Queen’s Speech

Lord Faulks Excerpts

Monday 9th June 2014 Lords Chamber

[Baroness Anelay of St Johns (Con)]

My Lords, we are resuming the debate which was adjourned last Thursday and I appreciate that there are Peers who are not taking part in it. Perhaps I may encourage them to leave fairly swiftly though quietly. There is a considerable list of those who are interested in the debate today and I know that they wish the Minister to begin fairly promptly.

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

My Lords, I would like first to express how grateful I am to be afforded the opportunity to open this debate on Her Majesty’s gracious Speech for the first time. I am confident of a constructive and lively debate worthy of this House on the matters of law and justice, home affairs, health and education. I also look forward to the maiden speeches from my noble friend Lord Glendonbrook and from the right reverend Prelate the Bishop of Chelmsford.

I turn first to the Government’s law and justice business. The Criminal Justice and Courts Bill, carried over from the third Session, represents the next stage of significant and far-reaching reforms to the justice system. It is intended to make sure that criminals are properly punished, young offenders turn their lives around through education and modern courts run efficiently and effectively. Part 1 of the Bill introduces a package of sentencing and criminal justice reforms targeted at keeping our communities safe and continuing our pledge to put victims at the heart of the criminal justice process. It will make certain that no one convicted of either the rape of a child or serious terrorism offences can be released automatically at the midway point of their sentence. It will ensure that when offenders are released on licence, we have all the powers we need to make the best possible use of new and innovative technology to track their whereabouts while under supervision, and it will deal with those who go on the run after being recalled to custody. A new offence will make sure that those who remain unlawfully at large do not go unpunished.

On Report, this Government introduced further new clauses to the Bill to continue our focus on offending behaviour that causes the most harm to victims and our communities. These clauses introduce tougher sentences for those who kill or seriously injure when driving while disqualified and ensure that anyone convicted of murdering a police or prison officer in the course of duty faces a whole life sentence.

For young offenders, this Government continue to believe that there is more that we can do to turn their lives around. The current system is simply not working well enough, and with reoffending rates of more than 69%, maintaining the status quo is unacceptable. Part 2 of the Bill includes clauses to create secure colleges so that we can trial a new approach to youth custody, with a stronger focus on the education and rehabilitation of young offenders, giving them the skills, support and training that they need to turn their backs on crime.

Part 3 of the Bill addresses our courts and tribunals system. In such constrained financial times, this Government believe that we can and must continue to find ways to ease the burden on the taxpayer. That is why provisions in this part will ensure that criminals contribute to the cost of their court case through the introduction of a court charge. Repayment of the charge can be set at a rate that the offender can afford, and offenders who play by the rules in taking all reasonable steps to comply with payment terms and not reoffend will be able to apply to have the charge cancelled after a set period of time. The Bill also introduces a more proportionate and efficient approach to uncontested regulatory cases, allowing them to be heard by a single magistrate, thus freeing up valuable court time.

Finally, let me turn to the reforms to judicial review which make up Part 4 of the Criminal Justice and Courts Bill. Let me be clear: this Government are committed to making sure that judicial review continues its crucial role in holding authorities and others to account. However, it is also committed to making sure that it is used appropriately and proportionately and is not open to abuse by people in order to cause delays or to pursue a campaign at the expense of ordinary taxpayers. Clauses in the Bill seek to achieve that aim.

I also hope, and am confident, that noble Lords will not rush to judgment about the relevant provisions. The introduction of modest changes to legal aid remuneration at the application stage was met in a debate recently in your Lordships’ House with suggestions that any changes in judicial review were an attack on the rule of law, and with ad hominem attacks on the Lord Chancellor. What, with respect, is needed is a mature debate about these changes which have followed a detailed consultation on the subject. I should emphasise, as strongly as I properly can do, that this Government remain passionately committed to the rule of law. It is one of the many aspects of this country which commands admiration throughout the world and makes people want to live here and invest here.

I turn now to the Government’s plans to introduce a Bill on social action, responsibility and heroism. We often hear reports about people not wishing to get involved when somebody needs assistance because they are worried about being held liable if something goes wrong. Some noble Lords may be aware of the survey of volunteering and charitable giving which was carried out by the National Centre for Social Research in 2007. That survey found that as many as 47% of would-be volunteers were concerned about this issue. While there are, of course, many different factors which might stop people getting involved, we cannot ignore the fact that worries about liability are a real issue for many people.

The growth of this perception has coincided with the actual growth of compensation claims in the United Kingdom. It is a worrying trend which could reduce the pool of people who are willing to play an active part in civil society, and also have a chilling effect on volunteering rates. We have already taken steps to curb the growth of the so-called compensation culture; for example, we made important reforms to no-win no-fee arrangements in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Those changes have, among other things, discouraged personal injury firms from championing spurious claims by abolishing the recovery of success fees from the losing side and by limiting the success fee that a lawyer may charge to their own client to 25% of the damages awarded. However, we can do more to allay people’s concerns about the risk of liability, to reverse the commonly held belief that it is safer not to get involved, and to encourage active participation in volunteering and other activities which benefit both individuals and society in general.

