to make no award of costs at all. We believe that it is important for a provision on this issue to remain in the clause to ensure that it operates in a fair and proportionate way, and I am therefore—although I do not think my noble friend is pursuing it with any vigour—unable to accept Amendment 128F, which would remove it altogether.

My noble friend Lord Hunt has indicated that he remains concerned that Amendment 129, the government amendment, may still create some confusion, and has proposed Amendment 130 instead. While I share my noble friend’s concern to ensure that the provision is as clear as possible, on careful consideration, we do not believe that his fears about our amendment are justified.

In particular, I should point out that, even if the actual assessment of the amount of costs payable is undertaken by a different judge or officer at a later date, as would normally be the case in a detailed assessment of costs, assessment is still being undertaken by the same court that has dismissed the claim, and so the requirement to deduct the amount recorded in subsection (4) from the ultimate costs “bill” that the claimant may have to pay applies regardless of the point of time at which, or judge by which, the costs payable are determined. I am also concerned that my noble friend’s amendment simply restates the existing law confirming the discretion of the court to award costs. On balance, we feel that it is unnecessary to restate this in legislation, and it might be taken to imply that this was not already the position, or that special rules regarding the court’s discretion as to costs are required in these cases. That would be contrary to the policy, which is not intended to make any changes to the rules on costs themselves.

On reflection, I consider that government Amendment 129 makes it amply clear that if the court decides to order costs against the claimant, it must deduct the amount of the damages it would have awarded but for the effect of Clause 49, so that the claimant has to pay whatever costs, if any, that are ordered net of that amount. I believe that the Government’s amendment clarifies this policy intention in a way that removes any ambiguity that might have arisen from the previous text of the subsection. However, I remain extremely grateful to my noble friend for drawing that to the attention of the House. I am sorry that I detained the House a little longer than might be desirable at this time but these are complex provisions, and it may be helpful if I provide a little detail about this.

I conclude by dealing with the question of where parts of a claim may be involved. The noble and learned Lord, Lord Hope, pointed out a possible ambiguity. It may be that this is what he has in mind. I shall answer the question: why does the court have a discretion not to dismiss the claim when the claimant would suffer a substantial injustice? We believe that an element of discretion is necessary because difficult cases may arise where depriving the claimant entirely of damages may cause substantial injustice. This might be the case, for example, where a claimant had genuinely been very seriously injured through another person’s negligence, perhaps requiring substantial ongoing future care and support as a result, but stupidly colluded in a bogus minor injury claim by a family member in relation to the same accident. We do not, however, think there is any need to amend the provisions. We think that judges will be able to work with these provisions and that the Government’s intention and, I hope, that of noble Lords from all around the House, will be achieved by these important provisions. I hope that all noble Lords who have tabled amendments will agree to withdraw or not move them.

--- Later in debate ---

Moved by

[Lord Faulks]

129: Clause 49, page 48, line 26, leave out subsection (5) and insert—
“( ) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.”

--- Later in debate ---

Moved by

[Lord Faulks]

131: Clause 50, page 49, line 10, at end insert “or is treated as doing so under subsection (3A)”

[Lord Faulks]

My Lords, I am grateful once again to my noble friend Lord Hunt of Wirral for raising this issue in Committee. During that debate, I indicated that we would consider his amendment further. There has been widespread support for the ban on offering inducements to bring personal injury claims in Clauses 50 to 52, but I am concerned to make this as effective as possible. Having reflected over the summer—I have been given a great deal on which to reflect over the course of the Bill—I agree with my noble friend that we should seek to prevent regulated persons avoiding the ban by offering an inducement through third parties.

The noble Lord’s amendment was prompted by a concern that it is now increasingly common for solicitors to operate as part of larger groups of companies, or to have subsidiary or linked companies offering services alongside them. Those subsidiary or linked companies are not always regulated, and it would be relatively easy for, say, a solicitor simply to route an inducement through an unregulated company, thus avoiding the ban.

For the avoidance of doubt, I add that we do not wish to regulate third parties, only to prevent regulated persons from avoiding the ban by offering an inducement via an unregulated subsidiary or a linked business or individual. I believe that this amendment is a proportionate means of making the necessary ban on inducements more effective, and I beg to move.

[Lord Hunt of Wirral]

I am very grateful to my noble friend the Minister.

[Lord Beecham]

I am afraid I cannot beat the brevity of that. I would like a little guidance from the Minister about the nature of the regulation. Can he give any indication of how effective whatever the regulatory body is—I confess that I do not know which it is—in overseeing this practice? I am entirely with the Government in wishing to ensure that such practices are limited as much as possible, for precisely the reasons that were mentioned by the noble Lord, Lord Hunt, and with which we all concur: the promulgation of false claims, which is wrong in itself and, of course, a drain on the economy generally. I am not clear what the regulatory system currently is, or how effective it is. While supporting the Government’s intentions in the amendment, it would be helpful to have an impression of that.

[Lord Faulks]

I am happy to write to the noble Lord with as much detail as we have. In the mean time, I can tell him and the House that anecdotal evidence shows that the practice is more prevalent among solicitors than non-regulated persons. However, once there is a ban in place preventing legal services providers from offering an incentive to issue claims, there is a possibility that non-regulated persons offering inducements to issue claims with legal services providers will be used as a way around the ban.

As to what types of third party rather than regulated persons might offer a benefit, these are likely to be but not restricted to those working in what are described as “first notification of loss teams”. The teams are used by insurers and are the central point that clients contact when they wish to make a claim on their insurance policy. The intention is to ban any inducement which encourages or might have the effect of encouraging a person to make a claim or seek advice about making a claim, including so-called welcome payments, free gifts and cash advances.

The noble Lord will know that there is far too much by way of unsolicited phone calls going on in relation to personal injury claims, which is another matter we take seriously. It is a complex issue that requires action on a number of fronts, both legislative and non-legislative. We have taken a number of measures as set out in our nuisance calls action plan of 30 March. I can give the website address if necessary. It includes increasing the fines that Ofcom can issue from £50,000 to £2 million, enabling the Information Commissioner’s Office to issue fines of up to £500,000, and providing simple and consistent information to consumers on preventive action that they can take and how they can complain about unsolicited phone calls via Ofcom.

If the noble Lord is having particular difficulty with being asked to make fraudulent claims, which I am sure we have all encountered, he may wish to know that he can register with the Telephone Preference Service, which should result in his avoiding such claims. I hope that that provides some further information, but I undertake to give more information in due course.

[Lord Beecham]

I thank the noble Lord for providing further information, but it is not terribly helpful because the Telephone Preference Service seems to be totally useless. Apart from anything else, it does not seem to work with a BlackBerry these days. It is quite extraordinary. Having appreciated that regulated persons include members of my profession and that of the noble Lord, Lord Hunt, I am sure that he will agree that it is a very sad commentary on the current state of what was a profession and is now increasingly descending, if I may put it that way, into a rather unscrupulous business —which is a matter I think we would both deplore.

--- Later in debate ---

Moved by

[Lord Faulks]

132: Clause 50, page 49, line 18, leave out “by a regulated person”

--- Later in debate ---

Moved by

[Lord Faulks]

136: Clause 51, page 50, line 9, after second “person” insert “or is treated as having done so under section 50(3A)”

--- Later in debate ---

Moved by

[Lord Faulks]

137: Clause 52, page 50, line 33, after “The” insert “Chartered”

--- Later in debate ---

Moved by

[Lord Faulks]

138: Before Clause 54, insert the following new Clause—
“Appeals from the Court of Protection
(1) Section 53 of the Mental Capacity Act 2005 (rights of appeal from the Court of Protection) is amended as follows.
(2) For subsection (2) substitute—
“(2) Court of Protection Rules may provide that, where a decision of the court is made by a specified description of person, an appeal from the decision lies to a specified description of judge of the court and not to the Court of Appeal.”
(3) Omit subsection (3).
(4) In subsection (4)(d), omit “higher”.”

[Lord Faulks]

My Lords, I shall speak to three amendments tabled in my name on behalf of the Government. We have the pleasure of the noble and learned Lord, Lord Hope, in the Chamber in respect of these amendments and I thank him for his patience for remaining for so long. Amendments 138 and 181 seek to rectify an omission in relation to appeals from decisions at lower levels in the Court of Protection, which was not addressed when the range of judicial officeholders able to sit as judges of the Court of Protection was expanded in the Crime and Courts Act 2013.

The need for the amendment does not only arise from, but has been starkly highlighted by, the decision of the Supreme Court in what has become known as the Cheshire West case. That decision required a radical reassessment of cases in which it may now be considered that a person who lacks mental capacity to consent to care arrangements is deprived of liberty as a result of those arrangements, so that the authorisation of the court is required for such a deprivation of liberty.

As a result, it is predicted that there will be a significant increase in the number of cases coming before the Court of Protection for declarations authorising deprivation of liberty in cases where, prior to Cheshire West, no such authorisation was considered necessary. It is considered that the figure may well be in excess of 28,000 additional applications annually. To deal with this increase in workload, deputy district judges and judges from other jurisdictions are being deployed to the Court of Protection for the first time. The Crime and Courts Act 2013 allowed for this wider range of judges to deal with Court of Protection cases but did not address the question of appeals.

The current provision in the Mental Capacity Act 2005 governing the route of appeal from decisions in the Court of Protection allows for decisions of specified judges to lie to a higher judge in the Court of Protection rather than directly to the Court of Appeal. However, the judges specified are limited to district judges and circuit judges, and the provision does not cover decisions of any of the wider range of judicial officeholders now able to sit as judges of the Court of Protection. The Crime and Courts Act omitted to amend it to align with that wider range. Without this amendment, appeals from decisions of judges in that wider range—even though they are decisions of the same sort as those of a district judge at present, for example—would have to go to the Court of Appeal, thereby increasing workload in the appeal court. This amendment makes good the omission.

The judges whose decisions may be appealed within the Court of Protection and the higher judges to whom appeal against those decisions will lie within the Court of Protection will, as now, be specified in Rules of Court, namely the Court of Protection Rules. This will prevent the Court of Appeal being unnecessarily burdened by a significant increase in cases and allow the Court of Protection the flexibility to deal with resources efficiently. This, in turn, will reduce delays and the need for cases to be transferred to a different court. It will also provide greater consistency in how appeals are managed across other jurisdictions.

Members of the House of Lords Select Committee on the Mental Capacity Act 2005—I should declare an interest as having been a member of that committee for some time—were given written notice of this proposed amendment which was made available in early August to allow time for consideration.

Amendment 142 would have the effect of allowing the President of the Supreme Court of the United Kingdom to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom can do already under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales. This amendment would give the President of the Supreme Court the same avenue to raise similar matters to Parliament. The proposed amendments were initially tabled by the noble and learned Lord, Lord Hope of Craighead, and I am grateful to him for bringing this matter to our attention. The Government have considered and reflected further on the implications of this proposal and agree that the change is justified,

Amendment 143 was also tabled in Committee by the noble Lord. This amendment would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the Supplementary Panel within two years of their retirement, provided that they are under the age of 75. At present, it is impossible for the Supreme Court to identify particular skills or expertise which might be of use in the future—particularly without knowledge of future workloads. This makes it difficult to identify which qualifying judges should be added to the Supplementary Panel before they retire from full-time judicial office. The amendment provides greater flexibility in this respect.

These are minor but sensible amendments which I hope the House will agree to. I beg to move.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.

I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.

[Lord Faulks]

I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.

Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.

Amendment 138 agreed.

Moved by

[Lord Faulks]

139: After Clause 68, insert the following new Clause—
“Reporting restrictionsLifetime reporting restrictions in criminal proceedings for witnesses and victims under 18
(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 45 (power to restrict reporting of criminal proceedings involving persons under 18) insert—
“45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18
(1) This section applies in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales, and(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.(2) The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
(3) A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—
(a) a witness, other than an accused, in the proceedings;(b) a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.(4) For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
(a) the person’s name,(b) the person’s address,(c) the identity of any school or other educational establishment attended by the person,(d) the identity of any place of work of the person, and(e) any still or moving picture of the person.(5) The court may make a reporting direction in respect of a person only if it is satisfied that—
(a) the quality of any evidence given by the person, or(b) the level of co-operation given by the person to any party to the proceedings in connection with that party’s preparation of its case,is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.(6) In determining whether subsection (5) is satisfied, the court must in particular take into account—
(a) the nature and alleged circumstances of the offence to which the proceedings relate;(b) the age of the person;(c) such of the following as appear to the court to be relevant—(i) the social and cultural background and ethnic origins of the person,(ii) the domestic, educational and employment circumstances of the person, and(iii) any religious beliefs or political opinions of the person;(d) any behaviour towards the person on the part of—(i) an accused,(ii) members of the family or associates of an accused, or(iii) any other person who is likely to be an accused or a witness in the proceedings.(7) In determining that question the court must in addition consider any views expressed—
(a) by the person in respect of whom the reporting restriction may be made, and(b) where that person is under the age of 16, by an appropriate person other than an accused.(8) In determining whether to make a reporting direction in respect of a person, the court must have regard to—
(a) the welfare of that person,(b) whether it would be in the interests of justice to make the direction, and (c) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.(9) A reporting direction may be revoked by the court or an appellate court.
(10) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.
(11) The court or an appellate court may only make an excepting direction if—
(a) it is satisfied that it is necessary in the interests of justice to do so, or(b) it is satisfied that—(i) the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(ii) it is in the public interest to remove or relax that restriction.(12) No excepting direction shall be given under subsection (11)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(13) In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.
(14) An excepting direction—
(a) may be given at the time the reporting direction is given or subsequently, and(b) may be varied or revoked by the court or an appellate court.(15) For the purposes of this section—
(a) criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings in a service court commence when the charge is brought under section 122 of the Armed Forces Act 2006. (16) In this section—
(a) “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;(b) “appropriate person” has the same meaning as in section 50;(c) references to the quality of evidence given by a person are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a person’s ability in giving evidence to give answers which address the questions put to the person and can be understood both individually and collectively);(d) references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.”(3) In section 49 (offences under Chapter 4)—
(a) after subsection (1) insert—“(1A) This section also applies—
(a) in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;(b) in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court.”, and(b) at the end insert—“(7) Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.”
(4) In section 50 (defences)—
(a) after subsection (6) insert—“(6A) Where—
(a) a person is charged with an offence under section 49, and(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.(6B) Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”, and
(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to (7)”.”

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 20th October 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, I disclose that I am the chairman of the Prison Reform Trust, which, as the noble Lord, Lord Beecham, has already pointed out, has circulated a paper that expresses concerns which he has adopted, very admirably, in the submissions he has just made to the House. I urge the Minister to think about those submissions very carefully. Whereas I, of all people, would like to think that I am a supporter of any procedure that cuts the costs of the administration of justice, at this stage the matter has not been detailed enough. Perhaps it would be better to find another instrument to which this very late amendment can be attached, but some such machinery to deal with this is urgently required.

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

My Lords, I thank the noble Lord, Lord Beecham, and the noble and learned Lord, Lord Woolf, for their contributions to this short debate. I will take this opportunity to explain to the House in a little more detail the context and reasons for the Government’s amendment, which will enable the Secretary of State to appoint “recall adjudicators”, before going on to explain the nature and purpose of those amendments. I will then turn to the amendment the noble Lords have tabled to Clause 3, and to their Amendment 9A, which seeks to insert a new clause.

When your Lordships last debated the provisions in Part 1, concern was raised about the burden that some of the provisions would place upon the Parole Board, particularly given the increased demand for oral hearings following the Supreme Court judgment in the case of Osborn, Booth and Reilly. At the time I explained what the Parole Board and the Ministry of Justice were doing in response to that demand, and indicated that we were considering whether there may be other options to alleviate the pressure on the board.

I hope that these government amendments demonstrate to the House our commitment to supporting the board and will serve to alleviate some of the concerns that have been expressed. They will allow the board to focus its resources where they are most needed. It is only recently that it has become possible to contemplate amending the legislation in the way that we now propose, and I hope that this answers the criticisms made by the noble Lord, Lord Beecham, of the amendment and its lateness.

In July, a Supreme Court judgment was handed down in the case of Whiston v the Secretary of State for Justice. This dealt with the question of whether an offender who is subject to home detention curfew and is recalled to prison for breaching his licence conditions is entitled, under Article 5.4 of the European Convention on Human Rights, to have his detention reviewed by a court-like body—the Parole Board. The Supreme Court found that there was no such entitlement and that for all determinate sentenced offenders further detention during the licence period was satisfied, in Article 5 terms, by the original sentence imposed by the court. Therefore this does not depend on any party-political interpretation of the European Convention but on the decision of the Supreme Court.

Last week I chaired an all-party meeting in which we discussed these changes—which, of course, I accept have come late in the day. I hope that I was able to explain during the meeting to those noble Lords present the reason behind this change and why it was late, in order to give Peers an opportunity to understand what we were doing. The Whiston case is a significant change to previously established domestic case law on which the current provisions in the Criminal Justice Act 2003 are founded. Under the 2003 Act, determinate sentence recalled prisoners are entitled to have their cases referred to the Parole Board. This was to satisfy their Article 5 rights to a court-like review of their detention.

But the Whiston judgment means that the review of determinate sentence recall cases no longer has to be conducted by the board because Article 5 is not engaged. We are therefore seizing this opportunity to build into the statutory framework a new, flexible way of working which will provide for this category of case to be diverted away from the board. That is what these amendments are designed to do.

Amendment 9 inserts new Section 239A into the Criminal Justice Act 2003. This will create a power that enables the Secretary of State to appoint “recall adjudicators”. It is these adjudicators who will take on the functions relating to the release of recalled determinate sentence prisoners currently performed by the Parole Board. The Secretary of State will be able to appoint the Parole Board as a recall adjudicator to allow the board to continue to review these cases if necessary, but also to appoint other persons.

Much of the detail of how the recall adjudicator model will operate—including exactly who will be appointed and the nature of those appointments—will be the subject of further detailed development. As I indicated during the meeting, and do again in the House, the appointments will be filled by those with significant criminal justice experience. I apologise if at this stage I cannot provide noble Lords with the level of detail for which they might normally wish. I acknowledge, of course, that the as yet unknown detail about the precise operation, impact and cost of the new model is what lies behind the noble Lord’s amendment to insert a sunset or sunrise clause into these provisions. I will return to that when I respond to the amendments.

First, I shall explain to your Lordships the main features of the provisions as well as the safeguards that will make sure the system for reviewing the detention of recalled prisoners will remain fair, robust and efficient and—importantly—that risk assessment and public protection will continue to be of paramount importance in any release discussion. While the review of detention need not be undertaken independently by a court-like body or process, it will have to satisfy the common-law requirements of impartiality and procedural fairness in line with the Osborn judgment. This means that oral hearings will still be required if they are necessary in the interests of fairness to the prisoner in the particular case and it will be necessary to interpret that requirement consistent with the Osborn decision.

Your Lordships have already agreed that Clause 8 should stand part of the Bill. This introduces a new test for the release of determinate sentence recalled prisoners. The test requires consideration to be given to whether the offender needs to be detained for the protection of the public but also whether the offender would be highly likely to breach their licence again if released. Recall adjudicators will be required to apply that test—that is, they will be under a statutory duty to consider both public protection and the risk of further non-compliance in reaching their release decisions.

A consistent and robust process will be followed by recall adjudicators. To ensure that this is the case, these amendments provide a power for the Secretary of State to issue procedural rules. Of course—this is important—there will be an opportunity for further parliamentary scrutiny, as these rules will be made by statutory instrument, subject to the negative procedure.

The Secretary of State will also have the power to appoint a chief recall adjudicator. The chief recall adjudicator, who must also be appointed as a recall adjudicator, will oversee the activities of these adjudicators and bring coherence and co-ordination to their work. To assist in this role, provision is also made for the chief adjudicator to issue guidance. Recall adjudicators will be required to carry out their functions in accordance with that guidance.

The Secretary of State will be responsible for making decisions on appointments and the termination of appointments, although the chief recall adjudicator will be able to make recommendations to the Secretary of State about the termination of appointments.

The other amendments that we have tabled in this group all flow from and are consequential to the provisions in Amendment 9 to allow for the appointment of recall adjudicators.

I hope that your Lordships will agree that these amendments will not only help to alleviate pressure on the Parole Board but will give us the opportunity to look afresh at an alternative model for reviewing the detention of determinate sentence prisoners when they are recalled to custody. In short, if these cases do not need to be dealt with by the board, we believe that they should not be. The recall adjudicator provisions will give us the flexibility that we need to put such a system in place. This is the package of government amendments that I commend to the House.

Before I sit down, I turn to the amendments tabled by the noble Lords, Lord Beecham and Lord Kennedy. The Government cannot support these amendments. Amendment 1 places a statutory duty on the Secretary of State to consult the Parole Board and to lay a report before Parliament about the resources that the board requires before the provisions in Clause 3 are implemented.

The Government are committed to ensuring that the Parole Board is always adequately resourced to fulfil its important responsibilities. The amendments that I have spoken to, which are designed to alleviate pressure on the board and to free up its resources, underline that commitment. I assure your Lordships that any future pressures on the board arising from the implementation of other provisions in the Bill will be discussed with the board so as to ensure that the necessary arrangements and resources are in place. I can confirm to noble Lords that there have been discussions with the Parole Board, the Lord Chief Justice and the senior presiding judge about the appointment of recall adjudicators.

Clause 3 adds a small number of additional terrorist-related offences to Schedule 15B to the 2003 Act, and the impact of this on the board will be minimal. We do not believe that a duty to consult the board or to lay a report before Parliament is appropriate or necessary. With respect, and as I said in Committee, such a duty would not be a practicable approach to these provisions. Changes to the workload of an arm’s-length body are commonplace. There are governance structures in place to ensure that new pressures on the Parole Board are taken account of. As noble Lords will be aware, the Ministry of Justice is accountable to Parliament for the discharge of its responsibilities. Putting such an obligation on the face of the legislation would, I suggest, be an undue burden on Parliament.

That brings me to the other amendment tabled by the noble Lords, which would insert a sunset clause into the recall adjudicator provisions, suspending them two years after the date of commencement. Prior to this, within 18 months of commencement the Secretary of State would be required to lay before Parliament a report on the impact of these provisions. Having done so, the Secretary of State would be able to make regulations for the continuation of the provisions—those regulations to be made by statutory instrument and subject to affirmative resolution of both Houses. In effect, Parliament would have to review the impact and agree to the continuation of the provisions to avoid their suspension after two years.

I understand the concern of noble Lords that the introduction of recall adjudicators is a new and, as yet, untested concept. It is critical that we get this right, and I appreciate the recommendation by the noble Lords for greater scrutiny by this House and the other place. However, I do not believe that it would be either appropriate or helpful to have a sunset provision of this sort. I can assure your Lordships that we will continue to work closely with the board and others on the development of the recall adjudicator model, making sure that it delivers the efficiencies and benefits that we expect while we maintain, as we are obliged to do, a robust and fair process for recalled prisoners.

--- Later in debate ---

[Lord Lloyd of Berwick (CB)]

My Lords, I do not know whether the Minister’s amendment has been called. I rise just to say that I certainly support the Government’s view, subject to the amendment proposed by the noble Lord, Lord Beecham. Anything that we can do to relieve the burden on the Parole Board is worth doing. I confirm, incidentally, that the Minister was quite right to say that this would not have been possible until the recent decision of the Supreme Court at the end of July. To that extent, I certainly support the Government.

I hope that I may be permitted to add one comment. We shall shortly be coming to Amendment 39 in my name, which would do far more to relieve the burden on the Parole Board than this proposal could ever do. Furthermore, it could be done without any cost at all, it could be done at once and it has been calculated that it would save the Government some £25 million a year. I hope that those who are interested in relieving the burden on the Parole Board will stay behind and take part on that amendment when it is called.

[Lord Faulks]

My Lords, we have had something of a trailer from the noble and learned Lord, Lord Lloyd, and I do not propose to respond in detail at this stage. For the sake of clarity, I might say that these amendments are about determinate sentence prisoners as opposed to indeterminate sentence prisoners, into which category IPP prisoners fall.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to make one very small point about the Government’s proposals, which is mainly to do with the name “recall adjudicator”. I understand that when a district judge goes to prison and hears cases and then gives an additional period in custody to prisoners who offended while in custody they are referred to as adjudicators. We will have adjudicators turning up at the prison gates, plus recall adjudicators. I wonder whether that is a sensible way to proceed. I raise that as a small point.

--- Later in debate ---

Moved by

[Lord Faulks]

3: Schedule 1, page 83, line 11, leave out from “Act” to end of line 12

--- Later in debate ---

[Lord Beecham]

My Lords, the Bill extends electric monitoring, a procedure which thus far has proved problematic and extremely expensive, when you think of the problems with G4S and I think Serco in the contracts that they had. It extends the principle into new territory—namely, that of prisoners on licence. The policy in that respect has been criticised by the Chief Inspector of Prisons on the grounds that there is little evidence of absconding or committing further offences while prisoners are on licence. It would be interesting to hear the Minister’s comments on that. In passing, I hope that he is in a position to deny current rumours that the highly respected chief inspector is unlikely to be reappointed. He has a deserved reputation for the job that he has been carrying out in difficult circumstances for the last few years.

The impact assessment in support of this provision is somewhat feeble. It states:

“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage, as ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact”.

In other words, this is an impact assessment with no impact whatever. As the following further statement confirms, the number of additional prison places cannot be accurately estimated. Let us reflect on the terrible overcrowding in our prisons now, with a shocking rise in the number of suicides, as we read at the weekend. What is the Government’s estimate of the likely impact of the implication of this new technology, in terms of both cost and of increasing the prison population?

The way in which the Government intend to progress the matter is, as usual, equally unsatisfactory, with the Secretary of State empowered to impose a code of practice without parliamentary scrutiny or approval—hence Amendment 8, which would require such parliamentary approval for the code of practice that the Government envisage. Perhaps the Minister could tell us what is happening about the code. In Committee, the then Minister, the noble Lord, Lord Ahmad, who has escaped or is on licence to another department, said that a revised code would be issued to promote transparency in relation to outsourced services. What is happening about this? What consultations have taken place, and with whom? Will there be reports on the outcome of those consultations?

Amendment 7 would make contractors subject to the provisions of the Freedom of Information Act in the same way as public authorities. It seems absurd that, in the world of the Ministry of Justice alone, Her Majesty’s prisons are subject to FOI requirements while private prisons are not. Given that we are talking about encroachments on the liberty of the individual—and they may well be justified in many cases—it is surely necessary to extend the protection of the FOI regime to this area. I should make it clear that we are not against electronic monitoring, as it clearly has a place, but it must be technically effective and cost effective, especially in the light of the previous experience, with the contracts that went so badly awry and led to large sums of money having to be reclaimed from the contractors, and applied sensibly. We have very little to go on at the moment in terms of how the new scheme would work.

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I should begin by suggesting that Amendment 6 is, perhaps, not as well conceived as it might be, because it would provide for the court to decline to impose an electronic monitoring condition in certain cases. However, the court has no role in setting conditions for offenders released from custody on to licence after serving the required part of their sentence. This is a matter for the Secretary of State, through the governor. The parole board also makes recommendations as to licence conditions when the offender is subject to discretionary release.

In the case of an electronic monitoring condition imposed by virtue of an order made under proposed new Section 62A of the Criminal Justice and Court Services Act 2000, as inserted by Clause 7, this is solely a matter for the Secretary of State, through the governor. The amendment would actually have no effect. However, I understand the concern behind the amendment, which is that offenders should not be made subject to compulsory electronic monitoring when this is unsuitable for some reason, or when it is impractical. We recognise that there will be offenders who are unsuitable for compulsory electronic monitoring. For example, this may be because of physical or mental health issues, or because of a practical problem, such as not being able to make arrangements for the offender to recharge the battery in the tag.

These issues are, we suggest, already dealt with by the clause. The order-making power specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply. I appreciate that this may not be immediately obvious from a reading of the clause, but the Explanatory Notes—although I take the comments of the noble Lord, Lord Beecham, about their inadequacy in some respects, and I shall come on to deal with that—are helpful in this regard, as indeed was my noble friend Lord Ahmad when he spoke on the matter in Committee.

--- Later in debate ---

[Lord Beecham]

Could the Minister indicate whether there will be consultation on those proposals, and with whom?

[Lord Faulks]

I hope to come to that in a moment.

As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.

We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.

I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.

I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ, and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.

On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.

I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, in relation to Amendment 6, I accept my noble friend’s point that it is for the Secretary of State rather than the court to deal with electronic monitoring conditions. He is right about that. He was also right to recognise the concerns as to whether such conditions could be imposed inappropriately or where unnecessary, unjust or impractical.

I understand him to have given an assurance that he understands that the power to make an order which makes,

“provision by reference to whether a person specified in the order is satisfied of a matter”,

enables the order to ensure that the person is satisfied that it would not be impractical to impose such an electronic monitoring condition. On that basis, I join in his observation that it is not entirely clear, even though it may be clear from the Explanatory Notes, which of course form no part of the statute. Those who are left with the difficult task of unravelling this arcane piece of drafting will no doubt be able to read the report of that assurance. On that basis, I beg leave to withdraw this amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

9: Before Clause 8, insert the following new Clause—
“Recall adjudicators
(1) After section 239 of the Criminal Justice Act 2003 insert—
“239A Recall adjudicators
(1) In this Chapter, “recall adjudicator” means a person for the time being appointed as such by the Secretary of State.
(2) The Secretary of State may appoint the Board or another person.
(3) The Secretary of State may, in particular, appoint a person—
(a) to carry out all or only some of the functions of a recall adjudicator;(b) to carry out such functions only in relation to a specified area;(c) to carry out such functions only in relation to a specified description of case.(4) The Secretary of State may make rules with respect to the proceedings of recall adjudicators.
(5) The Secretary of State may appoint a recall adjudicator (referred to in this section as “the chief recall adjudicator”) to oversee the activities of recall adjudicators.
(6) The chief recall adjudicator may, in particular—
(a) issue guidance with respect to the carrying out of the functions of recall adjudicators, and(b) make recommendations to the Secretary of State about the termination of appointments under this section.(7) Before issuing guidance the chief recall adjudicator must consult the recall adjudicators and the Secretary of State.
(8) A recall adjudicator must carry out his or her functions in accordance with guidance issued from time to time by the chief recall adjudicator.
(9) The Secretary of State may make payments to a recall adjudicator.
(10) A person is not to be regarded as acting on behalf of the Crown, or as enjoying any status, immunity or privilege of the Crown, by virtue of an appointment under this section.”
(2) The amendments of Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term prisoners) in section 8 of this Act confer functions on recall adjudicators in connection with the release of fixed-term prisoners following their recall.
(3) Schedule (Recall adjudicators: further provision) to this Act contains further provision relating to recall adjudicators.”

--- Later in debate ---

Moved by

[Lord Faulks]

10: Clause 8, page 7, line 41, after “(4)” insert “—
(i) ”

--- Later in debate ---

Moved by

[Lord Faulks]

38: Clause 9, page 10, line 25, leave out “Board” and insert “recall adjudicator”

--- Later in debate ---

[Lord Beecham]

Because the Act to which we have already referred gives the Secretary of State the power to do exactly what is required. He should be exercising that power, and that is what we would expect him to do.

We share the concern of all Members of your Lordships’ House, and the deep anxiety voiced about what is happening to people who serve much longer sentences than the person whose plight is laid out in this correspondence. We call upon the Government to use the power that they rightly conferred upon themselves just two years ago. In that way the matter can be resolved. Of the 650 prisoners, while some are still deemed to be at high risk, many are already deemed to be at low risk and on that account very likely to be released. As other noble Lords have pointed out, that will free up prison spaces and potentially reduce the cost to the public purse, both of which are highly desirable objectives. Therefore I hope the Minister can give an indication that action will be taken—if not necessarily strictly along the lines that the noble and learned Lord, Lord Lloyd, has proposed then in some other way—to deal with the appalling situation affecting too many people which has accumulated over the years.

[Lord Faulks]

My Lords, this has been an excellent and very well informed debate, with contributions from sources well versed in the law and experienced in criminal law, and sources who had occasion to come into contact with the law and its implications. I am grateful for all those contributions, many of which were extremely economical—I congratulate noble Lords on their restraint in allowing the House to proceed—but powerful.

We return to this subject of IPP prisoners who remain in prison despite the fact that the sentence has now been abolished and may not be imposed on offenders convicted after December 2012. We debated a very similar amendment at length in Committee so I do not intend to rehearse the entire debate we had then. Noble Lords are well aware of the Government’s position and we do not think it would be right or appropriate retrospectively to alter IPP sentences that had been lawfully imposed prior to the sentence’s abolition, particularly because these sentences were imposed with public protection issues in mind. However, I recognise, as many noble Lords have said, that fairness—an elusive concept though that is—should be at the forefront in considering these issues, as should the equally elusive concept of justice that is vital in considering issues of this sort. I am also painfully aware of the implications of keeping any prisoner one day longer than he or she ought to be kept in prison because of the expense involved, expense that we can ill afford, but the Secretary of State has to balance concepts of fairness and justice with his duty to protect the public.

Perhaps I may make one or two observations about the history, which has been summarised by noble Lords in the course of this debate. While echoing the worthwhile tributes paid to the noble and learned Lord, Lord Lloyd, for his tenacity in this area, I cannot quite agree with his assessment of the disparity in position between short-tariff IPP offenders sentenced before the 2008 reforms and those sentenced afterwards. It is not the case that, prior to 2008, courts were without any discretion in imposing IPP sentences. It was in the court’s discretion to judge whether the offender met the high risk threshold set out in the 2003 Act—did he present a significant risk of serious harm? The presumption that he presented such a risk if he had committed a previous Schedule 15 offence was a rebuttable presumption, and the court was free to disregard it if it was not a reasonable view in the individual case. I do not deny that, where they found the offender to meet the dangerousness threshold, courts were indeed obliged to impose IPPs on eligible offenders, and that was plainly Parliament’s intention.

I should also stress that it remained possible to receive an IPP with a lower tariff than two years until IPPs were abolished by this Conservative-led Government by the LASPO Act 2012 where the offender had a serious previous conviction, and in fact a number continued to get short-tariff IPPs. It is likely that some of those sentenced to IPPs with short tariffs between 2005 and 2008 would have remained eligible for an IPP, and perhaps received an IPP after the 2008 reforms. I cannot agree, therefore, that this group of IPP prisoners can be presumed to be less dangerous than other IPP prisoners.

As I have said before, it is right that offenders serving indeterminate sentences of imprisonment for public protection—a species of preventive detention, as the noble and learned Lord, Lord Brown, said—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. The noble and learned Lord, Lord Lloyd, and a few others have seen an analysis of management information, prepared last year, relating to the situation of IPP prisoners who were sentenced prior to July 2008 with tariffs of under two years, who remained in prison and whose tariff had expired.

It is true that initially the cost of providing the information, which has been accurately summarised by the noble and learned Lord, was considered too high but, such was his tenacity and, as I understand it, such was the respect that the Ministry of Justice had for him, the information was provided and has been summarised by the noble and learned Lord. The position is that my colleague the Prisons Minister, Andrews Selous, has agreed with the House authorities that the information can be lodged in the House Library. It will take one week for this to appear but I confirm that he has requested that it be put in the Library. However, I can also confirm that the figures that the noble and learned Lord announced were accurate, so they have informed the debate in terms of the numbers and the periods in prison.

--- Later in debate ---

[Lord Woolf]

Before the noble Lord sits down, I wonder whether he can help me on one matter. Does he accept that a shortage of resources, either in the Parole Board or within the Prison Service, in providing courses for persons in the category that my noble and learned friend Lord Lloyd has identified has caused an unintended consequence in that—possibly; one cannot say it with certainty—these prisoners have been detained for far longer than they should have been, and that, equally, there is going to be further delay before their cases can be fully considered?

