Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 8 months ago)
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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.
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.
Lord Faulks
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.
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.
Lord Faulks
“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.”
Lord Faulks
(i) ”
Lord Faulks
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.
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.
Lord Faulks
“( ) 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”.”
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.
Lord Faulks
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).””
Lord Faulks
“( ) 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).”
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 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.
Lord Faulks
“(3) The police constables referred to in subsection (1) are—”
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.
Lord Faulks
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.
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.
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?
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.
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.
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.
Lord Faulks
“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.”
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(9 years, 11 months ago)
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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.
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.
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—
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.
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.
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.
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.
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 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.
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.
Lord Faulks
Lord Faulks
Lord Faulks
Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 11 months ago)
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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.
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.
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.
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.
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.
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.
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 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.
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.
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
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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
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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.
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.
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.
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.
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.
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.
Lord Faulks
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.
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.
Lord Faulks
“(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.”
Lord Faulks
“( ) 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.”
Lord Faulks
Lord Faulks
“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.”
Lord Faulks
“( ) making an order under section 30A of the Road Traffic Offenders Act 1988 (order to disregard penalty points if approved course attended);”
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.
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 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.
Lord Faulks
“( ) 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.””
Lord Faulks
“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.
Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 11 months ago)
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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.
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.
Lord Faulks
“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”.”
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.
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.
Lord Faulks
“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)
Lord Faulks
“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)).”
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.
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.
Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 11 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, Clause 25 would put in place a minimum custodial sentence of six months’ imprisonment for adults and a four-month detention and training order for 16 and 17 year-olds where an offender has committed a second or subsequent offence of possession of a knife or offensive weapon, unless there are particular circumstances that would make it unjust to do so. The clause also provides for a previous conviction of threatening with a knife or offensive weapon to count as a first strike.
Clause 25 was passed into the Bill in the other place and is now being considered by your Lordships’ Committee. The coalition Government are fully committed to ensuring that the public are protected. However, policy agreement has not been reached on this clause, and so it will be for the whole Committee to decide the issue. In these circumstances, noble Lords will understand why I am unable to answer many of the questions about the proper construction of the relevant clause, although I think I can simply draw the attention of those who have not had a chance to study it in detail to the fact that the initial offence has to be,
“without lawful authority or reasonable excuse”.
Then discretion is given with the words,
“unless the court is of the opinion that there are particular circumstances which … (a) relate to the offence or to the offender, and … (b) would make it unjust to do so in all the circumstances”.
The only other point that I make at this stage is that a number of noble Lords made the point that short sentences were not effective. I simply remind the Committee that only this year we passed an important Act which provided, for the first time, that those sentenced to less than 12 months would receive support in the community and support before leaving prison to assist in the resettlement process.
Lord Foulkes of Cumnock
I am completely confused as to who the Minister is speaking on behalf of. Is he speaking on behalf of the Government, the Conservative Party or the group of people who put the clause in the Bill? How are we therefore to treat his remarks? Is it to be a regular occurrence that we get Ministers coming to the Dispatch Box who are not speaking on behalf of this great coalition?
Lord Faulks
I hope it will not be a regular occurrence. I am endeavouring, in my short remarks, to assist the Committee as a whole on matters of construction but not to persuade it in one direction or another.
Lord Richard
Is the Minister speaking for the Government or is he merely putting this before the Committee, so to speak, as a debating issue, which we can all have a go at and then come to a conclusion on?
Lord Faulks
I am putting this before the Committee in circumstances in which, as I think the noble Lord well knows, a compromise has been reached.
Lord Deben
Does my noble friend agree that this is too important an issue for it to become a kind of joke measure for those who wish to make other party-political points? We ought to consider this seriously, in the way it ought to be considered, and make our own decisions according to the facts.
Lord Faulks
I agree with my noble friend that it should be considered seriously and a judgment exercised by the Committee as to what it thinks the appropriate response to this particular clause is.
Lord Reid of Cardowan (Lab)
I am grateful to the Minister. Whoever he is speaking on behalf of, he should regard me as a floating voter. I came in with my mind pretty well made up to support the clause, whoever’s it is—I was going to say it was the Government’s. However, I had the misfortune to sit next to my noble and learned friend Lady Scotland, who gave me an enlightened commentary to supplement everything that was being said and tried, as she did when she was my Minister in the Home Office, to soften my hard heart on this issue.
Subject to the response to one question asked by my noble and learned friend, I am still inclined to vote with whatever entity is in favour of the clause. I hope the Minister can answer the question and help me decide. What consideration was given to outlining this in sentencing guidelines, without the need to put it in the Bill? I am not suggesting for a minute that judges always follow sentencing guidelines. Indeed, the Committee may be amused to learn that when we put forward sentencing guidelines to diminish hugely the number of four and six-month sentences when we were bringing in indeterminate sentences at the other end, judges proved very reluctant not to send people to jail. It was suggested to me by the Lord Chief Justice at a meeting of the Criminal Justice Board that I should write and remind them of that. When I did, I was massacred in public for suggesting that judges may not need to send people to jail. I understand that they do not have to follow guidelines, but I hope the Minister has had time to consult his notes and to let us know whether, before going to the mandatory statutory sentence, such a course of action was considered, as my noble and learned friend asked.
Lord Faulks
Before the noble Lord’s intervention, I was going to conclude by saying that this is not a clause that could ultimately find its way to the statute book. If the vote results in the Bill remaining in its current form, the Government will bring back amendments to make various alterations—not to the effect or the substance, but to the detail—and in particular to make sure that the provision is consistent with the sentencing framework as a whole. There are also various other technical amendments that will have to be made.
Lord Reid of Cardowan
I am not a lawyer or a civil servant draftsman. Does that mean that if this clause is agreed to, the Government will come back with guidelines, rather than putting it into the Bill? Is that my understanding, or have I got even more confused? Perhaps the Minister would explain.
Lord Faulks
It is not a question of guidelines; there are a number of particular defects in the clause. For example, it would be necessary to fix the period for appealing a minimum sentence if a previous conviction upon which the minimum sentence is based is overturned. The period should be fixed at 28 days to ensure consistency. Furthermore, it is not clear in the current draft that the Attorney-General would be able to make a reference on the basis of a court’s failure to impose a minimum sentence, and the usual practice in relation to early guilty pleas for minimum sentences is a reduction of up to 20%. As currently drafted, the court would not be able to apply any discount for an early guilty plea. It is also necessary to add equivalent offences under UK and EU member state service laws to relevant previous convictions.
Baroness Kennedy of The Shaws (Lab)
If the Government have so many reservations about this clause, surely their position should be to oppose it. The Government’s position at this stage should be to say that they think the Committee should look closely at this clause because they are not happy with it. Surely that should be the Government’s position.
Lord Faulks
The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.
Lord Deben
Would it help the Government if we voted this clause down? They could then produce a clause that was satisfactory and would listen to what the Committee had said.
The Earl of Listowel
My Lords, I apologise for prolonging this still further. Following the noble Lord, Lord Harris of Haringey, I was grateful to the Minister for his response but the concern about the criminalisation of young people in care is very serious. It is one of the two main agenda items for the new chair of the Youth Justice Board, the noble Lord, Lord McNally. He is very concerned particularly that so many young people from children’s homes enter the criminal justice system. It would be helpful as background to the Bill to have some warning as to what if any impact this clause, if accepted, would have on the number of young people from care coming into custody.
Lord Faulks
There were quite a number of interventions. I will endeavour, very briefly, to say what I can within the terms that I speak today. On the question of sentencing guidelines, they are of course changed from time to time. It is a matter for the House to consider whether sentencing guidelines are an appropriate way to deal with this or whether it is more appropriate to use the clause as it currently appears in the Bill—whether that is called sending out a message, providing a deterrent or whatever construction one places upon that particular clause.
As to all the other matters, there is no question of a Liberal Democrat plot. I readily concede that this is an unusual situation. However, I am simply not in a position to say more than I have in answer to the various questions raised, except to say this: the issue for the House is fairly before the House, as brought by my noble friend Lord Marks, and it is whether the clause currently in the Bill should stand part.
Lord Marks of Henley-on-Thames
My Lords, this has been an important debate. It has been a serious and sober debate. I agree with the noble and learned Baroness, Lady Scotland, on that point. It has also not been a political debate in the sense that noble Lords on all sides have spoken both ways. My understanding of the Government’s position is that the position of Conservative Ministers remains as it was in the House of Commons; they will not support the clause as it stands, as inserted by the Back-Bench amendment; nor will they oppose it.
However, the position is that everyone in this House is agreed that we cannot, do not and never will condone knife crime. We all share the aim of driving knife crime down. I listened carefully to the points made, particularly those made by my noble and learned friend Lord Mackay of Clashfern, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Blair. All of them of course have enormous experience of the criminal justice system. Other noble and learned Lords, notably the noble and learned Lord, Lord Woolf, spoke the other way.
The points made against me and in favour of Clause 25 principally concern deterrents and sending a message. However, what has been entirely unclear is the notion that there is clear evidence that a message and deterrence are better sent by a mandatory provision in a statute than they could be by judges exercising their discretion—going on television if necessary, as the noble and learned Lord, Lord Hope, described; by action outside Parliament, as the noble Lord, Lord Purvis described; or by sentencing guidelines, as the noble and learned Baroness, Lady Scotland, suggested, supported by the noble Lord, Lord Carlile.
Sentencing guidelines are daily used and daily applied, but they do not remove judicial discretion to sentence appropriately, departing from the guidelines where that is the right and just thing to do. I do not believe that deterrence by a mandatory provision in a statute is proven to have any beneficial effect at all. I believe that a mandatory provision for minimum sentences in a statute, to be imposed where judges would not—when wishing to do justice—otherwise impose them, removes judicial discretion and inevitably does injustice in a number of cases. For those reasons we oppose this clause.
Your Lordships have also heard the extent to which the clause is defective. It is not supported by either of the parties of Government. It is not supported by many of great experience who have spoken from the opposition Benches. It is not supported by many of those who have spoken from the Cross Benches. The Motion will be that this clause stands part of the Bill. I urge noble Lords to oppose the Motion and vote not content. I wish to test the opinion of the House.