The coalition agreement included a specific commitment to,

“take a range of measures to encourage volunteering and involvement in social action”.

The social action, responsibility and heroism Bill will help to deliver this by reassuring the public that if they are acting for the benefit of society, take a generally responsible approach towards the safety of others when carrying out an activity or intervene in an emergency, the court will take full and careful account of the context of their actions in the event that they are sued for negligence.

The Bill will not affect the overarching framework used by the courts when determining those sorts of claims. They will still need to look at whether a defendant met the appropriate standard of care in all the circumstances of the case. Nor will it introduce blanket exemptions to civil liability. There is an important balance to be struck between encouraging participation in civil society and being mindful of the impact that careless or risky actions could have on the very people that the defendant was trying to help. The Bill is not about removing protection and leaving victims without proper recourse in those circumstances. However, it will give valuable and needed reassurance to a wide range of people and send a powerful signal that the courts will take full account of the context of a person’s actions when determining a negligence claim. I hope that the House will support the intentions behind this Bill, and I look forward to debating the substantive provisions when we return to them in due course.

I would now like to address the Government’s business on matters of home affairs. The Queen’s Speech included the Serious Crime Bill, which was introduced in this place on 5 June. Serious and organised crime remains a potent threat to our national well-being. Nationally, it costs the country at least £24 billion a year and its impact is felt in local communities and blights ordinary lives. We see the effects of organised crime in lives ruined by drug abuse, child sexual exploitation and online fraud. To meet those threats, we have already established the National Crime Agency and are building up the capabilities of the nine regional organised crime units. However, to do their job, the NCA, police and prosecutors need up-to-date and effective powers.

Of course, an array of criminal and civil powers are already available to law enforcement agencies; but as organised criminals adapt their activities in an attempt to circumvent them, so, too, must the law respond. That is where the Serious Crime Bill comes in. To take but one example, the Proceeds of Crime Act 2002 has been used with some success to seize the profits from criminal enterprises—some £746 million since 2010-11. However, its effectiveness is under constant legal attack from criminals, who do all they can to frustrate its intent. The Serious Crime Bill will close loopholes in the Act and help reinforce the old adage that crime does not, or certainly should not, pay. It will also enhance the effectiveness of serious crime prevention orders and gang injunctions.

[Lord Foulkes of Cumnock (Lab)]

Before the Minister moves on from the matter of strengthening the provisions of the Proceeds of Crime Act, perhaps I may say that I was a Minister at the time and helped to introduce it in the other place. Can he confirm that all the strengthening of the Act will apply to Scotland as well as to the rest of the United Kingdom?

[Lord Faulks]

Subject to correction, I think that I can reassure the noble Lord of that.

The Bill will also introduce a new participation offence directed at those who help sustain the operation of organised crime groups and ensure that the penalties for serious cyberattacks properly reflect the harm caused.

The Government are also taking the opportunity provided by the Bill to strengthen the protection of children by clarifying the law on child cruelty, closing a gap in the extraterritorial reach of the Female Genital Mutilation Act 2003 and introducing a new offence of possession of a paedophile manual.

The Government also plan to introduce a modern slavery Bill. Modern slavery is an appalling crime. Traffickers and slave masters, who are often part of organised crime groups, use whatever means they have at their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment. I am sure that the whole House will join me in deploring the fact that this crime is taking place now in Britain.

The modern slavery Bill will give law enforcement agencies stronger tools to stamp out this complex crime, and it will ensure that perpetrators can receive the sentences they deserve—including, where appropriate, life sentences. The Bill also takes action to enhance protection and support for victims through a new statutory defence for victims who are compelled to commit crime.

Although not specifically referenced in the gracious Speech, the Government intend to introduce a draft Bill to reform the Riot (Damages) Act in the fourth Session. The draft Bill will be the culmination of detailed work undertaken since the events of August 2011 to ensure that the 1886 Act is modernised and provides clarity to stakeholders, individuals and businesses as to what compensation arrangements are to be put in place for the future. In November 2013, an independent review of the Riot (Damages) Act, commissioned by the Home Secretary, was published. The reviewer made a number of recommendations and these form the basis for the public consultation which we will launch shortly. We then plan to present a draft Bill for pre-legislative scrutiny.

Finally, I wish to mention the Government’s firm commitment to health and education. This Government believe in higher standards for all and we are committed to getting every child’s education right, which is why a substantial reform programme is well under way. This programme includes restoring rigour to exams, reforming vocational qualifications, bringing in performance-related pay, reforming teacher training, transforming schools through the academies programme and increasing the total number of apprenticeship places to 2 million by the end of this Parliament.