[Lord Faulks]

I accept that there have been certain delays in providing all the courses that might have been provided. Indeed, that has been the subject of quite widespread litigation, when individual prisoners have received compensation. Sometimes the compensation has been a higher figure if the court has thought that it would have made a difference and sometimes a lower figure if the court has thought that it would have made no difference. However, the test remains the same, regardless of cases, as I said a little earlier. The Parole Board has of course had a number of pressures, as I described earlier, not least caused by the Osborn, Booth and Reilly case. As I also indicated, increased resources have been provided financially, and there is a general awareness in the Parole Board—an arm’s-length body but under the Ministry of Justice—of the need to provide hearings as soon as practicable. However, I have responded by pointing out the fact that all these prisoners have had their cases reviewed by the Parole Board, and we believe that the system is working satisfactorily.

[Lord Lloyd of Berwick]

My Lords, I regret to say that I do not find the Minister’s reply satisfactory in any way, no more than it was on the previous occasion. I do not intend to deal with any of his arguments, save just to mention one. He criticised the amendment on the grounds that we would be bypassing the discretion of the Lord Chancellor, but that is the whole point of the amendment. The Lord Chancellor has declined to exercise that discretion, so it is up to us now to exercise it in place of him. That is the purpose of this amendment.

The amendment has been supported in the strongest possible terms—indeed, some of the strongest terms that I have ever heard in this House—by lawyers and non-lawyers alike. I particularly value the support of the non-lawyers. The official position of the Opposition is that they cannot support the amendment but they are not opposing it. I hope that a great number of those who are sitting on the Opposition Benches will support the amendment for the reasons that have been so clearly explained by others. Nevertheless, I must express my gratitude for the fact that the Official Opposition are not opposing it.

There is just one other thing that needs to be said. From the many letters that I and others have received, both from prisoners and from their families, I know that this debate is being followed by those who will be most affected by the result. They will carefully read what we have said. They are looking to us in this House to do something for them, and I hope that we will not let them down. I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Faulks]

40: Clause 14, page 15, line 17, at end insert—
“( ) In section 250 (licence conditions), for subsection (5A) substitute—
“(5A) Subsection (5B) applies to a licence granted, either on initial release or after recall to prison, to a prisoner serving an extended sentence imposed under section 226A or 226B, other than a sentence that meets the conditions in section 246A(2) (release without direction of the Board).
(5B) The Secretary of State must not—
(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition included in the licence,unless the Board directs the Secretary of State to do so.”( ) In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), for “section 246A” substitute “this Chapter”.”

--- Later in debate ---

I hope that the Minister will be able to indicate some movement from the Government on this matter. It seems like a throwback to a much earlier age for child offenders. We should be able to deal more sensitively with the problems encountered by young people, even if there is some reason to believe that they may themselves be the cause of some problems. I hope that the Government will not necessarily wait for the APPG report to come out but will give an indication of their current state of thinking on this issue and perhaps on the broader issues which the all-party group has already covered. I beg to move.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Beecham, for setting out his amendment so clearly. What lies behind it is wholly understandable. However, it must be put in the context of the significant programme of reforms that the Government have introduced on the police use of stop and search, to which the noble Lord did make reference.

Noble Lords will be aware that on 30 April, the Home Secretary announced a comprehensive package of measures to reform the way that stop and search is used. The measures, some of which were launched on 26 August, will ensure that the powers are used fairly, effectively, and in a way that encourages community confidence. These measures will impact positively on all sections of the community, including children. The Government are highly sensitive to the need to ensure that sufficient safeguards are in place so that the public can trust the police to use all their powers appropriately. The Police and Criminal Evidence Act and its codes of practice have robust safeguards that ensure consistency, transparency and rigour in the way in which stop and search is used by the police.

The use of stop and search has reduced significantly under this Government. However, these powers are vital in the fight against crime and the police must be able to act promptly should they have a reasonable suspicion that a person is carrying an unlawful item. It is a sad fact that in some areas it is quite common for children under the age of criminal responsibility to be used by older children and adults to carry drugs and weapons and, in some cases, firearms for the criminal benefit of others, either in the hope that police may not suspect that they are being used to carry the items or in the knowledge that if they are suspected of being couriers or are stopped and searched, they cannot be arrested or prosecuted for any criminal offence because they are below the age of criminal responsibility.

There are also operational difficulties. How does a police officer judge a child’s age with any precision? What do the police do while waiting for the “appropriate adult” referred to in the amendment to arrive? There are safety issues, too. What if the child has been given a gun or a knife by older gang members? One knows how easy it is for older gang members to manipulate younger ones.

These issues need mature consideration. That is why I maintain what I said in Committee, that although we remain open to revising or improving—if appropriate—the very considerable steps we have taken to improve stop and search powers, we will await the final report at the end of this month and take notice of any recommendation to change the operational procedures. However, I am sure the noble Lord and the House will bear in mind the significant reform package that we have already brought before the House.

I will me give a further example of the operational difficulties that might be caused if this amendment were to find its way on to the statute book. Imagine that a fight breaks out between two gangs of youths and the police have reasonable suspicions that weapons have been concealed. If the police were then required to wait, this could prevent them from acting in a case where there is an immediate issue of public safety involved. That could be difficult, as I am sure the House will understand.

There are already important safeguards attached to Section 1 stop and searches, which were outlined when the amendment was last debated on 14 July. They apply to anyone who is stopped and searched, regardless of age. Furthermore—this is worth stressing—Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions.

This is stop and search—which is, one hopes, a fleeting encounter to, if necessary, disable somebody who the police reasonably think has something that they need to have removed from their possession. However, in response to the noble Lord’s understandable concern, let me stress that the Government have made a priority of ensuring that stop and search should be used fairly, so that the police target this power when they have reasonable suspicions that a person is carrying an unlawful item. In those situations, where there is a risk to public safety, we suggest that it is right that the power to stop and search an individual is not unduly restricted, regardless of age.

Unfortunately, it is not entirely a creature of a bygone age, as the noble Lord suggests, in harking back to Oliver Twist or something of that sort. There is a case that, unfortunately, young children are used in the way that I have described. The requirement to wait until an “appropriate adult” turns up is difficult, and unnecessary in light of the safeguards that exist to protect the welfare of children under the age of criminal responsibility.

While I understand the noble Lord’s concern, and the initial hesitation that anybody would have with a child under 10 being involved in the criminal justice system, we suggest that there is reason for this power to exist, appropriately circumscribed in the way that I have attempted to describe. For those reasons I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I am grateful for the Minister’s response. I shall not ask the House to divide on the amendment but I will make a couple of suggestions to him. First, in the mean time, the proper recording of events—ascertaining names, addresses and dates of birth—should become pro forma. It is surprising that it is not yet universal. It would be a relatively straightforward matter. I presume that it would be for the Home Office to direct the police authorities, but no doubt words ought to be had with ministerial colleagues about that. Secondly, given that Scotland has now changed the law, I suggest that in a year or 18 months, whichever Government are in office at that time—I hope that it might be a different one—could look at the Scottish experience. I take the Minister’s point but it is more relevant to the stopping than to the searching. We agree that it necessary for the police to stop, but the question is about the search part of it. Given that Scotland has made a change in respect of the age of 12, I would have thought that its experience, within a relatively short period, would be relevant here. If the Minister would be good enough to give an undertaking—if he or his party are still in office at that point—that that would be put into force, it would be a welcome concession. I hope that an incoming Government from our party would take the same position. In the circumstances, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

44: Before Schedule 3, insert the following new Schedule—
ScheduleRecall adjudicators: further provisionMental Health Act 1983 (c. 20)1 The Mental Health Act 1983 is amended as follows.
2 In section 50(3)(a) (further provisions as to prisoners under sentence: disregarding Parole Board powers when identifying release date), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.
3 (1) Section 74 (restricted patients subject to restriction directions) is amended as follows.
(2) In subsection (5A)(a) and (b), after “Board” (in each place) insert “or a recall adjudicator”.
(3) At the end insert—
“(8) In this section “recall adjudicator” has the meaning given in section 239A of the Criminal Justice Act 2003.”
Criminal Justice Act 2003 (c. 44)4 The Criminal Justice Act 2003 is amended as follows.
5 Before section 239 insert—
“Parole Board and recall adjudicators”.6 In section 239(1)(b) (functions of the Parole Board), after “by” insert “or under”.
7 (1) Section 250 (licence conditions) is amended as follows.
(2) In subsection (5A) (inserted by section 14 of this Act), for “Subsection (5B) applies to a licence granted, either on initial release or after recall to prison,” substitute “Subsections (5B) and (5C) apply”.
(3) In subsection (5B) (inserted by section 14 of this Act), at the beginning insert “In the case of a licence granted when the prisoner is initially released,”.
(4) After that subsection insert—
“(5C) In the case of a licence granted when the prisoner is released after recall to prison, the Secretary of State must not—
(a) include a condition referred to in subsection (4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition included in the licence,unless a recall adjudicator directs the Secretary of State to do so.”8 In section 260(2B) (early removal from prison of extended sentence prisoners liable to removal from United Kingdom), after “Board” insert “or a recall adjudicator”.
9 In section 268 (interpretation of Chapter 6 of Part 12), at the appropriate place insert—
““recall adjudicator” has the meaning given in section 239A.” 10 In paragraph 34 of Schedule 20B (licence conditions in certain transitional cases), for sub-paragraph (6) substitute—
“(6) In the case of a Parole Board licence granted when the prisoner is initially released, the Secretary of State must not—
(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition,unless the Board directs the Secretary of State to do so.(7) In the case of a Parole Board licence granted when the prisoner is released after recall to prison, the Secretary of State must not—
(a) include a condition referred to in section 250(4)(b)(ii) in the licence, either on release or subsequently, or(b) vary or cancel any such condition,unless a recall adjudicator directs the Secretary of State to do so.”11 In paragraph 37(2) of that Schedule (early removal from prison of prisoners liable to removal from United Kingdom in certain transitional cases)—
(a) after “Board” insert “or the recall adjudicator”, and(b) for “paragraph 6, 15, 25 or 28” substitute “this Chapter”.Domestic Violence, Crime and Victims Act 2004 (c. 28)12 In Schedule 9 to the Domestic Violence, Crime and Victims Act 2004 (authorities within the remit of the Commissioner for Victims and Witnesses), after paragraph 26 insert—
“26A A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).”
Offender Management Act 2007 (c. 21)13 The Offender Management Act is amended as follows.
14 In section 3(7)(a) (arrangements for the provision of probation services: risk of conflict of interests), for “or to the Parole Board for England and Wales” substitute “, to the Parole Board for England and Wales or to a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.
15 In section 14(2) (disclosure of information for offender management purposes), after paragraph (d) insert—
“(da) a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003);”.Coroners and Justice Act 2009 (c. 25)16 In section 131(4)(d) of the Coroners and Justice Act 2009 (annual report of Sentencing Council for England and Wales: effect of factors not related to sentencing), after “Board” insert “or a recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003)”.
Equality Act 2010 (c. 15)17 In Part 1 of the Schedule 19 to the Equality Act 2010 (public authorities: general), after the entry for the Parole Board for England and Wales insert—
“A recall adjudicator (as defined in section 239A of the Criminal Justice Act 2003).””

--- Later in debate ---

Moved by

[Lord Faulks]

47: Clause 21, page 20, line 34, at end insert—
“( ) A person is not a care provider for the purposes of section 20 to the extent that the person carries out a function of a local authority in England mentioned in subsection (1) in respect of which either of the following has effect—
(a) a direction under section 15(6)(a) of the Local Government Act 1999 (power of Secretary of State to direct functions of a best value authority to be carried out by another person);(b) a direction under section 497A(4) or (4A) of the Education Act 1996 (power of Secretary of State to direct certain functions to be carried out by another person).”

--- Later in debate ---

[Lord Beecham]

My Lords, Amendment 51 relates to identity theft, which is a growing problem, particularly in this age of cybercrime. It is rising rapidly and is estimated to cost more than £3 billion a year. It is usually referred to in the context of fraud and economic crime but, as I said in Committee, a number of offences could apply to the use of someone else’s identity; for example, those under the Fraud Act 2006, the Forgery and Counterfeiting Act 1981, the Criminal Justice Act 1987 and the Theft Act. As the Minister said in Committee, these relate to the use of a false identity for fraud purposes. For example, Section 2 of the 2006 Act deals with the crime of fraud by false representation. In the Minister’s words, this would,

“cover a person pretending to be someone else for the purposes of making a gain for himself or another”.—[Official Report, 14/7/14; col. 485.]

However, the motive might not be economic gain; it might be to obtain information for personal reasons or in the course of undercover activities, such as some of those that have featured in industrial disputes or civil liberties and environmental campaigns. There is also the kind that I saw demonstrated in a remarkable one-man show at the Edinburgh Festival by the stand-up comedian—if that is not too limited a description—Mark Thomas. He had been working for an environmental campaign and someone attached himself to it—not an undercover policeman in this case but an undercover person employed by someone else. It took a long time for this chap to be exposed but exposed he was. He had used a false identity to become involved in the organisation.

In Committee, the Minister criticised the amendment on the grounds that it would also apply to innocent persons; for example, people who collect a parcel from the post office using a relative’s identification. That is a little far-fetched. It ignores the unlikelihood of anyone being charged with an offence in such circumstances and, perhaps more relevantly, the explicit provision contained in the amendment empowering the Secretary of State to set out in regulations what would constitute a defence to a charge under the proposed new section.

In fairness, the Minister outlined a range of initiatives being pursued by a variety of bodies and this is welcome, although it is unclear how co-ordinated the activity is. However, given the very serious concerns about fraud and infractions of privacy, it is surely time to consolidate and update the legislation. I suggested that it would be helpful to hear a report on progress in this area before Report, and it is disappointing that this has not occurred. I request that the Minister takes another look at the issue to see whether he can come back at Third Reading with a more helpful resolution to the problem. For the avoidance of doubt, I assure him that the amendment is not designed to protect Nigel Farage and UKIP from identity theft at the hands of David Cameron and the Conservative Party. I beg to move.

[Lord Faulks]

My Lords, the Government recognise that there are significant challenges in dealing with the many consequences of identity theft. However, as I explained in Committee, these challenges relate to the difficulty of identifying and catching offenders, rather than to any lack in the criminal law.

The proposed amendment suggests:

“A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person”.

It omits any reference to the consent of that other person and proposed new subsection (3) leaves the defence to be made by regulations set out by the Secretary of State. That is a fairly novel proposal: a Secretary of State who does not enjoy the undivided confidence of the party opposite is being asked to set out in regulations the nature of the defence.

[Lord Beecham]

Perhaps it might be a job for the Minister.

[Lord Faulks]

I am flattered by the suggestion. However, whether it is done by me, an official or anyone else, it is a slightly strange way of formulating an offence.

I respectfully ask: where is the gap? The Fraud Act 2006 already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purpose of making a gain for himself or another.

While identity theft is not in itself a criminal offence, the use of a false identity for the purposes of fraud is. As drafted, the amendment would apply to innocent persons who were able to represent a relative or partner when conducting financial or domestic affairs on their behalf with permission from the identity-holder. The noble Lord cast some scorn on the example I gave in Committee of collecting a parcel on behalf of someone else. I accept that no sane prosecutor or police officer would take that matter further. None the less, it is alarming to think that that could constitute a criminal offence, albeit one that one would not expect the police or the prosecution to pursue.

I assure the House that the Government take identity crime extremely seriously. I should like to remind the House of some of the initiatives being pursued to prevent identity crime. We are working with banks and credit card companies to promote technical solutions to identity theft to help the victims of such crimes. We are also working with credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Call Credit. The Home Office is also leading a multi-agency strategic group formed to reduce the threat to the UK. The group is engaged in a range of activities to tackle the problem, such as strengthening the issuing process for government documents, tackling the supply of specialist printing equipment for criminal purposes, improving data-sharing of false identities and taking down websites offering false documents for sale.

--- Later in debate ---

Moved by

[Lord Faulks]

53: Clause 25, page 23, leave out line 13 and insert—
“(3) The police constables referred to in subsection (1) are—”

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, I will be very quick. The amendment in the name of the noble Earl, Lord Lytton, seems very sensible. If a new offence applies to police officers, it should apply to those acting under the authority of a constable or performing a duty that would normally be provided by a constable and falls within the term “policing”. The House should be very grateful to the noble Earl for spotting the potential loophole that his amendment is an attempt to close. I hope that the noble Lord, Lord Faulks, is able to support the amendment—but, if he is not, I hope that he will be able to give us a detailed reasoning of why the Government do not think that it is necessary, as the noble Earl made a convincing case.

[Lord Faulks]

My Lords, I, too, am grateful to the noble Earl for bringing these matters to the attention of the House and for telling us specifically about the incidents to which he has drawn the attention of the Home Office—although he will, of course, understand, as I think he accepted during his remarks, that I cannot comment on specific cases. However, by using a specific case, he raises a wider concern about the fact that it is not specifically and exclusively police officers who may be involved in what might loosely be described as corruption.

Before dealing with the amendment in a little more detail, I will reassure the noble Earl that although the new offence in its current scope is not retrospective, existing laws will continue to apply to any behaviour before the commencement date of the Act. The question of corruption remains a considerable concern of police forces and prosecuting authorities—and the police, sadly, are used to dealing with it. In the next few weeks, Her Majesty’s Inspectorate of Constabulary will publish a report on anti-corruption capability—so there is an awareness of the need to ensure that this matter is well and truly a focus of its intention.

At Second Reading and in answer to the noble Lord, Lord Kennedy, in the context of the earlier amendment, I said that the offence in the Bill has been brought forward in response to particular issues of corruption that have occurred in the past among police officers—some of senior rank—not all of which are capable of being pursued under the common law. This offence would allow such cases to be addressed. It is something of an irony that senior police officers opposed the introduction of the offence on the basis that it was unnecessary. The noble Earl takes the opposite view: namely, that the offence should be extended beyond the scope which it currently has to include those who are enmeshed in the whole process of corruption. He is right that agencies do not act alone. They are best when they act together in a concerted way. It is very unfortunate if they act in a concerted way that is also corrupt.

Sadly, I am sure that there have been cases of police staff and other public officials corruptly accessing sensitive information or seeking to disrupt investigations by manipulating IT systems. However, the Government have taken the view that it is imperative at this time to address corruption among police officers. Other public officials, including police staff, remain subject to the common-law offence of misconduct in public office, to which I made reference earlier. There have been high-profile prosecutions for the common-law offence in recent months in connection with selling information to the press, including of prison officers, military personnel and police officers. I reassure the noble Earl that we are dealing with corruption across the board.

I should also point out that the Law Commission is starting a project to examine the broader issue of misconduct by public officials, including the misuse of sensitive official information. That, I suggest, is the proper place to look at misconduct and corruption in other areas of public service. I encourage the noble Earl to raise his concerns with the commission when it publishes its consultation document early next year. I also say to the noble Earl and to the House that the amendment would greatly extend the reach of the new offence to a group of individuals who may not have received any specific training of the type that one would expect and may not be clear that they fall within the definition he proposes, and for whom there is no public clamour for a specific anti-corruption offence in the same way that we believe there is for police officers.

I make no criticism of the noble Earl’s drafting. His intention is perfectly clear. But we believe that, notwithstanding the continued anxiety we all face to eradicate corruption wherever it is found, it would be unwise to agree such a broad amendment at such a late stage of a Bill without an opportunity to consult with police representative bodies or the wider public. Therefore, I thank the noble Earl but nevertheless ask him to withdraw his amendment.

[The Earl of Lytton]

My Lords, I thank the Minister for that extensive reply and the noble Lord, Lord Kennedy, for the support in principle for what I have been trying to deal with. The Minister covered a number of areas reasonably satisfactorily—although, in suggesting that my amendment covered too wide a category of others, he failed to address the issue of PCSOs who, after all, are to all intents and purposes to most people in the street wearing a uniform and are under the pay and authority of the chief constable. While I thank him for that, I will reflect on what he has said. I also reserve my position and may return to this matter at a later stage in order to see whether some other “near-police personnel”, as I call them, who are not warranted officers, should not be included in this provision. That said, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

58: Clause 25, page 24, line 5, leave out “England and Wales or in the adjacent” and insert “the United Kingdom or in”

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, the amendment in the name of the noble Lord, Lord Marks of Henley-on-Thames, seeks to take out 16 and 17 year-olds from the scope of a mandatory custodial sentence for possession of a knife in a public place. I have considerable respect for the noble Lord and a good deal of sympathy for what he is trying to achieve. However, if he pushes this to a vote today, I will not support him in the Division Lobby.

As the noble Baroness, Lady Berridge, said, there is already provision in the Bill as it stands for the court to show some discretion if it is of the opinion that there are particular circumstances which relate to the offence and which would make it unjust to do so in all the circumstances. However, as the noble Lord, Lord Marks, said, this provision was put into the Bill during its passage through the Commons by the honourable Member for Enfield North, and technically it was not a government amendment. Perhaps that was not the easiest way to have done this. However, I see the deterrent effect of such provisions and I am not convinced that removing all 16 and 17 year-olds from the scope of this would be helpful.

I am well aware that knife crime is falling, and I want that to continue. However, there are also parts of London where this sort of crime is still far too high, and we have to take action to ensure that we reduce this type of offending. During Committee—and I have talked about this before—I explained to the House that I was born in Lambeth and grew up in Southwark. I am involved with a little charity there which works with some kids on the council estates. It is quite shocking when you go down there. There are kids living on the Wyndham estate who will not cross the Camberwell New Road into Lambeth because they are terrified that they will be attacked—knifed, and so on. That is what we have to deal with. We need the council to do things, but we also need strong deterrents from the courts as well.

This provision is for all young people—those 16 and over and those 18 and over—not for a first but for a second offence. So they will have previously been caught and convicted of an offence with a knife and can be under no illusion what the likely outcome is if they are caught for a second time. We must do everything we can to stop young people killing each other with knives on our streets, which is a tragedy. However well intentioned this amendment is, it will not help achieve that aim.

However, the Government should give a commitment to review this provision after a couple of years, maybe even bringing forward a sunset clause at Third Reading. That would enable us to evaluate exactly what happens over the next couple of years and to take any corrective action quickly.

[Lord Faulks]

As noble Lords will be aware from previous discussion on this matter in Committee, this clause was added to the Bill by a Back-Bench amendment in the other place and the principle agreed by your Lordships’ House. Noble Lords will also be aware that agreement has not been reached on the policy underlying this clause within the Government, so I hope that noble Lords will understand why I cannot speak to the detail of these clauses, much though I would like, for example, to have risen to the challenge posed by my noble friend Lord Carlile.

The only thing I can say is simply to assist the House in answer to a technical query about Section 44 of the Children and Young Persons Act 1933 and the welfare of the child and the young person. That is not—and I do not think my noble friend Lord Marks suggested it was—an impediment to actually passing a sentence of this sort. Otherwise, a child might not ever be sent into the secure children’s estate.

[Lord Marks of Henley-on-Thames]

I hesitate to interrupt. My noble friend knows full well that that section merely requires the court to have regard to the welfare of the child and therefore is not an impediment to imposing the compulsory sentence. My point is that the circumstances that the court may take into account in declining to impose the mandatory sentence are so circumscribed that that runs counter to the spirit of the provision mentioned.

I assumed I was interrupting, but perhaps that is not the case and my noble friend has finished. I do not propose at this late hour to press these amendments to a vote because I do not suppose they would produce a conclusive result in favour of the amendment, although those in my party feel extremely strongly about this. We deeply regret that the Labour Party has decided not to support our position on 16 and 17 year-olds in particular, and the reason for that regret is that in the lead-up to this debate, and indeed in the lead-up to the debate in Committee, I saw not one shred of evidence from any professional body supporting the imposition of compulsory custodial sentences for 16 and 17 year-olds in these circumstances. We on these Benches believe that maintaining judicial discretion is vital to the administration of justice and we are deeply concerned by its reduction in this and other sections of this Bill. I beg leave to withdraw this amendment.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, this group of amendments raises important issues, just as we saw with the previous group, concerning the possession of an offensive weapon or a bladed article.

I have the greatest respect for the noble Baronesses, Lady Browning and Lady Berridge. They make some very important points but I am not convinced by their arguments that what they seek is necessary. As I said previously, knife crime can have a devastating effect, not only on the person who is killed or seriously injured but on the life of the offender. In Committee, the noble Lord, Lord Blair of Boughton, told the House that he had to speak to many families whose loved ones had been murdered in such circumstances and saw at first hand the devastating effects of that. We have to get the balance right. For this group of amendments, my previous suggestion stands: we need to look at this whole area and review it after a couple of years. If the Government come back then and look at how the whole Act is operating, that is the best way forward.

I will listen very carefully to the reply by the noble Lord, Lord Faulks, especially with respect to increasing the scope to include people convicted of an offence under various military and Armed Forces Acts. Clearly the noble Baronesses have considered this very carefully. However, I am not convinced that to put in the Bill an amendment that a court must have regard to the duty under Section 44 is necessary. I am sure the Minister will respond to that as well.

[Lord Faulks]

I am sorry to disappoint the noble Lord, Lord Kennedy, and the House but I am unable to respond in detail because, as I said in response to the earlier amendment, the clause has been added by a Back-Bench amendment and the principle has been agreed by your Lordships’ House. However, agreement has not been reached within the Government on the policy underlying this clause. Therefore, I am unable to speak as to the detail of these clauses.

[Baroness Browning]

My Lords, I am most grateful—that is, I think I am grateful. This is a serious subject and it is incumbent on all of us, when legislation is passed, regardless of whatever view we have taken, to make sure that it is as legally sound as possible. I have sought advice to try to do that and I hope that that is helpful to the House. I am grateful to all Members who have contributed to the debate.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, before my noble friend formally concludes speaking to the amendment in response to the Minister, perhaps I might indicate that in our view it is unsatisfactory that an amendment is reaching the statute book with very detailed amendments proposed by the noble Baronesses, Lady Berridge and Lady Browning, without the Government having expressed any view as to the degree to which they work. If what I suspect is now going to happen does happen, these amendments will be carried and this is the way that the Bill will go on to the statute book. We regard that as unsatisfactory. Perhaps consideration should be given to procedure on a Bill of this sort in future.

[Lord Faulks]

The Government’s position has not changed. Parliamentary counsel assisted the noble Baroness in making sure that the necessary amendments were properly and accurately drafted. I hope that that assists the noble Lord.

[The Deputy Speaker]

Does the noble Baroness wish to withdraw her amendment or seek the opinion of the House?

--- Later in debate ---

[Lord Kennedy of Southwark]

I am delighted to be able to support the amendment of my noble friend Lord Foulkes of Cumnock; it seeks to protect shop workers from assault when they are doing their job and refusing to sell alcohol after the permitted time as required by law. The amendment has the support of the shop workers’ union, USDAW, which is a campaigning union standing up for its members. It also has a reputation as a hard-working professional organisation that works with employers and wants the businesses that its members are employed in to be a success. It is respected in the industry as a whole and the amendment is typical of the way USDAW works. The amendment has the support of not only the union but the organisations that represent the businesses in the sector and the staff who can find themselves at serious risk of assault for just doing their job, as many noble Lords have already said.

In Committee, I told the House that USDAW has run its Freedom from Fear campaign for many years. That campaign seeks to highlight the unacceptable situation that shop workers can find themselves in just for doing their job. Shop workers are among some of the lowest paid workers. They deserve the right to go to work without the risk of being verbally abused or even physically assaulted. People come into shops that sell alcohol, often late at night, usually the worse for wear having drunk far too much, and when they are told that they cannot buy any more alcohol as it is past the licensing hours, the poor shop workers can be subject to abuse and, in many cases, actual physical assault. We should also remember that these offences occur late at night, often when there are only one or two members of staff on duty in the shops concerned.

As my noble friend Lord Foulkes said, we recently met with the Minister and Mr John Hannett, the general secretary of USDAW. The Minister was very courteous and was concerned about what we heard from our friend John Hannett. Clearly the Government have not been prepared to move so far and that is somewhat regrettable. I hope that today when the Minister responds he can signal how unacceptable the situation is and that the Government take this matter really seriously and quite rightly expect people to be able to go to work and earn their living free from the fear of attack.

[Lord Faulks]

My Lords, this amendment in the name of the noble Lord, Lord Foulkes of Cumnock, would make it an offence to assault a worker who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.

The issue has been well described by the noble Lord, Lord Foulkes, and by other noble Lords during the debate: those who are in the position of selling alcohol can find themselves in a highly vulnerable position and can be the victims of serious assaults. The amendment was debated in some detail in Committee. As he told the House, the noble Lord, Lord Foulkes, and the noble Lord, Lord Kennedy, met with me—Lord Faulks—to discuss the issue further. We were joined by the general secretary of the Union of Shop, Distributive and Allied Workers, and I benefited greatly from their analysis of the problem and the need, as they saw it, for action. As the noble Lord, Lord Foulkes, said, I made it clear that the Government remain at the moment unconvinced of the need for a new offence of assaulting workers selling alcohol, although I said that I would consider any additional evidence and data on that point. I remain in that position and the Government remain aware that there is concern about this, but I must make it clear now, as I made it clear then, that I do not wish to accept this amendment or to return to the matter in the course of the Bill’s progression.

--- Later in debate ---

[Baroness Thornton]

My Lords, I am pleased to say that we on these Benches support these amendments. Some time ago my right honourable friend Yvette Cooper said that people who post intimate images of their former partners online in so-called revenge porn attacks, or who blackmail them with such images, should face new criminal charges, so of course we support the amendments.

The use of intimate, private sexual images as a weapon with which to embarrass, humiliate and degrade is a crime, and it is right that it should be recognised in law. The new offence is a positive step, although in itself it is not adequate to address the underlying societal attitudes and behaviours that create and legitimise sexual violence, abuse and harassment in all its forms, so a government commitment to addressing those issues is also vital. The noble Baroness, Lady Brinton, is quite right to raise the issue of young people and the importance of not criminalising them or, for example, having them put on the sex offender register at a very early age for doing the extremely stupid things that young people are sometimes prone to doing.

The Government’s amendments will ensure that this is enacted. However, we need to ask today how effective they will be. I therefore have a series of questions to put to the Minister and to the noble Lord, Lord Marks. Could the Minister explain why this offence was not made part of the Sexual Offences Act? Will convictions for this offence be recorded by the CPS as a sex offence—in other words, would the person convicted be on the sex offender register?

As it stands, depending on the interpretation of “distress”, the law will provide a remedy to a victim who is distressed, but not angry. Professors Rackley and McGlynn, who have been advising many Members of the House throughout the discussions about revenge porn and rape porn, explained that the focus of the law should be on the offender’s actions and the absence of consent, not on the victim’s response, and I think that is right. Does the distress element also place an unnecessary additional burden on the prosecution? Professors Rackley and McGlynn contend that the mental element of the offence should be the intentional act of posting private sexual images without consent, including for the purpose of financial gain. We have to ask whether the issue of distress could actually significantly limit the effectiveness of this offence.

There is concern about the restriction of the offence to identifiable images. It should be immaterial whether someone else recognises the person in the relevant image. The publishing of private sexual images without consent should be a criminal offence, whatever the motivation of the offender and whatever form the victim’s response takes. It is the absence of consent that is fundamental. Would the restriction of the offence to identifiable images result in unnecessarily complicated evidential debates in court?

I will speak briefly to my own Amendment 106. It seems to us that we need to monitor the effectiveness and the implementation of this new law. We believe that the proposals of Clause 31 do not fulfil the Prime Minister’s commitment to equate online restrictions with the BBFC’s guidelines. Although we recognise that legislation in this area is very complex, it needs to be recognised that the Government have not yet solved the problem. It is important that there is a commitment to review the provisions of this clause within a year or so to assess their effectiveness: the number of prosecutions brought, the number of convictions, et cetera. Following a review of the new provisions, if they have not proved effective, the Government should consider the wholesale review of the regulation of obscenity and pornography. This is to ensure that the law is fit for purpose in our technological age and to reorientate the law in this area away from disgust and distaste and toward a focus, perhaps, on cultural harm—a discussion that we have had in this House before. It is therefore important to put in the Bill that 18 months from enactment would be sufficient time to see what was happening to the new regime and that the principle should be that an independent review is conducted.

[Lord Faulks]

My Lords, I thank my noble friends Lord Marks, Lady Grender, Lady Brinton and Lady Barker for Amendment 98 on the issue of revenge pornography. As the House has been told, I recently met with my noble friends to discuss this amendment, which I believe seeks—and this has been confirmed in the course of the debate—to achieve the same aim as the Government’s Amendments 103 to 105, 113 and 186 to 188. We particularly discussed whether the government amendment’s definition of “sexual”, when defining the material that the offence will apply to, is sufficiently explanatory.

My noble friend Lord Marks asked me, in the course of the debate, whether the additional subsections added anything to “sexual” or, as he put it, widened the ambit. I confirm that they do. The use of the word “or” makes that sufficiently clear. A photograph or film is sexual if it shows an individual’s exposed genitals or pubic area or shows something that a reasonable person would consider to be sexual either because of its nature or given its overall content. However, it would not be helpful to go further than this on the face of the statute or now by, for example, listing particular types of sexual material that would be covered. Such a list is unlikely ever to be exhaustive and its inclusion could potentially hinder the judiciary’s ability to interpret the wording of the offence in a flexible way.

My noble friend’s amendment is constructed in a rather different way to the government amendment and omits some important information, but I need comment very little on those details in view of the fact that, after some useful discussions, it has now been accepted by my noble friends on the Liberal Democrat Benches that the government amendment captures what this offence is all about.

The disclosure of this sort of material is undoubtedly extremely distressing for victims. They feel humiliated and are left deeply distraught both by the disclosure of very personal, sexual images of themselves and by the breach of trust involved in sharing images that had been considered private.

I pay tribute to my officials for working extremely hard on what is a very difficult offence to capture appropriately. We all know what this is aimed at, but it has been a considerable challenge to reflect it in the legislation. My officials have been carefully considering this problem with the relevant agencies and interested stakeholders such as the NSPCC and Victim Support. The testimonies we received, together with the efforts of a number of parliamentarians—many of whom have been identified in this debate—confirmed our intention to create a specific offence that will punish this pernicious practice.

The current law can already punish instances of this behaviour in certain circumstances. A number of offences can be used, and the recently updated guidance from the CPS has made clear that, where intimate images are used to coerce victims into further sexual activity, offences in the Sexual Offences Act 2003 can be used both where the victim is an adult and where they are a child.

This offence, however, will target very different behaviour: namely, the malicious disclosure of private sexual photographs or films. The offence seeks to target material, the disclosure of which would have the potential to cause the most harm to an individual. It will therefore apply to the disclosure of private sexual photographs or films of people, such as those which show them engaged in sexual activity or depicted in a sexual way where what is shown is not the kind of thing usually seen in public. In determining whether the picture is sexual, the court will be required to take into account both the nature of what is shown and the context provided by the whole of the pictures’ content. To commit the offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress.

I will respond to a query posed by the noble Baroness, Lady Thornton, about whether this is regarded as a sexual offence in the same way as an offence in the Sexual Offences Act 2003, such as a sexual assault or voyeurism, is regarded. We absolutely agree that revenge porn is a very serious issue, with the potential to cause great harm. That is why we have introduced this criminal offence, with a substantial period of imprisonment. However, we do not think that it is appropriate to view it as a particular sexual offence in the same way as these other offences. Research in previous cases has shown that revenge porn—the emphasis here being on “revenge”—is perpetrated with the intention of making a victim feel humiliated and distressed rather than to obtain sexual gratification, which is what defines an offence as sexual. Of course, the definition says, “with the intention” of causing distress, so you do not have to have evidence of distress or some rather unnecessary distinctions about what is distress, or anger, and so on. Therefore the intention is there, and revenge lies behind it. That is not to diminish the seriousness, but more accurately to characterise what is the mischief we are aiming at.

The offence will apply equally offline as well as online—not just to images transmitted electronically but also to those which are disclosed in more traditional ways.

These amendments provide three defences available to those charged with the offence. First, it will be a defence for the defendant to prove that they reasonably believed that the disclosure of an image was necessary for the purpose of preventing, detecting or investigating crime. That, I hope, is self-explanatory, and finds its echoes in other legislation.

Secondly, where an individual adduces sufficient evidence that the disclosure in question took place in the course of, or with a view to, the publication of journalistic material and they reasonably believed that, in the particular circumstances, the publication of that journalistic material was, or would be, in the public interest it will be for the prosecution to prove the contrary. This defence will, in the rare cases to which we expect it to apply—and rare they will be—enable journalists and their sources to disclose images, for example with a view to publishing a commercial newspaper story, if they genuinely and reasonably believed there was a legitimate public interest in the publication. This is a stringent test but we believe it is necessary to ensure that the offence will not inappropriately interfere with press freedom.