Lord Beecham (Lab)
My Lords, after the late excitement, we come to the more mundane world of driving while disqualified.
Clause 26, which we do not oppose, deals with what might be described only as another Grayling gimmick: the imposition of a maximum 10-year sentence for causing death while driving when disqualified—not for causing death through dangerous or careless driving while disqualified but for causing death while driving when disqualified. It is a measure of the significance of the amendment that there were 13 convictions in the past year for the offence of causing death when driving while disqualified or without insurance or a licence. This was not really a major problem. What the Government failed to do was to consider the real problem of the number of members of the public who drive while disqualified whether or not they are involved in other road traffic offences, particularly offences which cause injury. It is that problem with which this amendment deals. The current situation is that the maximum sentence is six months’ imprisonment only.
The question of causing death while driving under disqualification, now to attract a 10-year sentence, stands oddly with a five-year maximum sentence for causing death by careless driving and a two-year sentence for causing death while driving without a licence. Some 7,000 people are convicted every year for driving while disqualified. In my submission and that of the Opposition the sentence of six months is clearly inadequate for that offence. The amendment therefore proposes that the offence should carry a maximum of two years’ imprisonment and be treated as either way: it could be tried in a magistrates’ court or a higher court if necessary. That seems an appropriate way of dealing with an offence of this kind and I hope that the Government will reflect on it and accept the suggestion, if not today then on Report. We must do something to discourage the prevalence of the serious offence of driving while disqualified. At the moment, particularly given the very substantial sentence imposed under Clause 26, that looks inadequate and needs to be remedied. I beg to move.
Lord Faulks
My Lords, this amendment, as the noble Lord, Lord Beecham, has explained, would make the current summary-only offence of driving while disqualified an either-way offence. That would mean that the offence, currently dealt with by magistrates, could also be tried by the Crown Court with a jury, and the Crown Court would have a maximum penalty of two years’ imprisonment available. I know that an identical amendment was tabled on Report in the other place, but let me explain what the Government propose to do in relation to driving offences.
This Bill already contains proposals, welcomed from all sides, to increase the maximum penalty for causing death by driving while disqualified to 10 years’ imprisonment and to create a new offence of causing serious injury while driving while disqualified with a maximum penalty of four years. That was a pressing issue which the Government wanted to address, and we have done so in this Bill.
I agree with the noble Lord, Lord Beecham, and the question of disqualified drivers generally is of concern to the Government and all in this House. We want to ensure that we are doing what we can to keep our roads safe. Those who are disqualified from driving should not be on the road, and those who flout the law should be dealt with appropriately by the courts. I stress that where a person decides to drive when they have been disqualified and their driving is also bad, the CPS has a range of other offences it can charge—for example, dangerous driving, which is already an either-way offence with a maximum penalty of two years’ imprisonment.
However, the Government are not ruling out doing exactly what the amendment seeks to achieve. We have already made it clear that we will carry out a wider review of the offences and penalties for driving offences over the coming months. We want to look at the sentencing framework for driving offences as a whole and to address the various concerns that I know many noble Lords and the public have about specific aspects of the law in this area.
I know that my right honourable friend Jeremy Wright has already made it clear that the review would look at the specific issue of driving while disqualified. We also want to look at the most effective ways of ensuring that repeat offenders are prevented from driving and do not pose a risk to the public in future.
Noble Lords will recognise that while we can make changes to specific offences where there is a pressing need to correct a gap in the law, as we have done with the causing death and serious injury offences, looking at the wider range of offences and the rationale for the entire sentencing framework needs careful consideration and should be done over a longer period.
I hope that my undertaking that the Government are looking at the driving while disqualified offence in the wider context of its relation to other offences and sanctions will reassure the noble Lord, and that he will feel able to withdraw this amendment.
Lord Beecham
I am grateful for the Minister’s indication. What he said underlines the legitimacy of the charge of gesture politics laid at the door of the Secretary of State, because he said that there is now to be an intensive review of the range of driving offences. It is absolutely right that that should be the case, but for an offence that was committed 13 times last year it was found necessary to amend the Bill in advance of the review to which the Minister referred. It is lamentable that Parliament, and this Bill in particular, should be used to make a mere gesture of that kind when the Government have already decided upon a proper, thorough review of these serious matters. Having said that, the assurance that the Minister has given satisfies me and the Opposition. I beg leave to withdraw the amendment.
Lord Faulks
“Meeting a child following sexual grooming etc
(1) In section 15(1)(a) of the Sexual Offences Act 2003 (meeting a child following sexual grooming etc), for “on at least two occasions” substitute “on one or more occasions”.
(2) In a case in which person A met or communicated with person B only once before the event mentioned in section 15(1)(a)(i) to (iii) of the Sexual Offences Act 2003, an offence under that section is committed only if the meeting or communication took place after this section comes into force.”
Lord Faulks
My Lords, this Government, and I know this House, are committed to doing their utmost to protect children from the scourge of sexual abuse. There is unity across Parliament in that regard.
Amendment 36 amends the grooming offence at Section 15 of the Sexual Offences Act 2003. It has been prompted by the sterling work of the cross-party inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. The inquiry was supported by the children’s charity, Barnardo’s, and chaired by the honourable Member for Rotherham, Sarah Champion MP, and the Government are very grateful to everybody who contributed.
While the report concluded that the Sexual Offences Act 2003 is generally fit for purpose, it identified a small number of amendments which would improve enforcement of specific offences, including the offence of grooming. Under the current law, a person is guilty of grooming if he or she meets or communicates with a child on at least two occasions, and subsequently they meet or arrange to meet the child, or they or the child travel to meet the other. The defendant must intend, either during or after the meeting, to commit a sexual offence against the child. It is the part of the offence which specifies that there must be two initial contacts between offender and child which is now problematic and which this amendment seeks to address.
Sarah Champion sought to deal with this issue through the amendments she tabled in the other place. She withdrew those amendments after we committed to look closely at this issue. Having considered the evidence and her representations carefully, the Government are persuaded that change is now needed.
At the time of its creation, the original offence was designed to tackle a relatively new pattern of behaviour that we commonly thought of as grooming. The aim was to protect children who may be contacted by adults repeatedly over a period of time to build their trust with the intention of subjecting them to sexual abuse in future. However, with the development of new technology and better, faster and simpler forms of communication including chat rooms and social media sites, it is easier for offenders to make contact with their victims and build their trust relatively quickly. The inquiry heard evidence that contact sexual offending against a child can now occur following just one communication or meeting. For example, the Child Exploitation and Online Protection Centre, CEOP, reported in 2013 that online child sexual exploitation has shifted in its nature, with the time between initial contact and offending behaviour often extremely short and characterised by rapid escalation to threats and intimidation. It describes a “scattergun” approach taken by perpetrators, who target a large number of potential victims. Even if they are ignored by the vast majority of children whom they target, they focus their efforts on the small number who respond positively to their communications. These views were echoed in oral evidence given to the inquiry by the police.
This amendment will therefore amend the grooming offence so that the number of initial occasions on which the defendant must meet or communicate with the child in question is reduced from two to one. This will permit more effective intervention by the police in relation to individuals who could otherwise have been prosecuted only when a second contact had been established, and in certain cases might prevent the sexual contact element of the offence occurring. It will also bring the offence in England and Wales into closer line with the equivalent Scottish offence, which requires only one initial contact.
More widely, the amendment will support the work being undertaken across government to tackle the sexual exploitation of children. My honourable friend the Minister for Crime Prevention, Norman Baker MP, is leading the Sexual Violence against Children and Vulnerable People national group. This panel of experts was brought together by the Home Office to co-ordinate and implement the learning from recent inquiries into historical sexual abuse and current sexual exploitation cases and issues around sexual violence more widely. Amendment 88 updates the Long Title of the Bill to reflect this change. For those reasons, I beg to move.
Baroness Thornton (Lab)
My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.
Lord Faulks
I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.
Lord Faulks
My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.
I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.
I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.
Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.
The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.
Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.
Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,
“grossly offensive, disgusting or otherwise of an obscene character”,
in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.
For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.
In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.
Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.
Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.
Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.
Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.
Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.
The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.
For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.
Baroness Thornton
I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.
Baroness Thornton
My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.
Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.
We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,
“with the intention that he or a third person will”,
gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.
Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.
Lord Faulks
My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.
Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.
Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Bishop of Chester
My Lords, I have considerable sympathy for the amendment, although I wonder how it will interact with the remainder of the law on assault if this is criminalised in a specific way. I declare an interest in that I used to be a publican. When I was employed in a university, one of the members of staff had to go down to the magistrates’ court and swear that they were a fit person to keep order. That is the only time when I have been into a court of law in my life, and the magistrates were not quite sure that this young clergyman would be able to do so. My main task was to prevent the students drinking the profits rather than sorting out any brawls.
I would like the Minister to comment on the two examples that we have been given of the use of caution where assault takes place. If a publican’s wife was assaulted and her nose was broken and this simply resulted in a caution, that is widely held to be inadequate as a legal response. I hope that when he comes to reply the Minister will deal with that point, especially if he is not prepared to accept the amendment.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, it has been a short but informative debate, informed by experience from quarters where we do not necessarily expect it to be shown, but none the less welcome for that.
The amendment would make it an offence to assault a person 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 House will of course join me in condemning assaults on anyone who comes into contact with the public as part of their work. No one should be expected to face violence because they are simply doing their job. In particular, it is essential that the criminal justice system deals adequately with violence against people who are engaged in the licensed sale of alcohol—for instance, in pubs, off-licences, supermarkets or corner shops. However, the Government do not at the moment agree that creating a new offence is the right way to combat this unacceptable behaviour. The Government are committed to creating new offences only where it is considered necessary, there are no other reasonable options available, and there is evidence to support the need for a new offence. I will endeavour to explain why we do not believe that is the case in relation to assaults on workers enforcing or complying with the Licensing Act 2003.
There are already a number of offences that criminalise disorderly and violent behaviour, and which apply in cases of violence towards such workers. They cover the full spectrum of unacceptable behaviour, from using abusive language to the most serious and violent offences. In every case referred to the Crown Prosecution Service where there is sufficient evidence to justify a prosecution, prosecutors must then go on to consider whether a prosecution is required in the public interest. The section of the Code for Crown Prosecutors giving guidance on the public interest test states:
“A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public”.