To improve education attainment and child health, all infants will receive a free school meal. Free childcare will be extended to more of the most disadvantaged two year-olds and a Bill will be introduced to help working families with childcare costs.

During the course of this Parliament this Government have developed a new health and care system which is more patient centred, led by health professionals and focused on delivering world-class health outcomes. We strengthened the role of the Care Quality Commission, with new chief inspectors, a new inspection regime and a new statutory duty of candour on the part of the healthcare providers. With local authorities leading local public health systems and Public Health England providing national leadership and vision on health protection and improvement, this Government have given public health a higher priority and dedicated resources. Through the Care Act 2014, we have delivered the most profound change to the care and support system for a generation, enabling people needing care to be treated with dignity and respect, improving the quality of that care and easing the burden of care costs. During the final Session of this Parliament, the Government will be focused on ensuring that the new health and social care system works with both purpose and integrity.

Some have criticised this Government for having too little by way of legislation in the Queen’s Speech. I reject that criticism. In the areas of law and justice and home affairs alone there is a great deal for Parliament to consider. Experience tells me that much of the detailed scrutiny will take place here in your Lordships’ House. The legislative programme as a whole contains some highly topical and important issues, which will benefit from such scrutiny. However, this Session will be concerned not just with legislation. I appreciate that in the speeches that follow mine there will be a range of issues raised by speakers; those issues, whether they are concerned directly with the Queen’s Speech or not, are likely to set much of the agenda for this final Session.

This coalition Government have achieved much already, but there is more still to achieve. I look forward greatly to the contributions to the debate from all around the House, which will help to indicate how best we can consolidate on these first four remarkable years of government.

Law Commission

Lord Faulks Excerpts

Monday 12th May 2014 Grand Committee

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

I thank the noble Lord for giving way. Did the party opposite avail the Conservative Party of such an opportunity when they were in power?

[Lord Beecham]

I have no idea, but I am not bound by every decision, right or wrong, made by the previous Government. I hope that they did. I might equally ask, did the noble Lord’s party ask for such a facility? I assume he does not know that either. Let us start from a clean sheet, and suggest that it is an innovation that would be worth pursuing, whatever the Government of the day. It is not a political issue: there is nothing between us politically in this agenda.

The second thing sits rather oddly with the following paragraph of the triennial review report:

“The continuing pressures on public finances will add to these challenges”.

I wonder why that should be the case, unless the commission’s manpower has been reduced, or the capacity within Government departments to deal with it has been reduced. For the most part, these are not expenditure-related Bills. The report goes on:

“This has brought to the fore the need to clarify the Commission’s funding model so that clear principles are established. To live within its means the Commission will need to be flexible and agile and will have to make difficult choices about the projects it takes on”.

Yes, but I repeat: is the financing a real issue? I have spoken for 13 minutes; I shall be very quick now.

My last point is that the Lord Chancellor currently produces a report on behalf of the Government as a whole. There does not seem to be a proper connection between the relevant departments and the Ministry of Justice in the course of the consideration of implementing these programmes. It seems to me to be necessary for there to be a single body, and it may well be the MoJ, to oversee the whole process from the government side. That is where the delays seem to occur. There may or may not be good reasons for them but no one on the government side seems to be taking responsibility for the overall programme. If they did that, we might not have the disappointment that has been voiced by other noble Lords today, and we might have a better realisation of the commission’s objectives, which the Government certainly share, in principle.

--- Later in debate ---

[Lord Faulks]

My Lords, I am aware of the limited time I have been given. The noble Lord, Lord Beecham, has somewhat exceeded his time. He properly asked me a number of questions, as have other noble Lords. I will do my best in the limited time to answer as many of them as possible, but I am sure that noble Lords will appreciate that time does not allow me to give as much detail as I would otherwise have liked.

I begin by thanking my noble friend Lord Hodgson, who describes himself as no lawyer, but he is quite right to bring this matter to the attention of your Lordships’ House and he has performed a valuable service in so doing.

The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed. The aim of the commission is to ensure that the law is fair, modern, simple and as cost-effective as possible. I speak from my own experience that, in decades gone by, the Law Commission would produce valuable reports but, sadly, often little was done with them because there was not sufficient political will, time, or whatever to bring some of its sensible suggestions into force.

However, in the past few years, the Law Commission, in collaboration with the Ministry of Justice, has engaged in a major exercise to enhance its profile within Whitehall and to increase the level of implementation of its work. Elements of that include the introduction of the new procedure, to which we have had reference, in your Lordships’ House for the consideration of non-controversial Law Commission Bills; a statutory duty on the Lord Chancellor to report to Parliament on implementation of Law Commission work—that is perhaps a partial answer to a point made by the noble Lord, Lord Kirkwood; and a statutory protocol on the relationship between the Law Commission and government departments. Those actions have resulted in a more efficient and streamlined way of working for the commission. As much was recognised in the recent triennial review undertaken in respect of the Law Commission, which was reported to this House. The review identified a number of areas of particularly good practice by the Law Commission and its sponsor team at the Ministry of Justice. It commended the open and transparent approach to law reform and policy-making as an exemplar of open policy-making.