--- Later in debate ---

[Lord Beecham]

My Lords, I join the noble Lord, Lord Lexden, in supporting this amendment. I hope the Government will look at it sympathetically. In previous debates, the Minister had some reservations about costs and the like, which have now been addressed by the amendment of the noble Lord, Lord Sharkey. I very much hope that the Minister will indicate that the Government are prepared to accept that.

If there remain any areas of doubt, then perhaps he would undertake to bring the matter back at Third Reading so that any potential difficulties or shortcomings might be addressed. It is clearly not easy to do that after 10 pm on the first day on Report. I hope we can resolve any remaining doubts at Third Reading, though if the Minister is able to accept the amendment this evening then so much the better.

[Lord Faulks]

My Lords, I thank the noble Lord, Lord Sharkey, for his continued concern and interest in this matter, and for his elegant and accurate summary of the progress of the amendment and the resultant meetings that took place with me, my noble friend Lord Bates and Home Office officials. I hope that the noble Lord is reassured that the Government now recognise his concerns, which have been eloquently supported this evening by my noble friend Lord Lexden, as they were in Committee.

The Protection of Freedoms Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people over 16. However, where someone has died, these provisions would not have the same effect. The Government accept that, as well as removing obstacles for the living to find work, there is a recognition that a disregard puts right a historic wrong, and that this would apply to the deceased as well as the living.

Following the helpful discussions the noble Lord, Lord Sharkey, had with me, my noble friend Lord Bates and Home Office officials, the Government are willing to explore ways of achieving disregards for the deceased, over a longer timescale. What I mean by “over a longer timescale” is not while this Bill is going through its process and not by Third Reading, as I understand my noble friend was indicating. He may ask why not. We have made some progress, but officials would want to carry out a full and proper assessment. Some issues that require attention include a precise definition of who could apply on behalf of the deceased. We have made progress in that. There is an assumption that the amount of applications will be manageable, but we want to carry out more work to obtain greater confidence on this, as each application does place a significant burden of work on the police in tracing local records. On documentary evidence, the effect of a disregard is not clear, as there are no police records to delete, and we would not want to destroy historic records from the National Archives.

These points were touched on in our meetings, but officials are most anxious that all those matters should be completely resolved before proceeding to legislate rather than to impose too heavy a burden, when we ask them to focus on so many other issues. We want to ensure that the decision to disregard maintains the current exacting standard to ensure that only the deserving are granted a disregard. Of course, there are very deserving cases.

While I cannot accept this amendment and I am not committing to introduce such a change in this Bill, the Home Office repeats its commitment to consider this matter and would be happy to include the noble Lord, Lord Sharkey, in any further discussions. He has done the House a great service by bringing this to our attention but I hope the assurances that I have given will allow him to withdraw his amendment.

[Lord Sharkey]

I thank the Minister for his reply and am grateful for the progress that we have been able to make in advancing the case for the posthumous disregard. I would have been even more grateful had he been able to say that the matter could be dealt with at Third Reading, but I understand that it is important to do this in a timely and proper manner.

I would like to know, however, what timescale is envisaged. We know what we are trying to check; we know what assessments we have to make. I wonder whether the Minister can give me some sense of how long it might take and perhaps some reassurance that, when it comes to discussions about the scope of Home Office Bills, there will be some liberality in the interpretation of “scope” to enable an amendment, if we get to that point, to be brought forward in a forthcoming Home Office Bill.

Having said all that, I repeat that I am grateful for the help given by the Ministry of Justice and the Home Office. I hope that we can make fairly rapid progress from hereon. I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

101: Before Clause 29, insert the following new Clause—
“Extension of disqualification where custodial sentence also imposed
(1) In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (4)(e) and (f), omit “calculated after that term has been reduced by any relevant discount”, (b) in subsection (4)(h), omit “calculated after that sentence has been reduced by any relevant discount”, and(c) omit subsection (6) (definition of “relevant discount”).(2) In section 147A of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (4)(e) and (f), omit “calculated after that term has been reduced by any relevant discount”, (b) in subsection (4)(h), omit “calculated after that sentence has been reduced by any relevant discount”, and(c) omit subsection (6) (definition of “relevant discount”).(3) In consequence of the amendments made by subsections (1) and (2), omit paragraphs 8 and 12 of Schedule 13 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”

--- Later in debate ---

[Lord Beecham]

My Lords, were any other Members present, they might share my bewilderment at being faced at a very late stage, not only today but in the process of the Bill, with a series of amendments of what can only be described as some complexity for those of us—and I suspect that is most of us—who are not familiar with the territory to which the noble Lord has introduced us this evening at some length. As he has said, it is not possible—it is simply laughable—to endeavour to take these amendments to a vote tonight, but it may also be difficult to do this in time for Third Reading. The Minister may be able to comment on that.

Among these puzzling amendments I am puzzled most by Amendment 106C, with its reference in particular to a defence of there being a view to publication of journalistic, literary or artistic material. I do not see how that meets the more substantive case that I can well see in relation to what might be called the Leveson issues in 106A. These are matters that clearly need to be investigated further. I do not know whether the noble Lord envisages having these matters dealt with at Third Reading, but frankly I should have thought that that was unrealistic at this stage of the Bill. There may be another opportunity with other Bills for these matters to be taken forward. They are of such complexity that it is unreasonable to expect them to be dealt with in the course of this Bill. If that sounds a bit too ministerial, I apologise. I apprehend that the Minister might for once think that I am on the right track. We shall find out shortly.

[Lord Faulks]

My Lords, the noble Lord, Lord Beecham, often sounds ministerial, and from comments that he may have made earlier this afternoon he is clearly anticipating events in May when he will be able to perform that task. I do find myself in the rare position of agreeing with his comments generally about these amendments, in that they have appeared very late—late even among the amendments that have appeared in the course of this Bill, and there has been no shortage of amendments and no shortage of complexity in amendments. Indeed, I pay tribute to Members of the House for managing to get through so many amendments of such complexity today. It has taken a great deal of restraint by Members to enable the arguments to be deployed, often by others. No doubt those Members who restrained themselves may have thought they would have made better arguments or expressed the arguments with more clarity than those who did speak, but admirable restraint was shown.

We come to consider these amendments. My noble friend Lord Marks will appreciate that the pressures of time on myself and my officials has limited my ability to respond adequately to what are plainly serious issues, as he has outlined. I intend to speak to Amendments 106C and 106D in this group first. Sections 77 and 78 of the Criminal Justice and Immigration Act 2008 already provide for the changes that have been proposed for the Data Protection Act. Section 77 provides for an order-making power permitting the Secretary of State to introduce a custodial sentence for breaches of the offence in Section 55 of the Data Protection Act 1998. The penalty will apply irrespective of who has committed the offence. Given that people’s liberty is at stake and the seriousness of the offence, it is vital that proper thought is given to the introduction of such a change. That is why Parliament also provided that there must be a properly undertaken and detailed consultation with the Information Commissioner, the media and other potentially affected parties before that penalty applies. Therefore, such a change in the law now would be premature.

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Wednesday 30th July 2014 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I am delighted to hear from the noble and learned Lord, Lord Woolf, with all his experience, that the system of financing litigation by the no-win no-fee system, as it has been called, is working reasonably well. Many noble Lords will remember that the introduction of that system was not without a certain amount of difficulty for those who were promoting it.

I think that it is not correct to say that legal aid has been removed from judicial review. My understanding is that legal aid is available up to the point at which the judicial review is permitted to go ahead or not. Subject to this, the payments to the lawyer in question will depend on whether or not the judicial review is allowed to go ahead from the point at which the respondent to the judicial review has replied to the description of the review that is put forward under the protocol. Nothing else, as far as I understand, is affecting legal aid. That seems to me completely reasonable in the circumstances of judicial review.

The last time I spoke on this part of the Bill, I hope that I made it clear that I cherish judicial review as a very important aspect of our judicial process. However, I have pointed out, and I believe that it is beyond doubt, that the scope for judicial review is a deal greater than it was many years ago when the finality clauses were in force in many provisions of statute. One has to be careful in approaching any restrictions on judicial review, though, as the noble and learned Lord who is the President of the Supreme Court has said. I am certain that the clauses that we are dealing with today, particularly the first of them, are very much in that category, and that considerable care is required.

One of the difficulties about judicial review that has been brought to my attention quite frequently over the past years is the sort of circumstance that the noble Lord, Lord Marks, referred to. I will not preface it in the way that was done earlier—I am sure that he will understand why not. In a village, nearly all the villagers are interested in having a certain decision of the local authority overturned. The villagers go to their lawyer, who says, “Well now, let’s see. Is there anybody in the village who is rather poorly off?”. Perhaps, fortunately for the system, there is no such person, in which case they have to continue on the ordinary basis, without legal aid. However, if somebody in the village qualifies for legal aid, under the scheme that can operate we will find that the whole village is able to go ahead on the basis of legal aid in such a way that if the application is unsuccessful, the litigant who is legally aided is of course protected against a court order.

The last time I spoke I illustrated how that had happened in quite a considerable campaign against the previous Government’s educational policy on academies. In the literature that was produced at the time, one thing that was said was, “So far, all the people who are applicants are entitled to legal aid, so the whole litigation will be at the expense of the taxpayer”. That is a difficult situation. The point is not that the person of little means is being in any way impeded, but that they have become an instrument for attacking the taxpayer generally. I am not sure as yet what the right way to deal with that problem is, but it certainly needs to be dealt with. I suppose that the courts could deal with it, but the difficulty is that there are a lot of individual applications, each of which is usually dealt with separately. In the case of the Government’s policy on academies, most of the attacks were based on local considerations—although, as was said, the whole scheme was being attacked.

I certainly regard it as of the utmost importance that any rules of this kind that are put forward are very carefully scrutinised. It may well be that as phrased in this clause they are somewhat on the wide side. However, it does seem that there is a problem that your Lordships will need to address in some way to preserve justice for the taxpayer, as well as for the litigant. I am not at all in favour of putting any more difficulties in the way of a proper litigant applying for judicial review than exist at the present time. I am concerned at the development of matters around judicial review over the years—and over recent years in particular. To have a shell company that is set up particularly for the purpose of promoting a judicial review strikes me as somewhat strange, and whether the rules are sufficient to cope with that is a matter that I would like to hear about.

The other aspect, referred to by the noble and learned Lord, Lord Woolf, is standing. I mentioned the other day that I was nominated as senior counsel for the Crown in the original decision on standing in this House, but the courts have expanded the concept of standing quite fully since then. I am not certain whether it embraces the standing of a shell company set up by people to protect themselves against the possibility of court costs. No doubt those who are more familiar with recent practice will be able to help me on that point. For the time being, it seems to me that there is a problem to be dealt with, and I am anxious to learn whether the proposals in the Bill or the amendments are a better way of dealing with it.

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

My Lords, this has been a very helpful and well informed debate on the clauses dealing with the provision of information about financial resources and—it is important to distinguish between the two—the use of information about those financial resources.

As noble Lords will be aware, anyone wishing to bring a judicial review must first obtain the permission of the court to proceed. This is set out in Section 31 of the Senior Courts Act 1981 and mirrored in Section 16 of the Tribunals, Courts and Enforcement Act 2007. Clauses 65 and 66 relate to the information that an applicant must provide as part of that application and direct the court to consider that information when making costs orders. In order to ensure that the court is properly informed under Clause 65, the court or Upper Tribunal cannot grant permission to proceed with judicial review unless information on funding is provided. Clause 66 requires that the courts have regard to this information when exercising their existing powers and discretion to award costs.

Amendments 73G, 73H and 73M, taken together, seek to weaken the requirement that an applicant applying to the court or tribunal for permission to bring a judicial review provides information on financial resources. The effect of Amendment 73G would be to enable the courts to disapply that requirement in whole or in part. Nothing is provided about the circumstances under which the court may disapply the requirement. Amendments 73H and 73M seek to remove the requirement for an applicant to supply information about financial resources that are “likely to be available” to fund the claim. There is presently no general requirement for applicants to reveal the source of funding they are receiving for a claim. This may hinder the courts in assessing fairly the available financial resources when making costs orders. Requiring the applicant to provide this information, regardless of whether the funding is provided by a formal party to the claim, will assist the courts in better exercising their existing powers and discretion to apportion costs fairly. Also—and this is worth stressing—in responding to our recent consultation on judicial review, the senior judiciary welcomed the greater transparency that this would involve, although not the former judges who have participated in this debate.

We are concerned that potential applicants are able to set up shell companies, with the sole purpose of fronting a judicial review, enabling the individuals or bodies driving the claim to avoid full costs implications, ultimately at taxpayers’ expense. Take the challenge to my right honourable friend the Secretary of State for Justice’s decision to grant a licence to exhume human remains which turned out to be those of Richard III; a case referred to in Monday’s debate by the noble Lord, Lord Beecham. A company was formed to bring that judicial review, protecting the sole director from costs liability and an absolute protective costs order was granted, in part on the basis that the company itself did not have any assets. Noble Lords may be aware that the court in this case recently found that the decision of the Secretary of State for Justice was entirely lawful. However, the taxpayer has been left to foot the Secretary of State’s costs, of £82,000 up to March this year, in properly defending his lawful actions. The wider cost to the public purse has been put at £175,000 and may be higher.

[Lord Woolf]

Is the Minister saying that the powers the court has now would not have enabled it to obtain information about who was behind the shell company to which he referred and if need be to make an exceptional order for costs against the persons supporting it?

[Lord Faulks]

These clauses will require the court to go through the processes described in them. It is true that a particularly inquisitive court might have been able to find out more than—

[Lord Woolf]

Could an application not have been made by the Crown saying it was seeking orders for costs and asking the court to make the appropriate orders?

[Lord Faulks]

The problem was that there was nobody to enforce an order for costs against, effectively. That was the disadvantage that accrued to the taxpayer. Clause 65, which was welcomed by the senior judiciary, provides for information about financial resources to be provided and for that information to be used. The problem was that that case proceeded and there was no way of recovering the costs when it concluded.

[Lord Marks of Henley-on-Thames]

I am sorry to take up the Committee’s time, but I am not sure that the Minister has answered the point made by the noble and learned Lord, Lord Woolf. First, there is clearly a power to order the backers of a shell company to pay the costs if a shell company is put forward as the applicant. The question to which the noble and learned Lord, Lord Woolf, wanted an answer was whether the Minister agreed that in the exercise of that power, or in considering the exercise of that power, the court would not have ample power to require information about the nature and extent of the backing and then to consider orders accordingly. I suggest that it is quite clear that the court has that power.

[Lord Faulks]

The court certainly has power to make orders against non-parties in appropriate circumstances under the existing law. It is not normally the case that that is happening. The purpose of these clauses is to provide a statutory framework in which the court can find the information and use it if it thinks appropriate while retaining the discretion.

[Lord Woolf]

I really must press the Minister. I know he will forgive me rising again. If we do not want to increase the costs of the ordinary application for judicial review, is it not very important that where you have a special case, such as the one to which the noble and learned Lord, Lord Mackay, referred in his recent speech and the case we are looking at now with the particular circumstances relating to Richard’s burial, applications arise to deal with the particular case rather than putting matters on the general body of applicants for judicial review who receive assistance?

[Lord Faulks]

In many cases, this will be a fairly straightforward procedure, whereas in the Richard III case it would have been a rather unusual, more searching procedure. I am afraid that I cannot depart from the Government’s position that these clauses will put in statute an important process which has not always been adequately undertaken by judges, and which was welcomed by the senior judiciary, in order, in some circumstances—

[Lord Davies of Stamford]

Can we just establish the facts in relation to the Richard III case? We know that it would have been possible for the court in such a case, if it wished to do so, to investigate the funding of the straw company or the straw man who was the applicant and, if necessary, to have made an order for costs against the backers of that action. We also know that, in that case, that action was not taken. Did the Government make an application for a costs award in their favour on that occasion? In other words, did they attempt to initiate that process in the Richard III case?

[Lord Faulks]

I am not aware that they did. Rather than take up more time discussing the particular facts of that case, I will write to all noble Lords who have taken part in this debate and explain what course the Government took in relation to it. I think I have probably taken up enough time on the subject.

What we are concerned with is not, in fact, a radical departure from what exists, but sets down clearly the scope of the discretion and makes it a matter of course that in such cases there will be information about the financial resources, and that they will be used. As I have conceded, these clauses do not introduce any new principles concerning the costs liability of non-parties. Their purpose is to increase transparency, so as to allow the courts to exercise their existing powers and discretion more effectively. In other words, more information will be available on which to make any decision that they have to make.

The Government do not agree that the requirement to provide information should be limited or applied only in certain circumstances, as Amendment 73G would provide. We do not accept that the transparency requirements should apply to some people and not to others. Furthermore, we do not agree that prospective funding should be excluded from the information that an applicant is expected to disclose, as Amendments 73H and 73M seek to achieve. It is vital that the courts have before them the full financial picture of a claim. This must include details of any financial resources that are likely to be available towards the costs of the litigation. Noble Lords will surely accept that, were these amendments made, third-party funders who sought to protect themselves from liability would merely structure that funding in such a way that it would not be available on application but only thereafter.

We will be working with the Civil Procedure Rule Committee and the Tribunal Procedure Committee so that the rules can make clear the exact parameters of the information that applicants will be required to provide, together with a duty for applicants to update the information where circumstances change materially. The noble Lord, Lord Beecham, suggested that the rules of court would simply reflect what the Lord Chancellor wants. The position is that the Lord Chancellor can direct that they achieve a certain purpose, but the terms are for the rule committee. As I endeavoured to explain last time we debated these matters, the rule committee is made up of some extremely distinguished lawyers, and they will be responsible for the particular terms of the rules. I do not accept that the transparency requirement that Clause 65 permits is an onerous one.

I turn now to Clause 66. Amendments 73N, 73P and 73R are concerned with what the judge does with the information, and seek to change the circumstances in which the court should have regard to information about the funding of the application when making costs orders. Rather than requiring the court to consider the funding information provided under Clause 65, the amendments would allow the court to have discretion to consider financial information, which it would be able to order the applicant to provide if it considered it just to do so. The information would be limited to sources of funding actually available to the applicant, and would not cover sources that were likely to be available. Rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.

Amendments 73Q and 73U seek to replace the duty, conveyed by the word “must”, with a discretion, conveyed by the word “may”, for the court or Upper Tribunal to have regard to information provided under Clause 65 when considering costs awards. These clauses do not mean that applicants have to provide an in-depth breakdown of every aspect of their financial position, but it is right that they should provide information on how they will fund the judicial review generally, and not just the other side’s costs. If necessary, applicants will be able to update the court at a later stage if the position changes. I would expect those who choose to bring a judicial review to consider first how they will meet the costs of doing so. This is what the clause seeks to bring about.

It is right that the courts should consider this information. Let me be clear that this does not mean that a court will be obliged to make a costs award against a non-party. As the noble and learned Lord, Lord Brown, made clear, there is a substantial body of jurisprudence as to how the discretion is exercised vis-à-vis a non-party. Rather, the courts are obliged to consider the information properly when deciding whether or not to make such an order.

Amendment 73T would allow the courts or Upper Tribunal to sit in private or impose reporting restrictions to protect the privacy of a person’s financial information which is required to be provided under Clause 65. I fully understand that it may seem that such a provision is necessary, but I hope to be able to provide reassurance that the amendments are not necessary as courts have existing powers in this area. There has long been a general rule that a hearing is to be in public. However, the power has existed for a long time to conduct proceedings in private where necessary in the interests of justice. Rule 39.2 of the Civil Procedure Rules already reflects that power so that if a hearing involves confidential information, including financial information, and if publicity would damage that confidentiality, this information can be kept private. As is the case now, this clause does not change the position that financial information made available to the courts need not be made publicly available.

Amendments 73W and 73X amend the duty on the court so that it need consider costs orders against only those who have actually provided support or, as provided by Amendment 73V, those who have promised to provide support. This would mean that the court would not have to consider making a costs order against those who are likely to contribute to the funding of the judicial review, including not making costs orders against those sheltering behind shell companies created simply to avoid proportionate liability for costs.

Amendment 73V would also mean that those who are likely to fund and drive litigation could escape the appropriate costs liability by not formally promising to provide support. In my view, this would defeat the purpose of the clause and is not a sensible position. It is the Government’s view that those who finance and drive judicial reviews should face appropriate costs consequences in doing so. I shall shortly answer the questions raised on that by the noble Baroness, Lady Lister, and others. This means that the court should have before it and consider all of the information when making costs awards, and this should include not just those who have provided funding but those who are likely to do so.

In my view, it should not be possible to bring litigation in such a way as to circumvent proper costs exposure. The changes introduced by Clauses 65 and 66 tackle precisely this issue, ensuring that those driving judicial reviews assume a fair and proportionate share of the financial risk, always, of course, subject to the discretion which must exist in these circumstances, given that it is impossible for a legislative provision to define exactly every single type of situation where the matter would have to be dealt with.

There is no question of singling out those who support applicants. In answer to a question raised by the noble Lord, Lord Beecham, and, I think, others, I should say that the power that courts have to order non-parties to pay costs in litigation of whatever character exists and, in appropriate circumstances, would apply to non-parties whether they are in some way supporting one side or another. That power exists.

As to the reduction in legal aid, my noble and learned friend Lord Mackay accurately stated the position in relation to legal aid. Unlike in many areas of the law, legal aid does remain in scope for judicial review subject to means tests and merits tests. That is an important inclusion of scope. On the point made by the noble Lord, Lord Pannick, the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 are concerned simply with that part of the procedure where an unsuccessful application is made for permission and only in relation to that permission. That, I know, is controversial, but it should not be thought that legal aid is not available for judicial review.

The noble and learned Lord, Lord Woolf, whose excuse for lateness was, of course, of the highest order, mentioned the availability of conditional fees. These are of course much less available following Part 2 of the LASPO Act, which indeed was supported by the noble and learned Lord, Lord Woolf, among others, on the basis that an unfortunate consequence of the expansion of the original idea of conditional fees—which I think was in modest scope the responsibility of my noble and learned friend Lord Mackay—had resulted effectively in a bonanza which was in fact having a number of undesirable consequences. There is a much more modest scope now for conditional fees.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

Presumably my noble friend would concede that the claimant who fills out the form is only going get the information from the supporters who are proposing to support him.

[Lord Faulks]

Quite so, but I thought that the inference was that some full disclosure of all financial circumstances was going to be required of third parties, and that is not what the rules suggest.

We suggest that these clauses are not making a radical change in the existing law. They are not, in fact, removing the capacity of those who should be able to bring claims for judicial review; they are simply placing on the statute book what some of the senior judiciary wanted, which was a degree of transparency to stop those rare cases where the taxpayer is having to pay for judicial reviews in circumstances where the true funders are managing to obscure the position in a way that no one in this Committee would like.

[Lord Woolf]

I am sorry once again to interrupt the Minister in his closing address, but does he agree that it is absolutely essential, if the purpose of these provisions is the limited one that he identified, that those who are preparing proceedings for an application for judicial review, who want to know what they have to do because of the provisions of Clause 65 on funding, need to be told that there will be no requirement in that sort of situation to provide particulars of the resources—to take the example we were given—of all the people in a small village who are making a contribution? Some of them may be wealthy and some may be poor, but someone who is wealthy may have a significant obligation.

[Lord Faulks]

The answer, I think, to the noble and learned Lord’s question is that Clause 65(1)(b) states that the information will be specified in the rules of court. The anxieties expressed in the Committee and by those who have provided briefings and written articles are clearly matters that will be taken into consideration, and we do not want to stifle proper judicial reviews or make people feel anxious about small contributions. These matters will be taken into account. However, for the reasons that have also been outlined in argument, we cannot specify in this statute every single, precise situation.

I hope that I have gone some way to reassure those who have sought—

[Lord Goldsmith (Lab)]

I am grateful to the Minister for giving way. I was taken by a remark he made a few moments ago. I was listening attentively to everything that he and noble Lords have said. He seemed to suggest that these changes were here simply because the senior judiciary had asked for them. Is that what he was saying, because I am surprised if that is the position?

[Lord Faulks]

No, I do not think that the noble and learned Lord was here at the beginning of the debate, but I have not, in fact, suggested that the provisions were there only for that reason. I see the noble Lord, Lord Beecham, is nodding. I said that they are there because the Government think that they should be included. However, I did say that the senior judiciary welcomed a degree of transparency. I am not suggesting that that they also endorsed the precise form of the statute, if that helps the Committee or the noble and learned Lord.

[Lord Davies of Stamford]

The Minister said two things, if I heard him right. One was that the intent of these clauses is not in any way to change the common law basis of the criteria for determining liability for the costs of a judicial review, and that those who are currently not exposed to such liability will not be exposed as a result of the provisions in the Bill being passed. At the same time, he said that there are categories of people who have been getting away with avoiding financial liability for judicial review at the expense of the taxpayer, when they should have been liable. Can I put it to him that those two statements are not logically compatible? Either there is a change in the scope of liability for judicial review as a result of these clauses or there is not.

[Lord Faulks]

I cannot add much to what I have already said. For the first time, in statute—if this clause becomes law—we shall have a requirement for information about financial resources to be provided. We shall also have clear guidance to the court as to how it should exercise its discretion on using that information about financial resources. I think that the noble Lord himself said that it was useful to have some of these things stated in the statute. That is precisely what we are doing.

[Lord Beecham]

The Minister has battled with arguments from around the House with as much valour as Richard III displayed at the battle of Bosworth, and with approximately the same result. The Minister’s arguments fell very far short of providing evidence of the case that the Government are seeking to rely on. We heard from him and the noble and learned Lord, Lord Mackay, about two cases. I am not sure whether one of those was hypothetical or not—I think it was a planning matter of the kind that the noble and learned Lord referred to—and the other was the Richard III case. As to the illustration of Islington cited by the noble and learned Lord, I think that the circumstances would be different now. Speaking as someone whose daughter lives in Islington and whose son has just sold a tiny flat for an enormous amount of money in Islington, I think it would be difficult to find anybody who could be described as poor in large parts of that borough. However, leaving that aside, and more substantively, let us look at the Richard III case. There is a point, and it is a fair point, about shell companies being established for that purpose.

[Lord Faulks]

I am hesitant to interrupt the noble Lord, but since he is coming on to deal with Richard III, and I was asked a question about it, I now have a better answer than the one I gave earlier. He may be able to comment on my answer, so I shall give him an opportunity that he might not otherwise have had. The position is that in the Richard III case the claimant—a shell company—got an absolute protective costs order as the company had no assets, so no costs at all were payable when the claimant lost the case.

[Lord Beecham]

I repeat that I think there is a potential issue with shell companies. How many other cases of that kind have occurred? The only one we have heard about, and the only one to which the former Lord Chancellor has legitimately referred, is the Richard III case. How many of the other 336 cases that have been brought for judicial review in the past few years have involved what I agree is an abuse? If there is a problem, which the noble and learned Lord and the Minister are perfectly right to address, could it not be dealt with differently? If necessary, there could be legislation dealing precisely with that situation, rather than a general application of principle which could affect many others who are perfectly legitimately seeking to advance their claim? It is fair to say that the Minister has not given the impression of knowing—I do not blame him, because I am in no better a position—whether the court’s current discretion will extend, as implied by the noble and learned Lord, Lord Woolf, to dealing with that situation now. If it did not, we would be prepared to support and discuss what kind of amendment might be made to the Bill to deal with that particular and discrete situation, as I have no doubt other noble Lords, particularly noble and learned Lords, would be.

--- Later in debate ---

[Lord Faulks]

My Lords, I am afraid that I am unable to resist thanking all noble Lords for their interventions on this debate. They have been extremely helpful, and I mean that. This is particularly in the light of the fact that I indicated at Second Reading—as has been referred to in the course of the debate—that we were listening to arguments about this clause. My honourable friend Shailesh Vara MP also gave such an indication in the other place. We will have benefitted greatly from the debate today in deciding on our final position.

Although the noble Lord, Lord Beecham, said that I was grateful for the intervention from the noble and learned Lord, Lord Mackay, it is of course the House which is grateful for all contributions on all sides. With great respect, the point about an intervention is not that it assists any one side, but that it assists the court. An intervention is there to assist the court. I noted and agreed with the noble Baroness, Lady Kennedy, who said that interventions are extremely helpful. They certainly can be extremely helpful, but not all interventions are equally helpful.

Clause 67 as currently constituted aims to strengthen the cost rules relating to third parties who voluntarily apply to join in a judicial review case as interveners. I stress “voluntarily” apply. These interveners can include anyone who is interested in the issues which the court is considering, and they seek permission from the court to intervene in a judicial review case through filing evidence or making representations. Of course, I accept the fact that interveners can add value and assist, as many noble and learned Lords have said. However, they can also delay and hinder. Sometimes they make arguments beyond those required by the court, or merely amplify or repeat those already made by a party.

Here I must declare an interest. I have been in a considerable number of cases where there have been interveners, at the level of both the Appeal Court and the Supreme Court, and on one occasion I acted for an intervener. In fact, I think that that was in the very same case in which the noble Lord, Lord Pannick, was also acting for an intervener. I am glad to say that we kept our remarks within the short compass, and our skeleton arguments were similarly brief. I do have experience of the mounting level of interventions in litigation.

The noble Lord, Lord Marks, referred to the possible chilling effect on those who habitually intervene; those were his words. With great respect, in his use of the word “habitually” there is perhaps an indication of something about which the Government are concerned. There are of course cases where the court is greatly assisted by interventions brought by a disinterested party, which can bring a particular knowledge or contribution to the debate. However, the court might be less assisted by those who habitually intervene and who have a particular agenda which may require or indicate that they support one side or another.

[Lord Beecham]

My Lords, who is to decide whether a habitual intervener should be allowed to intervene? What is wrong with the court making that decision of its own volition?

[Lord Faulks]

I was coming to that very point. Interventions can prove difficult for the courts to control. The reason I say that is because on occasions an application is made for an intervener to intervene and, on the face of it, the judge deciding whether or not they can intervene will do so on the basis that they have a knowledge of the case. The judge, having regard to the submissions that he or she receives, considers that the intervener might well be of assistance. The level and degree of intervention is then very often beyond the control of the judge who originally gave permission, so that one can then encounter—perhaps at the hearing of a judicial review, or at the Court of Appeal stage—a very substantial skeleton argument, bundles of authorities, and arguments which range very loosely around the subject matter of the dispute. Here I speak from experience.

Inevitably, this causes expense to all parties involved, whether the applicant or the respondent, because they have to consider the arguments. They cannot rest assured that the judge is simply going to ignore everything on the basis that it might be outside the scope of the intervention. Of course, good judges customarily curtail submissions made orally once the matter gets to the stage of a hearing, and do so effectively. That does not remove the danger of quite excessive levels of intervention and contribution.

[Lord Pannick]

The Minister will accept, I hope, that courts regularly impose terms on interveners. The court says, “You may intervene, but only on the following issues”, “You may intervene in writing, but only 20 pages” or “You may intervene orally, but no more than 30 minutes of oral submissions”. These are very familiar orders. What further powers do the courts need?

[Lord Faulks]

Those are familiar orders. They are not always adhered to or always made, but I entirely accept that they are familiar orders. The point that I am making is that they are difficult to police in a preparation for a trial although easier to police by conscientious judges when dealing with it.

The changes that Clause 67 introduces reflect the Government’s intention of ensuring that interveners have a more proportionate interest in the financial implications of a judicial review. There should be fewer cases in which the taxpayer—or any other party to a judicial review—is expected to shoulder the burden of others’ decisions to argue their case.

Therefore, as currently drafted, Clause 67 establishes two presumptions: first, that the court will order a voluntary intervener in judicial review proceedings to pay their own costs; and secondly, that it will order a voluntary intervener to pay the reasonable costs they cause a party to the judicial review to incur by their intervention. Neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for the presumption to be rebutted.

The noble and learned Lord, Lord Woolf, asked me about Clause 67(6) in relation to that, on the exceptional circumstances that are relevant for the purposes of subsection (3) and the criteria that will be specified in the rules of court. My answer to that is the same answer as I gave in the debate on Monday when responding to an amendment put forward by the noble Lord, Lord Beecham, about the rules of court. The Delegated Powers Committee suggested that these and other matters should be put in the Bill. We are considering carefully that report and will respond to it. Clearly, what has been said about it is an important factor which we will take into account.

I should, however, be absolutely clear that the clause will apply only to those who voluntarily seek permission, not in those cases where the court invites, as it sometimes does, an intervention because it requires contextual information from an expert group.

Amendment 74 would remove both presumptions and replace them with one new presumption whereby the courts may not order any costs to be paid between an intervener and a party to the proceedings unless there are exceptional circumstances. There, I come back to the rules of court.

In relation to the first presumption, this would have little effect, as the clause as drafted already sets out that a party cannot be asked to pay the intervener’s costs unless exceptional circumstances exist. The first presumption, as was confirmed by many of the responses received to our recent consultation on judicial review, broadly represents the status quo. In practice, interveners are usually responsible, as was pointed out in argument, for their own costs incurred in the judicial review. It will remain a matter for the discretion of the court to decide liability for costs in an individual case, but the Government’s view is that the principle should be set out in primary legislation in order to be transparent and to provide clarity both to interveners and to the parties.

It is, I apprehend, the second presumption which has caused the most disquiet, as is evident from this debate, both in the other place and more widely. I mention the other place because an amendment was tabled there in that respect on behalf of the Liberal Democrats, I think by my noble friend Lord Marks’s honourable friend Julian Huppert, although it has to be said that the Liberal Democrat position on Part 4 has ranged rather more widely than it did in the House of Commons, notwithstanding the apparent agreement in the coalition as to the inclusion of Part 4 in this Bill.

I want to set out some of the safeguards that Clause 67 already contains, in addition to the clause applying only to those who are not invited by the court to intervene. It will operate only on an application by a party. In suitable matters of high policy there may be an agreement between the parties and a potential intervener that costs will not be applied for. Even if the parties make an application, the court can decide not to make an award against the interveners.

The only costs in question will be those that the court considers are incurred as a result of the intervention and those costs must be reasonable. Neither defendants nor claimants will be able to ask interveners to pay for their decision to obtain unreasonably expensive legal advice to respond to the arguments the intervener raises. An intervener will never be asked to pay even one penny of the costs that one party has caused the other. This clause is about the financial impact on the parties which the intervention has.

For example, if the intervener raises additional points that are not germane to the case, then a party—which could be either the claimant or the defendant—may ask the court to require the intervener to pay their reasonable costs in addressing those points. This might cover counsel’s time, for example. The court will make the award if it considers that those costs were incurred as a result of the intervention and there are not exceptional circumstances that would make an order inappropriate.

It remains the case that the court will ultimately decide whether to award those costs against the intervener. If the court considers that there are exceptional circumstances that make it inappropriate to award costs against the intervener, it can decide not to make the order. As with Amendment 74, matters for the court to consider when determining whether there are exceptional circumstances will be set out in rules of court. We should not seek to second-guess the content of those rules, which as usual will fall to the Civil Procedure Rule Committee. We can, however, be confident that the rules will reflect the overriding objective of the Civil Procedure Rules, which is, as the noble and learned Lord, Lord Woolf, will know only too well, to enable the court to deal with cases justly and at proportionate cost.

These safeguards reflect the principle that an intervention should not usually cause additional costs to the claimant or to the usually taxpayer-funded defendant. They will operate to ensure that interveners are not asked inappropriately to pay the costs of a party.

I hope that no one can accuse the Government of not having considered the views that have been expressed in relation to this clause; we are continuing to do that, as I indicated. I also indicated that what has been said today will influence our thinking.

The noble and learned Lord, Lord Judge, referred to the position of the Supreme Court. The Supreme Court has its own rules and we do not purport to prescribe how the Supreme Court should reflect the questions of intervention—I am sure that many of them are extremely valuable.

We accept that interveners can bring value. The noble Baroness, Lady Campbell, referred to the case of Burke, although she will remember that that decision was reversed in the Court of Appeal when it decided that it was not to be used as an advice centre. I none the less accept the general thrust of her point.