If the evidence is there and the code is satisfied, the CPS will prosecute.
Moreover, sentencing guidelines, to which there has been reference, specify that where an assault is committed against someone providing a service to the public, whether in the public or private sector, this is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made clear in its guidance that that includes those who work in shops and the wider retail business and such people who might well be enforcing or complying with the Licensing Act 2003.
The noble Lord, Lord Foulkes, referred to the observations of my honourable friend Robert Buckland, now the Solicitor-General. It is not normal for a Minister to give advice from the Dispatch Box but the noble Lord, as an experienced parliamentarian, will know that the Solicitor-General and the Attorney-General are in fact the law officers responsible in the case of unduly lenient sentences and can themselves initiate an appeal to the Court of Appeal should sentences be regarded as too long. In fact anyone can refer those sentences for consideration by the law officers, so that is a matter that he may well wish to convey to USDAW if it is not already aware of that.
Currently, the only offences of assault on members of specific groups are the offences of assault on a police constable in the execution of his or her duty and assault on an immigration officer. Creating a new offence of assault on workers selling alcohol would single out this type of assault as the only one meriting a specific offence alongside assaults on these public servants. I do not believe that this can be justified.
Whoever the victim, the degree of seriousness of an assault should depend on the particular facts of the case. Why should it be worse or more traumatic for the victim for someone to be assaulted at work rather than on the bus going to work, or for that matter when locking the front door as a result of an intrusion into the home? Of course, where the evidence indicates a more serious offence than merely common assault, whoever the victim, more serious charges are available to the prosecution, such as assault occasioning actual bodily harm, which carries a maximum penalty on indictment of five years’ imprisonment or an unlimited fine, or both, or grievous bodily harm under the 1861 Act.
There was reference to the position of police officers, who of course occupy a very important role. The offence of an assault on a constable or an immigration officer is a separate matter, although interestingly the proposed “triable either way” offence of assault on a worker selling alcohol would carry a higher sentence in the amendment than the offence of assault on a constable. I think it is fair to say that assault on a constable in the execution of their duty tends to be used for minor offences, whereas if there is a serious assault on a police officer it will be charged under the Offences Against the Person Act.
Noble Lords referred to cases that are not proceeded with, rather surprisingly on the facts of one particular case involving Barry and Teena, as the noble Lord, Lord Foulkes, said. USDAW has highlighted many cases that never reach the courts because the police and prosecution decide not to prosecute. As the Committee will appreciate, the investigation and prosecution of cases is a matter for the police and the Crown Prosecution Service, and regardless of the existence of a particular offence it is ultimately a matter for them whether they decide to investigate and prosecute.
Reference was made to the creation in Scotland of a specific offence of assaulting an emergency worker and it was suggested that this had increased the prosecution rate and resulted in a decrease of such offences. That was raised by the noble Lord, Lord Kennedy. Of course I entirely agree with the comment that we are better together. Be that as it may, what one can say about that, and there has been some research into it, is that it is difficult to draw any conclusions. It may well be that these offences are now being prosecuted under the legislation covering assaulting emergency workers whereas previously they would have been prosecuted under the common law of assault. The figures prior to the creation of the offence in the 2005 Act do not distinguish between those assaults that were committed against emergency workers and assaults against other people. It may be right, but we suggest that we cannot draw anything from that.
While I would be very happy to meet the noble Lords, Lord Foulkes and Lord Kennedy, to discuss matters further, at the moment we are unpersuaded of the need for these further offences despite the variation from the amendment put forward on the Anti-social Behaviour, Crime and Policing Bill. In light of the points that I have endeavoured to draw to the attention of the House, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Beecham (Lab)
My Lords, I support the noble Lord’s amendment, but I have a slightly left-field suggestion to make. Part of the problem the Government appear to have is the process of dealing with applications—possible costs and all the rest of it. Would it not be possible, instead of requiring people to apply on behalf of the deceased, for the Government to legislate to disregard the convictions of anybody convicted for conduct which would not now be an offence? That would not involve individual applications, their processing and all the rest of it, but would be a blanket amnesty for anything which would not now be a criminal offence. I put forward that suggestion for consideration. I do not expect the Minister to leap at it with any more enthusiasm than he usually leaps at my suggestions. I see the noble Lord is nodding that he too may be interested in it. It is a suggestion he might care to look at. Perhaps we can consider it on Report.
Lord Faulks
My Lords, this has been a short, very well informed and powerful debate. I pay tribute to my noble friend Lord Sharkey and others for all they have done relating to Alan Turing and to the amendment to the Protection of Freedoms Act. That Act reflected the Government’s determination that people’s lives should not be unfairly blighted by historical convictions for consensual gay sex with people aged over 16. The House is grateful too to my noble friend Lord Lexden for his usual accurate and illuminating historical analysis of the origins of this sad state of affairs, which gave rise to so many convictions and caused so much unhappiness.
A disregard results in a person’s relevant convictions being removed from the records held by the police and the courts. Those convictions will therefore no longer appear on a criminal records check and the individual never has to declare them, in any circumstances. However—this is where the amendment is concerned—where someone has died, the intended effect of these provisions would apply. The provisions in the Protection of Freedoms Act are designed to help living individuals get on with their lives free of the stigma of the disregarded offence. I fully appreciate and sympathise with the intention behind the amendment, but the Government are concerned that there would not be a practical benefit to the change. A disregard would not allow the applicant, on behalf of a deceased person, to say that the deceased person was incorrectly convicted, nor that he or she has received a pardon. It is important to remember the rationale that lies behind this. The objective of the Protection of Freedoms Act, in disregarding certain offences, is that they should no longer affect a person’s life or career. The intention is to support living people who are disadvantaged when they apply for work, rather than to set the record straight.
The Government are still concerned that such an amendment would introduce a disproportionate burden on public resources; reference was made to a similar answer given from the Dispatch Box, not by me but by another Minister. For living people, the Protection of Freedoms Act will amend the data used for criminal records checks for living people. When someone is deceased, the offence is more likely to have taken place prior to the establishment of the National Policing Improvement Agency’s names database. Identifying appropriate records would be a lengthy, expensive and uncertain task. There is less certainty that any records can be identified, and those that are found may be insufficient to be sure that offences were consensual and with a person aged over 16.
The Government are concerned this would place a disproportionate burden on existing resources at the Home Office and on the police service. My noble friend Lord Sharkey referred to the answer he was given by a Home Office Minister to a question about the number of people who had made applications, following the estimate of 16,000. I am told that it is true it has now risen to 192 from 185. However, noble Lords will appreciate that departments are operating under severe financial restrictions. While we believe that the cost of dealing with applications from those whose lives continue to be affected is justified in the current climate, we cannot agree that costs, which we believe will be significantly higher for each application, could be justified in trying to deal with the records of those who have died. In our view, the limited resources should be directed at those who continue to have difficulties as a result of their conviction or caution for these offences. I need hardly stress that there is a difference between a pardon and a disregard.
The noble Lord, Lord Beecham, made an interesting, bold suggestion. He rightly predicted that I was unlikely to swallow the suggestion from the Dispatch Box, sincerely though it was made. My initial reaction is that, if there were to be a blanket amnesty, as I think he was proposing, we would need to go through this case by case to establish whether this act was consensual and therefore within the scope of the Act.
Therefore, while having considerable sympathy with all that lies behind the amendment, the Government are still not in a position to accept it as tabled by my noble friend Lord Sharkey. However, I appreciate that there is a feeling that something ought to be done to right a historic injustice. I can certainly—without, I hope, raising any expectations—at least agree to facilitate a meeting with the Minister to discuss this matter further. However, I emphasise that I cannot raise expectations and the position at the moment is precisely as I have outlined it. In those circumstances, notwithstanding the arguments that have been put forward, I hope that my noble friend will be prepared to withdraw his amendment.
Lord Sharkey
My Lords, I am very grateful to all those who have spoken in favour of the amendment. They have, in my view, spoken persuasively and eloquently. I cannot help feeling that in many ways the Minister is simply missing the point. He talks in terms of practicality and cost; that is essentially the argument that he is putting forward. As I pointed out a few moments ago, there are elements to this other than practicality and cost. There is the notion of moral duty; there is the notion of taking into account the feelings of the friends and relatives of those convicted but now dead; and there is the notion of the devaluation of the disregard for those convicted but still alive if the purpose of this is purely practical and contains no element of public recognition for the wrongs done to these people.
I am sorry that the Minister and the ministry have chosen to take this path. It seems to be legalistic, mean-spirited and ungenerous. I am sufficiently encouraged by the words that I have heard around the Chamber this evening to say to the Minister that, although I will now withdraw the amendment, I will return to it on Report and perhaps use the opportunity to test the opinion of the House at that point.
I finish by saying that of course I would welcome a meeting with the Minister. In fact, I wrote to the ministry on 3 July proposing that. I got a letter back last Thursday saying, “We have passed your letter on to the Home Office because of course the Protection of Freedoms Act belongs to the Home Office”. There was no mention of a meeting or any kind of consequent follow-up; it was just a case of “It’s not our business”. I knew that the Protection of Freedoms Act belonged to the Home Office but I also knew that the Minister was going to be answering this debate, which is why I wrote to him. I expected him, or his department, to answer on behalf of the Government and not simply to say, “Well, over to them and let’s not talk about a meeting”. I am now very glad to hear that he is talking about a meeting. Having said that, I beg leave to withdraw the amendment.
Lord Faulks
My Lords, these amendments seek to establish a licensing regime for non-EU providers of pornographic content. I am grateful to the noble Baroness, Lady Thornton, for her explanation and for meeting me last week to discuss in general terms the proposals contained in the amendments. I am also grateful to the noble Baroness, Lady Howe, for her support for these amendments and for her continued interest in this particular unfortunate aspect and her determination in trying to achieve through legislation better control of access to pornography.
The Government agree that the aim of protecting children from accessing inappropriate content is one that should be pursued, but for the reasons that I shall explain, we are unable to accept these amendments. As the noble Baroness explained, the intention behind this amendment is to build upon the current regulatory system in place, deriving from the Audiovisual Media Services Directive, which applies to services situated in the UK and the EU. So far the Government have taken the consistent approach to regulate only UK-based TV-like video on demand content that might seriously impair the development of children, since this can be actively enforced. This is in line with the Audiovisual Media Services Directive. However, we intend to introduce secondary legislation to make clear that material that has been or would be classified R18 by the British Board of Film Classification must only be provided behind effective access controls.