When the commission examines a particular area of law, it first establishes the scope of its work in conjunction with the relevant government department. It then consults on existing law and on proposals for change. It makes a report to the Lord Chancellor or the relevant Minister with recommendations and reasons. The report may—and often does—include a draft Bill giving effect to the commission’s recommendations. The Bills are referred to as Law Commission Bills.

Since the new procedure was put in place in 2010, six Bills have been through the Law Commission Bill procedure. As your Lordships will appreciate, there are practical reasons for a limit to the number of Bills that can go through the procedure in a Session, but as and when opportunities have arisen, Bills have been taken forward using that special procedure.

It is perhaps important also to stress that we use what might be described as the normal procedure wherever possible to take forward the commission’s recommendations. For example, most of the recommendations in the Contempt of Court—Juror Misconduct and Internet Publications report were included in the Criminal Justice and Courts Bill introduced in Parliament in February 2014, and which is part of a carryover Bill, which will be considered by your Lordships’ House during the summer or perhaps in the autumn.

The special procedure has helped to clear the previous backlog and significantly reduce delays. Bills that have benefited from this new procedure include the Trusts (Capital and Income) Act 2013—the noble Lord, Lord Beecham, will be familiar with that—the Consumer Insurance (Disclosure and Representations) Act 2012, with which my noble friend Lord Hodgson will be familiar, the Third Parties (Rights Against Insurers) Act 2010, the Perpetuities and Accumulations Act 2009, referred to by my noble friend, the Inheritance and Trustees Powers Bill; and the Partnerships (Prosecution) (Scotland) Act. With the exception of the Inheritance and Trustees’ Powers Bill, which is awaiting Royal Assent, all are now Acts and have made important changes to the effectiveness, efficiency and quality of the law.

In March 2010, the Lord Chancellor and the commission agreed a statutory protocol governing how government departments and the Law Commission should work together on law reform projects. We see this as a key document for ensuring a more productive relationship with the Law Commission and improved rates of implementation of Law Commission reports.

The protocol covers the various stages of a project: before the commission takes the project on; at the outset of the project; during the currency of the project; and after the project. It applies both to projects set out in one of the commission’s regular programmes of law reform and to projects which arise out of individual referrals made to the commission. The protocol applies only to projects which the commission takes on after the date on which the protocol was agreed, although government departments and the commission have agreed to take it into account, as far as practicable, in relation to projects which were in progress at that date. This protocol does not apply to commission proposals for consolidation or statute law revision. I commend the protocol as a thorough and efficient process.

During the debate, reference was made to what might or might not need to be included in the Queen’s Speech. The Committee will of course appreciate that I am not in a position to comment on the contents of the Queen’s Speech. I take account of what the noble Lord, Lord Kirkwood, said about the other measures that it provisionally contains and I undertake to bring the contents of this debate to the attention of the Ministry of Justice—and further, if necessary. I cannot give any further assurance beyond that. However I can say, counter to the observations made by the noble Lord, Lord Beecham, that there is a good level of communication between the Ministry of Justice and the Law Commission, particularly in relation to the forthcoming programme. The consultation for the commission’s 12th programme closed on 31 October and the commission is currently reviewing the suggestions that have been made. It has submitted proposals, and the main part of its law reform will then be set for the following three years.

The noble Lord, Lord Beecham, referred to the report of the Law Commission's proposals and criticised certain delays in some areas and the failure to implement—or not to take up—certain proposals. Although the Law Commission provides invaluable assistance to any Government of whatever colour on law reform, there is no obligation on the part of a Government to bring forward proposals: it is a question of using a valuable resource. For example, the noble Lord referred to remedies against public authorities. I was one of the consultees on that particular exercise. I can say that there was far from agreement among the consultees about the correct way forward. The fact that the Law Commission examines a subject and comes up with proposals does not necessarily mean that it has provided the perfect answer, although very often it provides valuable assistance.

I should make some observations about the Lord Chancellor's Report on the Implementation of Law Commission Proposals and the duty introduced by the Law Commission Act 2009 for an annual report. The noble Lord, Lord Beecham, has already read it, and the noble Lord, Lord Hodgson, will be able to read it shortly. It was published on 8 May, so this is a timely debate. On easements and covenants, I refer the noble Lord to paragraph 52, on the insurance contract Bill, paragraph 8 on third parties’ rights against insurers, paragraph 32 and termination of tenancies paragraph 61, which may assist his reading thereafter.