The Government want to ensure that third-party interventions are made in the right cases, for the right reasons and after careful consideration beforehand. This means that interveners should have a fair financial stake in the case.

Bearing in mind our intention to continue to look at the clause—and I hope that the House will accept the sincerity of what I am saying; doubts were expressed by the noble and learned Lord, Lord Mackay, although he accepted that some of the Government’s anxiety was reasonable—I hope that I have been able to address noble Lords’ concerns. In those circumstances—

--- Later in debate ---

[Lord Woolf]

Clause 67 has created a particular type of party, namely a “relevant party”. The relevant party is defined in subsection (8). I have no problem with that definition. However, in his closing remarks the Minister said that if, of course, a person is invited to intervene, as Justice could be invited to intervene, in effect this would not apply. The words are, of course, very specific, because of the presence of the word “must”. I draw attention to the fact that the court could invite people to intervene who are not a relevant party. Would he bear that in mind?

[Lord Faulks]

I shall deal with those interventions in reverse order, I am very grateful for what the noble and learned Lord, Lord Woolf, said. I will bear that in mind and, rather than answer from the Dispatch Box, I will consider it carefully. Similarly, I will answer the noble Baroness, Lady Lister, in writing with details.

As to the remarks of the noble Baroness, Lady Kennedy, I obviously would not comment on the appropriateness of particular interventions in particular cases. However, I am not sure that I would entirely agree with, or that I apprehend, her thrust, which was that litigation belongs to the parties, and there are disputes—whether civil disputes or judicial review, which involves public law—where interventions may be helpful in deciding between the parties. Where I may differ from her is the approach whereby an organisation of which all of us, I suspect, would approve should nevertheless use judicial review as part of a process. There are other processes available, whether it is lobbying Government or informal processes of campaigning, lobbying or taking part in inquiries: that may be a way to do it. Nevertheless, even though these bodies can have valuable contributions in certain cases, there should be some hesitation before simply saying that this is an issue where we might be able to help.

I conclude by saying that I will take into account all the observations that have been made and inviting the noble Lord to withdraw his amendment.

[Lord Pannick]

I thank noble Lords who have contributed to this exceptionally informed debate, including the Minister. I am pleased that further thought is to be given to this clause. I hope that over the summer not just the Minister but also the Secretary of State will think again about Clause 67, because the Government’s defence of this clause is wholly unconvincing—apart possibly from the Minister’s critical comments about the attitude of the Liberal Democrats to Clause 4. I leave that aside: it is something I do not want to intrude into.

Subject to that, the Government have presented no proper defence of this clause, and I ask the Minister to ask himself and the Secretary of State two questions in particular: what is really the mischief that is being addressed here that is not already addressed by the ample powers that courts have, and what will be the inevitable consequences of this clause? The inevitable adverse consequence is that the public interest group that is considering intervening will say to itself, “We simply cannot bear the risk, and therefore we will not intervene”, and the court will be denied the information—the assistance—that courts appreciate and value. For the moment, however, I will withdraw this amendment.

--- Later in debate ---

[Lord Faulks]

Since we are in Committee, perhaps I can try to assist the Committee.

The power derives from restatements of principles which, as the noble Lord said, are inherent in the court’s processes. In the Court of Appeal case Regina (on the application of Corner House Research) v the Secretary of State for Trade and Industry in 2005—EWCA Civ 192—the Court of Appeal considered that Corner House, which was an anti-corruption NGO, should, if unsuccessful in the judicial review, exceptionally be protected from being liable for the defendant’s costs because,

“the issues of public importance that arose in the case would have been stifled at the outset, and the courts would have been powerless to grant this small company the relief that it sought”.

It also set out the general principles for when a protected costs order should be granted: first, the issues are of general public importance; secondly, the public interest requires that those issues should be resolved; thirdly, the claimant has no private interest in the outcome of the case; fourthly, the financial means of the claimant mean that the protected costs order is fair and just; and, finally, if the order is not made, the claimant will probably discontinue the proceedings.

[Lord Marks of Henley-on-Thames]

On Clause 68, there is only one amendment in my name, Amendment 75F, which removes subsections (6) to (11). The reason for that is we firmly believe that the making of costs capping orders should be left to the discretion of the court in appropriate circumstances. Of course, those depend on the financial circumstances of the parties, which are mentioned in subsection (5), so they should stay in Clause 68. However, the factors that are set out in subsections (6), (7) and (8) relate to public interest proceedings and might legitimately influence the decision of the court in an appropriate case.

By Amendment 80A in relation to Clause 69—I am proceeding on the basis of a suggestion that Clauses 68 and 69 should be debated together—which is in my name and that of my noble friends Lord Lester of Herne Hill and Lord Carlile of Berriew, further factors are listed as factors that the court should take into account.

In relation to the explanation that the Minister has just given of the origin of the costs capping jurisdiction, I fully accept that the Corner House principles limit the jurisdiction to public interest proceedings. I am not sure that that limitation is legitimate or necessary, although it is plainly relevant. The reason I suggest that it is not necessary to limit it in that way is that there may be unusual cases where an individual is so justifiably aggrieved by an unlawful decision of a public body in a case which does not have universal or public importance that a costs capping order or a protected costs order might be appropriate, even though there is no wider public interest.

I fully support Amendments 75 and 75A in respect of Clause 68, which would remove the bar on making a costs capping order until after the permission stage. For my part, I can see no reason for such a bar, unless it were to choke off applications for leave to apply for judicial review for fear of an uncapped costs order. That, I suggest, is an unacceptable reason for stifling proceedings at that stage.

Our Amendments 77A, 80A and 80C to Clause 69 would restore the position that costs capping orders in judicial review proceedings are discretionary. Amendment 77A would require the court, when considering making such an order and then in considering the terms of any such order, to have regard to all the circumstances of the case. There would then follow a list of circumstances to which the court should have regard. This is a common enough formulation: in the provision of a non-exhaustive list, Parliament gives an indication to the courts as to the factors that should be considered. However, in its acknowledgement of the fallibility of lawmakers, and of the range of possibly unforeseeable circumstances, as mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the requirement that the court should have regard to all the circumstances of the case is, I suggest, a just and sensible one, which would allow judges to make the right decision in the particular cases that come before them.

As I have said, Amendment 80A would add to the list of factors that the courts should take into account all the factors drawn from the present proposals in Clause 68. These factors would not—and, I suggest, should not—be ranked in any particular order of importance. The court would be entitled to have regard to them as it thought appropriate. As I have also said, this does not require public interest considerations to be a precondition for a costs capping order.

Amendment 80C would remove the requirement that a costs capping order in favour of an applicant would necessarily import a requirement that the court make a costs capping order in favour of the defendant at the same time. It would make the imposition of such an order discretionary in any given case. This was the present position, as outlined by the noble Lord, Lord Pannick, in answer to the question posed by my noble and learned friend Lord Mackay of Clashfern. It does not seem to me that there is anything sensible or justifiable in an automatic rule that what is sauce for the goose is sauce for the gander. It may sometimes be appropriate to make a costs capping order in relation to a defendant’s costs—more rarely, I suggest, because of the nature of the parties, than it is to make such an order in respect of an applicant’s costs. But again, I see no reason for interfering with the discretion of a court to make whatever orders appear to it to be just.

--- Later in debate ---

[Lord Faulks]

My Lords, this has been a useful debate and we have, by agreement, covered two groups. I will therefore respond on behalf of the Government in respect of both groups, which are effectively concerned with the same subject matter—namely, costs capping.

Clauses 68 and 69 would build on case law, particularly the Corner House case referred to by a number of noble Lords, to establish a codified costs capping regime for judicial review proceedings, to govern what is ordinarily or alternatively referred to as a protective costs order. These provisions would put protective costs orders on a statutory footing. At present, a court can make a protective costs order before it has considered whether a claimant’s case is suitable to be given permission to proceed to judicial review. Claimants with what may turn out to be weak cases can thus benefit from costs protection even if the court subsequently decides that their case should not be given permission for judicial review, thereby leaving the public body to pay its own costs of dealing with a case which had no merit. Effectively, a claimant would have had a risk-free process until then.

Subsection (3) of Clause 68 seeks to address this by ensuring that a costs capping order can be made only if permission is granted for the judicial review to proceed. Amendments 75 and 75A would remove this principle, thereby allowing the court to make an order at any stage of the proceedings.

The Government intend to ensure that, when considering bringing a judicial review, would-be claimants give due consideration to the merit of their case, so that public bodies do not bear the financial burden of unmeritorious claims. The provision should not deter those who have cases with substantial and proper grounds for challenging the Government. On the other hand, people are generally cautious about proceeding with litigation in all contexts. They would do so only if they had reasonable prospects of success, having balanced what might be obtained from the litigation and the costs of doing it. We do not therefore think that a measure of proper deterrence is inappropriate in these circumstances.

I am happy to assure your Lordships that under Clause 68 a costs capping order may cover costs incurred prior to the grant of permission, as at present. The applicant can, as now, ask the court to make the order as part of the permission application. It is right, however, that until permission is granted the claimant should bear the financial risk of bringing a weak claim because, ex hypothesi, it will be weak.

Amendment 75E seeks to remove the requirement for the court to be provided with information on funding likely to be available to an applicant when deciding whether to make a costs capping order. I do not agree that prospective funding should be excluded from the information an applicant is expected to disclose or that the court should not be asked to consider it when making the order. It is vital—and this echoes arguments made in the previous group—that the courts are aware of the full financial underpinnings of a claim. This allows the court to assess whether a claim, although notionally brought by a claimant of limited means, is in fact sufficiently well resourced not to require subsidy by way of costs protection. The Corner House principles require courts to consider the financial resources of claimants who request costs capping orders to ensure that any award made is fair and just. This should be reflected in this new regime, firmly to re-establish the principle.

Clause 68 also provides that in judicial review proceedings a court may make a costs capping order in favour of a claimant only if it considers that the proceedings are “public interest proceedings”, and sets out factors the court must consider in making this decision. This reflects the principle in the Corner House case that costs capping orders should be made only if the issues raised are of general public importance and the public interest requires those issues to be resolved. Part of the effect of Amendment 75F would be to remove any public interest requirement, and Amendment 77 would remove the list of factors to which the court should have regard when considering whether the case is in the public interest.

The Government consider that it is right that costs capping orders should be made only in public interest cases, otherwise costs capping orders could be made in cases where no order would have been made under the Corner House principles. In fact, the amendments are therefore effectively a loosening of the established law. The taxpayer should be asked to subsidise cases only where there truly is a public interest in the case proceeding.

[Lord Pannick]

The Minister mentioned the interests of the taxpayer. Can he assist the Committee on how many costs capping orders have, in fact, been made over the past few years, other than in environmental cases, which are dealt with separately in Clause 70?

[Lord Faulks]

The noble Lord mentioned a figure of 30 such cases. I do not have any precise figures.

[Lord Pannick]

I mentioned 20 cases, which covered all the environmental claims. I think that there have been only a handful—two or three—costs capping orders that are not environmental. Does the Minister have any more authoritative figures, because I do not understand the problem to be substantial?

[Lord Faulks]

I do not have any more authoritative figures. I will certainly write to the Committee before Report giving those figures, if they are available. I cannot guarantee that they are available, but if they are, I will certainly assist the Committee. We have, however, to consider not only the past position but the position prospectively. It is necessary in this context to consider what might be done in the future were there, as some of these amendments suggest, to be a loosening of the rules.

It is important that the matters listed in the clause are taken into account. I do not consider the factors to be contentious. Common sense dictates that, in deciding whether proceedings are public interest proceedings, consideration needs to be given to the number of people directly affected and the significance of the effect. It is also right that the court considers whether the proceedings involve consideration of a point of law of general public importance.

Clause 68 sets out three requirements in subsection (6) that proceedings must meet before a costs capping order can be made: first, that the proceedings are “public interest proceedings”; secondly, that in the absence of the costs capping order the claimant would not continue with the judicial review; and, thirdly, that it would be reasonable for the claimant to act in this way. Amendment 75F seeks to remove these entirely and Amendment 76 would remove the third of these criteria.

The noble Lord, Lord Pannick, was concerned about how this subsection would be interpreted.

[Lord Davies of Stamford]

The noble Lord has just read out the criteria for making a costs capping order in subsection (6). Does he agree that because of the Henry VIII-plus provision in subsection (9), all those criteria could equally well be set aside, waived or completely changed simply by fiat of the Lord Chancellor at any time?

[Lord Faulks]

As the noble Lord would expect, I am coming on to consider the Henry VIII clause, so perhaps he will be kind enough to bear with me until I come to address that particular issue.

In the mean time, I shall deal with the assessment of whether it was reasonable to discontinue the claim, which was a question from the noble Lord, Lord Pannick. This was not in the summary of the Corner House case, and it was only a summary that I endeavoured to assist the Committee with. It is a matter that we can find in the case. The provision in respect of the claimant being reasonable in discontinuing their claim comes from the Corner House principles. The court now assesses whether, without a protective costs order, the claimant would be reasonable in discontinuing their claim based on the lack of financial protection. All that we are seeking to do in statute is to confirm what is already in that case. I will come on to the point about the Henry VIII clause.

It was a requirement of the Corner House case that capping orders may only be in cases where the issues raised were of general public importance. The public interest requires that those issues be resolved and if a costs capping order is not made, the claimant would discontinue the proceedings and would act reasonably in doing so. The Government are not of the view that those requirements should be removed. Amendments 75F, 77 and 81 would remove from Clauses 68 and 69 powers for the Lord Chancellor to amend lists of matters within these clauses through statutory instrument. We do not believe that that is a sensible approach. I will set out why.

Removing the powers to amend these lists of matters would prevent us from responding quickly should it become necessary. Over time we have seen the development of the principles governing where a costs capping order should be made. That is clear from the changes that have been made to the principle set out in the Corner House case, referred to by the noble and learned Lord, Lord Woolf, in his contribution to the debate. It may be the case that there are future developments which mean that it would be appropriate for the courts to consider different matters when deciding whether, for example, proceedings are public interest proceedings. These powers give us the ability to respond quickly should change be needed. While this is done through statutory instrument rather than primary legislation, it does not mean that Parliament will be unable to consider any changes. Both powers are subject to the affirmative resolution procedure, so any changes will be debated in both Houses before coming into force. I also note that the Delegated Powers and Regulatory Reform Committee, whose report was discussed earlier in Committee, recommended the creation of a similar model elsewhere in this part.

This is not a question of the Lord Chancellor, as it were, having a free opportunity simply to alter the whole burden or interpretation of the clause. When dealing with the present position of the Lord Chancellor, the noble Baroness, Lady Lister, referred to the Joint Committee on Human Rights and the position of the Lord Chancellor generally. Of course, the Government responded to that report, as she will be aware. In particular, it referred to Section 1 of the Constitutional Reform Act 2005, which expressly provides that its provisions do not affect the existing constitutional principle of the rule of law or the Lord Chancellor’s existing constitutional role in relation to that principle. Furthermore, the Lord Chancellor’s oath specifies that his role is to,

“respect the rule of law”.

It suggests that the responsibility of the Secretary of State, for example, regarding sentencing or prisons, undermines the Lord Chancellor’s responsibilities for justice and the rule of law. It is a big question which I understand has been considered by the Constitution Committee of your Lordships’ House. I do not think it would be appropriate for me to comment further except to say that, as I think the Lord Chancellor has said on a number of occasions, he is very mindful of his oath and his obligations in that regard. As the noble Baroness herself acknowledged, the change—to put it neutrally—to the Lord Chancellor’s role was brought about in something of a hurry by the party opposite when in power.

I turn to Amendment 75B, which seeks to extend the protection of costs capping orders to those who intervene in judicial reviews even though they are not parties to the proceedings. We see that as a step too far. Under the current scheme, I believe that interveners do not receive such orders. It would not be consistent with their status as a non-party. For example, an intervener could not, as required under the clause and the Corner House principles, meet the criteria of discontinuing the proceedings. I said in the debate on Clause 67 that an intervention should be made in a way that does not incur additional costs for the claimant or to the usually taxpayer-funded defendant. There are sufficient safeguards set out in Clause 67 to render this amendment unnecessary. For example, if the court considers that there are exceptional circumstances that make it inappropriate for the intervener to pay those costs, it will not award costs.

The Government accept that the court should continue to be able to grant cost protection where the issues are genuinely of public importance and the case cannot proceed otherwise because of the costs risk, but we wish to ensure that they are not made widely or in any way routinely. As the noble Lord, Lord Pannick, pointed out, they may not be very frequent, but we certainly do not want to increase their use or increase their use in different circumstances. It is only in exceptional meritorious cases, where there are serious issues of the highest public interest that otherwise would not be taken forward, that a public body defendant should have to pay its own costs regardless of whether it wins or loses. The clause retains the principle that the costs are a matter for the judiciary. When considering an application for a costs capping order, it will be for the judge, as currently, to decide whether the particular proceedings are in the public interest and whether an order should be made in an individual case. I am extremely mindful of the comments made by the noble and learned Lord, Lord Woolf, in the context of this and other amendments—indeed throughout Part 4. In his view and that of other noble Lords, it is an encroachment into judicial territory. It is said that Parliament should not be involved in areas where judges can develop the law and where they exercise their discretion. I understand that point. The Government do not seek to fetter the discretion inappropriately but none the less consider it appropriate to set out with some clarity what the provisions are while still permitting there to be judicial discretion, as indeed is appropriate.

[Lord Davies of Stamford]

Before moving to the next clause, I wonder whether the Minister would be kind enough to address the two questions I asked on how the court will satisfy the obligation that will be imposed on it by the Bill that an applicant would not proceed if a costs-cutting order were denied. My two questions were: would the applicant be asked the question and be required to make a statement saying that he or she would desist from an application if a costs-cutting order was not available? Secondly, in the event that such a declaration was made, would it be enforceable and would the applicant be held to it? In other words, would it in all circumstances be the end of that application, even if other sources of funding could, at that late stage, be found, even if they were not anticipated?

[Lord Faulks]

Those are precisely the circumstances in which we think the matter is best left to the judges. Indeed, judges have been performing such an exercise under the Corner House principles, which would not alter if the Bill is enacted in the way in which the Government suggest.

Clause 69 sets out the way in which a court should approach the decision of whether to make a costs capping order and the terms of such an order if made. It contains a list of five factors that the court must consider as part of this process. Noble Lords will recognise that, with one exception at subsection (1)(e), the factors build on considerations for making a costs capping order which were set out in the Corner House case.

Amendment 78 seeks to make it optional for the court to have regard to these factors. It is right that the court must consider the factors at Clause 69 when considering whether to make a costs-capping order as they are of great importance in ensuring that a costs-capping order is not awarded where it is unnecessary. However, the courts still have discretion, as the clause does not inhibit the courts’ discretion in deciding how much weight, if any, should be given to each factor. In addition, the list is not exhaustive, meaning that courts can have regard to any other factors which they consider to be relevant to the case before them. Amendment 78 is therefore unnecessary in the Government’s view.

In order to understand the effect of Amendment 77A, it is necessary to consider Amendment 75F, which is discussed in a later group and which removes the requirements for making a costs-capping order from Clause 68. When taking this amendment into account, the effect of Amendment 77A is to grant the court a general discretion to make costs capping orders, provided it is of the view that an order would be just, having considered the circumstances of the case, including the factors set out at Clause 69.

Amendment 80A transposes the requirements from Clause 68 that are removed by Amendment 75F into Clause 69, where they become additional factors that the court must take into account when considering whether to make an order, instead of requirements which must be met before an order can be made. Amendment 80 also adds an additional factor to the list of factors for the court to consider, which is the likely effect on the applicant if a costs-capping order is not granted.

Amendments 77A and 80A go too far, particularly when taking Amendment 75F into consideration. The effect of these amendments together would be that a number of the Corner House principles, which must currently be satisfied before a court can make a costs-capping order, would merely become factors for the court to consider, allowing an order to be made in cases where none of those principles was fulfilled. We suggest that that cannot be right. The principles set down in this case must be the starting point, and must certainly be satisfied before the taxpayer is asked to subsidise the cost of the litigation.

Amendments 79 and 80 seek to amend the list of factors in Clause 69 that the courts have to consider. Specifically, they seek to remove the requirement that the courts have regard to: the financial resources of third parties who have provided or may provide financial support to the parties; and the extent to which third parties who have provided or may provide financial support to the claimant are likely to benefit if the claimant is granted a remedy in judicial review.

Amendment 79 would mean that the court would not have to take into consideration the financial resources of third parties who may provide funding in the future. This would mean that the court would not have a full picture available when deciding whether it was appropriate to grant costs protection. We do not agree that this is a sensible position. Courts should consider information relating to potential sources, otherwise it could lead to orders being made in cases where it is not necessary or appropriate and, should the claimant lose, would result in the taxpayer being asked to pick up the bill. Again in the Corner House case, one of the requirements was that the court should have regard to the financial resources of the parties to ensure that any order the court made was fair and just.

I would like to reassure noble Lords that we intend to provide a safeguard so that, where a claimant has told the court—this perhaps answers to some extent the residual query of the noble Lord, Lord Davies—that it expects to receive future financial support and that support is ultimately not forthcoming, the claimant will be able to inform the court so the court can take the change of circumstances into consideration. Clause 68 provides that rules of court will set out the information that a claimant must provide when applying for a costs-capping order. We will invite the Civil Procedure Rule Committee to include the safeguard in those rules. While it may be argued that an alternative to this safeguard would be for the court to take account of financial support only once it has been received, I do not think that this would be appropriate as the making of the costs-capping order may well remove the need for that support, meaning it might never be forthcoming.

Amendment 80 would remove the requirement that the court considers the benefit to a potential third-party funder. The Corner House principles recognise that a claimant’s private interest in a case is a relevant factor when considering whether to grant a costs-capping order. This principle from Corner House is reflected in Clause 69, which requires the court to consider the extent to which a grant of relief in the judicial review would be of benefit to the claimant and third parties who have funded or may fund the claimant’s case. It is right that the court consider the full picture when considering whether to make an order.

Clause 69 also requires that, when a court makes a costs-capping order in favour of the claimant, it must also make one for the defendant—a matter referred to by the noble Baroness, Lady Deech—thereby limiting the defendant’s liability for the claimant’s costs should the defendant lose. Such orders are commonly known as cross caps and are not new. A court will often already make such an order in practice, but we think that in future they should be made in all cases where the claimant is granted costs protection. Amendments 80B and 80C would weaken this principle so that the courts may, or should normally, impose a cross cap. I accept that in most cases a public body has more resources available to it than a private individual. However, they are not unlimited, as the noble Baroness quite rightly said. These resources ultimately come from the taxpayer and it is right that they should also have costs protection. This subsection reflects the general principle in civil cases that overall costs should remain within reasonable limits and that the taxpayer is not asked to subsidise a disproportionately large costs bill.

I entirely accept what the noble and learned Lord, Lord Woolf, said, that sometimes the courts have to intervene to protect claimants where otherwise a claim simply could not be brought. It is a difficult balance to achieve, begun modestly by my noble and learned friend Lord Mackay and expanded upon subsequently in a way that effectively resulted in unfairness to the defendant. It is always difficult to establish a regime that entitles proper access to justice, but nevertheless retains a level playing field for all parties.

We say that neither this subsection nor the clause as a whole will take away the discretion of the courts—I emphasise this—to make decisions on costs. The clause does not prescribe the level of the caps; judges will be able to set the caps at levels tailored to the cases before them. The levels of the claimants’ and defendants’ caps may naturally be different, depending on their means. This, I believe, will address any imbalance between the financial positions of the parties. It remains a matter for the court to decide whether a costs-capping order should be granted in individual cases, and the terms of that order. This is the only appropriate way to ensure that these orders are made only in cases that genuinely need them and are set at a level that properly reflects the financial position of the claimant.

--- Later in debate ---

[Lord Beecham]

My Lords, I will compensate for the length of time that the noble Lord took—quite rightly—in moving his amendment by being commensurately brief in my remarks. On behalf of the Opposition, I support a stand part negative, as it were, in relation to Clause 70, for the reasons that the noble Lord advanced.

Amendment 82B, in my name and that of my noble friend Lord Kennedy, would effectively disapply Clauses 64 to 69 in favour of the terms set out, which would align the situation to that of the Aarhus convention. I think we are of one mind in inviting the Government to look again into this issue. It is another example of them failing to appreciate the implications—to put it in a benevolent sort of way—of what they are doing in this connection, not just to domestic concerns but to the international obligations to which we subscribe. I hope the Government will listen seriously to the noble Lord’s critique, look again at the amendments tabled, including the amendment in my name, and revise their position before we get much further down the road with this Bill.

[Lord Faulks]

My Lords, I am grateful to both noble Lords—my noble friend Lord Marks and the noble Lord, Lord Beecham—for their contributions to this debate. Clause 70 enables provision to be made to exclude judicial reviews about issues which relate entirely or partly to the environment from the revised costs capping regime established in Clauses 68 and 69, which we debated in the previous group. Clause 70 is to reflect our obligations under the Aarhus convention and the various European directives which implement it, which set out requirements for access to justice concerning environmental matters. This includes a stipulation that such procedures must be,

“fair, equitable, timely and not prohibitively expensive”.

This is relevant to judicial reviews in certain environmental cases. Allowing for such environmental cases to be excluded from the costs capping regime in Clauses 68 and 69 allows the Secretary of State enough flexibility to meet future changes in the international landscape. A separate regime has already been established in the Civil Procedure Rules to govern costs capping orders in such cases in England and Wales. It applies a fixed costs framework under which, in a claim raising issues that fall under the Aarhus convention, the liability of the claimant to pay the defendant’s costs is automatically capped at certain levels. This regime is simple to operate and understand.

Amendments 81C and 82B would seek to exclude certain types of judicial review from the provisions in Clauses 64 to 69. Those claims might be considered very broadly as “environmental”. Amendment 81C defines those cases that are excluded by reference to the Aarhus convention and introduces a requirement that, provided certain conditions are met, costs capping orders should be made in these cases.

Amendment 81C also aims to restore the full recoverable success fee and after-the-event insurance premium structure that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed, implementing the Jackson reforms to reduce excessive costs in civil litigation. Amendment 82C would seek to define what would fall within the definition of an Aarhus convention claim. Amendment 81A is contingent on Amendment 81C. Its effect is to make Clause 69 subject to the changes to Clause 70, which I have already discussed.

Attempting to define these claims in statute risks either being too generous and gold-plating the Aarhus requirements, or alternatively being too restrictive and missing out claims which should be caught by the Aarhus regime. The definition as set out in the proposed new clause is very broad, and appears to err on the side of gold-plating. In particular, we would not necessarily accept that all private law claims falling within the new clause should come under the term “Aarhus Convention claim”.

The Government see no reason for excluding additional cases, particularly such a broad range of cases as would be covered by these amendments. Too broad a definition would create an incentive for claimants to characterise their claims as “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability. In the Government’s view Clause 70, which allows for the exclusion of certain environmental judicial reviews from the new protective costs order regime which Clauses 68 and 69 will establish, is sufficient to ensure compliance with our obligations under the Aarhus convention and the directives which implement it. The proposed new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental and other matters and ensuring that judicial review is not misused.

I turn now to Amendment 82D. The new clause seeks to amend Section 10 of the LASPO Act, which makes provision about exceptional case determinations for individuals, and Schedule 3 to that Act, which makes provision about exceptional case determinations for legal persons, so that Section 10 and Schedule 3 would both refer explicitly to claims for judicial review related to the Aarhus convention. The Government do not believe that such an inclusion is necessary. First, funding would already be available to bring a judicial review with a potential benefit to the environment, subject to the merits and means test. This is in the scope of the general civil legal aid scheme by virtue of paragraph 19 of Part 1 of Schedule 1 to LASPO. Section 10 of LASPO provides for exceptional funding in cases that are outside the general scope of civil legal aid. Secondly, along with the provisions of the Aarhus convention, this amendment is concerned with reflecting EU directives. The current provisions under Section 10 and Schedule 3 already provide for legal aid to be granted where it is necessary to make the services available to the individual or legal person because failure to do so would be a breach of the individual or the person’s enforceable EU rights.

The noble Lord, Lord Marks, referred to reviewing the CPR. The Government have committed to reviewing the costs regime for environmental cases when the European Court of Justice handed down its judgment in the Commission v the United Kingdom case. Following that judgment in February this year, and recent case law, we are reviewing the current costs regime. As part of that review, we will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters, look at what scope there is to amend the current cap—which is currently £5,000 for individuals and £10,000 for businesses—and consider the principles determining what level of costs in a particular case would be prohibitively expensive, as set out in Edwards v Environment Agency and reiterated by the European Court of Justice in its various infraction judgments, and whether they could be included in the costs regime.

The Government do not accept that all private nuisance claims are caught by the convention requirements. They tend to focus on enabling those with interests in land to protect their private property rights rather than enabling members of the public to challenge environmentally deleterious acts. However, on the occasions where a private nuisance claim relates to actions which do not merely harm the claimant’s private property rights but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which may be relied upon by members of the public.

The Aarhus convention protects the right of environmental NGOs to bring judicial proceedings. It is not necessary to intervene in existing cases, so Clause 67 does not put the UK in breach. As to reviewing the application of LASPO to this area, I recall that during the debate when the LASPO Bill was going through Parliament there was an attempt to carve out an exception for cases of this sort. As the noble Lord, Lord Marks, and the Committee will have heard me say, the Government are committed to reviewing the effect of the LASPO provisions, but it is far too early to do so in this particular context. The review will take place within five years—perhaps sooner than five years, but certainly not much sooner—so as to allow a full review of the effect, bearing in mind in particular that there was a large spike in cases before April 2013, the cut-off date, which may make it very difficult to analyse satisfactorily the effect of LASPO.

Of course, I will reflect carefully on the observations of my noble friend Lord Marks and the noble Lord, Lord Beecham, but I gratefully decline my noble friend’s invitation to amend the Long Title of the Bill as currently advised. It is our view that these provisions are sufficient to ensure compliance with our obligations under the convention and the EU directives. I therefore respectfully invite the noble Lord to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am bound to say that I am not greatly surprised by my noble friend’s declining to amend the Long Title of the Bill. I merely say that the amendments that I and others have put forward are directed only at making the United Kingdom’s procedures compliant with the Aarhus convention. I entirely take on board what he said about the impending review of the rules in the light of the European case, and I understand what he said about private nuisance claims. It is certainly not the case, and I never suggested that it was, that all private nuisance claims are covered. I am merely repeating the decision of the Court of Appeal that there is no reason why private nuisance claims relating to environmental matters should not be Aarhus convention claims. At the moment we have no costs regime to enable compliance with the convention in respect of those.

As far as legal aid is concerned, I entirely take my noble friend’s point about the review of LASPO that is due. My point is directed only at the fact that at the permission stage there is now a restriction on legal aid for judicial review claims that ought not to apply to Aarhus convention claims. In those circumstances I of course beg leave to withdraw my amendments at this stage, but I do rely on my noble friends having an opportunity to consider what I have said during the Recess and to come back and report.

--- Later in debate ---

[Lord Faulks]

My Lords, Amendments 82 and 85 concern legal aid for judicial review and seek to prevent the Government making changes to the eligibility or scope of legal aid for judicial review, including making changes to remuneration for providers. They also seek to annul any statutory instruments that have been made through the powers available under Sections 2 and 9 of the LASPO Act 2012 which have the effect of altering eligibility for, or the availability of, legal aid for judicial review. Amendment 85 would bring the new clause into force on the date of Royal Assent.

Your Lordships will already be aware that remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO, so that legal aid remuneration to providers for work on judicial review permission application is at risk. The noble Lord, Lord Beecham, suggested, perhaps inadvertently, that people would not be paid for the work building up to making the application. That is not quite right: you do get legal aid for that and, if your application is successful, you will get all the costs. The only part of the process that is at risk is the application process itself in that you will not be able to get legal aid for that, but you will recover the costs in due course if you are successful. I dealt with that in some detail in my response to the relevant debate. I could, if necessary, refer to the very lengthy speech I made on that occasion, but I hope that I can save the Committee the trouble of listening to that. It is a matter of record and so I will not do so at this juncture.

More generally, if the legal aid system is to command public confidence and credibility, limited legal aid resources should be properly targeted at those judicial review cases where they are needed most. This is why we introduced amendments to the Civil Legal Aid (Remuneration) Regulations 2013 to limit the circumstances when legal aid providers should receive payment for work carried out on an application for permission. I should stress that the regulations made under Section 2 of LASPO do not affect the scope of civil legal aid for judicial review or the eligibility for legal aid in judicial review proceedings. Remuneration continues to be paid in the usual way for the earlier stages of a case, to investigate the prospects and strength of a claim and to engage in pre-action correspondence aimed at avoiding proceedings under the pre-action protocol. Indeed, the pre-action protocol will very often result in the matter being resolved without the need to go on to seek permission at all.

The amendments appear intended to stop the Government having the ability to make changes to civil legal aid scope and remuneration for judicial review except via primary legislation. The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers and scope of civil legal aid are subject were considered only recently by Parliament during the passage of LASPO, and we continue to believe that they are appropriate. We have no current plans to alter the scope of legal aid for judicial review. However, the power to make any such changes in the future, including in respect of potential expansion, should not be unnecessarily constrained as proposed. I recall an amendment, to which I think I was a party, which sought to enable the LASPO Bill to contain a power not only to delete but also to add provisions in relation to the availability of legal aid if the situation were to improve.

Making such changes by primary legislation would be a cumbersome process and a disproportionate use of the House’s time, particularly for a minor or technical change. It would stop the Government of the day making necessary but minor changes without primary legislation, even where these were necessary to ensure that the provision remained up to date. Further, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. Although I do not deny for a moment that judicial review is of great constitutional importance, so for many individuals are their own cases involving significant, as they would no doubt say, violations of their rights, civil rights of one sort or another, or their right to recover damages. In the light of what I have said, I would respectfully ask the noble Lord not to press those amendments.

I now turn to Amendment 82A, which seeks to prevent a residence test being applied to any proceedings for judicial review. Noble Lords are aware that the proposed residence test was recently challenged by way of judicial review. The High Court handed down judgment on 15 July and found in favour of the claimant. We are appealing the judgment and are currently considering the next steps that will be taken. I think it will go to the Court of Appeal first and then perhaps on to the Supreme Court. I hope, therefore, that noble Lords will understand that it is not appropriate for me to comment in great detail on that, in view of the ongoing proceedings.

Of course, the noble Lord, Lord Pannick, drew attention to the observations that the Secretary of State was alleged to have made, and probably did make, according to the Daily Telegraph—

[Lord Pannick]

It was not that he was alleged to have made them. He wrote an article in his own name in the Telegraph.

[Lord Faulks]

My legal caution found me using the expression “alleged”.

[Lord Beecham]

Perhaps the noble Lord will pass the legal caution on to the Lord Chancellor.

[Lord Faulks]

I am grateful for that contribution.

The Lord Chancellor made in the Daily Telegraph various comments which resulted in what was described—not alleged to have been described—as a “kick in the shins” by Lord Justice Moses. All I can say is that, during the time I have been standing at the Dispatch Box, the Lord Chancellor’s shins have been extremely bruised by the number of comments that have been adverse to him personally, to his responsibility to the office or to his disregard for the rule of law. I am sure that he is painfully aware of the harm that has been done to him by the observations that have been made. It is a matter for your Lordships whether you think that is appropriate.

I should also say this. Of course, the withdrawal of legal aid in any context is not something that any Government relish, but throughout the period—and we are now coming to the end of this Parliament—the party opposite has opposed all cuts to legal aid, whether they are civil legal aid cuts or criminal legal aid cuts. They have advanced very skilfully all sorts of arguments about the outrage that has followed. It is time for some clarity to emerge from the party opposite as to whether it will in fact restore legal aid to all these areas where it is said that it has been wrongly withdrawn or whether this is to some extent posturing on their part.

The noble Baroness, Lady Lister, referred to the difficulties that she described of children in particular in relation to the residence test. Although, as I say, I am not going to go into great detail because it is all to be considered by the court—at least in terms of the vires of the residence test—the Government’s position is that they do not believe that the JCHR should have concluded what it concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account. There have always been cases where the child speaks for himself directly or where a parent or guardian ensures that the views of the child are properly taken into account. The Government are not aware of any evidence before the committee that indicated in such cases the child is not able to express views and participate appropriately in legal proceedings.