The Government’s approach for protecting children from other content of this nature that originates from beyond the EU focuses on giving parents the tools they want to limit access to certain types of content, via parental controls and filters. These technological solutions have the advantage of dealing with all types of content, regardless of whether the provider is situated in the EU. Consequently, children in homes with the filters enabled will not be able to access pornographic material on the internet.
With regard to the degree to which filters are established, all new TalkTalk, Sky, BT and Virgin customers are now being given an unavoidable choice about installing family-friendly filters. Hundreds of thousands of homes have already taken up the option of a whole-home family-friendly internet filter. TalkTalk has already started to contact existing customers and give them an unavoidable choice about installing filters when they log into their password-protected “my account” space. It has contacted more than 1.5 million already. BT, Sky and Virgin are developing their own individual solutions to enable them to prompt existing customers. By the end of 2014, they will have given the 19 million households that they supply with an internet connection an unavoidable choice about installing filters. Rollout will be done in phases to avoid overloading the systems.
Like current device-level filters and filters used by every school in the country, filter software is provided to the ISPs by well established web-filtering companies. These are very dynamic and use a combination of web trawling and human intelligence to ensure that acceptable sites are not filtered in error. Solutions also allow parents to apply different levels of filtering depending on the age of the family. As to the remaining internet service providers beyond the big four, the Internet Service Providers’ Association, which represents the smaller ISPs, has confirmed that overall these smaller ISPs are open to considering the options available to them for delivering additional controls. We welcome their commitment to keep the Government updated on progress and to share best practice between the smaller ISPs.
The difficulty with this amendment is that it would effectively be unworkable because it creates a two-tier system whereby non-EU providers of pornographic content would be subject to stricter regulation than UK and EU providers. It creates a different definition of pornographic material to be regulated and will therefore create uncertainty, inconsistency and lack of clarity rather than more security. Secondly, extending the scope of the type of content from TV-like content to include film clips and static images that originate from outside the EU would create further uncertainty and inconsistency across the full scope of the content in question.
The noble Baroness, Lady Howe, asked about the R18 legislation. I understand that the legislation has been drafted and is currently at the notification stage in Brussels. We hope to implement it in the autumn.
We of course share the concern that has been expressed all around the House about access to pornographic material, particularly by children, and are concerned to do all that we reasonably can. However, we are not convinced that these amendments are the answer and respectfully ask the noble Baroness not to press them.
Baroness Thornton
I thank the Minister for that answer and the noble Baroness, Lady Howe, for her support on this. That is disappointing. The Government are complacent about this issue and are depending too much on filters and on parental controls. We know that it is not working and that too many of our children are accessing hardcore porn too easily. The Minister needs to acknowledge that. The evidence is absolutely clear: the damage is already being done to our children and the Government are not doing enough to stop it. I fear that we will return to this subject at a later stage of the Bill. I beg leave to withdraw the amendment.
Baroness Linklater of Butterstone (LD)
My Lords, I shall echo most of what has already been said. I think that around the Chamber we are pretty well agreed that what is being planned in general for the most vulnerable children in our community is entirely inappropriate and inadequate.
First, I shall speak to the new clause proposed in Amendment 43B concerning sentencing guidelines and provisions regarding secure colleges. The clause would amend the sentencing guidelines laid down in the Coroners and Justice Act 2009 in relation to those aged under 18. It states that no court should impose a custodial sentence upon an offender who is under 18 simply because a place happens to be available at a secure college when otherwise a community sentence would have been imposed, or impose a longer sentence precisely because a place at a secure college is available. It reflects a concern that sentencers might be attracted by the idea of a secure college at the expense of a community sentence because of the possibility of the education that may be on offer. That of course is very superficially attractive, not least because at this point in time we have no idea what that educational provision will consist of.
It is rather like when the DTO was introduced in 2000. It was attractive to magistrates because it appeared to combine punishment with rehabilitation and protection to society, but it simply resulted in a surge of children in custody. With similar perceptions, there is a real risk that secure colleges could drive up the numbers in custody. It is important to remember that custody really must be the disposal of last resort for young people in particular. They have the worst outcomes of all sentencing options for society, as well as for the offender, as 70% of children and 58% of 18 to 21 year-olds will reoffend within a year of their release.
We know that non-custodial sentences offer far better outcomes all round, particularly in terms of reoffending. However, the form of custody envisaged by the secure college, by virtue of its scale alone, offers little hope of achieving much in terms of improving the life chances of the children and young people it is planned that it will hold. Some 320 children under one roof, or at least in one campus, is just an impossible size for anything to be done—as everybody has been saying—on a personal basis.
There is an additional worry, highlighted originally by Sir Alan Beith MP at Second Reading in the Commons, that the education said to be on offer is likely to be piecemeal at best when the average length of custody is 79 days and hardly long enough to complete any course, even if a young offender happened to arrive at the college at the beginning of one. They take pot luck to join in when they arrive. So the reality of the college experience from an educational point of view alone is—
Lord Faulks
I am very sorry to interrupt my noble friend but I wonder whether she is not in fact talking to a different amendment.
Baroness Linklater of Butterstone
Oh, it is in a different group. I am so sorry. Shall I continue or shall I leave it?
Lord Storey (LD)
My Lords, I apologise for not having spoken at Second Reading. I was thinking that had this proposal come when we were debating the Children and Families Bill, there would have been uproar all around the House.
As has been said, we have to remember that 70% of young offenders have special educational needs and 20% are currently on what are called educational statements. The word “college” of course means education but the notion that you provide that educational support in what will in fact be Europe’s largest children’s prison is quite concerning, as is the notion that you put 12 year-olds with older youths and take them away from their support systems, their family and friends. We have not as yet decided what the education package is going to be. If it is going to be a genuine education package then there have to be educational psychologists, speech and language specialists and people dealing in mental health issues to make it really effective.
I have two real concerns. First, one of the amendments talks about younger children. There are moments in your professional life where certain events happen and they are almost life-changing in their impact. I remember clearly an 11 year-old boy who came to my school. They discovered that his mother’s partner had been in Winchester prison for child abuse. The boy was immediately taken away from his family and put in a secure children’s home. He was 11 and all the other young people in the home were 15 and 16. With the help of the local MP we got him out of the children’s home within, I think, three to four weeks. That boy had changed beyond belief. He had become a drug pusher; he did not want to support his family any more; he became abusive; he became a bully—all the sorts of things you do not want. That is my concern about putting young children into such institutions—and they are children. At the age of 12, 13 or 14, we are talking about children. The notion of putting children into this kind of institution is, to my mind, terrifying.
My second point is on the need for education support, which I have just mentioned. I recently went to visit a youth offending team on Merseyside comprising a very professional staff who are doing a tremendous job. The team’s concern is that currently it cannot even get information from schools to find out whether the young people concerned have statements or their educational assessments. We will have to pin down what the support provided in a secure college will be and what help is to be given.
I am very concerned about this proposal. If it is going to proceed, the important issues around age, the admittance of girls and of education provision have to be clearly spelt out. If this is about saving money, let us be honest and say so. If this is about a secure unit, let us be clear about that. But if the word “college” is going to be used and it is about supporting young people in their education and preventing reoffending, the issues that have been expressed in this debate have to be clearly and skilfully dealt with.
Lord Faulks
My Lords, these amendments have allowed us to have a detailed and valuable debate and I welcome the opportunity to clarify the Government’s position on a number of aspects of how secure colleges will operate. However, so many questions have been posed during the course of the debate that I cannot answer all of them in my response. I will study Hansard carefully and write to all noble Lords and I will ensure that a copy of that letter is placed in the Library. If I do not deal with all the points that have been made, I hope that noble Lords will forgive me, but I will try to address at least in general terms the anxieties that have been expressed across the Committee.
On a positive note, there has been acknowledgement that the importance of education—which the Government say is reflected in the establishment of these secure colleges—is paramount, particularly with this cohort who sadly have rarely had access to any continuity in terms of their education and who would clearly, in the right circumstances, benefit a great deal from that. The Government made clear in their response to the Transforming Youth Custody consultation—this is my answer to the amendments in relation to secure children’s homes—that we accept that there will still be some detained young people who will require separate specialist accommodation on the grounds of their acute needs or vulnerability. We are committed to continuing to provide separate specialist accommodation for this small group of young offenders.
Your Lordships will have noticed that secure children’s homes are absent from the list of the types of youth detention accommodation that the Secretary of State may provide, as set out in the revised Section 43 of the Prison Act 1952 included in Clause 29. That is because local authorities have the power to provide secure children’s homes and the Secretary of State has never had such a power. Similarly, it is for local authorities to provide sufficient places as are required in secure children’s homes and we think that it is right that they retain responsibility for this. As noble Lords are aware, these will contain not only those who are there because they have been sentenced but those who are there due to the various duties on local authorities to safeguard children.
The noble Lord, Lord Beecham, referred to the desirability of more places being available in secure children’s homes. It is correct that we have reduced the number of places in secure children’s homes to 138. This reflects a positive step: the fact that there is a fall in demand for youth custody and the demand for secure children’s home placements in particular. We have in fact decommissioned a far greater number of places in youth offender institutions in recent years. A number of whole establishments have closed. Although finance is a factor that we cannot ignore in this process, it is not the only factor. If we were to place all young people in custody in secure children’s homes, it would cost in excess of £100 million per annum more than we currently spend.
I turn to Amendments 42F, 42G and 43C. Concern was expressed about the access of girls and those aged under 15 to secure colleges. I am sorry for interrupting the speech of the noble Baroness, Lady Linklater, but she came back on this point and made some helpful observations. I do recognise the concerns about the safeguarding of both under-15s and girls in an establishment where the majority of young people will be boys aged 15 to 17. I also accept that the educational, health and emotional needs of under-15s and girls may often be different from those of the broader population of 15 to 17 year-old boys who are likely to make up the majority of those in secure colleges.