The report shows that a number of Law Commission proposals have taken effect:

“The Trusts (Capital and Income) Act 2013 has come into force, as have the amendments to the Companies Act 2006 which streamline the system for registering charges and securities interests granted by companies. In furtherance of the Commission’s function to repeal laws that no longer serve any useful purpose”—

another important part of its work—the largest ever Statute Law (Repeals) Act, removing more than 800 Acts from the statute book, received royal assent on 31 January, 2013 and came into force immediately.

Perhaps I may deal with one area which I know several noble Lords were concerned about, which was the regulation of healthcare professionals. Rightly, there was reference to the considerable amount of work that was done in that respect and I think that there will be a lot of sympathy for the observations made by the noble Lord, Lord Patel, about the need to consolidate and improve the regulation of healthcare professionals.

The Law Commission began its work in response to the Department of Health’s White Paper in 2011. It carried out research into the then current regulatory system for healthcare professional regulation in preparation for its public consultation, which opened on 1 March 2012. It ran for a total of 13 weeks, and the Department of Health submitted a response. Following analysis of the responses to the consultation exercise and engagement with the Department of Health and other key stakeholders working to develop its policy, the Law Commission published its report and recommendations alongside a draft Bill on 2 April 2014. On behalf of my colleagues at the department, I would like to say thank you to the Law Commission for the significant amount of time and effort that has been put into developing such a detailed and thorough analysis. I can tell the Committee that the Department of Health is considering the Law Commission’s proposal with great interest and will produce a formal response in due course.

Of course, there has also been the report by Robert Francis QC, containing a total of 290 recommendations, a number of which related to the regulation of healthcare professionals, which will also bear considerable consideration. I know that officials at the Department of Health and the Nursing and Midwifery Council are currently working on the possibility of secondary legislation and associated amendments to the NMC rules which will give the NMC power to carry out its fitness to practice and registration functions more efficiently. The GMC and the NMC are also working together with other healthcare regulators to agree a consistent approach to being open and honest. As the noble Lord, Lord Patel, will know only too well, the explicit professional duty of candour, much debated in your Lordships’ House over the years and which is now a firm recommendation, is likely to find its way into law in due course.

I fear that I am unable to commit further than that, but I hope that noble Lords will find some encouragement from that.

[Lord Kirkwood of Kirkhope]

Before the Minister sits down, the question I asked was whether the Ministry of Justice could add its considerable weight to what I know is the view in the Department of Health that it is important to make some progress with that legislation in some way in the next parliamentary Session. Is the MoJ willing to support that view to the people putting together the proposals for the parliamentary programme for the next year?

[Lord Faulks]

The MoJ has a role by statute to liaise with the Law Commission. That is about as far as I can take it. I personally have sympathy with the concerns expressed. So far as that assists, I hope that I can bring them to the attention of my masters, as it were, in the Ministry of Justice. I fear that I cannot go any further than that. I think that the noble Lord will understand that.

I think that that has dealt with most of the main issues. As I said, the particular concerns of my noble friend Lord Hodgson are, I think, largely met in the report. That is not to say that they are not of considerable importance—they are. However, I respectfully reject the suggestion that the Government are sitting on their hands in respect of the unimplemented proposals. I hope that I have explained that there has been a great deal of progress. Of course, some have not been progressed at the pace that some would like, but there have to be priorities. To give one example, on one aspect of potential reform that has been mentioned, the termination of tenancies project, which relates to the Law Commission report published in 2006, we accept that that is a very long period between publication and decision, but we hope to reach a final decision this year.

The noble Lord, Lord Beecham, was critical of the Government’s criticism of his party’s suggestions in relation to private landlords and security of tenure. I think that the debate so far has focused on whether or not rate freezes of three years were necessarily a good idea. The noble Lord eschewed party politics and then proceeded to indulge in it. I respond by saying simply that the case for rent control is far from clear.

[Lord Beecham]

I did not raise the issue of rent control; I was talking specifically about security of tenure.

[Lord Faulks]

There is a complete answer to the concerns which the noble Lord was raising; perhaps I will not indulge myself by going into it now. Suffice it to say that the whole question is extremely difficult. I hope that he will accept that we operate continuously in a challenging economic environment. We have made significant progress in implementing the commission’s proposals. This Government, as, I am sure, does the party opposite, hold the Law Commission in very high regard. We continue to work with constructively with it. We have made great progress and can demonstrate by what has happened and what continues to happen the continued relevance and resilience of the commission’s work.

Committee adjourned at 5.36 pm.

European Union: Justice and Home Affairs

Lord Faulks Excerpts

Thursday 8th May 2014 Lords Chamber

Moved by

[Lord Faulks]

That this House takes note of the report to Parliament on the application of Protocols 19 and 21 to the Treaty on the European Union and the Treaty on the Functioning of the European Union in relation to European Union justice and home affairs matters. (Cm 8772).