Following the ruling of the court in the residence test case, noble Lords will be aware that the draft order introducing the residence test was withdrawn. The amendment before the Committee now would therefore introduce an exception to the residence test in the abstract. I would respectfully suggest that the appropriate place to consider any exceptions would be while considering the residence test as a whole, rather than in isolation and in the context of a free-standing provision for judicial review. Nevertheless—there should be no mystery about this—I should make it clear that we do not agree that an exception should be made to the residence test for all judicial review proceedings. The test reflects our view that individuals should have a strong connection to the United Kingdom in order to benefit from the civil legal aid scheme. In line with those principles, we therefore decided that, in general, applications for legal aid for judicial review proceedings should be subject to the same test.

The noble Baroness, Lady Lister, referred to certain “concessions”, as she described them. What happened was that, following careful consideration, we proposed certain limited and focused exceptions for judicial review cases that relate to an individual’s liberty, and for certain immigration and asylum judicial reviews. I am glad that she called them concessions; she previously described the Government’s position as a “climb-down”, which is perhaps not a kind way in which to describe the approach that the Government try to take on difficult decisions.

We believe that the residence test is by and large a fair test that should make sure that legal aid is targeted at those cases where it is justified. Moreover, it achieves the essential policy aim of targeting legal aid at those with a strong connection to the United Kingdom. I therefore ask the noble Lord to withdraw the amendment.

[Lord Pannick]

I am grateful to the Minister. I would be happy to provide him with a copy of Mr Grayling’s interesting article in the Telegraph of 20 April 2014. It is, as I said, written by him. He is not responsible for the headline but it gives a flavour of what he wrote. It states:

“We must stop the legal aid abusers tarnishing Britain’s justice system”.

There is no doubt whatever that, as with anything in life, abuse is possible. However, I take the view that the remedies that the Lord Chancellor is seeking to implement through Part 4 of the Bill are far worse than any disease that the Lord Chancellor has diagnosed. It is that article, with its reference to,

“Another group of Left-wing lawyers”,

taking the Government to court that provoked the response—a very appropriate response—from the High Court that it is the role of the court to decide not who is bringing the claim but whether the claim has merit and substance, and whether the proposals are a breach of the rule of law.

I hope that the Minister, who well understands these points, will be able to convey to the Lord Chancellor the belief of many of us in this House and outside that it would be far better if he would concentrate on the question of substance, of legality, rather than the political characteristics, if any, of the persons who are bringing the complaint. They go to court not to make political points but to make legal points. If they did not do so, the court would immediately tell them that it would not listen to them,

As to the amendments, my objection remains to the use of secondary legislation to make fundamental changes to the availability of legal aid for judicial review. There is no doubt that to restrict legal aid for a permission hearing in circumstances in which leave is not granted—it is often not granted because the defendant has given way and recognised the defect—is a fundamental change in the availability of legal aid. It will make it, and is making it, much more difficult for people to bring well founded claims. The same is true of the residence requirements that the High Court has held to be unlawful.

I am not therefore persuaded by the Minister’s observations, eloquently though they were presented, and unless the Government are prepared to look again at these matters, the House will need to return to these issues on Report in October. For today, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Pannick]

My Lords, I added my name to the amendment in the name of the noble and learned Lord, Lord Woolf. I entirely agree with the observations made by the noble Lord, Lord Deben. My concern is that the power the Lord Chancellor has under Clause 73(1) extends not only to “consequential” provisions, which is understandable, or to “incidental”, “transitional” and “transitory” provisions—again, entirely understandable —but to anything that is supplementary. That is an extraordinarily broad power: a power to make supplementary provisions.

In other words, as I understand it, if the Lord Chancellor believes that anything falls within the scope of the general area or subject matter of the Bill, he may, by subordinate legislation, make provision to supplement that which Parliament has anxiously debated and may have amended and approved. Under Clause 73(2), this power extends to repealing and revoking legislation. That is a remarkable power. I can see no reason whatever why such a power should be enjoyed, far less in the context of the very sensitive and delicate issues addressed by the Bill—including, but not only, those in Part 4.

[Lord Faulks]

My Lords, when one gets to the final provisions in a Bill whose Committee stage has lasted for five days, one might think that the debate has come to an end. However, that is not so. It is hard to avoid the fact that the approach of a number of noble Lords is coloured by the nature of the debate on the clauses that come before those final provisions. In particular, there is the sense, expressed by a number of noble Lords, that this particular Secretary of State and Lord Chancellor does not have sufficient regard for the rule of law and, essentially, there is a lack of confidence that he will exercise his powers in a way that Parliament would find satisfactory.

I do not think it is appropriate for me to provide a personal defence. Here, we are looking at a pretty commonplace provision contained in Clause 73. I say that it is commonplace because noble Lords might like to know that Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains a provision that says:

“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.

That is identical to the power in Clause 73. Section 53 of the Pensions Act 2014, under the heading “Power to make consequential amendments etc”, says:

“The Secretary of State or the Treasury may by order make consequential, incidental or supplementary provision in connection with any provision made by this Act”.

Section 20 of the Offender Rehabilitation Act 2014, under the heading “Consequential and supplementary provision etc.”, says:

“The Secretary of State may by order make consequential, supplementary or incidental provision in relation to any provision of this Act”.

Therefore, this—in particular, the use of the word “supplementary”, which I understand those who have proposed these amendments have a particular difficulty with—is not unfamiliar territory.

It is something of an irony that at various stages in Committee I have been subjected to a large number of interventions by the noble Lord, Lord Davies, who is not currently in his place. During the debate on a previous group, he ventured an observation in relation to this provision, saying that it was wholly unexceptionable as compared with the terms of clauses elsewhere. Sadly, he is not here to expand upon his views; nevertheless, I draw some comfort from the fact that they had come from an otherwise harsh critic of this legislation.

Despite every effort, it is not always possible to identify every necessary amendment to primary legislation, and it would not usually be appropriate to include amendments to existing secondary legislation in primary legislation. As noble Lords—many highly experienced, and more experienced than I am, in parliamentary procedure—will know, it is usual practice for a suitable power to be included in a Bill to ensure that its provisions can be brought into force. Amendment 83 would amend the power in Clause 73 to make such provisions by removing the Secretary of State’s power to make supplementary provision.

Noble Lords are concerned about the breadth of this power. The power to make supplementary provision was included in this clause in recognition of the complexity of the legislative framework within which sit some provisions of the Bill, particularly those relating to sentencing and the new single justice procedure. The consequence of not being able to make supplementary provision could be to inhibit the proper operation of aspects of the Bill. In relation to sentence calculation, this could even be to the detriment of an individual. The drafting, as I have indicated, is similar to that approved in similar legislation.

[Lord Pannick]

Is the Minister really saying that such examples would not fall within the concepts of “consequential”, “incidental”, “transitional” and “transitory”?

[Lord Faulks]

I am not saying that they would not. This form of words is sufficiently wide, including the various adjectives that it does, to cover a variety of situations, and if one particular adjective does not serve, another will serve. There will be an overlap between the two. I do not accept that the word “supplementary” is as offensive as has been suggested.

[Lord Deben]

My noble friend, rightly, points to the fact that similar, or the same, wording has been used in other Acts. Surely that does not mean that it was right to use it in those Acts. Here is an opportunity for the Government to take seriously the real concerns of people about the way in which this House and the other place control the legislation that goes through them. We have a system that is not very elegant. Therefore, unless there is something about the word “supplementary” that is different and is necessary, it might be better not to have it. If all those other things cover all the points that the noble Lord raised, then “supplementary” is otiose. If it means something more than that, then I would like to know what “supplementary” would cover that none of the other words would. If we knew that, we might well be willing to help the Government by supporting them. If we do not know that, we have a reason to say that perhaps it is better not to have it.

[Lord Faulks]

As a lawyer, I have a particular regard for precedent. The fact that the word “supplementary” has found its way into other Acts of Parliament is at least some indication that previous Parliaments have approved its inclusion. The fact remains that any provision is worthy of analysis, whether it has been in a previous Act of Parliament or not. None the less, I am sure that the noble Lord would agree that it is important that we give, quite properly, the degree of power necessary to the Secretary of State to implement those parts of the Bill that become law. I can reassure him and the House that such powers are narrowly construed by the courts and are available only for the purposes of implementing what is in the Bill, not what is further to the Bill, not in the Bill or what the Secretary of State might like to have been in the Bill.

Amendment 84 proposes to remove Clause 73(2). This would prevent any provision necessary to give full effect to the Bill being made if it required amendments to any existing legislation, whether primary or secondary. Similarly, with the powers subject to Amendment 83, provisions permitting amendment to primary and secondary legislation for these purposes are commonly found and have been approved, and we are concerned that their absence would hamper the Government’s ability to bring the Bill into force.

Of course I accept that it is right that these provisions should be subject to proper scrutiny. That is why we have provided, in accordance with the expectations of the Delegated Powers and Regulatory Reform Committee, that all provisions made under this clause will be subject to parliamentary scrutiny. Where provisions amend primary legislation, any regulations will be subject to the affirmative procedure. With that reassurance, I hope that I can allay to some extent any residual anxiety that the House may have.

These provisions are not novel and we say that they are necessary to implement the provisions of the Bill properly. During the Recess, among the many other things that I have been invited to reflect on, I will reflect on the precise use of the adjective “supplementary” in this context. At the moment, I do not give any indication of a desire to amend it, but I will of course reflect on it. In the mean time, with the reassurance that I have endeavoured to give the House, I hope that the noble and learned Lord will feel able to withdraw his amendment.

[Lord Woolf]

I am grateful to the Minister for responding with such care and elegance to the speeches that have been made. I am sorry that the noble Lord, Lord Davies, was not present as I am sure that he would have taken great pleasure from hearing how the Minister was comforted by what he said in his speech. I heard that speech and reacted with surprise at the time.

In his response, the noble Lord said that it was of course right for him, as a lawyer, to rely on precedent. I wonder whether the precedent in this context indicates the dangers of a Henry VIII clause of this nature. What happens in practice is that, once you have a precedent, you think that until somebody protests you can go on making better and better precedents to achieve your purpose, meaning that the powers of this House to scrutinise legislation are thwarted—not totally but to a significant degree. It is because of what has happened in the past that Henry VIII clause after Henry VIII clause appears in legislation, so that now it is considered almost a matter of course to put in a provision of this nature, and it is suggested that legislation cannot work without a Henry VIII clause. I respectfully suggest that that is a most unfortunate situation, and I have a great deal of sympathy for the helpful remarks that were made by the noble Lord, Lord Deben, in his very wise comments on this clause.

I suggest that the time the Minister spends contemplating the language of Clause 73 during the coming three months will be very well spent. Bearing that in mind, I beg leave to withdraw the amendment, but I do so while making it clear that I may well come back to the subject on Report.

--- Later in debate ---

Moved by

[Lord Faulks]

84A: Clause 75, page 72, line 11, leave out “subsection (2)” and insert “subsections (1A) and (2)”

--- Later in debate ---

Moved by

[Lord Faulks]

86: Clause 76, page 72, line 23, leave out subsection (2)

--- Later in debate ---

Moved by

[Lord Faulks]

88:In the Title, line 5, after “drivers;” insert “to amend the offence of meeting a child following sexual grooming;”

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 28th July 2014 Lords Chamber

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

My Lords, a wasted costs order transfers costs caused by the legal representative’s improper conduct from the party to the legal representative personally. The clause places a new duty on the courts, where a wasted costs order is made, to notify a legal representative’s regulator—I confirm that all the regulators mentioned by the noble Lord, Lord Beecham, would be included, within the definition of the 2007 Act—and/or the Legal Aid Agency, where the court considers it appropriate to do so.

The clause’s rationale, and the reason it should stand part of the Bill, is that there are no further formal consequences when a wasted costs order is made. The Government’s view is that the implications of receiving a wasted costs order should be strengthened to encourage legal representatives to consider more carefully decisions they make, both in handling claims and in deciding whether or not to pursue a case. The changes introduced by the clause seek to achieve this, and I will therefore in due course urge that Clause 50 stands part of the Bill.

Amendment 69A, in the names of the noble Lords, Lord Beecham and Lord Kennedy, seeks to replace the duty to consider notifying the regulators or the Legal Aid Agency with the discretion for the court to decide whether or not to notify them where it considers that it is appropriate to do so. It does so by changing “must” to “may”. In the Government’s view, the amendment is unnecessary. The mandatory requirement—the “must”—goes no further than requiring the court to notify where it considers it appropriate. The court is not absolutely required to inform the listed bodies or persons, or to inform any one of them, but to inform such of them, if any, as it considers appropriate. If the court does not consider it appropriate to inform any of those listed, it does not have to do so. Accordingly, it has to consider whether it is appropriate to inform one or more of them but it is not obliged to do so in a particular case: it is entirely a matter for the court. The discretion that the amendment seeks to introduce is already provided for in the clause as drafted.

Our view is that the courts should consider making a notification in every case where a wasted costs order is made but that it would be inappropriate to require it in every case. We agree that it is a matter for the courts based on the facts of the individual case. When notified of a wasted costs order, it will be for the relevant body to decide what, if any, action should be taken. Clause 50 does not make mandatory any action, as in the Government’s view that is properly a matter for the body based on the individual circumstances.

The noble Lord asked about the position of the Bar Standards Board, the Solicitors Regulation Authority and, I think, the Legal Aid Agency. The independence of the regulators is a fundamental principle and we do not wish to undermine this by setting out what action they should take upon receipt of a wasted costs notification. The Government have been in touch with the relevant bodies, informing them of the changes under Clause 50 and offering advice as to how they may wish to proceed. The Bar Standards Board has advised that it would treat the matter under existing procedures as an expression of concern about a barrister’s conduct. It might choose to investigate and could ultimately take formal disciplinary action if it considered it appropriate to do so. The Solicitors Regulation Authority would also welcome wasted costs order notifications and would treat such information in the same way as it treats all intelligence that it receives. The Legal Aid Agency is looking into taking account of wasted costs orders using existing contract performance management mechanisms for current legal aid contracts and contracts commencing this August. If adopted, contract managers would consider the number and financial value of wasted costs orders made and discuss them with the provider directly. The Legal Aid Agency might consider it appropriate to issue a contract notice or to take other contractual enforcement steps.

In view of the explanation that I hope that I have provided, and in view of the fact that I understood this probably to be a probing amendment, I respectfully ask the noble Lord to withdraw Amendment 69A, and I urge the Committee to agree to Clause 50 standing part of the Bill.

[Lord Beecham]

I suppose that I should have declared an interest as a member of the Law Society, although I confess—thank heavens—that I am not actively practising my profession and have not done for some time.

I thank the Minister for his explanation. I am still slightly at a loss to understand how it can be claimed that, as far as the solicitors’ profession is concerned, the clause would make any difference, given the Law Society’s stated response, as I have already indicated, that:

“The Solicitors Regulation Authority would not take further action if notified that a wasted costs order has been made against a solicitor”.

I do not know whether that has been discussed directly with the authority or whether there has been subsequent discussions and a change of position. It just stands slightly at odds with the Minister’s reply. Perhaps he would care to look into that and write to me, placing a copy of the response in the Library, because it looks as though different approaches may be being adopted by two of the three parts of the profession.

Having said that, I certainly concur with the noble Lord that this is essentially a probing amendment and I beg leave to withdraw it.

--- Later in debate ---

Clause 51: Strict liability: limitations and defences in England and Wales

[Lord Faulks]

My Lords, I now turn to Clauses 51 and 52 and government Amendment 86. Clause 51 amends the Contempt of Court Act 1981 by introducing a defence available to publishers or distributors. This provides that, where they have published material relevant to proceedings but prior to those proceedings becoming active, they cannot be in contempt unless the Attorney-General has given notice that proceedings are active. If the publisher fails to remove the material, the Attorney-General can commence contempt proceedings. Clause 52 provides a related right to appeal against court injunctions.

These clauses were included in the Bill at introduction to implement recommendations by the Law Commission intended to reform the law of strict liability contempt. The purpose was to remove the burden on publishers to monitor online archives for potentially contemptuous material, while protecting a defendant’s right to a fair trial. However, the Government have received representations from media organisations making it clear that they oppose the measures. The Joint Committee on Human Rights also commented on the issue in its 14th report of this Session. The Government have carefully considered those concerns. We remain of the view that the proposals are balanced and measured but we are satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings.

Since the measures were intended to assist the media but the media do not want them, we see no purpose in proceeding with the clauses. The then Attorney-General therefore announced in a statement on 30 June, and I also gave notice at Second Reading, that the Government had decided not to pursue the measure and would seek to omit the clauses from the Bill. Amendment 86 is consequential to the omission of Clause 51, since there is no purpose in defining its extent. I urge the Committee to agree that Clauses 51 and 52 should not stand part of the Bill.

[Lord Beecham]

My Lords, as the noble Lord the Minister said, the Government have had second thoughts—somewhat belatedly, but nevertheless just in time—about their proposal to create a new defence to the strict liability rule in relation to the offence of contempt of court, where material published on the internet before criminal proceedings commence remains accessible online. The objects of the Government’s policy are clearly laudable but the method involved the Attorney-General issuing notices to publishers identifying prejudicial material. While the notion seems sensible in principle, the JCHR has pointed out concerns that this risks creating what it described as an “arbitrary or disproportionate” exercise of power by the Attorney-General, since the Bill in no way qualified the power by restricting its exercise to where there might be a,

“substantial risk of serious prejudice”,

despite the Government’s indication that this was their intention.

The JCHR also questioned whether the “public interest” defence contained in the Contempt of Court Act 1981 was affected by the Bill as it was drafted. Perhaps the Minister would care to respond to that. I appreciate that it is almost irrelevant but it would be interesting to know whether the Government had taken that point in the original draft. The committee went on to express surprise at the Government’s state of denial that the arrangements had any implications for the freedom of expression and, further, that they did not intend to lay down regulations about the exercise of the Attorney-General’s power. This looked an appealing notion in many ways but it was ill thought through and led to some wholly inadequate drafting of the clauses that the Government have now withdrawn, having clearly had second thoughts about them.

It would be churlish not to welcome this apparent change of heart; after all, for every Minister that repenteth there is much rejoicing—especially when it comes to the Ministry of Justice—if not in heaven then in legal and judicial circles. However, none of this must be taken by the less responsible elements of the media as a licence to produce or permit the continued publication of material that might prejudice a fair trial. We have seen the media—sometimes the print media but also other forms that have such wide circulation nowadays—engage in such publication too often.

It may be necessary to revisit the issue at some point, but in that case I trust that this or any succeeding Government would look carefully at the points raised by the Joint Committee on Human Rights, which certainly merit reflection. If anything were to be done along the lines of, or motivated in the same way as, the Government’s original proposals, obviously it would be sensible to incorporate those concerns and to deal with them in a way that might meet them if it became necessary—although one would hope that it would not—to strengthen the law in this area. Perhaps the second to last thing that anyone would want to do would be to curb the freedom of the press; the last thing that anyone would want to do would be to prejudice the possibility of a fair trial. The media has a role in ensuring that that highly desirable end is met in all circumstances. I do not dissent from the noble Lord’s withdrawal of the two clauses.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab)]

My Lords, in moving Amendment 69B, I shall speak also to the other amendments in the group. I am not against allowing older people to serve on juries but I want to understand how the Government have come to the decision that it should be restricted to people under the age of 76. Over the last few decades, the qualifications and prohibitions determining who can serve on a jury have undergone significant changes. Before 1972, jurors were drawn only from those who owned property of a prescribed rateable value, which tended to ensure that all juries were white, male, middle-class affairs.

In 1972, eligibility was extended to anyone on the electoral register. In 1998, the lower age limit was reduced to 18 and the upper age limit was raised to 70. Older people serving on juries could be a very positive thing. It is a fact that we are all living much longer. Allowing older people to participate in the jury room will allow us to benefit from their experience. Will the noble Lord, Lord Faulks, tell the Committee whether he believes that a court will have to make any additional provisions to enable older people to serve on juries or does he believe that the extension to 76 will not need any additional provisions, which is why the Government have set that age limit?

Amendment 69D seeks to amend the Bill by giving the judge a power to limit the use of electronic communication devices for a period of time. Having people surrender their devices, as the Bill proposes, probably goes a little too far. If the average length of a jury trial is a week or two and a juror lost the use of their device for that time, it could cause considerable difficulties. We all know that smartphones are getting more advanced. Banks and companies are already talking about the elimination of plastic cards for credit and debit transactions that can be undertaken by mobile phones. Will the noble Lord tell the House what he believes is covered by the words “electronic communication devices”? Is that a mobile phone, an iPhone or similar device, a tablet or laptop? What devices is he talking about?

I very much agree that jurors have to understand their responsibilities and the important role that they play in the criminal justice system. Many years ago, I was a member of a jury in a serious criminal trial. I ended up being the foreman of the jury. It was not a “Twelve Angry Men” moment but I remain impressed at how the jury conducted itself during the trial and during the deliberations a couple of weeks after the commencement of the trial. That was 25 years ago and none of the devices we take for granted today was around.

The Government, the Courts Service and the judiciary have to do everything possible for the juror clearly to understand their responsibility in what they are undertaking. They must also make clear what they are not allowed to do. If they break the law in these matters, there are serious penalties. If the noble Lord cannot tell the Committee today, perhaps he will write to explain what happens when a juror arrives on the first day at the Crown Court. I hope that an officer of the court will explain in simple and clear terms the duties and responsibilities, and the restrictions—what can or cannot be done. That should follow information that they should have received in writing in advance. If necessary, the judge should reinforce that at the start of the trial.

Amendment 69J in my name and that of my noble friend Lord Beecham seeks to improve the information provided for jurors. It states that, “on the first day”, jurors will be required to,

“sign a declaration to say they will … not undertake their own research … base their verdict only on the evidence presented at court … not seek or disclose information about any case they try”.

That, along with the Courts Service, will make the jurors’ obligations very clear to juries.

We also include a requirement for the Department for Education to require all schools to deliver teaching about the role and importance of jury service. I think we are very well served by the jury system in this country and citizenship education is very important. I am a big supporter of our education system teaching people not only how to read and write and giving them a broad knowledge, but how to understand the practical things in the role that citizens play in our society. The role of a jury is an important part of that.

Amendment 69H makes very clear what I think is the case but does not appear to be very well known: namely, that disclosing information or deliberations in the jury room for the purposes of allowing approved academic research is not an offence. It is important to make that clear and our amendment seeks to do that. Being able to understand what goes on in the jury through academic research provides us with valuable information for the criminal justice system. I beg to move.

[Lord Faulks]

My Lords, Clause 53 amends the Juries Act 1974, raising the upper age limit for jury service from 70 to 75 years of age. Raising the age limit to 75 will mean that juries better reflect the current demographic make-up of the adult population and will allow juries to benefit from the experience and knowledge of those aged 70 to 75. The existing age limit for jury service was set by the Criminal Justice Act 1988, which raised the upper age limit from 65 to 70. However, that was more than 25 years ago, and it does not reflect the current healthy life expectancy of older people in England and Wales. On that basis, we believe that it is reasonable to expect people aged up to and including 75 to sit as jurors if summoned.

Amendments 69B and 69C would remove the upper age limit altogether. That would be a very different matter. Over the age of 75, there is an increasing risk that people would be unable to perform jury service and as a consequence would seek to be excused for that reason. We do not believe it would be right to put people in those circumstances to the trouble of having to apply for excusal, or indeed to burden the taxpayer with the additional cost of administering those excusals. Our view is that the appropriate age limit is 75. I will, in due course, ask the noble Lord to withdraw the amendment and will argue that Clause 53 should stand part of the Bill.

As to Amendment 69D, Clause 54 provides a judge with the power to order members of the jury to surrender their electronic communications devices for a period. The noble Lord, Lord Kennedy, asked me to define that. I respectfully refer him to Clause 55(2)(5), where it says that,

“‘electronic communications device’ means a device that is designed or adapted for a use which consists of or includes the sending or receiving of signals that are transmitted by means of an electronic communications network (as defined in section 32 of the Communications Act 2003)”.

I hope that clears things up for the noble Lord.

The Government do not believe that the term “limit the use of” is sufficiently clear. It would allow jurors to retain their devices in the jury room even when a judge thought it necessary in the interests of justice that the devices should not be available to the jury during their deliberations. The Law Commission recommended that devices should be surrendered and we believe that this is right. The provision provides judges with the discretion when making an order to take account of circumstances. They can only do so when the order is necessary or expedient in the interests of justice, and proportionate to that aim. With those assurances, I ask the noble Lord not to press that amendment. Usually, jurors will be able to use their devices and they may be required by the judge or the coroner in some circumstances when they are deliberating to surrender their electronic communication device, but it is not a blanket ban on the use of devices at other times or a blanket ban for the duration of the jury service.

Clause 55 also provides powers for a judge to order court security officers to conduct a search of a member of the jury so as to determine whether the juror has failed to surrender a device in accordance with an order made under Clause 54. We have aimed to ensure that the power to search is not an overly intrusive one, and goes no further than is necessary to ensure that a judge’s order, made in the interests of justice, is complied with.

Clause 55 also provides powers for security officers to retain articles surrendered or seized. If it is not possible to enforce the judge’s order, there will be a much greater risk that devices would be retained and potentially used during deliberations, thus bringing a risk of an offence being committed. It would also be harder to bring a successful prosecution and thus would reduce the effectiveness of the measures we are taking to deal with juror misconduct. I therefore argue that the clause should stand part of the Bill.

Amendments 69E and 69F would remove the requirement that proceedings for the new offences of researching a case and sharing that research with other jurors should be brought only by or with the consent of the Attorney-General. These offences concern damage to the administration of justice and public confidence in it. The Attorney-General is well established as the guardian of the public interest in the administration of justice. This is evident in, for example, his responsibility for bringing or consenting to proceedings in the case of contempt.

We believe that the Attorney-General should continue to maintain oversight of the public interest where such juror misconduct arises. Proceedings are very rare and we believe that the close involvement of the Attorney-General in cases of juror contempt should continue when such misconduct is prosecuted as an offence. I fear that I cannot support this amendment and urge the noble Lord not to press it.

Amendment 69G would change the scope of the offence in Clause 58, which inserts a new Section 20C into the Juries Act 1974. The proposed offence stems from a case before the Divisional Court in 2013 where a juror had posted on Facebook the fact that he was trying a defendant charged with a sexual offence on a child, and suggested an intention on the juror’s part not to try the case fairly. We want to ensure that proper criminal sanctions and procedures apply where a juror engages in behaviour that can give rise to a suggestion that they will not try the case fairly. Such behaviour brings the jury system into disrepute, leads to the perception of unfair trials and potentially causes trials to collapse.

We committed to and have given very careful consideration to the amendment proposed. The effect of the amendment would be to change the offence from an objective test to one that was more subjective. It would therefore be difficult to prosecute and prove and there is a risk that it would need to be proved that the juror did have that intention. Our view is that it should be a criminal offence where a juror intentionally posts material on the internet and that material allows someone reasonably to conclude that the juror is, for example, biased for or against the defendant. This conduct could throw doubt on the fairness of the trial and lead to it being stopped or result in an appeal. There is also an additional precaution in the use of the offence that any prosecution requires the consent of the Attorney-General. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

Amendment 69H would add an exception to the offence in new Section 20D to provide that it is not an offence to disclose information for the purpose of allowing approved academic research into jury deliberations—the matter specifically referred to by the noble Lord, Lord Kennedy. We believe that it is of the utmost importance that the confidentiality of jury deliberations is protected and that disclosure is permitted only where absolutely necessary. If the amendment were made, it would mean that approved academic research into substantive jury deliberations would be allowed.

The Law Commission recommended that research should be allowed into the substantive content of jury deliberations. It suggested that this type of research could be used to inform and undertake reform to improve the jury system, while enhancing public understanding of trial by jury. However, as noted by noble Lords at Second Reading, research into juries currently does take place. Academics are currently able to undertake meaningful and important research without infringing Section 8. Indeed, during the Bill’s public evidence session, Professor Cheryl Thomas, the leading academic regarding jurors and jury trials, commented that she had,

“never been hampered by section 8 of the Contempt of Court Act 1981”.

Personally, I have sympathy with the amendment, in the sense that a fundamental system of trying the most serious criminal offences should not be beyond examination by academic research. Any restrictions need justification. However, the Government will be responding shortly to the Law Commission’s recommendations on this matter. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

As to Amendment 69J, the objective of the new clause is to ensure that jurors understand their responsibilities. That is something on which all noble Lords can agree and much is already done to that end. A video about the role of the juror, which is shown to all jurors, makes clear that only evidence adduced in court should be considered. It explains that jurors should not carry out research into the case or disclose information about it and that doing so could amount to contempt of court. The Criminal Practice Directions require trial judges to give similar instructions to jury members.

[Lord Carlile of Berriew (LD)]

I am grateful to my noble friend for giving way. I should declare the interest of having appeared for the juror in the case to which my noble friend referred a few moments ago. I make no comment on the case or the result, but the jury video and the instructions given to jurors were not perhaps quite as good as they might have been, particularly for a young juror under the age of 21 who used his social media almost as a part of his body. Can we be reassured that when these new provisions are brought into force a new jury video will be made available immediately, as well as revised instructions, so that jurors young and old, including those between the ages of 70 and 75 who also enthusiastically use their social media, really understand what they are not permitted to do? It can be very confusing.

[Lord Faulks]

I am grateful to my noble friend for that intervention. Clearly this matter should be taken very seriously. I do not think that these directions are frozen in time or form, and the debate as to precisely how best to communicate what there is agreement on over the use of electronic communications will go on. I entirely take my noble friend’s point about the degree of attachment to them that exists, depending on the individual and not necessarily depending on their age.

The new clause proposed would impose statutory obligations on the Department for Education, the Judicial College and HM Courts and Tribunals Service, and on jurors themselves, in connection with jury service. These obligations cover the same ground as some recommendations from the Law Commission, which we are still considering and to which we will respond shortly. The crucial point, however, is that if it were decided to implement them, or to make any further suggestions about improving directions to jurors or about jury management issues as opposed to trials of particular cases, legislation would not be required. It could be done administratively, and in our view that would be a better course than accepting the suggested amendment. I invite the noble Lord to withdraw it.

[Lord Stoddart of Swindon (Ind Lab)]

May I say a word about the proposed age limit of 75 for serving on a jury? I had better declare my interest straight away because I was born in 1926. It seems that anybody older than 75 is being written off as no longer fit to take part in an important public duty. Bearing in mind that lately we have had people of 84 and 85 being tried in court, we should call upon those over 75—perhaps, say, up to 100—provided that they are able to carry out the duty. It may be insulting to people of mature age who are still very intelligent and keep up with affairs, particularly public affairs, to debar them from what other people are asked to do to help the public weal and their fellow citizens.

--- Later in debate ---

[Lord Faulks]

I am grateful for the contribution of the noble Lord, Lord Stoddart, to the issue, which I entirely accept is delicate. There can be no doubt that he would discharge the role of juror in an exemplary fashion and to the great benefit of all those who were tried—either in a way that they would want or not.

The respondents to the consultation about the upper age limit were almost equally divided as to whether there should be one, and I do not pretend that it is an easy issue, but the Government’s view was that, notwithstanding the health and vigour of many over the age of 75, an increasing number of people would find it difficult or almost impossible to sit as jurors and would therefore seek to be excused jury service. They might not want to have to go through the process of seeking to be excused jury service. Rather than putting them through the process of applying for excusal, and spending taxpayers’ money dealing with that additional administrative burden, the age limit is set at 75. I do not pretend that there is any precise science behind that, but it reflects a balance of different arguments.

[Lord Ponsonby of Shulbrede (Lab)]

From the point of view of the magistracy, where there is currently retirement at 70, it is the view of the Magistrates’ Association that that is about right and that it should not be increased to 75. The reason for that view is that many defendants who come before the Bench are much younger. Obviously that is true in the youth court, but it is true in the adult court as well. The issue is regularly debated at the Magistrates’ Association, and the view of the association is that 70 should stay as the age of retirement for magistrates.

[Lord Faulks]

I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.

[Lord Mackay of Clashfern (Con)]

I think that it is fair to say that the ultimate upper limit for judges is 75; that of course accounts for a good number of our noble and learned friends who are here today. The difficulty of fixing that limit was just the same as for jurors. The general view among the judiciary at the time, and I hope that it remains its view, was that 75 was a reasonable compromise because people—not everybody—over 75 become increasingly less able to perform the judicial function, which the jury function is, as the years progress. Therefore, you have to get some sort of balance, and 75 seems as good as any.

[Lord Faulks]

I am grateful for that contribution. My noble and learned friend states the difficult issue very well.

[Lord Kennedy of Southwark]

My Lords, the noble Lord, Lord Stoddart, makes an important point about the age of jurors. Of course, many noble Lords are over the age of 75 and make an important contribution to our deliberations. The noble Lord is absolutely right: many people over that age are able to make a contribution to the courts on jury service.

I thank the noble Lord for making the point about communication devices in the Bill. I wanted to be clear about the importance and use of these devices. They are used more and more and I wanted to be clear if they were to be taken away or if it was just a matter of a stern instruction from the trial judge. My noble friend Lord Ponsonby talked about magistrates retiring at 70. I hear the point he makes but if we are to get rid of jurors and others at 75, perhaps the time has come to consider whether the age for magistrates should be 75 as well. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

The same situation arises with regard to Clause 67. Intervention by third parties—

[Lord Faulks]

I am most grateful to the noble and learned Lord for giving way. I just want to clarify one thing for the benefit of the Committee. The noble and learned Lord is speaking of a number of different clauses. It may be that he is seeking to illustrate a theme and an overall point that is relevant to this group, but he will, of course, understand that his two most recent references are not in the group we are currently debating.

--- Later in debate ---

[Lord Beecham]

My Lords, this has been, as ever, a very well informed and interesting debate, and it has been particularly beneficial to have the views of those who are not lawyers to consider. I suppose I must congratulate the Minister on this occasion on having at least two supporters from the government Benches, which is double the usual quotient, if not better than that. I simply say, however, to the noble and learned Lord, Lord Mackay, who makes a valid point about financial information, to which we will come later when we discuss a further group of amendments, that there are other arguments about finances. These include in particular, as we shall no doubt hear, the chilling effect on those who are not in a position of wealth or able to find large sums of money to meet the potential costs. That is an item very much to be weighed in the balance. As the noble and learned Lord himself pointed out to his noble friend Lord Horam, who has been in his time the noble friend to all three political parties and members of them and remains on friendly terms with members of those parties, in the planning field the landscape has changed in any event, perhaps in a timely fashion. I do not think the noble Lord’s concerns are particularly relevant to the day’s deliberations, but in any event all that is required effectively is for those making decisions to comply with the requirements of the law. That is ultimately what judicial review is all about.

I support the amendments in the names of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Pannick and Lord Carlile, to which I have subscribed my name, and will speak to some amendments specifically in my name. I refer to Amendments 71B, 72D, 72E and 73A and 73C in this group. I will outline those briefly before turning to the substance of the argument. Amendments 71B, 72B and 73C would replace the words that we have heard something about this afternoon, “highly likely”, with the word “inevitable”, which is currently the position. That is to say, the outcome of the Bill for the applicant would not have been substantially different if the conduct complained of had not occurred. Instead of that being “highly likely”, that would become the “inevitable” position. That is a material restoration of the position as it now stands.

Amendments 72D and 73E would remove the obligation on the court—that is, both the High Court and the Upper Tribunal—to refuse to grant leave even if it believes that the outcome for the applicant would not have been substantially different if the behaviour complained of had not occurred. Amendments 72E and 73A would alter the definition of the conduct complained of for the purposes of determining whether such conduct would have made a difference to the outcome to mean any procedural defect rather than the conduct of the defendant; they would put it on more of a procedural basis.