However, the Government believe that these risks can be properly managed, as they are in secure training centres and secure children’s homes where boys and girls of different ages are accommodated. I should like to reassure noble Lords that the design of secure colleges will be such that younger and more vulnerable children will be accommodated in units separate from the mainstream group of older detainees and that there will be facilities to ensure that they can access education and other services separately. That point was made during the course of the all-Peers meeting to which a number of noble Lords referred when putative plans of the secure college were shown.
My noble friend Lord Carlile was critical, and has repeated his criticism, of the lack of outside space. He is determined that somewhere there is a ministerial vision of some equivalent to a public school. This Minister pleads not guilty to that. The advantage of playing fields is considerable. At the establishment to which he referred, that was perhaps the only main advantage of the school, although that is not of course the case now.
There are inevitably some difficulties in providing appropriate space but I accept the general point that physical exercise in appropriate circumstances can be of profound therapeutic assistance. Although at the moment we have a limited amount of space, as the noble Lord rightly apprehended, and not just today, I have been making inquiries into the possibility of acquiring some extra physical space to try to accommodate the desirability of providing additional facilities. I hope to be able to come back to noble Lords and provide some more information about that in due course.
The aspiration of noble Lords in the proposed new clause is for single-sex secure colleges, but the Government believe it is better for legislation to provide for the option of secure colleges accommodating both boys and girls. I make it clear to the Committee that no final decisions have been made on whether girls and under-15s will be accommodated in the pathfinder secure college. I also assure noble Lords that any introduction of these two groups in the pathfinder secure college—which is what this is—would be carefully phased: we would not place them there from its opening.
A number of the matters in the new clause proposed by noble Lords in Amendment 43C will be covered in the secure college rules, which I believe is the proper place to consider them rather than in the Bill. As I have already explained to the Committee, we intend to bring forward a consultation on our approach to the secure college rules before Report, which will provide an opportunity for the Government to set out and seek views on their plans for the basic requirement of secure colleges.
The new clause proposed by the noble Lord, Lord Ramsbotham, and other noble Lords requires the Secretary of State to conduct a pilot of no more than 50 people before commencing the secure college provisions. I recognise the concern that any new form of youth custody must be able to ensure the welfare and safety of the young people placed there. I reassure noble Lords that the opening of the pathfinder secure college will be extremely carefully managed. We anticipate that it will take some months before the pathfinder begins operating at full capacity, and this will only happen once the operator has demonstrated that it is delivering a high-quality service in a safe environment. With these appropriate precautions in place, I do not agree that a limited pilot scheme is required.
I sympathise with noble Lords’ desire for greater information on the precise form that education will take in a secure college. However, I do not think it is right for detailed information on the educational requirements to be set out in legislation or for the Secretary of State to dictate what the content of the educational programme must be. We want secure college providers to have the freedom to deliver innovative education that is imaginative and appropriately tailored to the young people in the establishment. It is important that secure college providers have the flexibility to tailor education to the different needs of the young people they accommodate. The form that this education takes, the number of hours that are spent in the classroom or the workshop, and how it is delivered, cannot be helpfully pinned down in secondary legislation.
The crucial point is that secure colleges must deliver a full and quality curriculum that motivates and challenges all young people. The effectiveness of the education in a secure college, including for those with special educational needs—referred to by many noble Lords—will be judged by a robust monitoring framework involving both Ofsted and Her Majesty’s Inspectorate of Prisons.
As to special educational needs provision, it is intended that the principal of a secure college will have overall operational responsibility for the services provided by the establishment, including the workforce delivering those services, and will work with the local authority responsible to ensure that young people with special educational needs receive appropriate support while detained in a secure college.
Noble Lords will be aware that the statutory responsibilities of both local authorities and custodial establishments in respect of young people with education, health and care plans has recently been strengthened by the Children and Families Bill. In addition, we will require special educational needs co-ordinators in secure colleges to hold qualified teacher status, in line with requirements in the mainstream.
I fully understand my noble friend Lord Hodgson’s concern to ensure that the education and training that young people receive while detained in custody is structured to their individual needs and takes account of their prior learning, as well as their aspirations on release. Secure colleges will improve on the existing processes, and ensure that all young people receive an individual learning plan based on a thorough assessment of their needs and prior learning experience. However, to create in the Bill a duty on the Secretary of State would, in our view, be disproportionate.
A number of observations were made to the effect that the period of time that an individual might spend in a secure college was not necessarily conducive to education. Sadly, we often deal with a cohort of young people for whom continuity has been notably absent, often even from one day to another in educational establishments. Ideally, one might think that educational provision ought to match precisely its mirror image in the community. However, a sufficient bank of time in a secure college would be intended, with an individually tailored plan, to ensure that some real benefit was derived from that exposure to education, in circumstances where the individuals have probably had very little continuity at all.
My noble friend Lord Hodgson referred to the value of online learning tools. We are exploring the extent to which we might be able make use of such tools, both in existing custodial establishments and in secure colleges. As those who saw the plans will have seen, there will be plenty of access to computers in the course of the educational provision. However, there are, as noble Lords will understand, precautions that need to be taken to restrict access to the internet—not least to protect the victims of crime from further harm.
As for the rules referred to in Amendment 43, I am grateful for this amendment. It raises a principle which I am sure all noble Lords will agree with: that the Government’s proposals for secure colleges should be subject to proper consideration and scrutiny by Parliament. I agree with the noble Lord, Lord Ramsbotham. I look forward to detailed scrutiny of these provisions as the Bill continues its passage through the House. However, we believe it is appropriate that the Secretary of State should have the same powers in relation to secure colleges as he has with other forms of youth custodial accommodation. We consider that the negative resolution procedure represents a suitable degree of oversight. In addition, as I set out at Second Reading on 30 June, we will launch before Report a public consultation on our approach to secure college rules. We will set out and seek views on the principles underlying the rules and, where appropriate, some indicative draft provisions.
As for Amendment 43D and the report to Parliament before commencement, I do not think it is right to set out extensive detail on how secure colleges will operate before these provisions can commence. In the Government’s response to the Transforming Youth Custody consultation, we explained that we want to allow providers to develop creative and innovative ways to deliver this new form of youth custody. Providing a report to Parliament before these provisions can be commenced—and therefore before an operator can be secured—would significantly undermine this approach.
In my view it is for primary legislation to set out the framework for secure colleges, for this to be further developed by the secure college rules—the process that I have just outlined—and for detailed operational requirements to be determined by the Secretary of State via the contracts that he enters into to provide secure colleges. Once we have identified an operator to run a secure college, the contract will be made publicly available, including the agreed operator service specification, with appropriate redactions where information is commercially sensitive. I hope that this allays to some extent the concerns expressed by the noble Lord, Lord Ramsbotham.
As to Amendment 48 and staffing, I am sure that noble Lords would agree with me that we want secure colleges to employ high-calibre individuals who are able to help deliver this new and bold form of custodial provision. This applies as much to custody officers who will be responsible for undertaking some of the most important functions in secure colleges as it does to teachers, health professionals and others.
Lord Marks of Henley-on-Thames
My Lords, my noble friend Lady Linklater spoke to Amendment 43B as if it were part of this group. There is nothing more that we wish to say on that amendment, which is in a further group, and because of the time I wonder if the Minister could indicate if he has anything special to say about it, subject to anything that the Labour Front Bench wishes to say.
Lord Faulks
I am happy to deal with that amendment; in the interests of economy, that seems a sensible suggestion. The amendment raises a concern about how the enhanced and tailored provision offered by a secure college might influence the behaviour of the courts when making sentencing decisions in respect of children and young people—so-called up-tariffing, as it has been referred to in other contexts.
We have seen a fall in the number of children and young people sentenced to custody in recent years. I hope noble Lords will be reassured that statute and international convention already provide that a custodial sentence must be imposed only as a measure of last resort. Statute provides that such a sentence may be imposed only where the offence is,
“so serious that neither a community sentence nor a fine alone can be justified”.
That is referenced in the Sentencing Guidelines Council’s current guideline, Overarching Principles—Sentencing Youths, which goes on to explain that even when a threshold for a custodial sentence is crossed, a court is not required to impose it. Before deciding whether to impose a custodial sentence on a young offender, the court must ensure that all statutory tests are satisfied, taking into account the circumstances, age and maturity of the young offender. Those tests are that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order; that a youth rehabilitation order with intensive supervision and surveillance, or with fostering, cannot be justified; and that custody is a last resort. To demonstrate that the statutory tests have been followed, the court must, in addition, state its reasons for being satisfied that the offences are so serious that no other sanction is appropriate other than the custodial sentence.
As regards the length of the sentence, the court, again by statute, is required to set the shortest term commensurate with the seriousness of the offence, and those overarching principles I referred to earlier set out guidance on how the judiciary should approach deciding the length of the sentence for children and young people. Furthermore, courts will no doubt be aware that due to the variation in needs and vulnerabilities among children in custody, there is a range of provision. They certainly should be aware. As my noble friend Lady Linklater will know, there are secure children’s homes, secure training centres and young offender institutions, as well as, in future, we hope, secure colleges.
When sentencing children and young people, the court can determine only the type of sentence to be imposed and its length. The decision on which type of establishment a child or young person is placed in is taken by the Youth Justice Board for England and Wales, rather than by the court. Its experienced placement service considers factors specific to the young offender—for example, their age and needs.
Finally, the noble Baroness noted that the amendment would have the wider effect of fettering the discretion of the independent Sentencing Council by stipulating precisely what its guidelines should say. That is a road which I am sure noble Lords would not wish us to go down.
I hope, therefore, that I have assuaged noble Lords’ concerns sufficiently for them not to press this amendment also.
Lord Beecham
My Lords, I look forward to whiling away the long Summer Recess by reading the Minister’s helpful replies in Hansard, and his even more helpful letters, which will no doubt find their way to me and to other noble Lords. It is, however, necessary to say that what we are being effectively invited to do is to sign a blank cheque to as yet unknown operators of an entirely new institution conceived on the basis of no evidence and with no clear idea of how it is to operate.
In a particularly sensitive area of penal policy, indeed social policy, that is simply unsatisfactory, and I have no doubt that many of us—from different parts of the House—will wish to return to these matters on Report. Having said that, I beg leave to withdraw the amendment.