Motion agreed.

Commonhold and Leasehold Reform Act 2002

Lord Faulks Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Gardner of Parkes (Con)]

My Lords, I beg leave to ask the Question standing in my name and declare that my interest is on the register.

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

My Lords, the Commonhold and Leasehold Reform Act 2002 introduced commonhold ownership and made numerous reforms to long leasehold law. Although the Government monitor the take-up of commonhold and continue to respond to concerns about the working of leasehold legislation, they have no current plans to carry out a formal review of the Act.

[Baroness Gardner of Parkes]

I thank the noble Lord, but it is 12 years since this law was passed and 11 sections are still listed as not in force, which seems rather a lot. Tenants and leaseholders, on the whole, are most interested in Sections 152 and 154, which provide for transparency and the protection of their deposits. However, we have had answers to Oral Questions in both Houses saying that the DCLG has a “watching brief” on this matter. Will he tell me how you move from a watching brief to a review, and which department would do that?

[Lord Faulks]

My noble friend is right that Sections 152 and, I think, 156 of the Commonhold and Leasehold Reform Act have not been brought into force. These deal with service charge information and the right to hold service charges in designated accounts. The Government consider actively whatever form of words is used, regardless of whether it is necessary to intervene by legislation. However, they are concerned with not overburdening either freeholders or leaseholders with unnecessarily elaborate provisions. They are also satisfied that, for the most part, the rights of leaseholders are protected by a number of provisions, some of which were brought in by the 2002 Act, particularly in relation to service charges, enfranchisement and protecting leaseholders from landlords in certain circumstances.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister agree that—despite the attractiveness of the provisions that have been brought into force in the 2002 Act for many joint users of amenity premises, and indeed the popularity of such a system in many other common-law jurisdictions—it seems to have been almost totally ignored, both by practitioners and the general public? Is it possible that the rather ponderous procedures of registration at the Land Registry may be responsible? Have the Government held consultations with the Law Society and other appropriate bodies with a view to simplifying these systems and possibly making them cheaper?

[Lord Faulks]

I hope I understand the noble Lord to be referring to commonhold as one of the options that was made available by the 2002 Act. It is true that it was thought by all those involved with the legislation that there would be much greater take-up than there has in fact been in commonhold, which is popular in other parts of the world. However, the Government do not feel that it is appropriate to force people to go into commonhold arrangements. We welcome any attempt to bring it to people’s attention as an option. It is interesting that it is not taken up by any of those who write about the subject or by practitioners who should be advising their clients on whether it is appropriate. The Government stand ready to encourage it, in so far as it is appropriate for the Government to intervene in private arrangements.

[Baroness Hayter of Kentish Town (Lab)]

The noble Lord the Minister must surely know that there are delays occurring between an application for a hearing relating to a right to manage and the First-tier Tribunal hearing the case. There is then another delay in getting an outcome. However, when I asked a Written Question on that, the noble Lord, Lord Newby, replied that such information on timings was not available. Surely the Government need to know things like that, to know how this Act is working. Will the Minister put the research in hand so that we can have such information?

[Lord Faulks]

As the noble Baroness will know, the question goes across departments—that for housing and the Ministry of Justice. I do not have the details available but I will certainly ask for inquiries to be made along the lines of the question.

[Lord Swinfen (Con)]

My Lords, do the Government have any plans to control residential rents?

[Lord Faulks]

My Lords, the Government have no plans whatever to control rents. It appears that the party opposite is unsure as to whether this is a good idea. In fact, rental increases are below the rate of inflation. Last time, a rent freeze, which is partially proposed by the party opposite, caused the sector to shrink from over half to just 8%. Our intention is to improve the rental housing market, not to destroy it.

[Lord Best (CB)]

My Lords, I return to commonhold and leasehold and pay tribute to the noble Baroness, Lady Gardner of Parkes, for her tenacity in raising this issue on many occasions. Would the Minister be willing to meet some of the Members of your Lordships’ House who recently got together to look at these issues? We discovered that there are quite a number of relatively modest reforms which would make a difference to leaseholders’ lives but which at the moment are not receiving attention. Would he and perhaps some of his officials be willing to meet a group of us to discuss that?

--- Later in debate ---

[Lord Faulks]

I join the noble Lord in paying tribute to my noble friend for her tenacity, and indeed I pay tribute to the noble Lord himself for his consistent interest in this subject. I would be happy to arrange a meeting, probably involving the housing department as well as the Ministry of Justice. I will try to organise that in the nearish future.