As we have heard today, Clause 64 raises a new and significant barrier on the road to those seeking to hold the Government or other public bodies to account for a failure to observe the law. This self-serving change is one of a series deliberately designed to constrain judicial scrutiny and narrow judicial discretion. Its argument is partly based on a false claim that the number of judicial review cases has trebled whereas, as was made clear at Second Reading and, tellingly, repeated by the Constitution Committee in its second report on 4 July, after taking into account the transfer of immigration cases to the Upper Tribunal, the number has increased in 13 years by only 21%, or 366 cases.

Of those, only 0.4% have been conducted by campaigning organisations—that is to say, 50 cases in 13 years. Yet those campaigning organisations have attracted the obloquy of the Lord Chancellor, who, as we heard powerfully from the noble Lord, Lord Ramsbotham, in the debate on Part 2 of the Bill, has described organisations as being “left-wing”. Incidentally, those organisations that have brought judicial review comprise such extremist left-wing agitators as the Countryside Alliance, the Daily Mail, the Daily Telegraph and UKIP’s former treasurer. However, the Lord Chancellor has not confined himself to that observation. He spoke—or wrote, to be more precise—in the Daily Telegraph that judicial review is,

“exploited inappropriately by pressure groups with a political point”.

The Joint Committee on Human Rights, which I hardly need remind your Lordships is a cross-party—indeed, a cross-House—committee, with members from all Benches, including the Cross Benches, observed that:

“Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim”.

I think that most noble Lords who have spoken would concur with that fairly damning conclusion as, I suspect, many others would as well.

If the Government are concerned, as the Minister claimed to be at Second Reading, that “other more meritorious”—I pause to inquire whose definition of “merit” would be applicable—judicial reviews “can proceed more quickly” perhaps the Minister can tell us, in addition to those matters that have already been referred to by noble Lords, how many of the 25 recommendations made by the Bingham Centre for the Rule of Law in February the Government propose to adopt, or, if they have not yet reached a conclusion, at the very least what consideration has been given, and in what form, to those proposals.

Of course, as we have already heard, the amount that the noble Lord, Lord Horam, referred to, of a six-week period for raising an objection, has already been dealt with. A six-week period being imposed would in some cases present very serious difficulties, particularly with regard to the position of the non-availability of legal aid for pre-application work. However, of course, not all those cases are funded by legal aid in any event. I cannot speak of the Islington experience with the inside knowledge of my noble friend Lord Adonis or as acquired by the noble and learned Lord, but the fact that there is a disagreement about that on a particular case does not make a case for the substantial change that the Government are embarking on.

The effect of this clause in lowering the threshold for refusing permission to proceed to one in which it is only “highly likely” that the claimant will not succeed is, in the words of the Joint Committee,

“highly likely to conflict with the requirements of the European Convention on Human Rights”,

and has drawn the vigorous condemnation of the senior judiciary. The amendments before us echo the recommendations of the committee, not least in the requirement that it would be inevitable that the claimant’s case would fail. The Government choose to ignore the difficulty of claimants effectively having to try the issue without the benefit of legal aid or advice, which, as I have said, is not available at the permission stage.

Moreover, the JCHR recommendations address the additional and fundamental issue of whether the application would make a substantial difference to the applicant if the conduct complained of had not occurred. The recommendation in the Bill personalises the claim when in the first place many such claims by definition—as we have heard, again, from other of your Lordships tonight—give rise to a public interest element that transcends the position of the applicant, whether that is the applicant for a television licence or other rather more intrinsically weighty matters. Secondly, of course, it ignores the fundamental imperative of the decision-making being lawful. As the Constitution Committee points out,

“lowering the threshold risks unlawful administrative action going unremedied”.

When the President of the Supreme Court says that,

“any interference in or restriction of judicial review has to be looked at very carefully”—

to which I add the obvious further obvious comment that this must be especially true when those proposing the interference are by the very nature of the process the potential respondents in many claims—your Lordships’ House is obliged to take heed.

I very much hope, even at this late stage, that the Government will review their position. If not, I envisage that on Report, those of us who have tabled amendments and spoken to them tonight will seek to test the opinion of the House about a fundamental, radical and wrong-headed change to our system, which we must use our best endeavours to halt if we cannot improve it.

[Lord Faulks]

My Lords, this has, correctly, been a lengthy debate, in which views have been expressed by a number of noble Lords with judicial and legal experience and—to the benefit of the debate—by noble Lords who have different but none the less valuable experience to contribute to the debate as a whole. Since this is our first opportunity to consider Part 4, it is wholly understandable that the comments made by certain noble Lords have ranged beyond the strict confines of the clause that we are considering, because the general thrust of the argument embraces more than one clause. I make clear that any points that arise in the subsequent groups should be taken again, and that no noble Lord should feel any restriction by having mentioned them in this first group.

The development of judicial review has been contributed to, quite apart from this debate, by a number of those who have contributed to the debate. Although they have not said so, it is clear that there is a great deal of judicial pride in the fact that it has evolved and provided a valuable, and indeed fundamental, check on executive power, not just in this country but, as we have heard, in Northern Ireland. I do not resile from anything that I said at Second Reading about the importance which the Government attach to judicial review, nor indeed in the columns of the Times. I have not ventured into the Daily Mail or any of the other organs that the noble Lord, Lord Beecham, referred to, nor have I expressed any views about the particular political affiliations of any potential applicant, which are nothing to the point. The question is whether it is appropriate for any—and in particular these—reforms to take place.

Of course, it is tempting to suggest that judicial review is so perfect an object that it is beyond improvement. It is described by the noble and learned Lord, Lord Brown, as “a heresy” to consider any modification of the doctrine of judicial review. I agree with those who said clearly that any change to judicial review should be looked at very carefully indeed—quite so. That is precisely what this debate and subsequent debates enable us to do. However, I respectfully differ from the point that it is beyond Parliament’s competence to make some modest changes, and these are modest changes. That is appropriate if Parliament approves that these changes are made, bearing in mind, of course, that they should not encroach on the proper role that judges have established and which they perform so well. We must accept, as illustrations have shown in this debate, that there is the potential for abuse in judicial review. That is not to say that it does not have an extremely vital function, but we should be astute enough to ensure that the doctrine is sufficiently rigorous to remove or at least limit the possibilities for abuse.

--- Later in debate ---

[Lord Beecham]

My Lords, would the case that the noble Lord has just outlined not be one in which the decision be “inevitable” rather than “highly likely”? Would the amendment that I have tabled not therefore meet that sort of case?

[Lord Faulks]

It might or might not be “inevitable”, but we suggest “highly likely” would ensure that it would not survive. “Inevitable” might leave room for the argument that it was highly likely but not inevitable. This makes sure that the position would be as we say that it should be.

[Lord Davies of Stamford]

I am grateful to the Minister for giving way. Does he accept that his remarks in his last few sentences do not really address what has come out of the debate on the subject? It is quite clear at present that the court would almost certainly not give judgment in such circumstances as he described; it would set aside the argument, not accept a judicial review and say that there was no reason to reopen the whole case. The court at present has that jurisdiction and has that opportunity if it wishes to use it. What the Government are trying to do with this clause is to remove any judicial discretion at all by the phrases “must not” or “may not”. The examples cited by the Minister stand in favour of the preservation of the existing law, not the changes in the way recommended or as enshrined in this Bill.

[Lord Faulks]

I think that is very much the same comment the noble Lord, Lord Beecham, made, although expressed in slightly different terms. As I will come on to explain, we suggest that the clause—if it is incorporated into the Act—would still give the judge discretion. We are simply making it clearer where the bar is placed.

At present the courts will find that there will be no difference where the end result was inevitably the same. Amendments 71B, 71C, 72B, 72C, 73C and 73D and the amendments consequential upon those would go further in adding additional requirements concerning the public interest and the overriding objective. Those additional requirements do not apply at present as the law is understood by the Government.

The current threshold is already extremely high. In the Government’s view, this means that judicial reviews can be grounded on technicalities which would in practice have made no difference to the end result, or, ultimately, the applicant. That is why it comes up so rarely, and that is why we wish to modify the current approach. In the Government’s view, scarce court resources would be better applied to cases in which a difference to the outcome is more likely. But I reassure noble Lords that, as drafted, what Clause 64 does not do is make the exercise of this power in any way routine. This is because the clause applies the standard of “highly likely”. This will remain a high threshold, and when there is any significant doubt that there could have been a difference for the applicant, the threshold will simply not be met.

Concerns have been raised that in applying this approach of diligence, the courts will be dragged into the forbidden ground of a merits-based review, where they insert themselves into the decision-maker’s shoes. I respectfully disagree with this. I am sure that the courts will continue with the established way in which judicial reviews progress; namely that they consider the process which led to, and not the merits of, the decision, the legality of the process being the essence of the challenge. They will perform this exercise even in the examples postulated by the noble Lords, Lord Beecham and Lord Davies. It is inevitable that they will have to look at the facts there and then on the basis of the information. What we are suggesting is that a very low bar is raised slightly higher, but the exercise will be performed at the same stage.

Furthermore, there is an additional reason why this exercise should not create real difficulties for judges. Judges often have to make decisions on the basis of information available to them which is not complete. For example, in a civil claim where, let us say, a claimant is suing for negligence, the defendant may argue that the claim should be struck out on the basis that it discloses no cause of action. There the claimant’s case may be taken at its highest, and the argument proceeds that even if the claimant is right, the claim is not sound in law and must therefore be struck out, to which the answer often given by claimants is, “Well, my Lord, you haven’t heard the evidence. If you hear the evidence and get a clearer view of the matter, then our slightly adventurous case may be seen in a better light”. Sometimes that argument is persuasive, but very often judges are able to take the view that the position is sufficiently clear for it to be uneconomic and unnecessary to hear the case. This is the task they perform.

Nor do I think that the “highly likely” test should be beyond the agility of our very distinguished judges performing in the High Court, as the noble Lord, Lord Elystan-Morgan, emphasised. It is not the balance of probabilities, but the “highly likely” test is something I feel confident that they will be able to apply.

Amendments 72E and 73A probe the scope of Clause 64 in practice following the recent report of the Joint Committee on Human Rights, to which the Government responded in July, over what types of flaw the clause will affect. In the Government’s view, the term “procedural defect” is too imprecise to be used in legislation. The grounds for judicial review are not defined in legislation; doing so in certain areas would be a significant step. “Procedural defect” has no accepted definition at present under case law, and it would be virtually impossible to arrive at one that would stand the test of time, given how judicial review evolves with each new decision. Furthermore, it would lead to the risk of satellite litigation, referred to by a number of noble Lords.

We have also heard concerns that the clause will cause administrators to act unlawfully, for sinister motives, safe in the knowledge that, if challenged, they will have a “get out of jail” card. No decision-maker is going to follow knowingly an unlawful process simply because they think that at some point in future they may be able to argue successfully that there would have been no difference to the outcome. This is particularly so, as I have already indicated to your Lordships’ House, because our reforms have maintained a very challenging threshold.

Lest it be thought that the Government have not listened and are ploughing on regardless of the views expressed by others, I say that the question of standing was one that was often considered controversial in the reform of judicial review, and the Government initially thought that there ought to be a real connection between the claim and the applicant. The applicant state is referred to by the noble Lord, Lord Pannick. I looked at the White Book as to the summary of the development of the sufficient interest test for standing, and it contained this comment:

“The courts have adopted an increasingly liberal approach to questions of standing over recent years”.

Quite so—but the advantage of having a fairly elastic rule on standing was acknowledged by the Government on the basis that sometimes it is important that these cases are brought forward. It is an indication that the Government are making appropriate responses to the concern that has been expressed.

Some have argued that this clause will add delay to the consideration of judicial reviews by potentially requiring fuller argument at the permission stage. That is in part, as I apprehend it, the basis for Amendments 72 and 73, which would remove the requirement for the High Court or Upper Tribunal to consider a no-difference argument when it is raised by the defendant in the response to the application for permission. The Government consider that it is entirely proper that, when a no-difference argument is made by a defendant, it should be considered by a court or tribunal. I accept that when this argument is raised it requires courts to look at the case and the issues with care, but they do that at the moment. I do not think that that would mean that judicial reviews would become overlong. On the argument being raised more often, I say that it should be put only by defendants sure or confident of their arguments and position; if made without a sound basis, I would expect the courts to look to costs, which would act as a sufficient deterrent. In due course, we will invite the Civil Procedure Rules Committee to create a process that allows for oral arguments on this question at permission. While it would be wrong of me to pre-empt that committee, I am sure that it will be done in a way that makes the procedure straightforward and cost effective.

Amendments 72 and 73 would also remove the duty on the court to refuse permission when satisfied that it is highly likely that in the absence of the flaw complained of the outcome would not have been substantially different for the applicant. Those are, effectively, wrecking amendments. The Government’s view is that in those situations permission should not be granted.

[Lord Pannick]

Could the Minister clarify the Government’s position on the point that I understood was raised by the noble and learned Lord, Lord Mackay of Clashfern? As I understood him, the Minister suggested that even under Clause 64 the court could allow a judicial review claim to go forward and could grant a declaration of illegality, even if the outcome of the administrative process would have been the same for the claimant because the outcome of the litigation would be different. It would be a declaration. I see him nodding. For my part, I understand Clause 64 to refer to outcome as meaning the outcome of the administrative process. However, if I am wrong, could the Minister say so?

[Lord Faulks]

I was going to come on to this, but it is a highly pertinent point. The position as I understand it is that a decision which has resulted in a declaration, whether it is called a declaration formally or not, whereby the validity of the argument is acknowledged, might give the applicant the satisfaction—and, if there is any significance, significance can be drawn from it—of knowing that there has been an unlawful act, or whatever the nature of the challenge is. But that would not necessitate a full-blown hearing to determine something that is evident on the papers but does not require there to be a full hearing some months later, for example. I am concerned about that point, and I shall consider it further in terms of the mechanism whereby the answer can be given without the need for expensive and cumbersome litigation. I appreciate the point.

[Lord Marks of Henley-on-Thames]

May I press my noble friend the Minister a little further on that? As I read the clause as drafted, the fact that the:

“High Court … must refuse to grant relief”,

encompasses a refusal to grant the declaration. For that reason, I was concerned by the intervention of the noble and learned Lord, Lord Mackay, as he expressed it on the point, because my noble friend the Minister’s final speech has dwelt on the question of whether the no-difference test is met. What he does not appear to allow for—and I shall be corrected if I am wrong—is, if the no-difference test is met, under this clause as drafted there is nothing that the court can do if this were implemented, because it must refuse to grant relief. That is how it seems to me, and to the noble Lord, Lord Pannick.

[Lord Faulks]

I do not think that I can expand much on my previous answer. If it makes no difference, it is true that, as the clause says, no relief should be granted. What I said that I would consider is the question of when it would make no difference but there is some benefit of a declaration or some judgment which reflects the lawfulness, whereby there might be some scope for providing that that should be given in the course of determining the very issue that Clause 64 covers. I think that that is as far as I can go. I shall consider the argument.

[Lord Davies of Stamford]

The Minister seeks to make a distinction between the court’s ability to grant relief and its ability to proceed to make a declaration. That seems an interesting line of approach in the light of the debate that has taken place. Can I therefore put to him the suggestion that I put earlier to the noble and learned Lord, Lord Mackay? Would it not be helpful if the Government—in this case, the Minister—brought in a new amendment at Report that made it clear that, notwithstanding the restrictions that appear to be overwhelming in Clause 64, the court could nevertheless proceed to grant a declaration?

[Lord Faulks]

I am grateful to the noble Lord, but with very great respect I think that we are going over the same ground again. I hear the argument; I have said that I will consider it, but I want to consider it in a way that does not emasculate Clause 64, which is there effectively to prevent cases in which it would make no difference from proceeding to lengthen expensive litigation. But I acknowledge that there is a potential force in the argument made by the noble and learned Lord, Lord Woolf, and picked up by other noble Lords, including the noble Lord, Lord Davies, about the possible benefit of a declaration, whether it is in the form of a judgment reflecting the point that seeks to be established but does not involve the expense and time of having a full-blown hearing. I do not think that I can take the matter any further at this stage.

In the approach that we suggest to what is essentially a desire to get rid of technical objections, we wish to refer to Lord Denning’s reasoning—and I am glad that he was mentioned earlier as he gets insufficient citation in the courts nowadays. He held that the court,

“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made”.

That is a reference to a case in 1977—

[Lord Woolf]

Would the Minister be grateful for a copy of De Smith?

[Lord Faulks]

The case is George v Secretary of State for the Environment. I omitted one or two pages of my speech in order not to weary the Committee but I am most grateful for the offer of an autographed copy of De Smith.

I reiterate that, where there is any significant doubt over whether the flaw complained of was highly likely to have made a substantial difference, permission can be granted, and judges will continue to perform their established role. I remind the Committee of a significant judicial discretion which will remain under the clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial.

Amendments 72D and 73E are intended to replace the requirement to refuse to grant permission where it is highly likely that there would have been no substantial difference with an option to refuse permission. It is worth examining that. It postulates the position where the judge says, “I think it is highly likely that it would have made no difference at all, but still I should allow this to progress”. Similarly, Amendments 70, 70A and 71 are intended to replace the requirement to refuse to grant a remedy, including a financial remedy, where this is the case. The Government’s view is that these amendments would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.

Under Clause 64 as currently drafted, the High Court and the Upper Tribunal will retain significant discretion over the application of this clause. Crucially and properly, this discretion will extend to whether it is highly likely that the procedural defect would have resulted in a different outcome for the applicant in any given case and whether any difference would have been substantial. Indeed, the term “highly likely” will, as I have said, be interpreted by the courts. Where the court comes to the conclusion that it is highly likely that the outcome would not have been substantially different, the Government’s view is that the court should not grant a remedy. I can see no merit in continuing a case where there is no real prospect of a difference in outcome and a remedy such as a quashing order would be futile.

In conclusion, I trust that I have reassured the Committee that the Government absolutely understand the importance of judicial review and do not wish inappropriately to interfere with the exercise of the discretion by the courts, nor substantially to disturb the approach that the courts have taken in this very important area of the law. In fact, I submit to your Lordships that Clause 64 is modest in ambition and beneficial in effect. I hope that, with that reassurance, the noble and learned Lord will withdraw the amendment and I urge the Committee to agree to Clause 64 standing part of the Bill.

[Baroness Lister of Burtersett]

The noble Lord has not responded to a very specific question from my noble friend Lord Beecham, which was: how many of the Bingham centre’s recommendations have the Government accepted? This is very relevant to the point made by the noble Lord, Lord Horam, about delay. He quoted the Joint Committee on Human Rights, making great play of the word “perennial”, but I think that he rather quoted out of context. Perhaps I may read what the Joint Committee said:

“We welcome the Bingham Centre Report as an important contribution to the debate about possible reform of judicial review, demonstrating that the perennial problem of reducing the cost and delay of judicial review proceedings can be addressed in ways which are compatible with effective access to justice”—

that is, it is saying that these reforms are not so compatible.

--- Later in debate ---

[Lord Faulks]

I am glad to have that intervention from the noble Baroness. In fact, it reminds me that I did not specifically answer a question that she raised in relation to Article 6 of the European Convention on Human Rights. I reassure her and indeed the Committee that the Government’s view is that the reform is compatible with Article 6. As the Committee will appreciate, the enshrined right of access to the court is not absolute. The Government’s view is that this is a proportionate approach to securing the legitimate aim of having judicial reviews based on minor technical defects determined more quickly with fewer resources.

I am unable to respond now on the Bingham centre but I will write to the noble Baroness and the Committee to inform them of the current position.

[Lord Woolf]

My Lords, I am grateful to the Minister for the careful way in which he has sought to reply to the issues raised. I also hope that I am not misinterpreting him when I detect that he is prepared to look again at the provisions in Clause 64 to see whether some of the points that have been made may be of substance.

[Lord Faulks]

I am sorry to interrupt but I do not want to raise expectations inappropriately. I think that the only area where I said that I would look again was in relation to the very valuable point made by a number of noble Lords, including the noble and learned Lord, about the possibility of a declaration at an earlier stage. Beyond that, I am afraid that I did not give any undertaking at all.

[Lord Woolf]

One has at least to be thankful for small mercies, even if, in your view, they do not go nearly far enough. I am certainly not indicating that in due course there will not be a Division in this House on the appropriateness of this clause.

What the noble Lord has not done in his reply is to deal with the question that has been asked very clearly and has been emphasised by the noble Lord, Lord Davies—that is, what are the powers of the courts now? The position as I understand it is that everything that the Government want to achieve through Clause 64 can be achieved by judges now. If in fact it is said that they cannot, why is it not left to the rule committee, which of course the noble Lord knows about? He knows that it consists of an expert body looking at how the law should be changed in order to obtain improvements. The noble Lord, Lord Hart, in his very helpful intervention, pointed out that significant improvements can be made in planning matters.

The noble and learned Lord, Lord Mackay, and the noble Lord, Lord Horam, mentioned the problems that exist in judicial review. I am certainly not suggesting that it would not be preferable if consideration were given to adopting improvements where they can be made. However, I still suggest that the best and only way to bring about real improvement is through the sort of process that, at the behest of the noble and learned Lord, Lord Mackay, I undertook in regard to civil procedure generally, including looking at judicial review. The fact is that you cannot do these things in the piecemeal way that the Government are seeking to do in these clauses. If you do, the result will be that you inhibit judges’ ability to carry forward what they have done so far, not perfectly but to the best of their ability.

Perhaps I may give one more example in relation to declarations which the Minister might want to consider. There are cases of judicial review where a matter comes before the court and it is at that stage or during the course of the proceedings that it is accepted that a particular result should be produced. None the less—and I should add, so as to make Clause 64 relevant, despite the fact that the applicant will receive no benefit—it is still thought by the court that it is in the public interest not only to give a judgment but to grant a declaration. That can now happen.

There are also cases where the court now can be asked to make a future declaration in order to clarify the law. The declaration is a remedy which is emerging to its full extent in this jurisdiction, and there are cases where other steps can be taken that are in the interests of good administration, the interests of the rule of law and the interests of justice. I repeat: it is not that this cannot be done, but this is not the way to improve the system of judicial review.

--- Later in debate ---

[Lord Beecham]

I am not entirely clear about the Minister’s position in relation to the process. Assuming that the highly likely test—indeed, any test under the present arrangements—is retained, it would presumably need to be the subject of the application for permission. The Minister is nodding. Will the applicant not therefore have to make a case at that stage? That is presumably the whole point of applying for permission. In circumstances where legal aid is no longer available for those who do not have the means, does that not place a heavy burden on an applicant in a way that the inevitable—that is the word he used—test would not do at that crucial stage?

[Lord Faulks]

An applicant now may fail at the permission stage if the outcome would be inevitable, given the putative departure from lawfulness on the part of the public authority. It is precisely the same calculation that an applicant has to make whether the test is inevitable or highly likely, that the result would be the same. Both are directed at whether there is essentially a technical departure with no real substance. As I said, the only difference is whether the matter is a very low or a slightly higher bar. The position is that all claimants in any form of litigation will have to consider the real merits of their case and decide whether it is worth pursuing.

[The Deputy Chairman of Committees (Baroness Fookes)]

Would the mover of the amendment confirm that he is seeking leave to withdraw it?

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Monday 28th July 2014 Lords Chamber

Debate on Amendment 73F resumed.

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

My Lords, briefly, this group contains amendments to the process for making secondary legislation concerning the provision and use of information about financial resources, the provision of information when seeking a costs capping order, and identifying which cases are “environmental” for the purposes of costs capping orders. As the noble Lord, Lord Beecham, said, these amendments are inspired by the third report of this House’s Delegated Powers and Regulatory Reform Committee, which was published earlier this month, on 11 July.

I hope that I may deal very briefly with these issues. That is not to say that they are not important, and we will deal with them by way of a detailed response when we consider later groups that raise the issues covered by the report. The Government are considering how to proceed with the recommendations in that recent report and will set out how they intend to do so in due course. As such, although I am very grateful to all noble Lords for their amendments, the Government are unable to accept them in advance of full consideration of the committee’s recommendations.

I should, however, take the Committee’s time to discuss the role of the Civil Procedure Rule Committee, which is composed of members of the judiciary, both senior and more junior, and eminent barristers, solicitors and lay representatives. The Delegated Powers and Regulatory Reform Committee’s report proceeds in part on the basis that the existing structure for the making of Civil Procedure Rules, created by the Civil Procedure Act 1997 and amended by the Constitutional Reform Act 2005 pursuant to the principles agreed with the senior judiciary and set out in the concordat on the judiciary-related functions of the Lord Chancellor, does not make the Civil Procedure Rule Committee immune from influence by the Secretary of State, given that he has the power to direct rules to be made to achieve a specified purpose.

I should like to refute any suggestion that the Lord Chancellor improperly interferes with the making of rules, or that the rule-making committees or officeholders in any way play a quiescent role in the making of procedural rules before the making of which they must consult with such persons as they think appropriate. Their experience and expertise is respected entirely and there should be no suggestion of the Government steamrolling or negating the influence of those committees or officeholders on the rules. However, as I have said, the Government are carefully considering the Delegated Powers and Regulatory Reform Committee’s report and intend to make clear their position ahead of Report. In light of that, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Beecham (Lab)]

I am grateful for the Minister’s assurances. I beg leave to withdraw the amendment.

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Wednesday 23rd July 2014 Lords Chamber

[The Earl of Listowel]

My Lords, listening to the debate three further brief points occur to me. First, I discussed the matter of cost with an academic who currently works in the area of care leavers and has done through his career. He is a graduate who came through care and spent time in the secure estate. How much should we spend on young people while they are in care? He pointed out the immense cost of failing to intervene effectively. It could be many millions of pounds if one thinks of time in the adult secure estate, time spent in the health service, and time just not working. That is one aspect to keep in mind when thinking how much one needs to spend at this point to avoid poor outcomes later.

Another point is on gender equality. The noble and learned Baroness, Lady Scotland, and I visited the first mother and baby unit to be opened in a secure training centre. A significant number of young girls, if they are included in this college, may be pregnant or may already be mothers, so we need to think about how to manage that particular issue. There is one more point on the question of cost. It may be cheaper to employ more qualified staff. Research on the continent shows that one can have lower ratios of staff if the staff are more qualified. Indeed, this question of cost is very interesting. It should not, perhaps, discourage us hiring very well qualified people to work with these young people if the ratio can be less because of their higher qualification.

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

My Lords, this has been a very useful and well informed debate. It continues the debates we had on Monday. I respectfully ask those in the Chamber at the moment to read the debate on Monday in which I gave a reply—I think for more than 20 minutes—in which I dealt with a considerable number of the points raised, although I did not purport to deal with all points. Indeed, I said on that occasion that I was proposing to write to sweep up any points that on examination of Hansard I had not dealt with adequately. I adhere to what I said then and will include any further points that have arisen out of the debate today.

What has emerged—as my noble friend Lord Cormack quite rightly said—is that we all have the same concern about providing the most helpful outcomes for troubled young people. It was also common ground that the focus on education is most welcome. What there is a lack of confidence in at the moment is whether the secure colleges can provide precisely what all of us in this House would wish to achieve for young offenders. The noble Earl, Lord Listowel, is quite right, of course, that many of those who find themselves in this situation come from troubled backgrounds. Many have been in care and present particular challenges for whatever establishment is going to have them when they are serving the sentence passed by the court.

The clause which is the subject of this stand part debate is the statutory framework for the creation of secure colleges so that the Government can trial a new approach to youth custody. Clause 29 provides the Secretary of State with the power to provide secure colleges, which is a new form of youth detention accommodation in England, and replaces the current Section 43 of the Prison Act 1952 with the new section. The current section gives the Secretary of State a power to provide young offender institutions, remand centres and secure training centres. As your Lordships will know, there are no remand centres in operation. The new Section 43 will additionally give the Secretary of State the power to provide secure colleges in England and Wales. Clause 29 introduces Schedule 5, which makes a number of amendments to other legislation to reflect the fact that secure colleges are being introduced.

I remind the Committee of the context for our proposed reform of the youth custodial estate. At present, we pay around £100,000 a year for a place in youth custody, and yet almost 70% of young people go on to reoffend within 12 months of release. In the case of secure children’s homes—the advantages of which were very much emphasised by those in debate on Monday—the cost rises beyond £200,000 a place, and yet the reoffending outcomes are no different.

[Lord Marks of Henley-on-Thames]

Does my noble friend accept that the comparison of costs for secure children’s homes with other institutions is perhaps a little unfair? It is the nature of secure children’s homes that they take the most difficult and troubled children, so the costs per year of a place in such institutions is necessarily considerably higher.

[Lord Faulks]

It is true, and I am going to come on to deal with that. The different establishments are there, in the view of the Youth Justice Board, to deal with the different challenges that the individuals present. My point is that secure children’s homes are no panacea. The starting point is that the overall rate of reoffending is simply not acceptable. That is why we are introducing secure colleges.

I entirely accept the point made by the noble Earl, Lord Listowel, that the Government should be aware of the long-term cost as well as the short-term cost. Indeed, the whole purpose of secure colleges is that, with the benefit of proper education, the Government consider that there should be a cost-saving in the long term because of the accrued benefit for young people who go to secure colleges.

[Lord Beecham]

I am sorry to intervene at this point, but it is sensible to do it now rather than later. Are we to infer from that that the Government’s ultimate intention is to dispense with the 138 places in secure children’s homes or is it their view that there will still be some place for secure children’s homes? If so, how will they approach determining how many?

[Lord Faulks]

I respectfully ask the noble Lord to be a little patient; I am going to deal with that point in the course of my remarks. I have not been speaking for long. I have been much criticised for not giving the House information. I should perhaps remind the Committee that there were meetings offered first to the party opposite, then to this side and to Cross-Bench Peers. There has been written information and there was a further meeting at which the details of secure colleges, including demonstrations on visual display units, were supplied. That, together with the answers I have given and the answers I propose to give further, should give the Committee at least as much information as it can reasonably expect.

I have heard in the course of the debate arguments that there are better ways to improve the youth custodial estate and particular emphasis was placed on the secure children’s homes. The noble Lord, Lord Ramsbotham, for whose expertise the Committee is indebted, mentioned a number, in particular Diagrama, a Spanish not-for-profit organisation that runs custodial facilities. The Ministry of Justice is aware of the work of Diagrama, and it is an example, as I understand it, of the type of innovation that we want to introduce and attract into secure colleges. We have, as I said previously, an open mind, and we are anxious to encourage innovation. However, as the noble Lord quite rightly said, he would not expect me to comment from the Dispatch Box on the advantages or disadvantages of the specific matters that he raised in his speech, valuable though his contribution is to the general approach to trying to find the right answer to these difficult problems.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I have a question. I apologise if the Minister dealt with it on Monday, when I was unable to stay for that part of the discussions. I referred, in my brief speech, to the family provisions for putting children into secure accommodation under, I think, Section 25 of the Children Act. Will any of those children go into secure colleges? If they will not, there is a real danger that there will not be any places for them if small secure units do not have both the children who offend under the criminal law together with the children who are beyond control under the Children Act.

[Lord Faulks]

I dealt with these points on Monday. We are proposing to keep these secure children’s homes open for the appropriate offender. The involvement of the Youth Justice Board will, we suggest, ensure that the right offenders find their way into secure colleges.

[Lord Ramsbotham]

My Lords, I must admit that I am disappointed by the line that the Minister has taken, particularly in view of the very helpful contributions made by the noble Lords, Lord Cormack and Lord Marks, and the right reverend Prelate. I had hoped that, by outlining all these suggestions, we would not have merely one solution put forward to us—pathfinder or not, staged or not—but there appears to be no give on the general intent. Yes, the Youth Justice Board is responsible for commissioning, but what the Youth Justice Board has always been responsible for commissioning is a situation that it inherited. So far, I am not aware that there has been any attempt to look right across the whole system and perhaps design something using the existing situation to make better use of it to provide the aims that we all want. The Government have come up with the solution of the secure training centre, which has attracted opposition from all those who have had anything to do with young offenders. I hope they will be given more attention.

I am grateful for the contributions that have been made across the Committee. As I said at the start, I do not intend to seek the opinion of the Committee with a vote at this stage, because we all have to go away and read not only what happened on Monday, to which the Minister referred—indeed, some of it has come up again—but what has been raised here. I hope that the Government will have considered this, on calm reflection, when we come back to it on Report. The Government will know that many people long to take part in the deliberations and contribute what they have because they feel excluded from this. They feel that this is a solution that has been put to them without any explanation. Yes, there have been meetings and they have had the site explained, but we have not had all the details of the regime and answers to all the other questions that have come up, because the Government have admitted that they simply will not know the answers to those until they have opened the envelopes from the competitive bidders.

Personally, I would have been much happier if any development of a site by a contractor was in conjunction with the provider of the education to make certain the contractor is doing what the education provider needs. However, as we do not know who the education person is, what is the point of a designer going ahead with something that the person who is going to use it has not had any say in?

I very much hope there will be a great deal of consideration. As I say, I hope the Government will engage those who want to get involved to make sure the solution for our young children is the best possible, based on all the experience there is and all the good practice that is known.

--- Later in debate ---

[Lord Faulks]

My Lords, Amendment 44 seeks directly to extend the Freedom of Information Act to providers of secure colleges who have entered into a contract with the Secretary of State under Schedule 6 to the Bill. The amendment, as the noble Lord, Lord Beecham, said, is similar to Amendment 11, which we debated in Committee on day one. It would provide for private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.

As the noble Lord said, the amendment differs in one respect from Amendment 11 in that it would lead to the formal extension of the FoI Act to providers of secure colleges, whereas the amendment debated previously sought to achieve the same ends in relation to providers of outsourced electronic monitoring services through the code of practice that the Secretary of State would issue under new Section 62B of the Criminal Justice and Court Services Act, which is being introduced through Clause 6 of the Bill.

As we set out in the debate on Amendment 11, the Government recognise that there are concerns about the position of private providers of public services, under the Freedom of Information Act. The issue of outsourced public services was considered in some detail during the post-legislative scrutiny of the Freedom of Information Act carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed that,

“contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act”.

The committee also felt that,

“the use of contractual terms to protect the right to access information is currently working relatively well”.

The Government recognise not only that concerns exist in this area but the potential challenge that the increased delivery of public services by non-public sector providers poses to transparency. It is for that reason that the Government accepted the committee’s recommendation. Later this year, the Government will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. As we explained in the debate on Amendment 11, the guidance to be provided in the code will promote and encourage the use and enforcement of contractual or sub-contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will go further than the current obligations under the Act. It will encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.

The Government and the Information Commissioner will monitor the effectiveness of the code. If it does not prove successful, the Government have said that they will consider what other steps may be necessary to ensure accountability, including the possible formal extension of the Freedom of Information Act to contractors. As I have indicated previously, we believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of the steps that we are taking, I suggest to the House that the measures proposed through these amendments are, with respect, unnecessary. I invite the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, I will withdraw the amendment and I am grateful to the noble Lord for reaffirming the Government’s general position. He did not—I do not criticise him for this—quite deal with the further point I made about having a monitor, particularly the issue of the Secretary of State reporting on the outcome of such issues. He may wish to consider that. I hope we can clear up that point because, if the Secretary of State is issuing or preparing a report, it should be in the public domain. That may very well be intended but perhaps we can deal with that matter before Report. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, it would appear that in this area, as in others, we are short of information about the number of cases in which young offenders are named. There does not appear to be a dataset indicating how many of these young people are being named and, apparently, has there been no research of any great depth on the impact of being named on such young offenders or their families—as my noble friend pointed out, particularly in relation to their siblings.

The UN Convention on the Rights of the Child, as long ago as 1989, stated that as well as the right to privacy, “best interests” of the child should always,

“be the primary concern in making decisions that may affect them”.

It is striking that, although it is a matter for the courts whether the child should be identified, the applications tend to be made by the media on the grounds of public interest. The capacity of the media to identify their interests with the public interest is of course unlimited, but in this rather sensitive area it might be thought that the principles of the convention should be taken a great deal more seriously. Some of the ways in which the media have portrayed young offenders, complete with photographs—my noble friend mentioned a case where a child’s photograph was prominently displayed—and emotive language such as how “young thugs” should be dealt with, are not conducive to meeting the requirements of the convention, which we should all respect.