Lord Faulks
My Lords, I am grateful for the opportunity to debate these amendments from various noble Lords. I recognise that the use of force in relation to young people in custody is a sensitive and important issue. I will explain the effect of these amendments, and also our intentions in respect of the use of force.
The effect of the amendment proposed by the noble Lord, Lord Ramsbotham, would be to remove the power of custody officers in secure colleges to use, if authorised to do so by the rules, reasonable force where necessary in carrying out their functions. I am sure that noble Lords would agree with me that there are some circumstances, such as to prevent an escape from custody or to prevent harm to themselves, another young person or staff member, in which the use of force could be necessary and where it is desirable to have rules setting out when, how and what force a custody officer is authorised to use. The effect of this amendment would be to prevent that, and we believe that that is too limiting.
Another amendment differs in that it sets out a series of circumstances in which rules may authorise the use of force. The effect of this amendment would be to restrict the circumstances in which custody officers can use force, if authorised by rules to do so, to the prevention of harm to the child or others.
Amendments 42N, 46B and 46C, tabled by the noble Lords, Lord Marks, Lord Carlile and Lord Dholakia, and the noble Baroness, Lady Linklater, would prevent the use of force to ensure good order and discipline and have the effect of setting out in detail the conditions which must be satisfied in relation to any use of force by secure college custody officers.
In relation to use of force more widely, I should like to make clear, and I can reassure your Lordships, that we agree with the conditions set out in these amendments that in all cases force should be used only as a last resort; that the minimum amount of force should be used for the minimum time possible; that only approved restraint techniques may be used; and that they should be used only by officers who have received training in those techniques.
Considerable improvements have been made to restraint practice in recent years, including the introduction of a new system of restraint known as MMPR. It has been independently assessed by a panel of medical and child welfare experts. The Independent Restraint Advisory Panel was formed specifically to monitor the implementation of MMPR. It is currently being rolled out to under-18 young offender institutions and secure training centres. It is our intention that this system of restraint would also be used in secure colleges.
The fundamental principle of MMPR is to minimise and, wherever possible, avoid the use of physical restraint. Staff working with young people in STCs and under-18 YOIs receive a comprehensive programme of training that puts considerable emphasis on using appropriate de-escalation and deceleration techniques—non-physical interventions—to ensure that restraint is only ever used as a last resort, when no other intervention is possible or appropriate, and that if use of force is required it is the minimum possible for the minimum amount of time.
I recognise that the issue of use of force to ensure good order and discipline is one of the primary concerns behind these amendments. A custody officer’s duties include ensuring good order and discipline, and the Bill provides that reasonable force may be used for this purpose, but only if specific provision is made in secure college rules. Rules are the correct place to be setting out the boundaries on use of force. The drafting in the Bill ensures absolute clarity on this point; a custody officer must be authorised by the rules to use force. I recognise that the term “good order and discipline” could be seen to be too broad in this context, and perhaps the term “discipline” is not helpful, as it could imply some element of punishment. We are clear that any use of force for the purposes of disciplining and punishing is prohibited. However, it is worth noting that use of reasonable force to ensure good order and discipline is provided for elsewhere in legislation. For example, although a different setting to custody and covered by specific guidance, use of reasonable force for maintaining good order and discipline is permitted in schools.
As I set out in the document that I sent to all Peers before Second Reading, the Government’s position is that force may be used only to ensure good order and discipline where there are clear risks to maintaining a safe and stable environment for young people, and that the use of force is a necessary and proportionate response in order to protect the safety and welfare of the individual or of others.
We consider that there may be limited situations in which all attempts at resolving and de-escalating an incident have failed, and where a young person’s behaviour is such that it is impacting on their own safety and welfare or that of others. In those limited situations, and then only as a last resort, we believe that some force—the minimum necessary, for the shortest time possible and subject to strict conditions and safeguards designed to ensure respect for the young person’s dignity and physical integrity—may be necessary.
Furthermore, force for reasons of punishment would not be permitted, and use of restraint techniques intended to cause pain would not be permitted. Use of force would be permitted only when staff are satisfied that they have assembled the resources to ensure the safest use of force and a full risk assessment has been conducted. This includes the attendance of healthcare staff.
As I explained to the House at Second Reading, ahead of Report we will launch a public consultation on our approach to secure college rules. This consultation will include our proposals relating to the use of force to ensure good order and discipline, as well as the use of force more widely. I will welcome responses from noble Lords and others on this important issue.
Regarding the noble Lord’s Amendment 42M, as a matter of principle I do not think it is necessary to specify in the Bill who the Secretary of State has to consult with. We will of course work closely with the Youth Justice Board as we plan for the introduction of the pathfinder secure college. At the end of April 2014, following the conclusion of its work, the Independent Restraint Advisory Panel was dissolved.
I recognise that the use of force in youth custody is a very sensitive issue. We are conscious of our international obligations and of the implications of the Court of Appeal’s decision in C. I hope in this reply I have been able to provide some assurance of the Government’s intentions regarding the use of force in secure colleges. I should also add that we are conscious of the Delegated Powers Committee’s recommendation, which we will consider, and I look forward to continuing this discussion through our public consultation. In the light of that reassurance I hope the noble Lord will withdraw the amendment.
Lord Ramsbotham
My Lords, I was responsible for conducting an inquiry into the death of an Angolan called Jimmy Mubenga in an aircraft on the way back from Heathrow. He was under the escort of G4S guards, who have subsequently been charged with his murder. One of the problems that has come up with the Home Office is that nobody is responsible for the oversight of the training and assessment of the security company guards who are meant to escort people who are being deported from this country.
The problem is that the secure college staff will also be from the private sector. The Home Office is currently working out a code of practice that includes the involvement of the Security Industry Authority, which has responsibility for the supervision of people working in the criminal justice system. I very much hope this will be included in the work. It is all very well saying that staff will be trained, but who is responsible for both supervising the training and making certain that people’s training is up to date? That has been one of the problems with the escorts of people who are deported.
Lord Faulks
I am grateful for that contribution. I do not propose to give a detailed response now, but it is something that we will factor in.
Assisted Dying Bill [HL]
Lord Faulks Excerpts(9 years, 11 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I congratulate the noble and learned Lord, Lord Falconer, on bringing forward the Bill and securing this Second Reading debate. It is a great privilege to respond briefly on behalf of the Government. It is a reflection of the profound importance of the subject matter that so many Members of the House have attended and contributed to what has been an extraordinary debate.
Today is not the first occasion on which this House has debated this difficult and sensitive area of the criminal law, but it is, I think, the first occasion in this Parliament that we have had before us specific legislative proposals. The Bill would, if enacted, legalise assisted suicide for mentally competent terminally ill adults who are reasonably expected to die within six months. Wherever one stands on the desirability of legislative change, there can be no doubt that this would be a very significant step. Its significance has been recognised by most noble Lords, notwithstanding the description of the Bill as having modest provisions. It is possible to have modest provisions that are none the less significant.
The debate has been decorated by succinct yet powerful analysis, intensely moving personal testimony and a profound respect for opposing views, with very few discordant notes. In some quarters, the work of your Lordships’ House in the detailed scrutiny of legislation and debates on matters of real importance is insufficiently regarded. Today is a polite but firm response to those who would downgrade this House.
Today’s debate is also particularly timely, coming as it does within weeks of the Supreme Court handing down a landmark judgment in two cases which illustrate, all too clearly, the human predicament at the heart of the debate. Like Members of this House, the Supreme Court Justices were divided on some of the issues before the court, not least on whether Parliament is better qualified than the courts to assess the complex issues involved.
I shall set out the Government’s position on the Bill. As I explained in a letter to colleagues yesterday, the Government believe that any change in the law in this emotive area is an issue of individual conscience. In our view, it is rightly a matter for Parliament to decide rather than government policy. Taking a neutral position on an issue of conscience, though, is not the same as doing nothing. The Government must of course be concerned with the fitness for purpose of any legislation that may reach the statute book. That is not to suggest that the Government will seek to block the Bill at a later stage if the consensus of this House is that it should proceed; rather, we should seek to correct any drafting deficiencies and to ensure that the law would operate in the way that Parliament intended.
The debate on the Bill has raised a number of issues. Most noble Lords were concerned about the adequacy of the safeguards. Many pointed out that the Bill would not deal with the applicants in the Supreme Court case of Nicklinson and others, and the difficulty of predicting with any confidence life expectancy in the face of a diagnosis of serious illness. Noble Lords were also anxious about the so-called slippery slope. How slippery is it—or is it just an excuse for doing nothing? Some Peers were concerned that if the Bill were enacted there might not be adequate post-death inquiry to ensure that there had been compliance with the safeguards. Others stressed the difficulty in assessing mental capacity generally, particularly for the purposes specified in the Bill. Then there were those who thought that we should hesitate to legislate if the law, messy and uncertain as it may be, still worked well in practice. I sense the clear consensus of the House that the Bill should proceed to Committee, where these and other issues can be thoroughly discussed.
This has been a long debate with many contributions on both sides. As impressive as they were, I hope that noble Lords will allow me to break with the normal convention and not attempt to reflect all of them in my concluding remarks. There have been so many impressive speeches that I dare not mention even one. Rather, I conclude by praising all noble Lords for picking up the gauntlet thrown down by the Supreme Court. Parliament is now seized of the issue raised by the Bill, and this debate has illustrated clearly that it is very much up to the task.
Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 11 months ago)
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Lord Faulks
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, Amendment 1 removes references in Clause 2(10) to subsections (5) and (6) of that clause. Subsection (10) makes transitional provision around the application of the “dangerousness” life sentence, imposed on conviction of an offence listed in Schedule 15 to the Criminal Justice Act 2003, which carries a maximum penalty of life where the court considers that there is a significant risk to members of the public of serious harm from further Schedule 15 offences. However, such a sentence could never be imposed for the offences mentioned in subsections (5) and (6) so we do not need to refer to them.