[Baroness Maddock (LD)]

My Lords—

--- Later in debate ---

[Baroness Maddock]

My Lords, as a member of the group that has met to consider these issues, I thank the Minister for saying that he will meet us. I will return to commonhold. It is quite incredible that many of us spent hours scrutinising the Bill well over 10 years ago. Since that 2002 Bill, there have been only 15 commonhold new developments and 152 units within blocks. That is not necessarily due to a lack of interest: there are significant obstacles for both old and new properties. Given the time that has been spent on this matter, I really think it is time that we as a Government looked at post-legislative scrutiny much more seriously, particularly in cases such as this.

[Lord Faulks]

My noble friend knows about post-legislative scrutiny. This Government and, I am sure, the Opposition are anxious to have such scrutiny in appropriate circumstances. The Act will take its place along with other legislation where scrutiny is appropriate.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Lord Faulks Excerpts

Wednesday 7th May 2014 Lords Chamber

The noble Lord, Lord Pannick, has characteristically done the House and our system of justice and those who seek justice an important service by tabling his regret Motion. If he had decided to take it to a vote the Opposition and I believe many other Peers would have supported him. I understand that is not his intention. However, the Government should take very seriously the substantial critique of their proposals made by two bipartisan committees—one in each House—and by speakers from around the Chamber tonight, with and without direct legal experience. The points they have raised go to the heart of our legal system. The Minister has been given an unenviable brief tonight. I know that he will take back what has been said to his ministerial colleagues. I hope they will have the good sense and moral purpose to reflect on what has been said here and to change their position. It would not be a sign of weakness; it would be a sign of strength to acknowledge that they have not got things right and that they can put them right at the very least by securing proper parliamentary approval for any changes that they see fit to bring forward.

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

My Lords, I am grateful for the opportunity to accept the invitation to gird my loins and to respond to the noble Lord, Lord Pannick, and others—lawyers and non-lawyers alike—who have spoken in this debate this evening. As the noble Lord, Lord Pannick, said, many of us are veterans of the LASPO Bill, and I count myself as one. I declare an interest as until recently I was a barrister who practised in, among other areas, the field of judicial review, acting for both applicants and respondents, so I have some experience of this procedure. I should explain to the House the Government’s position on the regulations concerning the remuneration for legally aided judicial review permission applications that were laid before the House on 14 March and came into force on 22 April.

The debate has ranged far and wide this evening. We have had references to the separation of powers, a reminder of Montesquieu, a magisterial analysis of the developing role of the Secretary of State and the Lord Chancellor and a call to the reversion of the status quo ante, whereby the Lord Chancellor had a rather different and separate role. We have had a critique by the noble Lord, Lord Howarth, of the whipping system and of the machinery of government as a whole; an implied undertaking to repeal the Fixed-term Parliaments Act; a criticism of reforms of the national health system; and an attack on the Government as a whole. We have also had criticisms of the exceptional funding arrangements in the LASPO Bill and of the social welfare law provisions. To respond to all these issues would take several hours. I hope that noble Lords will understand if I do not do so but concentrate on the rather prosaic matter of these particular regulations.

During the course of the speeches of great quality which we have had this evening, a dispassionate observer would have thought that the Government were abolishing judicial review. Such a course would of course be of fundamental importance and would indeed fall foul of the many criticisms that have been ranged against it this evening. I entirely accept that judicial review is a critical check on unlawful action by public bodies and that it is wholly right that individuals should be able to access this mechanism. The many cases cited by the noble Baroness, Lady Stern, are examples of successful judicial reviews. The noble Baroness, Lady Campbell, quite rightly drew attention to the many actions that have been assisted by judicial review to right wrongs. Nothing about these modest regulations will do anything to erode that.

Civil legal aid for most judicial review cases will remain within the scope of the legal aid system. These regulations relate solely to the remuneration of legal aid providers and will ensure that limited legal aid funds are not used to remunerate weaker cases. The detail—prosaic though it is—does matter. It is a long-standing feature of our legal aid system that there should be limits on access to funding based on the strength of the case. To qualify for civil legal aid, cases must satisfy a merits—or prospects of success—test. Broadly speaking, a judicial review case must have a 50% or greater prospect of success at the final substantive hearing. However—there has not been a great deal of reference to this in the debate—noble Lords will be well aware that before any substantive judicial review hearing, the court must first give permission to proceed. Permission will be given if the court considers that a case is arguable and therefore merits full investigation. The permission stage therefore acts to filter out weaker cases at an early stage in the process.

Providers are well placed to assess whether or not the court is likely to grant permission before they issue an application. They will not be required to make a random guess before taking the risk to issue proceedings. That is because their assessment is undertaken following the pre-action stage of the process during which time providers gather the relevant information about the strength of the case. Noble Lords may be familiar with the protocol that applies in these cases. It is that information that enables them to make an assessment as to whether to issue proceedings. Under the policy, work to investigate the strength of the case and engage in pre-action correspondence would not be at risk. A case that has received legal aid and so has been assessed as having a 50% or greater prospect of success at the final hearing should be more than capable of satisfying the lower arguability threshold.