I understand that the Government are looking at the existing law on reporting restrictions and had indicated that they would be coming to a conclusion some time this year. They may not have done so, but I do not know whether the Minister is in a position to indicate when that review might be completed. It would be helpful to the House to know when that might occur. In fact, the Government—I should, in fairness, say successive Governments—have not responded to the UN committee’s report, which is dated as long ago as 2008. In addition to the general principle to which I referred, that report made the strong point that respecting privacy should extend especially to avoiding messages that expose the child to shame and are against their best interests.

This is potentially quite a serious issue. From my experience as a councillor and, indeed, as chairman of the social services committee in Newcastle in the 1970s, I recall very well the famous case of Mary Bell, who was a young child when she committed offences that became notorious. Rather like the subsequent Bulger case—or rather, those who were guilty of killing Jamie Bulger—she became exposed to a great deal of publicity. That made assimilation into adult life extremely difficult for her, as it has for other defendants, it would appear, including those in the Bulger case. This is a very sensitive area in which we need a clear position from the Government in terms of a response not only to the amendment but perhaps more importantly to the UN convention requirements of as long ago as 2008.

Of course, there may be public interest in knowing what is happening, but a public interest in knowing does not necessarily amount to a matter of public interest. The two terms become confused. I hope that that is not the position that the Government ultimately end up with. There are clearly issues here that can have a long-term impact on young offenders. I entirely take the Minister’s point: the whole point of dealing with these young offenders is to ensure they do not offend again and can assume their place in society. We should not facilitate making that any more difficult by permitting disclosure when it is not necessary. I hope that the Government will look sympathetically at the amendment moved by my noble friend and respond to the long outstanding report and recommendations of the UN convention.

None of us would say that people—even young people—who commit serious crimes should not be punished or go through the processes that the law prescribes. They should not, however, be subjected to public obloquy in addition to that. It is rather disconcerting that, at the time of the riots in London a few years ago, the Home Secretary seemed keen to publicise the identity of some of those, particularly young people, who were involved in criminal and quite disgraceful behaviour. I think that many of us would feel that, in that sort of case and for that sort of young offender, publicity might be regarded as almost a badge of honour and is therefore not to be encouraged from any perspective. I hope that that situation will not recur. In the mean time, we have a number of offenders, some of whom are involved in very serious offences, whose anonymity has been done away with in a way that cannot be conducive to helping them to reform and to assume a normal place in society.

[Lord Faulks]

My Lords, I am grateful for the amendments tabled by the noble Lord, Lord Ponsonby, and those tabled by the noble Lord, Lord Marks, the noble Baroness, Lady Linklater, and the noble Lords, Lord Carlile and Lord Dholakia. All have shown considerable commitment to the subject of how we respond to children and young people in the youth justice system. Some have direct experience of how children and young people are dealt with in court, as magistrates, lawyers or counsellors, in one or more of those capacities or in some other capacity. I welcome the opportunity to debate the issue of youth reporting restrictions. Noble Lords’ amendments bring into focus a range of issues, each of which I will deal with in turn.

First, as to online content, noble Lords are seeking to address a potential lacuna in the existing reporting restrictions framework which was remarked upon by the High Court in the case of MXB v East Sussex Hospitals NHS Trust. The court commented that information that would normally be prohibited from publication in a newspaper could be published and made available to the public via Facebook or Twitter. The present position therefore appears to be not entirely clear, although it may conceivably become clearer in the light of further developments in case law. However, we know that the publication of information through online content is in many ways quite different from the more traditional forms of communication that Sections 39 and 49 of the Children and Young Persons Act 1933 were intended to cover. For example, information can now be published, updated, viewed and replicated almost instantaneously in a way that could not have been envisaged by Parliament many decades ago.

However, the ability to view such information may be restricted by the author of the online content to a very limited set of individuals indeed. We must be mindful of the boundary between private correspondence via e-mail, which the current youth reporting restrictions framework, rightly, in no way seeks to curtail, and publication to the world at large. It is worth noting that, in its recent reports on the law of contempt, the Law Commission considered what statutory definition might capture online content and identified a drafting solution very different from that put forward by the noble Lord. I wish to reassure noble Lords that the Government are aware of the concern that has been raised and are giving further thought to this very technical and complex issue. In light of that assurance, I hope that, in due course, the noble Lord will withdraw his amendment.

As to criminal investigations, Amendment 48B, also in the name of the noble Lord, Lord Ponsonby, seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999, which has been on the statute book for some time. Section 44 applies whenever a criminal investigation begins into an alleged offence and means that no information enabling the identification of a young person under 18 suspected of committing the offence may be reported by the media. Section 44 also gives the Secretary of State the power to extend the protection to children and young people who are alleged to have been the victims of, or witnesses to, a criminal offence but only by means of an affirmative order. Hansard indicates that on 29 June 1999, during Committee stage in the other place, the affirmative procedure in respect of victims and witnesses was introduced by the Opposition when in government. A number of objections were raised in respect of Section 44 and were considered in a process in which parliamentary scrutiny went hand in hand with discussions with the print and broadcast media. I have recently received letters from the Newspaper Society and the BBC outlining similar misgivings.

During what I referred to as hand-in-hand discussions, it was suggested that it may be time to look at whether the media’s own regulatory arrangements to protect vulnerable young people could be strengthened in a way that is specific to young people who might be harmed by publicity about crime. Given the significant restriction that Section 44 potentially imposes on the freedom of the press and the possibility that its aims might be achievable through other means, it was determined that Section 44 should be extended to victims and witnesses only after both Houses had been given the opportunity to debate the issue again. Since then, the section has never been commenced and guidance and regulations have been pursued instead.

--- Later in debate ---

[Lord Beecham]

My Lords, the Committee is indebted to the noble Earl, Lord Listowel, and to other noble Lords who have spoken in the debate, for raising a matter of concern and for pointing out the inconsistency that now applies, particularly in regard to the welcome change that the Bill incorporates, and to which other noble Lords have referred, about having an appropriate adult present when a 17 year-old is being charged or interviewed.

Noble Lords have spoken in moving terms about the problems faced by vulnerable young people in the circumstances that the amendment addresses. Clearly, from their point of view, it would be highly desirable for a different sort of accommodation to be made available. Perhaps the noble Lord, Lord Paddick, who has not participated in the debate, might agree that it is better from the police’s point of view if they do not have responsibility in an area where, as the noble Baroness has just pointed out, they do not have the expertise to look after vulnerable young people who might be capable of inflicting harm upon themselves in a difficult and unusual situation.

Both sides of the equation, as it were, argue for a change and a degree of consistency across the legislative framework. It would, however, be desirable, if it has not yet been undertaken, to consult with the Local Government Association representing local authorities in England and Wales to ensure that the local authorities have an awareness that this will, necessarily, impinge to some degree upon their responsibilities, and for an adjustment to be made in the financing that would no doubt be required to provide a safe, temporary haven for these young people before they make their court appearance. If the Minister is unable to give an unequivocal response today, I join others in hoping that, between now and Report, matters might be progressed.

This may be seen primarily as a matter for the Home Office but it is clearly of interest for the Ministry of Justice and I hope that the two departments between them—possibly with, as I said, the involvement of the Department for Communities and Local Government and maybe even the Department for Education, which has a potential interest in respect of children’s services—might come to a fairly rapid conclusion about what is not an inherently complex matter in a way that would satisfy the noble Earl, Lord Listowel, and, more particularly, those who have undergone a traumatic experience with their own children and do not wish to see that repeated in respect of other 17 year-olds and their families.

[Lord Faulks]

My Lords, I begin by acknowledging the contribution that the noble Earl, Lord Listowel, has made to our debates generally on the plight of young people, particularly those who are or have been in care, who, sadly, often find themselves in the position that this amendment particularly focuses on. I join others in expressing the Government’s deepest sympathy with the family of Kesia Leatherbarrow. It was, as all noble Lords have pointed out, a tragic case.

The main purpose of the amendment is to include, within the definition of “arrested juvenile” in Part 4 of the Police and Criminal Evidence Act 1984, 17 year-olds in the context of police detention following charge. I acknowledge that although 17 year-olds may often appear confident and adult, that can conceal vulnerability, as the noble Baroness, Lady Kennedy, pointed out. In line with the current treatment of 10 to 16 year-olds the amendment would have the effect of requiring a 17 year-old who has been charged and denied bail to be transferred to local authority accommodation when it is both appropriate and practicable for the police to do so.

I understand that this proposed amendment, which has at its heart a laudable intention, is related to the Hughes Cousins-Chang High Court ruling of April last year. The Government did not appeal that ruling and accepted the findings of the court, which related solely to the Police and Criminal Evidence Act codes of practice C and H. Specifically, the ruling required that 17 year-olds, when arrested on suspicion of committing an offence, must be provided with an appropriate adult and have a parent or guardian informed of their detention. The Government made these changes in full as soon as possible, allowing for the statutory obligation to consult on all changes to the PACE codes, and these provisions were made mandatory in October.

Since the implementation of the High Court ruling, the Government made clear their commitment to review the primary legislation relating to the treatment of 17 year- olds as adults in the criminal justice system. This was to consider whether changes should be made for similar reasons. I can confirm, as noble Lords have already indicated, that an internal review has already been launched and that the work is continuing. Whereas this amendment concerns specifically the case of detention following charge, the review covers all the legislation where 17 year-olds are treated as adults in the criminal justice system. It includes, for example, Section 65 of PACE, which relates to the age at which a person can give their independent consent to the taking of fingerprints, impressions of footwear, and intimate and non-intimate samples at the police station.

The Home Office review also covers the consequential changes that would need to be made to other legislation should 17 year-olds be regarded as juveniles. For example, an amendment to Section 37(15) of PACE, which is the proposition here, would also require amendments to the Children (Secure Accommodation) Regulations 1991, the Bail Act 1976, the regulations of 1991, the Children and Young Persons Act 1933, and so on. These are just some examples, for which other departments have responsibility. Those examples demonstrate the breadth and complexity of the legislation, which needs to be properly thought through before change is made.

It is of the utmost importance that any change in the law is workable in practice and not merely symbolic. We need to be sure, for example, that local authority accommodation will be available to 17 year-olds were the law to be changed, that adequate transportation exists and that police officers are trained properly to understand the requirements of this change. The appropriate adult change, which has been referred to, is considerably less complicated operationally than that which is the subject of this amendment. Any amendment to primary legislation needs to be subject to proper consultation, appropriate consideration and full scrutiny by Parliament. This amendment, though laudable in its aims, represents, we respectfully say, a somewhat hurried approach to the issue of how we treat people at the age of 17 at the front end of the criminal justice system.

The noble Baroness, Lady Howe, referred to the police’s knowledge of young people in dealing with 17 year-olds. The noble Lord, Lord Beecham, tried to elicit a contribution from my noble friend Lord Paddick as to the unsuitability of the police to deal with 17 year-olds.

[Lord Beecham]

In fairness, I was not saying that the police were not suitable but that it is placing an undue burden upon them. That is a rather different point.

--- Later in debate ---

[Lord Faulks]

I stand corrected by the noble Lord. I would remind the House nevertheless that the police are under a duty, under Section 11 of the Children Act 2004, to make arrangements to safeguard and promote the welfare of children. The statutory guidance accompanying Section 11 makes clear that these arrangements include adequate training and dealing with children aged under 18.

While this is clearly an important issue and one that the Government take extremely seriously, for the reasons that I have given I am unable to commit myself to having an answer by Report. I hope that we will have, but I am afraid that I am unable to give that commitment. I can say that the review is a matter of importance and will be thoroughly undertaken. I hope that, with that reassurance, the noble Lord will withdraw his amendment.

[The Earl of Listowel]

I am grateful to the Minister for his careful and considered reply and his kind words to me. Perhaps he could write to me on whether or not he has a final date for the internal review. I am grateful to the Minister for his considered and sympathetic response to the amendment. I will take away what he says and consider it over the Recess. I thank all the noble Lords who spoke in the debate for their contribution and for their support for the amendment. I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

49: Clause 36, page 35, line 5, leave out “court” and insert “designated officer specified in the notice”

[Lord Faulks]

My Lords, the Government have tabled a total of 14 minor and technical amendments to this clause, Clauses 38 and 39 and Schedule 7. As noble Lords will be aware, the intention is to introduce a new single justice procedure alongside the current written charge and requisition procedure. These changes are necessary in order to ensure that our new procedure fits together with some older provisions on the summary justice procedure in the Magistrates’ Courts Act 1980.

Amendment 49 is essentially a drafting amendment, clarifying that the single justice procedure notice must be served on a designated court officer, rather than a court building.

Amendment 50 relates to an issue raised during the House of Commons Committee about the information sent with the notice about the defendant’s DVLA record in cases involving driving offences. We undertook to consider this further and ensure that the provisions allow a single justice to view a defendant’s driving record before sentencing, as is currently the case under the written charge and requisition procedure. We believe the current drafting is too restrictive, so this amendment introduces a new provision that will enable a single justice to try cases using documents that have been described to the defendant, as well as those served on the defendant. It makes clear that in order to rely on any previous convictions, the prosecution must give the accused notice of their intention to do so at the time of serving the single justice procedure notice.

The noble Lord, Lord Ponsonby, has tabled an amendment to Amendment 50. As I have said, Amendment 50 allows the prosecution to give notice to the defendant of their intention to rely on certain information. The noble Lord’s amendment would limit that information to information that is specified as relevant to the charge.

With great respect to him, I do not think that amendment is necessary. The existing and cardinal rule of evidence will of course apply: all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded. It has never been our intention, in tabling Amendment 50, to depart from these rules. Prosecutors can be trusted, as they currently are under the written charge and requisition procedure, to abide by these rules and put before the court only information relevant to the case.

The weight attached to the evidence will remain a matter for the single justice, on the advice of his or her legal adviser. We have introduced further safeguards, which I will come to in a moment, to make clear that a single justice can, of course, consider the nature of the evidence when deciding whether to refer a case to a traditionally constituted magistrates’ court. Therefore, if the single justice has doubts or concerns about the evidence before him or her, he or she can refer the case to a Bench of two or even three magistrates. I therefore respectfully ask the noble Lord, Lord Ponsonby, not to move his amendment.

Amendment 53 relates to Amendment 50 and provides further clarification on admissibility. The principle behind Amendment 53 is that evidence is admissible as long as it has been served on the accused at the same time as the single justice procedure notice. This provision also introduces additional safeguards in Section 16F(2), which points a single justice to consider whether he or she should proceed with a case under the new procedure where the nature of the evidence suggests that it would be not be appropriate to do so.

Amendment 51 introduces a provision that makes explicit that, where the accused has indicated that he or she wishes to plead guilty in their response to the single justice procedure notice, the court can try the case as though the accused has indeed pleaded guilty.

Amendment 52 provides some clarification to new Sections 16B(1) and 16C(1), which are to be inserted in the Magistrates’ Court Act 1980 by Clause 38. It makes clear that there are two distinct occasions when a single justice will consider the appropriateness of using the single justice procedure: prior to conviction and post conviction. This amendment aims to avoid the situation where a single justice may decide to refer a case to a traditional magistrates’ court simply because it would be inappropriate to sentence without first having convicted and issued a summons in the proper way.

Amendment 54 adds to the range of sentencing powers available to a single justice in respect of driving offences resulting in penalty points on an offender’s licence.

The next set of amendments modifies current legislative provisions to ensure that they operate effectively in cases heard under the single justice procedure. Amendment 57 makes changes to Section 11 of the Magistrates’ Courts Act 1980, which provides that a court cannot impose a disqualification from driving in the absence of the defendant unless a hearing has resumed after an adjournment. Where a single justice is considering imposing a driving disqualification, and the defendant has indicated they wish to make representations on that, the single justice will already have adjourned the case and summonsed the defendant to a traditional magistrates’ court. This amendment ensures that the traditional magistrates’ court can decide the case without having to go through the process of adjourning it again.

Amendment 58 provides that in any case where the single justice considers that the accused is “likely” to have been misled by a variance between the written charge and the evidence presented by the prosecutor, the matter is no longer appropriate for consideration under the single justice procedure and should be referred to a traditional magistrates’ court. This will ensure that a less stringent test applies for cases dealt with under the new procedure.

Amendments 59 and 60 apply to cases involving prosecutions for traffic offences which may result in disqualification from driving. They concern the requirements in such cases for the defendant to present his or her driving licence to the court on the day of the trial. These arrangements are set out in Section 7 of the Road Traffic Offenders Act 1988. Amendment 59 modifies these arrangements for cases heard under the single justice procedure. Instead of having to present their driving licence on the date of the trial, defendants will be required to present their licence post conviction once they have been notified by the court of the intention to disqualify. Amendment 60 is a consequential amendment resulting from these modified arrangements. It provides that in cases where the defendant has been issued with a receipt after having surrendered their driving licence in relation to another offence, it would be appropriate for them to produce this receipt instead of their driving licence.

The final set of amendments is purely consequential amendments to other legislation. Amendment 56 enables a summons to be served in Scotland and Northern Ireland following a decision by a single justice that it is no longer appropriate to continue trying a case under the single justice procedure. Amendments 61 to 63 ensure that the single justice procedure applies to Section 68 of the Pension Schemes Act 1993, Section 55 of the Vehicle Excise and Registration Act 1994 and Section 164 of the Criminal Justice Act 2003.

As I have indicated, all these amendments are necessary to ensure that the single justice procedure works effectively, that it works well alongside other relevant provisions within our legislative framework and that it works in a way which continues to protect the rights of defendants. I beg to move.

--- Later in debate ---

Publicising the results of the hearing is the subject of Amendment 51B. Again that is a question of justice being seen to be done and information being available. The Magistrates’ Association, if I recall correctly, is sympathetic to those suggestions. I hope that the Minister will recognise that the Opposition certainly support the principle of the Government’s proposal, which we welcome. It may well speed up matters. Nevertheless, there need to be safeguards, particularly in relation to the public aspect of the administration of justice, which is not normally conducted behind closed doors in this country, even in routine matters. I hope that the noble Lord will give consideration to these amendments.

[Lord Faulks]

I thank noble Lords who have taken part in this useful debate. In addition to my response and the moving of government amendments, the debate has enabled the Government to place on record the rationale behind these provisions, which are broadly welcomed. I am reassured to hear, as I knew was the case, that the Magistrates’ Association is very much in sympathy with this, as are magistrates such as the noble Lord, Lord Ponsonby, and Newcastle magistrates’ court, which, sadly, misses the noble Lord, Lord Beecham. There is general consensus that this is a move in the right direction. Nevertheless, I also understand that there is the feeling that there should be safeguards to ensure that there is no sense that these hearings take place behind closed doors unless it is entirely appropriate that that should be the case.

I shall deal first with Amendment 49A, which seeks to require that the list of offences to which the new single justice procedure should apply is set out in secondary legislation. Our intention is that all summary, only non-imprisonable, offences should be in scope of the procedure. However, we anticipate this procedure being used only in the more straightforward cases, such as where the particular circumstances of the case mean there is no direct victim or specific threat to public safety involved, or cases that involve offences designed to regulate the conduct of some particular activity in the public interest where there is a minimal or no mental requirement needed to prosecute. In legal terms, this would mean cases where there is no mens rea or it is easy to prove mens rea.

We expect offences that are technically in scope of the legislation but which might not be suitable for the new procedure to be initially filtered out by prosecutors who make decisions on the handling of these types of cases on a daily basis. It will, of course, be for a single justice to decide whether a case is appropriate for this procedure, and he or she can refer it to the ordinary court at any time. I fully understand the temptation to try to limit or specify a list of offences to which the single justice procedure might apply. However, we have high-quality magistracy in this country who are well used to exercising their powers to determine the right forum within which cases should be heard.

Amendment 49B relates to the rights of the defendant under the single justice procedure. Our provisions allow the court to use the single justice procedure unless the defendant explicitly states that he or she does not want that to happen or intends to plead not guilty, in which case it will automatically be referred to a traditional magistrates’ court. The objective of the single justice procedure is to address the current situation, whereby a significant number of defendants fail to engage with the process at all. Although the effect of the amendment would be to allow a single justice to consider any case, regardless of the defendant’s response, I understand that the intention is to remove the ability of the single justice to hear cases where the defendant has not responded. I recognise that this may be in response to concerns about the assumption that, where a defendant does not engage, the case should nevertheless still be heard by a single justice. However, it should be remembered that the defendant will have the right to request a traditional hearing in open court at any point before his or her case is considered by the single justice. If a defendant does not know about the case until after it is finished, they can make a statutory declaration to that effect, which will start the proceedings again from the beginning.

Amendment 49C would introduce a new requirement that the documents sent to the defendant with the single justice procedure notice should include a copy of the submission from the DVLA informing the court of any penalty points on the defendant’s driver record. It is the explicit responsibility of the holder of a driving licence to ensure that it is kept up to date by surrendering it as and when required for details to be changed or endorsements added. If there are endorsements on a driving record that do not appear on the counterpart of the corresponding driving licence, the licence holder might well be committing a further separate offence. I assure noble Lords that courts will have direct access to DVLA records. The days that the noble Lord, Lord Beecham, remembers of a moth-eaten driving licence being handed up to the justices have departed. A single justice will have information about an offender’s previous offences before them when trying a motoring offence.

[Lord Ponsonby of Shulbrede]

My Lords, I am sorry to disabuse the noble Lord, but those days are not departed. In fact, it is far more common for the defendant not to be able to produce a driving licence at all.

[Lord Faulks]

I defer to the noble Lord’s experience in that regard, although the new format of the driving licence makes it slightly less destructible than its predecessor. I maintain nevertheless that the courts do have access to the DVLA records, so, when trying a motoring offence, a single justice will have the information even if the defendant does not produce a driving licence at all. I am therefore confident that the safeguards we have built into this procedure make the amendment unnecessary.

Amendment 50AA would remove the provision that a court can decide a case under the single justice procedure other than in open court. That would undermine one of the main drivers behind this policy. We consider the time wasted and costs incurred in requiring magistrates to sit in open court and decide cases disproportionate in the type of straightforward, low-level cases that this procedure will apply to. Safeguards are in place to enable a prosecutor to ensure a case is heard in open court by issuing a requisition and a defendant to ensure the same by indicating his or her wishes in response to the single justice procedure notice. I reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure that proceedings are open and transparent. The press and public will continue to have access to information about these cases, as they do now.

Amendment 50C would allow a single justice to hear and consider evidence from a party to the case if they turn up when the single justice is considering the case. In practice, parties will not know when a case will be considered by a single justice under this new procedure, so it is extremely unlikely that this situation would occur. However, there is a risk that it could be seen as encouraging prosecutors to turn up and assist the court. That could be perceived as unfair and unequal, particularly if the case was being heard other than in open court. We could not allow evidence to be heard by a magistrate when a single justice was making a decision, as that would lead to unfairness if the other party had not been given the opportunity to consider that evidence. In any case, there is clear provision in the Bill stating that when a person wants to be heard by a magistrates’ court, they are perfectly able to request a hearing.

Amendment 51B would introduce a legislative requirement to publish in advance details of cases to be heard under the single justice procedure and to publish the outcome of these cases. It is, of course, vital that the media and the public continue to have access to information on these cases under the new single justice procedure. However, the appropriate place for such provisions is within the Criminal Procedure Rules. Those make it clear that certain specified information must be made available to journalists and other members of the public on request. The rules also allow the court to make certain additional case information available to third parties on request. The Criminal Procedure Rule Committee will be invited to review the Criminal Procedure Rules to make sure that they are fit for purpose for the single justice procedure.

I can reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure the proceedings are open and transparent. The press and public will continue to have access to information about cases, as they do now. There is a protocol in place between Her Majesty’s Courts and Tribunals Service, the Newspaper Society and the Society of Editors whereby magistrates’ courts routinely make written lists of cases and results available to local media, most often by e-mail. This arrangement will continue.

Amendment 52A introduces another condition on which a defendant can make a statutory declaration so that, in addition to being unaware of the proceedings, the defendant can state that they did not understand the information contained in the single justice procedure notice and the accompanying documents. This deals with the point made by the noble Lord, Lord Beecham, about things such as language difficulties. The associated documentation sent to defendants under the single justice procedure will be no more complex that the documentation which is currently sent in this type of case; indeed, we are confident that the flexibility afforded by this new procedure will enable us to make the whole system for these cases more easily understood by defendants. As with the existing process, prosecutors have developed strategies to identify those who may require further assistance and Her Majesty’s Courts and Tribunals Service is also considering, as part of implementation planning, how it will continue to discharge its duty to provide assistance to unrepresented defendants. The provisions, as set out, provide magistrates’ courts with the flexibility they need to operate the single magistrate procedure effectively while ensuring that the rights of defendants are protected.

I will say a little more about the suggestion put forward by the noble Lord about the availability of information on case outcomes. I agree that the information should be available as soon as possible after the trial has concluded. In both cases, the noble Lord suggests that this should be within 21 days. However, such detailed procedure should not be contained within the legislation itself. As I said earlier, the appropriate place for such detail is within the Criminal Procedure Rules.

We know that journalists and the general public seldom attend to watch this type of hearing and this is the reason behind the protocol to which I referred. As to the listing, we accept that it is vital for there to be access to information and we anticipate that cases will initially be listed in the same court buildings as they are at the moment. This arrangement with local media will replicate exactly what currently happens in practice. In future, we will want to take advantage of the fact that consideration of cases in writing can happen anywhere, and maximise the efficiency that can be derived from this greater flexibility. In doing so, we will want to maintain flexibility and transparency.

There are opportunities, as part of the criminal justice system digitisation agenda, to look more radically at how we can use the opportunities of digital to preserve and perhaps enhance open justice. It is our intention to make case information available on a self-service basis and enable the press and public to access cases in real time and follow the progress of the digital process online in a more meaningful way than they can at present. The rule committee will be invited to review the rules to ensure they are fit for purpose for the single justice procedure. I am sure that such a review will want to take into account the proposals made by the noble Lord, Lord Ponsonby. Any necessary amendments can be made, subject to annulment by either House of Parliament in the usual way.

I hope that, in the course of rather too long a response to those amendments, I have been able to allay any concerns and explain the thinking behind the single justice procedure. With that reassurance, I hope noble Lords will not press the amendment.

[Lord Beecham]

That was a very thorough response for which I am extremely grateful, but one thought has just occurred to me in relation to some of the noble Lord’s later remarks. I may be wrong, but I understand that it is possible that some of these cases will be taken, as it were, to some other court and thus will not necessarily be heard in the place where the offence was committed. Perhaps I have misunderstood the noble Lord, but if that is right, does that not make the question of the openness of the process in terms of recording the outcome more difficult? There will not be a local reporter in, say, Newcastle for a case that has been transferred from there to Middlesbrough. Perhaps the noble Lord could look into this because I would be interested to hear his views on it. I think that it would be regrettable. If we are to have this process, it should be based in the local court where the offence occurred and where it would normally be dealt with.

[Lord Faulks]

Perhaps I may look into that and confirm the position in writing to all those who have taken part in this debate.

Amendment 49 agreed.

--- Later in debate ---

Moved by

[Lord Faulks]

50: Clause 38, page 37, leave out lines 9 to 12 and insert—
“(3) The court may not hear any oral evidence and may consider only the contents of the following—
(a) the documents specified in subsection (2),(b) any document containing information to which subsection (3A) applies, and(c) any written submission that the accused makes with a view to mitigation of sentence.(3A) This subsection applies to information if—
(a) a notice describing the information was served on the accused at the same time as the documents specified in subsection (2), and(b) a copy of the notice has been served on the designated officer specified in the single justice procedure notice.”

--- Later in debate ---

Moved by

[Lord Faulks]

51: Clause 38, page 37, line 19, at end insert—
“( ) If the accused served on the designated officer specified in the notice a written notification stating a desire to plead guilty and to be tried in accordance with this section, the court may try the charge as if the accused had pleaded guilty.”

--- Later in debate ---

Moved by

[Lord Faulks]

52: Clause 38, page 37, line 32, leave out “try the written charge” and insert “convict the accused in proceedings conducted”

--- Later in debate ---

Moved by

[Lord Faulks]

53: Clause 38, page 40, line 7, at end insert—
“16F Admissibility of statements
(1) A statement contained in a document is admissible in proceedings conducted in accordance with section 16A as evidence of a matter stated if, in the particular case—
(a) the document is one in relation to which section 16A(1)(c) is satisfied, or(b) section 16A(3A) applies to the information in that document (as the case may be).(2) Subsection (1) does not prevent a court taking into consideration the nature of the evidence placed before it when deciding whether it is appropriate to try the written charge in accordance with section 16A.
(3) In this section “statement” means any representation of fact or opinion.”

--- Later in debate ---

Moved by

[Lord Faulks]

54: Clause 39, page 40, line 32, at end insert—
“( ) making an order under section 30A of the Road Traffic Offenders Act 1988 (order to disregard penalty points if approved course attended);”

--- Later in debate ---

[Lord Kennedy of Southwark (Lab)]

I am delighted to support the amendment in the name of the noble Lords, Lord Low of Dalston, Lord Blair and Lord Hodgson of Astley Abbotts. With their wide range of experience they have correctly identified that, despite the best of intentions, the support of the Courts Service and of charities, in too many cases courts are not making sufficient checks with regard to the immediate welfare needs of children and dependent adults. The amendment seeks to put in the Bill what should happen at present but has clearly not been delivered in many cases, and that is a matter of much regret. I agree with the noble Lord, Lord Blair, that this is a fairly small measure but it deals with an important issue that needs to be addressed.

My noble friend Lord Touhig told the House of a number of young people and children who were put into difficult situations because simple provisions were not in place. I agree also with many noble Lords when they said that the children of prisoners were a highly vulnerable group of people who need to be looked after.

As the noble Lord, Lord Low of Dalston, explained to the Committee, the amendment will require the courts to inquire of a defendant who has been sentenced or remanded to prison whether they have dependants and whether arrangements have been made for them. If they have not, they would be allowed to make a phone call to make arrangements or, where that is not possible, the court could direct someone to take action before the defendant leaves court.

People sometimes need to be sent to prison. All this amendment does is to seek to ensure that adequate immediate provision is made for dependants. As the noble Baroness, Lady Benjamin, said, all we are requesting is for two simple questions to be asked. I do not think this amendment in any way places a burden on the courts that could not be handled. If the noble Lord, Lord Faulks, is going to say that, I hope he will explain very carefully why he thinks that is the case and answer the point that I and other noble Lords have made in this debate, which is that the voluntary provision has failed and that continued failure is likely to cost far more to dependants and to their welfare.

I see the provision working fairly simply. When I sat in court as a magistrate, although that was some time ago, courts adjourned for all sorts of reasons. It is very easy for questions to be asked and action taken. It is also true that in many cases, especially if the defendant fully expects to receive a custodial sentence, arrangements for dependants will have already been made.

All we are looking for is a clear set of proportionate responses to come into play with the welfare of the dependants of someone who has received a custodial sentence at their heart. I hope that the Government can either accept this amendment or at least look at this issue again and the problems that have been identified before we come back to it on Report.

[Lord Faulks]

My Lords, the amendment from the noble Lords, Lord Low and Lord Blair, and my noble friend Lord Hodgson, seeks to place a statutory duty on a court to inquire into the arrangements for care of dependants of those being sent into custody. I recognise that the proposed new clause is a revised version of one debated by this House during the passage of the Anti-social Behaviour, Crime and Policing Bill 2013. I welcome the contribution of the noble Lord, Lord Touhig, and the interest that he continues to show in this important issue, just as I welcome the contribution of the noble Baroness, Lady Benjamin, with her connections with Barnardo’s. I should also reiterate that I was grateful, too, for the opportunity to discuss some of the details of the previous version of this new clause, not the one that finds its way into the amendment, with the noble Lords whose names appear on the amendment, together with some staff from Barnardo’s.

As my noble friend and predecessor in this position, my noble friend Lord McNally, said last year, the Government completely understand the concern behind this proposed new clause. We should all be concerned with the welfare of children and other dependants of those who are about to be sent into custody. I do not disagree with anything noble Lords have said about the importance of protecting these children and vulnerable adults. We should all recognise that the children of those sent into custody can be subject to immediate risks to their welfare, and there is the risk that they themselves will fall into crime.

The Government support the desire to identify and ensure that children of offenders are cared for. Unfortunately, the Government cannot accept this new clause, even in its revised form, for the reasons that I will explain. The new amendment seeks, via an amendment to the Criminal Justice Act 2003, to require the Lord Chief Justice to issue a practice direction under his powers in the Constitutional Reform Act 2005. In this way, Parliament is being asked to approve a provision which would require the Lord Chief Justice to issue a practice direction and require the Lord Chief Justice to issue a direction with the particular content set out in this proposed new clause. This, noble Lords will appreciate, would amount to an inappropriate restriction on the Lord Chief Justice’s powers and discretion to issue practice directions which the Constitutional Reform Act is designed to protect. However, I understand the thinking behind this amendment and the Government agree that it would be better to approach this problem not by a statutory duty, but by more practical measures. This might include, via the independent bodies that are responsible for these things, guidance, practice directions or procedure rules.

We welcome the changes that noble Lords have made to the clause, which goes some way to addressing the concerns expressed in regard to the earlier version. We remain concerned, however, by the focus on post-sentence or post-remand consideration.

The proposed new clause applies only to the post-sentence process, or the process following the decision to withhold bail, but the existence of dependants is also of vital importance to the decision to remand or sentence to custody—in other words, pre-sentence. As for the Sentencing Council, the current sentencing guidelines already specifically mention care of dependants in relation to the approach to the sentencing decision. There is a clear process for making representations to the court with regard to sentence. Information supplied post-sentence, although it may help with making care arrangements once a person is sent into custody, is simply too late to enable the court to consider the full circumstances of the offender.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My noble friend talks about the importance of this information being inquired about before sentencing. But is it not better that it should be inquired about at some point rather than not at all?

[Lord Faulks]

I entirely agree with my noble friend. It is important that it should be acquired before sentence rather than after sentence.

The Children Act 2004 already requires inter-agency co-operation to safeguard and promote the well-being of the child. It is important that probation staff—albeit that in the view of the noble Lord, Lord Low, they have become more concerned with offender management —those working in court or those preparing pre-sentence reports have a responsibility to consider the impact of custody on an offender’s children. All those who have read such reports will realise that that is almost always a central feature of them. If there is a likelihood of custody then children’s services will be alerted by probation to ensure that arrangements are in place to safeguard the well-being of any children. We are working to ensure that this system of assessment and referral is as robust as possible for both pre-sentence report assessment and court practice. This is a very important role for the new National Probation Service.

Much reference was made to the existence of troubled families, and quite rightly so. The Government understand the challenges and poor outcomes faced by children dealing with parental imprisonment, including higher risk of mental illness, poor educational outcomes and offending in later life. I agree it is important that these families receive appropriate support, alongside support for offenders’ rehabilitation and for tackling inter- generational offending. We have already had conversations with organisations such as Barnardo’s to discuss the issues raised by its report On the Outside, published in May this year, and intend to expand our discussions wider to other government colleagues, criminal justice system agencies and practitioners such as legal representatives.

The scope of this approach is potentially very wide—childcare is obviously a pressing concern—but there are also other concerns for families of offenders: financial support, continuing accommodation and so on. This is another reason why it is simply not realistic for the criminal courts to step in and manage an offender’s life after they have been convicted. However, there is a role for government here. That is why we are working across government, and in partnership with local authorities under the troubled families programme, to turn around the lives of 120,000 families suffering from the most complex problems by May 2015. We have already announced an expansion of the programme to an additional 400,000 families from 2015-16. The next phase of the programme will focus on families with a broader range of problems.

I should also mention the important role of the charitable voluntary sector. My noble friend Lord McNally has in the past paid tribute to the work that organisations such as Pact have done and continue to do to support the families of those in custody. I add my own appreciation of that important work and my commitment that the Government will look at how we can both publicise and support the services those organisations provide. I am glad to hear that Lord Justice Gross is concerned that some further guidance should be given in relation to the problem identified by the amendment.

[Lord Touhig]

Perhaps I did not make it clear that, in his reply to me, Lord Justice Gross said he would reissue the existing guidelines, not set out any new ones.

[Lord Faulks]

I am grateful for that clarification. Perhaps reissuing the guidance will bring it home to those who see it. Perhaps for the first time it will remind them of the pre-existing obligation.