The other amendments are minor changes that correct inconsistencies and lacunae relating to dangerous offender provisions in the drafting of the Criminal Justice Act 2003. Amendment 2 relates to foreign service offences and the extent to which they are treated as previous convictions for the purposes of the dangerous offender sentencing scheme. Previous convictions may be relevant in determining eligibility for an extended determinate sentence or for the “two strikes” life sentence. This amendment ensures that all previous convictions for a member state service offence, which is the equivalent of an offence listed in Schedule 15B to the Criminal Justice Act 2003, can count as relevant previous convictions for these purposes.
As currently drafted, paragraph 49 of Schedule 15B to the Criminal Justice Act 2003 covers only equivalent member state service offences for which the offender was convicted by a court operating in the member state. However, a conviction for a member state service offence could be given by a service court sitting elsewhere in the world. Currently, such convictions are covered for UK service courts operating outside the UK, and we should treat member state convictions in the same way.
Amendment 3 relates to certificates of conviction. There is provision in the Criminal Justice Act 2003 for such certificates to be treated as evidence as to whether a previous conviction is a relevant previous conviction for the purposes of the “two strikes” life sentence. Such certificates could assist in dealing with disputes about, for example, whether a previous conviction for robbery under Section 8 of the Theft Act 1968 involved possession of a firearm. In the former case, the robbery would constitute an offence listed in Schedule 15B to the Criminal Justice Act 2003. However, no similar provision is made in relation to deciding eligibility for an extended determinate sentence. To rectify this anomaly, we are extending Section 232A of the Criminal Justice Act 2003 to Section 226A(2) of the Criminal Justice Act 2003 as well.
Amendment 6 relates to how the court determines the date of a previous offence. Generally, where legislation makes a change to sentencing, provision is made for how the date of an offence should be determined if it is found to have been committed over a period of two or more days or at some time during a period of two or more days. This is helpful because such changes often apply only where an offence is committed on or after the commencement of the provision in question. However, there is no provision of this type in relation to Section 224A of the 2003 Act—the “two strikes” life sentence. This is an anomaly, and we consider that we need to rectify it. I beg to move.
Lord Faulks
“( ) Part 4 of Schedule 15B to the Criminal Justice Act 2003 (offences under the law of Scotland, Northern Ireland or a member State other than the United Kingdom listed for the purposes of sections 224A(4) and 226A of that Act) is amended as follows.
( ) In paragraph 49, for “An offence” substitute “A civilian offence”.
( ) After paragraph 49 insert—
“49A A member State service offence which, if committed in England and Wales at the time of the conviction, would have constituted an offence specified in Part 1 or 2 of this Schedule.
49B In this Part of this Schedule—
“civilian offence” means an offence other than an offence described in Part 3 of this Schedule or a member State service offence;“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.””
Lord Hope of Craighead (CB)
My Lords, I shall add a word based on my own experience. It is quite difficults to visualise the work of the Parole Board members unless one has seen them at work. One thing that struck me some years ago when I attended Parole Board hearings from time to time was the huge volume of paperwork generated by individual cases. Of course, the longer a prisoner remains in custody, the bigger the volume becomes. The technique which the Parole Board member has to apply to each case is to work his or her way through the file, which takes a great deal of time, then explain whatever views he or she has reached, based on the information in the file. It is immensely time consuming. My experience was that Parole Board members were extremely conscientious; the people who know best what the effect was of the diminution of resources on their ability to do their job are the Parole Board members themselves, which is the strength of the point that the noble Lord, Lord Beecham, made. I suggest that his amendment deserves a great deal of consideration.
Lord Faulks
My Lords, the amendments relate to four clauses, which will have the effect of increasing the involvement of the Parole Board in certain areas. The clauses we are considering are: Clause 3, which adds a number of terrorism-related offences to the enhanced dangerous offenders sentencing regime; Clause 4, which will require all prisoners serving an extended determinate sentence to be referred to the Parole Board before early release can be authorised; Clause 5, which creates a new determinate sentence for serious child sex and terrorist offenders, under which prisoners will be referred to the Parole Board before early release can be authorised; and Clause 7, which introduces a new test for determining whether offenders receive fixed-term or standard recall, and to inform re-release decisions.
Our impact assessment acknowledges that Clauses 4 and 5 will add to the Parole Board’s workload. However, Clause 3 should not give rise to more than negligible impacts, since very few offenders are convicted of the offences in question. In any event, it should not impact on the Parole Board over and above the estimated impact of Clause 4 because, following the changes in Clause 4, all those serving extended determinate sentences will be referred to the Parole Board for early release in any event. We also think that Clause 7 will not have significant effects, because we estimate it will add a very small percentage to the total number of standard recalls that the board currently deals with.
We have looked at the likely impact of these provisions and the time over which the impacts will make themselves felt, and are confident that the additional work that will be created will be manageable. Most of the increase in Parole Board workload will arise from the new determinate sentence created by Clause 5 and Schedule 1, which will apply only to offenders who are sentenced after the new sentence is implemented. Those who commit these offences very often receive substantial prison sentences; under the new sentence, they will serve half their custodial term in prison before they are referred to the Parole Board for consideration for release. All this means that there will be a substantial time lag before these cases start to come through to the board. Our estimate is that the board will see the full impact of changes to early release between 2020 and 2030. We are also supporting the board in dealing with the consequences of the Osborn, Booth and Reilly judgment, referred to by the noble Lord, Lord Beecham, in his helpful remarks.
The Parole Board has established a programme of work to equip itself for dealing with the challenge of providing an increased number of oral hearings. The first phase of that work, which involved scoping the challenge and setting up immediate plans to deal with the increased demand, is now complete. The second phase, which involves developing a new case management model for the future, is under way.
Lord Faulks
“Minor amendments
(1) In section 224A of the Criminal Justice Act 2003 (life sentence for second listed offence), at the end insert—
“(12) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(b) and (4)(a) to have been committed on the last of those days.”
(2) In section 232A of that Act (certificates of conviction), for “section 224A” substitute “sections 224A and 226A”.
(3) In section 218A of the Armed Forces Act 2006 (life sentence for second listed offence), at the end insert—
“(8) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(c) and (5)(a) to have been committed on the last of those days.””
Lord Beecham
My Lords, I must confess that I am somewhat puzzled by the position outlined in the JCHR report and what the noble Lord, Lord Lester, referred to as the Government’s recent pronouncements on it. As he rightly said, the report indicated that the Government would be awaiting the outcome of the appeal in McLoughlin before updating the Committee of Ministers of the actions that they plan to take to implement the Vinter judgment—which implies that the Government are planning to implement the Vinter judgment, but in ways as yet undetermined.
I am sure that the Minister will be able to enlighten us about whether that is in fact the Government’s intention and, if so, what approach they will be taking. If they are awaiting the outcome of that appeal before coming to a conclusion, that is not an unreasonable position for them to take, but the underlying question is whether they intend to implement the Vinter judgment as indicated in whatever decision the Supreme Court ultimately makes on the details of the McLoughlin appeal.
I am also uncertain about the interesting reference that the noble and learned Lord, Lord Phillips, made to a wider meaning of “compassion” and whether that would be a criterion for release. Is that something that the Government are in fact contemplating? Might that form part of their response to the Committee of Ministers in relation to Vinter?
These are difficult cases, and one must hope that we can reach the position where we are not in conflict with the court but that, nevertheless, the balancing interest of public safety is also given due weight. For the Opposition’s part, we await the Government’s response in general and the Minister’s response in particular this afternoon.
Lord Faulks
My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.
However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.
I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.
The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.
The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:
“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.
The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:
“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.
The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.
The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.
The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.
Lord Lester of Herne Hill
My Lords, I am grateful to everyone who has spoken in this extraordinary debate, including the Minister. One has to bear in mind that under Article 46 of the convention there is a duty on the UK to abide by the final judgment of the Strasbourg court in the British case. That duty must be performed not just by the Government, thank goodness, but by Parliament and by the judiciary. When the Committee of Ministers of the Council of Europe—that is, 47 Governments, including 46 that will be looking at this debate and particularly at what the Minister has just said—next meets to scrutinise whether the UK has in fact properly complied with the judgment, it will no doubt read the debate, including the Minister’s reply, and the report of the Joint Committee on Human Rights with some interest. It will note that three of those who have spoken contrary to the view of the Minister have all exercised judicial power in our apex courts, the House of Lords and the Supreme Court, including the President of the Supreme Court, and they will view with some surprise the notion that the Minister’s view of the Court of Appeal judgment is somehow more significant when looking at the matter than the views of those extremely distinguished jurists, all of whom, as I say, have exercised judicial power at the very apex of our legal system.
I simply do not understand how the Government think they can get away with it. They have already spent years and years, like their predecessors, in trying to get away with their refusal to abide by the final judgments in the prisoners’ voting rights case. By a strange quirk of life, I go to the Committee of Ministers every quarter. I shall not be at the next one but I usually go there because I am deemed to be Cypriot, for the purposes of the Cyprus/Turkey dispute. I observe what happens, without speaking, in the British cases. I have to say to the Minister, who has not had that experience, that our reputation at the moment is right at the bottom. Everyone I speak to—ambassadors, judges, civil servants in Europe—view with astonishment the fact that we now have a Minister of Justice, a Home Secretary and a Prime Minister who feel sick when they read judgments of the Strasbourg court and say so, and who threaten to tear up the convention or, rather, to withdraw from the court’s jurisdiction and the Human Rights Act. One cannot imagine quite what it is like to have lived through a period when the United Kingdom had such a fine international reputation and then to find that the pseudo-democracies of Europe—the dictatorships and totalitarian regimes—say, “If the United Kingdom can do this so can we”.
The JCHR said that this was a probing amendment, and that is what it is, but it is an extremely valuable probing amendment because those experts on penal reform, such as the former Chief Inspector of Prisons, the noble Lord, Lord Ramsbotham, and distinguished human rights advocates, within the law or in some other occupation, have all spoken in the same way. I have no doubt that the Government will not get away with it and that the Committee of Ministers will not close the matter, as the Government are now saying, but will demand further explanations. Having said all that, I beg leave to withdraw the amendment.
Lord Faulks
My Lords, we are debating once again the position of current IPP prisoners. The Government abolished that sentence in the LASPO Act 2012, for reasons I need not rehearse. We replaced them with immediate effect so that no further IPPs can now be imposed on offenders convicted after December 2012, regardless of the date of offending. That, as I think noble Lords would agree, is a major step forward. The noble Lord, Lord Beecham, said in the course of his address to your Lordships that the Government who preceded ours had not given the Parole Board sufficient resources. What he failed to do was to acknowledge that it was his Government who brought in this scheme, which has been so much criticised. That scheme has resulted in a number of people being imprisoned and still being in prison; this Government repealed that provision.
However, in respect of IPP sentences already imposed, our position remains that it would not be right or appropriate retrospectively to alter sentences that had been lawfully imposed prior to the abolition of IPPs, particularly because in this case those sentences were imposed with public protection issues in mind. Consequently, prisoners serving IPP sentences are not released unless the Parole Board authorises it.
A number of questions were posed about the Parole Board’s resources, including those from the noble Lord, Lord Wigley. In answer to an earlier amendment, when I think the noble Lord was not in his place, I set out to the Committee the fact that the Government were well aware of the demands, temporary and in future, being presented to them. They had given further resources and were intending to be nimble in responding to the demands that were and would be placed upon them.
Lord Beecham
I am sorry to intervene at this point but, as the noble Lord, Lord Wigley, was not in the Chamber when this matter was discussed before, would the Minister care to address the point that I made to him that the Parole Board’s estimate of the increased demand was £10 million a year, which is equivalent to the total budget, while the Government’s provision is proposed to be £3 million? How does that square with the assurance that he is trying to give to the noble Lord?
Lord Faulks
The Government and the Parole Board, as the noble Lord would expect, are in frequent communication. It is difficult to be precise about these figures; an estimate is simply that. I assure the noble Lord that the figures in so far as they can be reached are the result of a number of conversations that have taken place regarding predictions about the demand. It is the Government’s position that we are providing the appropriate support for the Parole Board now and its estimate of what will be required in future. I also said—
Lord Faulks
Perhaps I might finish this sentence before I sit down. It is of course our intention to respond as appropriate if there are increasing demands.
Lord Davies of Stamford
I am most grateful to the Minister for giving way. It is clear that the Parole Board has a serious backlog in this matter. In considering the appropriate budget for the board, have the Government been looking at this matter completely by itself in vacuo or have they been looking at it in connection with the very relevant point made just now by the noble Lord, Lord Ramsbotham, that there would be considerable savings to public funds if these prisoners were released, to the order of about £40,000 a year? Is it not the case that the interests of financial rationality and justice are aligned in this matter but that the Government are running counter to both of them?
Lord Faulks
I am very surprised that the noble Lord thinks that somehow the Ministry of Justice has failed to notice that it costs the Government a great deal of money to keep prisoners in custody. It is painfully aware of that, and of the cost. However, the ministry is also aware of its obligation for the protection of the public, and it is in balancing these issues that it comes to the very difficult decisions that it has to reach.
It is right that offenders serving indeterminate sentences—IPPs—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. There is evidence that IPP prisoners who take the opportunities presented to them to reduce their risk are beginning to achieve release in greater numbers. Since 2010 the number of IPP releases has grown, and we have seen over 400 IPP releases in 2012 and 2013. The percentage of IPP cases considered where release was ordered was 6% in the 2010-11 report, whereas in the 2012-13 report the figure was 16%.
Of course, we keep the matter under review. The amendment, as I understand it, would effectively lead to the prisoners who are within the scope of the amendment being automatically released, as it would mean that there was no discretion for the Parole Board to do other than to direct release. That is not the Government’s policy, as noble Lords are aware, and I will be unable to accept the amendment on those grounds.
I should also say that there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle. The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release IPP prisoners who had a tariff of less than two years. Section 128 is not about the duty to release indeterminate sentence prisoners but, rather, gives the Secretary of State the power to change the Parole Board’s release test by order. The amendment, however, appears to direct the Parole Board to release certain prisoners without any consideration of a test whatsoever.
The noble and learned Lord, Lord Lloyd, to whom I pay tribute, as others have, for his tenacity and his great concern for these prisoners—indeed, concern has been expressed for them all around the House—suggests that the amendment would be a gentle push. With very great respect to the noble and learned Lord, as it is currently expressed the amendment would be a very firm shove indeed. However, I understand that the intention is that these particular prisoners would be released at the point at which they would naturally fall due for Parole Board review, thus phasing their release. Presumably, the retention of the Parole Board’s role in the process is designed to align as much as possible with the current statutory arrangement. However, it would be problematic to give the duty to release to the Parole Board if in fact there was no discretion for the board under this proposal. For these reasons, I do not think that the amendment is the right way to achieve the noble Lords’ objectives.
However, in turning away and facing the principle rather than the detail, the noble and learned Lord, Lord Lloyd, has chosen to concentrate on those with tariffs of under two years, who he suggests have been particularly disadvantaged as they could not have received an IPP after the 2008 changes to the IPP statute. In fact, it remained possible to receive an IPP with a tariff of lower than two years until IPPs were abolished, where the offender had a serious previous conviction, and a fair number continued to do so. While between 2005 and 2008 courts were obliged to impose IPPs in certain circumstances, this was only where they found the offender to meet the dangerousness threshold. The statute, however, did not oblige courts to find the offender dangerous if he had a previous Schedule 15 conviction and it was clear that the court need not conclude that a previous conviction made the offender dangerous if it would be unreasonable to do so.
The noble and learned Lord, Lord Lloyd, and some other noble Lords have seen an analysis of the management information that was put together last year relating to the situation of IPP prisoners who were sentenced before July 2008 with tariffs of under two years who remained in prisons and whose tariff had expired. It is the Government’s view that this analysis supports that position in respect of the group. It provided clear evidence that the continued detention of short-tariff IPP prisoners remains justified and that the Parole Board still considers that in many cases they pose an unacceptable risk to the general public and to themselves. The majority—80 prisoner cases of the 100 sampled—were assessed as at high risk of serious harm, whereas none was assessed as being at no risk of serious harm. Almost all of that sample had had recent parole hearings and were deemed unsuitable for release. However, the fact that 11% of the sample were in fact approved for release clearly also demonstrates that, where risk has been reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.
I know that many noble Lords keep themselves closely informed of the National Offender Management Service’s ongoing work to enhance support for this group of prisoners, but a brief reprise of those efforts bears repeating. We have come a long way in terms of management and support since the introduction of the sentence. For example, NOMS has made substantial improvements to the waiting times for IPP and other indeterminate-sentence prisoners. Once they have been approved for open prisons, in addition IPP prisoners have improved access to accredited programmes and they remain a priority group for interventions. Sentence planning instructions have been overhauled to emphasise that there are a range of interventions, not just accredited programmes, that can provide useful evidence for parole hearings. This has also been emphasised in discussions with Parole Board members. Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs, such as learning difficulties. NOMS will continue to oversee positive changes to the management of IPP prisoners. As I said earlier, the reality is that IPP prisoners are now achieving release in greater numbers under the current arrangements.
Lord Thomas of Gresford
Before the Minister moves on, regulations were passed to permit lie detector tests to be carried out in respect of prisoners who are subject to IPP provisions. Are those tests carried out and, if so, what is the result? I have been informed by an experienced organisation that it is necessary to pass a lie detector test in order to establish that the particular offender is not at risk.
Lord Faulks
I am not aware of the question of lie detectors and whether or not they are used. I will write to the noble Lord when I have some information about it.
Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and inclusion, including offenders with complex needs, as I was indicating. I was asked about the case of James, Wells and Lee. The noble Lord, Lord Wigley, pointed out that the decision was that the retention of those prisoners was contrary to Article 5.1 and was therefore an arbitrary detention. I dare say that he will know, from having studied the decision, that the European Court of Human Rights did not hold that the sentence itself was unlawful. It was the unavailability of courses that was considered to be a breach of Article 5.1. I am sure the noble Lord would accept that it is simplistic to suppose that attendance at a course would automatically result in someone being appropriate for release. Clearly, it is carefully managed to ensure that so far as is possible those courses are reached. Those who attend the courses will not necessarily be eligible for or suitable for release. Equally, some who do not will be. However, I accept it is a matter of considerable assistance.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the construction of a statutory duty is a matter of the purpose as construed on examination of the relevant statute. In response to a debate about this section, the Lord Chancellor’s predecessor, Kenneth Clarke, said that he would look at progress after the LASPO changes had taken effect. I mentioned earlier that the rate had increased. The position is—I am afraid this is more or less the same answer that I gave in the debate initiated by the noble Lord, Lord Wigley—that there are no current plans to review the release test for prisoners serving IPP sentences whose minimum term has expired, although we continue to use a range of measures to improve their progression and reduce the risk that they pose. The Government’s position is that it is right that IPP prisoners continue to serve their sentence until they are assessed as safe to be released into the community by the Parole Board. The Government were left with this rather crude device by the previous Government. They repealed it, but none the less they have to be extremely mindful of what lay behind the introduction of this provision; namely, the protection of the public. I accept that there is great concern that those who would have received a lower tariff sentence might seem on the face of it to be languishing in prison for far too long. However, there are factors which I have attempted to draw to the Committee’s attention which do not, in the view of the Lord Chancellor and the Government, warrant a change of approach to that discretion.
Of course, it is a matter of anxiety. While others are attending the opera, I am—as the noble Lord, Lord Wigley, would have it—having sleepless nights. However, the duty of the Government remains to protect the public, notwithstanding the persuasive arguments that have been put forward by noble Lords. I ask the noble and learned Lord, Lord Lloyd, to withdraw the amendment.
Lord Lloyd of Berwick
Will the Minister explain why releasing these people now would present any greater risk than that they would have presented if they had been given determinate sentences back in 2005?
Lord Faulks
They did not receive determinate sentences. With great respect to the noble and learned Lord, it is a hypothetical question because the sentence they received was not a determinate sentence; it was a sentence for the protection of the public. It is therefore the Government’s case that they have to proceed with caution using the processes which exist via the Parole Board to ensure that, before somebody in that position is released, the public are safe so far as reasonable precautions can be taken.
Lord Lloyd of Berwick
First, I must thank those who have supported this amendment so effectively, as it seems to me, and say a particular word of gratitude to the noble Lord, Lord Wigley. How good and refreshing it is to hear from a layman, especially one who is able to speak with a certain passion, which we lawyers try to keep in control. It was a very effective contribution.