I started my response with a list of reasons why the Government could not accept the proposed new clause, but we believe that the issue should be addressed. It is a difficult area but we are now making progress in developing consensus on the best approach. I hope we can continue to work with noble Lords who have consistently shown an interest in this matter, with Barnardo’s, with the judiciary and with the legal profession to develop the best way to tackle this issue. Although I cannot accept the amendment, we are very much concerned to ensure that nobody should slip through the net in the way that the amendment is directed. I hope that, with the reassurance I have given, the noble Lord will feel able to withdraw the amendment.

[Lord Kennedy of Southwark]

The amendment identifies a problem. The Government refer to guidance and advice. The noble Lord, Lord Ponsonby, said that in his court there is not a problem. What worries me is that there will be best practice in lots of courts but there will be one or two cases where that is not the case. That is why we want this duty on the face of the Bill. I am worried that guidance will not be enough. That is my main problem.

[Lord Faulks]

In fact, the amendment places a statutory duty on the Lord Chief Justice. Of course, whatever one does in terms of guidance, not all courts are necessarily going to be as good as each other, but we hope that, by taking various different steps, we can ensure, in so far as it is possible, that the problem that can exist is unlikely to arise in practice.

[Lord Kennedy of Southwark]

Is the noble Lord saying that if the amendment was worded to put a duty on the courts and not on the Lord Chief Justice, the Government would look at that?

[Lord Faulks]

No, I am saying that I do not think that a statutory duty is the answer.

[Lord Low of Dalston]

My Lords, I am grateful to all those who have spoken in this debate. It bears out my contention that there is concern about this issue across the House. Indeed, that concern is shared by the Government. Like the Minister, I would hope that we are not yet at the end of this discussion and that discussions and work can continue with a view to finding a solution around which we can all unite. We have a bit of time because of the Recess and we will not be coming back to this until Report in the autumn. In particular, I would like to thank the Minister for his meticulous reply, to which I have listened carefully. There are obviously a number of issues that need to be addressed. There was the question that the amendment related purely to after sentence. We put that in because we were concerned about issues of this kind contaminating the sentencing process. However, if the noble Lord feels that that is not an issue, that can certainly be revisited. The noble Lord, Lord Ponsonby, made some useful points about the inadequacy, perhaps, of a telephone call and that in some respects it is important that whatever process we put in place should go further than this amendment. I very much welcome having further discussions with the noble Lord, Lord Ponsonby, about that and seeing whether there are ways in which we can take account of the concerns that he raised.

The most important points came from the Minister about the inappropriateness of trying to achieve what we want to achieve through a practice direction. We thought that, in that way, we were seeking to put in place a more light-touch process than creating a statutory duty, but if that is not appropriate, we can certainly revisit that and avoid trying to do things by statutory practice direction—trying to effect practice directions by referring to them in the amendment.

I would make this point, to which I think the noble Lord, Lord Kennedy, also referred. The Minister indicates that we should work through a range of pragmatic steps that can be taken by a variety of bodies and that they might be collected together in guidance, but there is evidence that guidance is not working. There is guidance around but there is still a problem. I continue to feel that there is a need for whatever we put in place to have a statutory basis. Therefore, I would like to continue discussions with the Minister to see whether we can get a statutory basis with which he is happier and which would give what we are all trying to achieve a bit more teeth than the guidance, which is not working, would appear to have. With those remarks and, in the hope that we can do more work over the summer and come back with an agreed result in the autumn, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Faulks]

56: Schedule 7, page 101, line 39, at end insert—
“( ) After subsection (1) insert—
“(1A) The documents falling within subsection (1)(a) include a summons directed to a person that is issued after the person’s trial has begun.””

--- Later in debate ---

Moved by

[Lord Faulks]

63A: Before Clause 41, insert the following new Clause—
“Low-value shoplifting: mode of trial
(1) In section 22A of the Magistrates’ Courts Act 1980 (low-value shoplifting), in subsection (2) (right to elect trial by Crown Court), for paragraph (b) substitute—
“(b) the court must proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998.”(2) In section 51 of the Crime and Disorder Act 1998 (sending cases to Crown Court: adults), in subsection (2)(b), after “21,” insert “22A(2)(b),”.”

[Lord Faulks]

My Lords, Amendment 63A is designed to provide clarity about the operation of Section 22A of the Magistrates’ Courts Act 1980, inserted by Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014, which made low-value shop theft a summary offence. Your Lordships may recall that although theft from a shop of property valued at £200 or less became a summary offence, the defendant’s right to elect to be tried by the Crown Court was retained. Where it is exercised, Section 22A provides that the case is to be sent to the Crown Court. The basis on which the magistrates’ court would now do so is that once the defendant has elected, as the court has no option but to send to the Crown Court, the offence becomes indictable only and falls to be sent there on that basis under Section 51 of the Crime and Disorder Act 1998.

Amendment 63A provides absolute clarity about the basis on which such a sending takes place as it is not sufficiently clear in the legislation. It makes clear that a low-value shoplifting case in which the defendant elects is to be treated in the same manner as an either way offence in which the defendant has elected. The magistrates’ courts will still be obliged to send the case to the Crown Court where the defendant elects and will continue to do so under Section 51 of the Crime and Disorder Act. Amendments 84A and 84B provide for that change to come into effect two months after the Bill is passed. Amendment 63F is required to put beyond doubt the role of the court in relation to the imposition of the criminal courts charge.

The Serious Crime Bill includes a provision that amends Section 13 of the Proceeds of Crime Act 2002 to make clear that the imposition of the confiscation order should not be taken into account when the court makes a victim surcharge order. That is because the court has no discretion over whether to impose victim surcharge, or how much. In a similar way, the court’s charge will be imposed by the court in any case where an adult is convicted of a criminal offence and the charge levels will be specified in secondary legislation. Amendment 63F therefore makes a similar change to Section 13 of the Proceeds of Crime Act to include the criminal court’s charge as an order in relation to which the imposition of a confiscation order should not be taken into account. I beg to move.

[Lord Beecham]

My Lords, I am grateful to the Minister for explaining the amendments. I am not quite sure what difficulties have been occasioned by the subject of the first amendment, in particular, or whether this proposal will make any difference in the real world. Could the noble Lord kindly explain it a little further? Unless he can show that it has, in fact, led to difficulties, I am somewhat puzzled.

In respect of the second matter, I suppose the question of consistency is relevant. I wonder whether there has been any review of the impact of the victim surcharge order in relation to outstanding fines. This, of course, deals with the confiscation order but, as we have established, there is a huge backlog of confiscation orders that have not been enforced and fines that have not been collected. While this is a tidying-up exercise, the practical effect may be negligible unless considerably greater efforts are made to enforce both fines and confiscation orders. Perhaps the noble Lord will enlighten us as to what the Government will do about the substantial backlog running into, as I recall, something like £2 billion under these heads. Otherwise, this will become a cosmetic change, with no real likelihood of the grave current situation being improved. In fact, unless additional resources are provided, matters will potentially get worse since efforts are presumably not now being made which would be brought into the scope of the provisions on confiscation. That might be an added case load which there seems little realistic prospect of achieving. Perhaps the noble Lord could clarify, in respect of both these matters, where the Government are and, more particularly, what they will do to make sense of the confiscation order procedure under whatever head it takes.

[Lord Faulks]

The noble Lord asked whether any problems have arisen. We are not aware of any, but the purpose of the amendment is simply to clarify the position for the purposes of a good law. The Government’s view on the existing drafting is that, after election for trial, this offence is sent up under Section 51(2) of the Crime and Disorder Act 1998. The noble Lord is no doubt anxious to know the answer to the question. This is not stated clearly in the 2013 Act and the interpretation has consequences which, although not significant in practice, make little sense. One example is low-level shoplifting cases where the defendant, as elected, would be brought within the ambit of the unduly lenient sentence scheme. The present amendment clarifies the position and avoids the consequences; it is the simplest way to deal with the issue.

Amendment 63F is simply a consequential amendment to remove any possible doubt as to whether the court has any discretion over imposing the criminal courts charge or the level of that charge. It would not be appropriate for courts to exercise discretion over a charge that directly contributes to the funding of the courts, but we will consider the role of charging in the next group of amendments. If I may, I will deal then with the questions of charging and victim surcharge and the appropriateness of those.

Amendment 63A agreed.

Criminal Justice and Courts Bill

Lord Faulks Excerpts

Wednesday 23rd July 2014 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I will speak briefly from the Back Benches. I agree very much with the comments made by the noble Lord, Lord Marks, and my noble friend Lord Ponsonby. I was a magistrate many years ago. I do not sit any more, but when I lived in the Midlands I used to sit on the Coventry Bench. Again, like my noble friend Lord Ponsonby, there were times when people came in front of me who had absolutely nothing. In particular, I used to sit in the fines court, to which people were brought back because they had not paid their fines. When you looked at their circumstances, the only way they could pay those fines was to go out and commit more crime; it was impossible otherwise. Now we have an additional charge here. It is important that we take into account people’s circumstances: not to allow the court to have that discretion is a bad move. To have loads of fines when there is no possibility of their ever being paid back is a complete waste of time. It makes a mockery of justice, and we should not do it.

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

My Lords, the criminal courts charge scheme has been designed to be clear and transparent, with charge levels that reflect the costs reasonably attributable to a particular type of case, and offenders expected to pay at a rate they can afford. The changes proposed by these amendments make the scheme far more difficult to understand and apply.

Amendments 63AA, 63AD, 63AG, 63AJ to 63AL and 63ABA would provide the court with significant discretion over whether to impose the criminal courts charge. As the court is the main beneficiary of the charge, there is a risk that this would be perceived as providing the ability directly to influence the funding of the criminal courts. The judiciary is an integral part of the courts system, and it has a vested interest in its success. Furthermore, where there is no clear indication as to what the court should base its decision on, other than the broad definition of the imposition being “just and reasonable”, accepting these amendments risks offenders being treated unequally.

If what lies behind these amendments is to protect poorer offenders, this is unnecessary. The offender has the opportunity to provide means information that the court can take into account when setting the rate of repayment for the charge, as it does with court-ordered financial impositions. Offenders can manage their repayments so that they pay the charge at a rate they can afford. For instance, they can apply to pay by instalment, and if necessary request subsequently to vary the rate of repayment. Also, those offenders who make their best efforts to comply with payment terms and do not reoffend will be able to apply to have the charge cancelled after a specified period of time.

Amendment 63AB proposes to limit the charge imposed to no more than 50% of the total cost they have imposed on the courts.

Amendment 63AM enables the court to impose a charge up to the amount specified by the Lord Chancellor. If an offender has committed a crime and imposed a cost on our criminal justice system, the Government believe it is right that they should be liable to pay back up to the full amount of costs reasonably attributable to that particular class of case. I have already outlined the protections in place to avoid placing an offender in hardship as a result of the charge.

Amendments 63AC and 63AF seek to limit the circumstances in which the criminal courts charge would be imposed. Specifying that an order imposing the courts charge should not be made if doing so would, in the opinion of the court, affect a decision on plea is unnecessary. I can assure noble Lords that the courts charge will come into play only once a verdict has been reached—long after the defendant makes a decision about plea.

Amendment 63AF also provides that the courts charge must not be imposed where the enforcement costs are likely to amount to more than the value of the charge. The charge will be enforced in the same way as existing financial impositions, so it is unlikely that the costs would exceed the level of the charge. Furthermore, it would not be possible for the court to anticipate how much enforcement activity will be required in a particular case.

We believe that excluding from the charge any costs associated with part of the hearing for which the defendant was not responsible would be unworkable. Charge levels will be set up to the cost reasonably attributable to that type of case, not based on a costs calculation of each individual case. Attempting to cost each individual case and then determine whether or not the offender was responsible for each element would be extremely time-consuming and totally impracticable.

Amendment 63AF also seeks to prevent the courts charge being imposed in relation to any appeal. The principle behind our courts charging policy is that offenders should bear some of the costs that have been incurred by the criminal courts as a result of their actions. It is appropriate to charge offenders a contribution towards the cost of an unsuccessful appeal. Finally, the amendment inserts a condition that the courts charge cannot be imposed before a written means assessment has been carried out. Amendment 63AE also prevents it from being collected before an assessment of the defendant’s finances has been made. The criminal courts already impose a number of financial impositions and established systems are in place to ensure that the court is provided with an offender’s means information. For these reasons Amendments 63AF and 63AE are unnecessary.

Amendment 63AFA would allow the court to consider the court charge imposed when sentencing or dealing with breach of a community order, community requirement, suspended sentence order or supervision requirement. The scheme is designed so that the charge reflects the cost an offender imposes on the courts system. It is not a punishment that relates to the severity of the offence committed. It should not therefore be taken into account when deciding on the appropriate sentence.

Amendment 63AH would divide the payment of criminal court costs between defendants where two or more defendants are convicted during a single hearing. The Bill currently makes each offender liable to pay the criminal courts charge as prescribed in secondary legislation. We expect that each offender will pay the full amount, although the power will exist to charge multiple defendants less when they are convicted at the same time as others. The amendment creates unnecessary complexity and is likely to result in one offender, who has been tried with one or more co-defendants, paying less then an offender who has been tried on their own, despite the fact that they may have committed identical offences. This raises questions of fairness. Our approach is the fairest approach and should be both simpler to operate and simpler for offenders and the public to understand.

Amendments 63B, 63C, 63D and 63E seek to withdraw the conditions that must be met for the courts charge to be remitted and give the courts a wide discretion about doing so. As previously mentioned, the clause currently allows a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This provides a powerful incentive for offenders to repay the charge and refrain from reoffending, while also ensuring that those who meet these conditions are not necessarily required to make payments over an excessively long period.

Amendment 63AN specifies that, where the charge can be remitted, it includes the remission of interest. The purpose of the provisions to remit the charge is to relieve the offender of the debt where they have paid accordingly and not reoffended. It is therefore logical that any remission of the charge should include the whole debt—both the principal amount and the interest. The amendment is therefore unnecessary.

Amendment 63EA has the effect that offenders aged 18 to 21 who are sentenced to detention or imprisonment would be eligible to have their charge remitted earlier. The current proposal is that a court may remit the charge after a specified period that begins either when an offender is convicted or, if they have received a custodial sentence, released from detention or imprisonment. In practice it is unrealistic to expect many offenders to pay the charge while they are being detained. By setting the period after which the charge may be remitted to run from conviction rather than release for 18 to 21 year-olds, the amendment would mean that more serious offenders are likely to end up paying less than offenders who are not sentenced to custody. That would not be fair.

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

I have a point that is slightly tangential to the group of amendments we have just been debating. When magistrates are fining somebody, for a huge proportion of the time they do not know the existing level of outstanding fines; so they are fining somebody when they do not know what debts to fines they already have. I understand that this is a practical problem and a difficult issue that the court service is reluctant to address. Surely, however, if one is serious about reducing the level of outstanding fines, one should try to address it so that when a court sets fines it knows the level of the outstanding fines when it puts in place the sentence.

[Lord Faulks]

It is certainly the case that the court should know, as far as possible, the level of outstanding fines. I understand the practical difficulties that can be encountered by courts but, with great respect to the noble Lord, we are concerned here with a definite, fixed cost in relation to the particular nature of the offence, which will not depend on fines outstanding. That is not a question—reasonable though it is—that arises on consideration of these amendments.

[Lord Beecham]

My Lords, I am struck by the direct relationship between the speed with which the Minister is racing through his brief and the embarrassment he no doubt feels at the material he is giving to the Committee. I cannot believe that the good and noble Lord is really convinced of the case he has been asked to put. That would not surprise me, because much of what we have heard is simply beyond credence. The noble Lord, Lord Marks, in a very powerful speech, made the essential point that—among other things—the court should have discretion on the amount. None of us is any the wiser about what kind of sums we are talking about. The Minister certainly has given no examples, except to say that it will be related somehow to the cost of the individual case. How is that to be calculated? On what basis will that be apportioned? Are we just talking about the cost of prosecution? That can be covered anyway, under the existing framework. Are we talking about a contribution to the cost of maintaining the court building or the cost of the judicial salaries in a higher court? There is no indication of how this cost is to be calculated and then passed on.

Equally, although the noble Lord rightly pointed out the provision in the Bill that the Lord Chancellor will prescribe the class of case to which the charge will apply, he has given no indication tonight—and I do not think that it was done in the other place either—of what kind of cases are envisaged. Why do we not know which cases are likely to be included? What will be the process, if any, for parliamentary approval of the classes as prescribed by the Lord Chancellor? Will Parliament be permitted any consideration in this, or will it simply be a matter of the Lord Chancellor’s fiat?

The Minister’s suggestion that it would be improper for the court to determine the amount because that would somehow reflect a vested interest on its part is simply risible. It is an absurd suggestion. The notion that magistrates or High Court judges will be influenced to make rather larger requirements of prisoners because that will somehow affect them, or the court system, is an insult to both the judiciary and the magistracy. It cannot be something that the noble Lord seriously believes. His scriptwriters need to go back to wherever they were taught their craft.

In addition, and worryingly, the Minister suggested that there is no deterrent effect because the charge will be imposed only long after a plea was entered. That is absurd. The fact that the court is in a position to impose a charge is known to the defendant before he appears there; it certainly ought to be. Of course, it may influence a defendant as to the nature of a plea, particularly in the case of an appeal.

--- Later in debate ---

Moved by

[Lord Faulks]

63F: Schedule 8, page 106, line 18, at end insert—
“Proceeds of Crime Act 2002 (c. 29)10A In section 13(3)(a) of the Proceeds of Crime Act 2002 (effect of order on court’s other powers), after “other than” insert “an order under section 21A of the Prosecution of Offences Act 1985 (criminal courts charge) or”.”

--- Later in debate ---

[Lord Faulks]

Is the noble Lord suggesting that in order to bring in a provision saying that one cannot recover damages if one is fundamentally dishonest, that is simply serving the interests of the insurance industry?

[Lord Beecham]

Of course it is not simply serving the interests of the insurance industry, but it is serving its interests and there is no reason why the insurance industry should not lobby to that effect. But let us not be unrealistic. I repeat that it is perfectly proper for the noble Lord to make his case, and I have no criticism of him whatever. My criticism is of the Government. In any event, there are a number of questions about the situation, as created by the Bill.

First, why single out personal injury claims? There are many damages claims to which such a provision might apply. There are claims, for example, of breach of contract over the supply of goods or services, damages to property or professional negligence. Indeed, paradoxically or ironically, the driver of a car might be caught by this provision in respect of a personal injury claim arising out of an accident but not if he claims only for damages to the vehicle. Where is the logic in that? In fairness to the noble Lord, he quoted an example of a potential for a claim other than a personal injury claim. But that is not what the Bill says; it concentrates purely on the aspect of personal injuries.

The second question is why, particularly given the drastic consequences, should the balance of probabilities test apply only to something that after all amounts to fraud, and is capable, as pointed out by the noble Lord, Lord Marks, of being prosecuted? In that event, it should be prosecuted if it is committed, but a different standard of proof would apply to the treatment of the conduct, deplorable as it is, in a civil claim as opposed to a criminal claim. As we have also heard, claimants, in addition to the possibility of prosecution, which would be amply justified, could face contempt of court proceedings in which again the applicant for the contempt case must prove fraud beyond reasonable doubt. I do not think that different standards of proof should apply to the same conduct in this context.

The third question is on why the entire claim should be struck out instead of judicial discretion being exercised to reduce damages or penalise the claimant in costs. The noble Lord, Lord Marks, has dealt very effectively with an example in which that situation might occur. The fourth question is whether the Government have considered the impact on third parties, notably the National Health Service, which in personal injury claims can recover treatment costs from the person causing the injury. Again, the noble Lord, Lord Marks, was ahead of me, not for the first time, and was quite right to say that if the defendant escapes scot-free because of some misconduct on the part of the claimant in relation to part of his claim, it is the health service—and the taxpayer generally—that will suffer.

The fifth question is: what is meant by fundamental dishonesty? The CPR, as the noble Lord, Lord Hunt, pointed out, coined the phrase in relation to qualified one-way cost shifting when a party loses the protection of QOCS if he has been found to have behaved in this way. However, as far as I am aware, there has been only one unreported case. It may be the case to which the noble Lord referred; it rings a bell. I think it was the case of Cotton. That is the only one that has so far come to light since the provision came in. I assume that the Minister will confirm that the Bill’s provisions have the same meaning, as far as that is ascertainable, as the Civil Procedure Rules.

The sixth question is: yet again, why are the Government seeking to fetter judicial discretion? This is one of the most fundamental points. In Fairclough Homes Ltd v Summers in 2012, the noble and learned Lord, Lord Clarke, said:

“It is for the court, not parliament to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process”

The Supreme Court said that its already existing power to strike out,

“should be exercised where it is just and proportionate to do so which is likely to be only in very exceptional circumstances”.

The court referred to other ways of punishing fraudulent claimants in costs, criminal or contempt proceedings.

Let me be clear: the Opposition are not in favour of tolerating, let alone encouraging, fraudulent claims whether or not the fundamental dishonesty applies to the whole claim or any part of it. To that extent, all of us who have spoken tonight—the noble Lords, Lord Hunt and Lord Marks, myself and no doubt the Minister are absolutely agreed. But the Opposition are content to allow the courts to deal with any abuse, both in determining the issues of damages and costs and in pursuing criminal proceedings when they are appropriate, and would regard that as applicable to all kinds of claims, not just personal injury claims. That would be illogical, in my submission. The Minister may wish to take that back as a matter to consider. I do not see why personal injury claims should be singled out for this particular treatment.

There is certainly a need to deal with people who abuse the system, but in my submission what is proposed here goes too far and leaves too little discretion to the courts, which are really capable of dealing with it. I beg to move.

[Lord Faulks]

My Lords, I am grateful for the contributions of all noble Lords to this useful discussion of Clause 45. Until the conclusion of the remarks of the noble Lord, Lord Beecham, I was beginning to wonder whether he thought that there should be any problem with people grossly exaggerating or being fundamentally dishonest in pursuing their personal injury claims. However, by the end I realised that the party opposite is not in favour of that, although he asked why we singled out personal injury claims.

The answer to the noble Lord’s question was provided very elegantly by my noble friend Lord Hunt. There has been—and the Government seek to address this by this clause—an epidemic of people claiming in circumstances that most right-thinking people would find deeply unattractive. The Supreme Court recently in the case of Fairclough had to deal with this particular issue, which the Government seek to address in Clause 45. So it is a particular problem that is troubling most people in society generally, with the so-called compensation culture, but also with a specific problem that has come before the courts. We suggest that it is entirely appropriate for the Government to endeavour to address this difficult problem; indeed, the Supreme Court found it difficult to find a satisfactory answer.

I am grateful for some of the constructive suggestions that have been made about how the clause ought best to have been drafted. At the moment, it requires the court to dismiss in its entirety any personal injury claim when it is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest, unless it would cause substantial injustice to the claimant to do so. That is of particular relevance when the claimant has grossly exaggerated his claim, and in cases where the claimant has colluded with another person in a fraudulent claim relating to the same incident—also, sadly, a far too common feature of the whole claims industry at the moment.

This is part of a series of measures taken by the Government to discourage fraudulent and exaggerated claims, which arise often in motor accident cases and so-called “trips and slips” claims. Such claims cause substantial harm to society as a whole, not least in increasing the insurance premiums that motorists have to pay. I notice that the noble Lord criticised the Government; I think that the inference was that they were in some way in league with the insurance industry. We are talking here about insurance premiums paid by members of the public. These cases also eat up valuable resources of local and public authorities and employers, which could otherwise be used for the benefit of business and in providing services to the public.

Under the current law, the courts have discretion to dismiss a claim in cases of dishonesty, but will do so only in very exceptional circumstances, and will generally still award the claimant compensation in relation to the “genuine” element of the claim. The Government simply do not believe that people who behave in a fundamentally dishonest way—and I will come to address the adverb in a moment—by grossly exaggerating their own claim or colluding should be allowed to benefit by getting compensation in spite of their deceit. Clause 45 seeks to strengthen the law so that dismissal of the entire claim should become the norm in such cases. However, at the same time, it recognises that the dismissal of the claim will not always be appropriate and gives the court the discretion not to do so where it would cause substantial injustice to the claimant. To that extent, some of the remarks of my noble friend Lord Marks were entirely apposite. The clause gives the court some flexibility to ensure that the provision is applied fairly and proportionately.

The amendments tabled by my noble friend Lord Marks and others would considerably weaken the effect of the clause by simply giving the court a wide discretion were it satisfied that the claimant had been fundamentally dishonest, which would enable it to either dismiss the claim, reduce the amount of damages or to do neither. That would make it much less likely that those provisions would be used, even in cases where the claimant has clearly been fundamentally dishonest. I do not believe that that would be appropriate. We do not believe that people who behave in a fundamentally dishonest way should be able to benefit by getting compensation regardless.

I assure the Committee that the way that the clause is drafted should not result in the courts using the measures lightly. Civil courts do not make findings of dishonesty lightly in any event; clear evidence is required. The sanction imposed by the clause—the denial of compensation to which the claimant would otherwise be entitled—is a serious one and will be imposed only where the dishonesty is fundamental; that is, where it goes to the heart of the claim. That was very much what my noble friend said about what it was aimed at.

Of course, “fundamental” has an echo in the Civil Procedure Rules and the qualified, one-way costs shifting. An adverb to qualify a concept such as dishonesty is not linguistically attractive, but if we ask a jury to decide a question such as dishonesty, or ask a judge to decide whether someone has been fundamentally dishonest, it is well within the capacity of any judge. They will know exactly what the clause is aimed at—not the minor inaccuracy about bus fares or the like, but something that goes to the heart. I do not suggest that it wins many prizes for elegance, but it sends the right message to the judge.

The amendments tabled by my noble friend Lord Hunt, who has enormous experience in this area, reflect the fact that in his view, any degree of dishonesty, unless the court is satisfied that dismissal would cause substantial injustice to the claimant, would be sufficient. It is a difficult balancing act, but we do not believe that that would be proportionate or practical. The sanction imposed by the clause is a serious one—denial of compensation to which prima facie somebody is entitled—and we believe that it should be imposed only where it goes to the heart of a claim. It would be disproportionate to require a claim to be dismissed in its entirety. It would also not be practical as it would be likely to lead to a large number of disputes between the parties over whether the claimant had or had not dishonestly exaggerated the claim. There is potential for it to impede settlements, leading to an increase in contested litigation.

My noble friend is quite right; the Government hope it will act significantly to deter people from bringing claims or exaggerating in any way at all. The fact that there may not be many reported cases about fundamental dishonesty and the QOCS scenario may be an indication that the concept does not engender great difficulties for judges applying it in practice, and therefore, there is no need for reported cases.

It should not be forgotten that the courts still have powers available—for example, the awards of costs to penalise claimants whose behaviour falls short of financial dishonesty—if it considers the sanction is merited. We consider that the courts will be able to apply the test. In addition, supplementary provisions are included to ensure that the sanctions imposed on the claimant are proportionate. Subsections (6) and (7) ensure that in the event of subsequent proceedings against the claimant for contempt or criminal prosecution, the court has a full picture of the consequences of the dishonest conduct for the claimant when deciding what punishment to impose.

Subsection (5) ensures that when a court dismisses a claim under this clause, it can award costs against the claimant only to the extent that these exceed the damages that would otherwise have been awarded. I thought that I understood what that meant, but I hear what my noble friend says about it, and what my noble friend Lord Marks says about it, and if it is not as clear as it might be I will take that back to consider the drafting before Report. The intention is to limit the extent. We think that that is what it says, but I will definitely take that back and consider it.

--- Later in debate ---

[Lord Beecham]

My Lords, I have clearly upset the noble Lord. It certainly was not my intention to do so. We have a very long association, going back to the time when we were involved in the inner city partnership in Newcastle. We have always got on very well. I intended no imputation whatever upon the noble Lord. I do think that the insurance industry, as an industry, has been overpersuasive with the present Administration, in particular with the Conservative Party.

However, that is no reflection on the noble Lord. I made it clear that he has behaved with complete propriety, as he always has. I am sorry if I have upset him; I can say no more than that. I apologise if that has been the effect—it was certainly not intended. I look forward to engaging in civilised conflict with him from time to time over this and other measures in the spirit that we have enjoyed hitherto. I certainly would not like him to leave the Chamber tonight feeling that I have cast any slur or imputation upon him. He is widely recognised as extremely able and a man who has devoted a great part of his life to public service. I would not wish in any way to detract from his record or his sincerity.

[Lord Faulks]

I want to ask the noble Lord about that comment. He redirected his fire at the Government and said they had been improperly influenced by the insurance industry. Perhaps he can assist the Committee as to the basis of that allegation and how it is relevant to the amendment that the Committee has before it tonight.

[Lord Beecham]

I was trying to say that the Government have frequently changed the law in relation to claims, not just with regard to tonight’s amendment but on a range of issues in a way that adversely affects claimants and generally favours insurers. Whenever the Labour Party makes a proposition that affects working people and trade unions, it is accused of being in the pockets of trade union leaders, dancing to Len McCluskey’s tune. If that is a legitimate comment for the Conservative Party to make about the Labour Party, it is quite legitimate for us to point to some of those industries—not just the insurance industry; there are others—that seem to be willing to fund the Conservative Party, whether or not that involve tennis matches with the Prime Minister.

--- Later in debate ---

Moved by

[Lord Faulks]

64: After Clause 45, insert the following new Clause—
“Rules against inducements to make personal injury claims
(1) A regulated person is in breach of this section if—
(a) the regulated person offers another person a benefit,(b) the offer of the benefit is an inducement to make a claim in civil proceedings for—(i) damages for personal injury or death, or(ii) damages arising out of circumstances involving personal injury or death, and(c) the benefit is not related to the provision of legal services in connection with the claim.(2) An offer of a benefit by a regulated person to another person is an inducement to make a claim if the offer of the benefit—
(a) is intended to encourage the person to make a claim or to seek advice from a regulated person with a view to making a claim, or (b) is likely to have the effect of encouraging the person to do so.(3) A benefit offered by a regulated person may be an inducement to make a claim regardless of—
(a) when or by what means the offer is made,(b) whether the receipt of the benefit pursuant to the offer is subject to conditions,(c) when the benefit may be received pursuant to the offer, or(d) whether the benefit may be received by the person to whom the offer is made or by a third party.(4) The Lord Chancellor may by regulations make provision as to the circumstances in which a benefit offered by a regulated person is related to the provision of legal services in connection with a claim, including provision about benefits relating to—
(a) fees to be charged in respect of the legal services,(b) expenses which are or would be necessarily incurred in connection with the claim, or(c) insurance to cover legal costs and expenses in connection with the claim.”

[Lord Faulks]

My Lords, this measure complements significant reforms that the Government have already introduced to control the costs of civil litigation. In particular, it is part of our focus on discouraging fraudulent and grossly exaggerated personal injury claims, as is Clause 45 on fundamentally dishonest claims. In all this work, our intention has been to allow appropriate personal injury claims to proceed at proportionate cost. However, we are determined to root out the disproportionately high costs and frankly unacceptable behaviour that has tainted the personal injury world in recent years.

These clauses address the practice of offering inducements to bring personal injury claims. There are many examples of lawyers offering potential clients money or items such as tablet computers for pursuing a personal injury claim. One recent advertisement read:

“If you bring a successful claim”—

to X Solicitors—

“you will be eligible for a free iPad. We believe in thanking those who entrust us with their claim, and as well as providing clients with a professional legal service, we hope a complimentary iPad can make things easier for you after your accident”.

Another stated:

“On acceptance of your case we will pay you £250 as an upfront ‘welcome’ payment. This payment is on top of your eventual compensation payment”.

Such incentives contribute to the so-called compensation culture by offering rewards for bringing a claim, regardless of its merits. Expenditure on these inducements might also have a detrimental effect on the quality of service provided to the client. Furthermore, in a significant number of cases, the client is then denied the money or benefit initially offered because of terms and conditions. This practice has no doubt developed because of the excessive legal costs in personal injury cases which have already been addressed by our reforms in Part 2 of the LASPO Act 2012, but it is a practice that we need to stop to protect consumers and, indeed, the reputation of the legal profession more widely. We are grateful for the cross-industry support for introducing a ban on the offer of such inducements; reputable lawyers recognise the harm that this does to their profession. The House of Commons Transport Committee has also recently endorsed a ban.

Consequently, these clauses prohibit legal services providers from offering monetary and non-monetary benefits to potential clients as an incentive to make a personal injury claim. They define what is considered to be an inducement and require regulators to monitor and enforce the ban, as breaches of the ban will not be considered as a criminal offence.

Amendment 87 amends the extent provisions in the Bill to make clear that those provisions apply only to England and Wales.

As to Amendment 64A, I thank my noble friend Lord Hunt of Wirral for bringing this issue to my attention. I know that he has a long-standing constructive interest in making sure that the Government get the drafting right on this kind of issue. I am extremely grateful for that. I will ask officials to consider the matter carefully during the Recess with a view to returning to it at a later stage.

Subject to that point, we believe that the new government clauses are a proportionate response to what has been a thoroughly bad practice. I beg to move.

Amendment 64A (to Amendment 64)

Tabled by

--- Later in debate ---

Moved by

[Lord Faulks]

65: After Clause 45, insert the following new Clause—
“Effect of rules against inducements
(1) The relevant regulator must ensure that it has appropriate arrangements for monitoring and enforcing the restriction imposed on regulated persons by section (Rules against inducements to make personal injury claims).
(2) A regulator may make rules for the purposes of subsection (1).
(3) The rules may in particular provide that, in relation to anything done in breach of that section, the relevant regulator may exercise any powers that the regulator would have in relation to anything done by the regulated person in breach of another restriction (subject to subsection (4)).
(4) A breach of section (Rules against inducements to make personal injury claims)—
(a) does not make a person guilty of an offence, and (b) does not give rise to a right of action for breach of statutory duty.(5) Subsection (6) applies in a case where—
(a) a regulated person has offered a benefit to a person, and(b) it appears to the regulator that the offer of the benefit is an inducement to make a claim as mentioned in section (Rules against inducements to make personal injury claims)(1)(b).(6) Rules under subsection (2) may provide for the offer of the benefit to the person to be treated as an inducement to make a claim as mentioned in section (Rules against inducements to make personal injury claims)(1)(b) unless the regulated person shows—
(a) that the benefit was offered for a reason other than encouraging the person to make a claim or to seek advice from a regulated person with a view to making a claim, or(b) that the benefit is related to the provision of legal services in connection with the claim (see regulations under section (Rules against inducements to make personal injury claims)(4)).”

--- Later in debate ---

[Lord Beecham]

My Lords, I am very happy to support the noble and learned Lord’s amendment and I take it that the Government will accede to it. It is a very sensible change.

[Lord Faulks]

My Lords, Amendment 68 would have the effect of allowing the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom is able to do under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 of the 2005 Act to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales.

Amendment 69 would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the supplementary panel within two years of their retirement, providing they are under the age of 75.

First, I should very much like to thank the noble and learned Lord, Lord Hope, for all his work on these issues and for being so patient in waiting for this amendment to be reached at such a late stage. Given his background, he is of course well placed to speak with authority on these matters. I know that he has been working closely with the judiciary on these amendments and he has also recently written to me regarding them.

The Government understand the rationale behind the amendments. However, before we can agree to make such changes, we will need to consider the matter and the impacts of the proposed changes further and discuss them in more detail with the President of the Supreme Court, the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland. I will also be happy to have further discussions with the noble and learned Lord about the amendments and will respond fully to his letter shortly. On that basis, I hope that he will feel able to withdraw the amendment.

[Lord Hope of Craighead]

My Lords, I am grateful to the Minister for his very helpful reply. It is indeed the reply that I expected. It is sensible to take time to consider the matter a little more fully. In view of the undertakings that he has given, I am happy to beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, perhaps I may be quite clear about where the Minister stands on Amendment 69. I do not think that he indicated where he stood on it. It is a very simple matter. Perhaps he could come back to it on Report, but I should be grateful if he would say where he stands. I beg to move.

[Lord Faulks]

It is also a matter where we would like to consider the full implications of the changes. The reply that I gave was supposed to embrace both amendments.

[Lord Hope of Craighead]

I am most grateful. In view of that indication, I am happy to beg leave to withdraw the amendment.