However, Legal Aid Agency data indicate that a significant number of legally aided cases—751 in 2012-13—apply for permission and fail, with potentially substantial sums of public money being expended. The commentary on civil procedure contained in the White Book, with which all lawyers will be wholly familiar, states as follows in rule 54.4.2, which deals with the permission application:

“The purpose of the requirement for permission is to eliminate, at an early stage, claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the Court is satisfied that there is a case fit for further consideration”.

That is a synthesis of the case law. It was quoted in the consultation, to which there has been some reference. The Government do not consider it fair or justified that limited taxpayers’ money should be used to fund such cases. The legal aid merits criteria provide an important control, but it is clear that they are insufficient by themselves to address the specific issue that we have identified in judicial review cases. These regulations will therefore introduce a further control by placing remuneration for the work on a judicial review at risk from the point at which proceedings are issued—that is, when an application for permission for judicial review is made to the courts. Providers will be paid for this work if the court gives permission.

Permission may be applied for but a case may of course also conclude prior to the court’s decision, a point made by a number of speakers. In those circumstances providers should seek to recover costs, either through agreement with the other party or by a costs order made by the court which orders the public body to pay the legal costs. Where this cannot be achieved, the regulations enable the provider to apply to the Legal Aid Agency for a discretionary payment. These regulations do not—as I think the Motion of the noble Lord, Lord Pannick, seems to suggest—make legal aid in judicial review cases solely dependent on the court granting permission to proceed.

This policy was the subject of extensive public consultation. The Government have listened carefully, and gone to lengths to modify the proposal to ensure that payment will continue to be made in meritorious cases. In response to concerns raised in the first consultation that strong cases will often conclude pre-permission, without costs being recoverable—a perfectly fair point made by a number of noble Lords—we moved to introduce a discretionary payment mechanism. In response to concerns that this discretion would be too inflexible—for example, that it could penalise providers who acted reasonably throughout but where new information subsequently came to light which altered the strength of the case—we modified the factors that the LAA would have regard to, and ensured that these would be non-exhaustive.

Remuneration will continue to be paid for the earlier stages of a case, where investigations are carried out into the prospects and strengths of a claim and pre-action correspondence is exchanged with the defendant. The regulations would not affect subsequent work in respect of the substantive hearing, once permission has been given. Nor would they place at risk any reasonable disbursements which arise in preparing the permission application, such as expert’s fees and court fees. Work relating to applications for interim relief will also not be at risk. Of course, providers can always discontinue the process, either following the pre-action stage where providers can decide not to issue proceedings on the basis of their assessment of the evidence, or after proceedings have been issued, where providers may seek to discontinue the case if they consider that the prospects of success have been materially altered.

The regulations only and specifically put at risk work on the permission application, in accordance with Part 54 of the Civil Procedure Rules 1998 or Part 4 of the Tribunal Procedure (Upper Tribunal) Rules 2008, where an application has been issued. By way of example, this would include work on drafting the grounds of claim, and preparing the claim form or application for permission and the bundle of documents. I have been somewhat surprised by arguments that providers would be unclear what work would and would not be at risk. These are matters with which any legal aid provider who carries out litigation will be very familiar, for example for the purpose of preparing a statement of costs.

[Lord Lester of Herne Hill]

I am sorry to interrupt, given the lateness of the hour, but what my noble friend is saying perplexes me. Would he please look at Regulation 5A(b)? This deals with the situation where neither a refusal nor a granting of permission takes place, and the Lord Chancellor is then given discretion where he considers it is reasonable in the circumstances to pay remuneration, taking into account (i), (ii) and (iii). I will not embarrass the Minister by reading those out, because everyone would laugh if I did. But looking at (i), (ii) and (iii), and putting himself back in the days when he was a barrister appearing for applicants, how on earth could he reasonably predict the outcome, so far as costs are concerned, with those criteria?

[Lord Faulks]

I will endeavour to answer my noble friend’s question when I come to deal with the discretion.

We do not expect that these regulations will result in providers leaving the market—one point that was made—or that there will be an insufficient number of providers remaining. We do of course expect some providers to take on fewer judicial review cases. Indeed, it is the purpose of the policy to provide a disincentive to providers taking on unmeritorious cases and thus to ensure that limited public funding is targeted at the cases that justify it. While I wholly agree with my noble friend Lord Cormack about the importance of the rule of law and the appropriate endorsement of Lord Bingham’s book, he seemed anxious to encourage any sort of case on the basis that some case might emerge from the morass of unmeritorious cases. We are keen to reduce the size of the trolley of the noble Lord, Lord Carlile, so that those who are contemplating bringing judicial review proceedings think long and hard before going on to make these applications.

The Government firmly reject the accusation that these regulations will undermine access to justice. There is nothing novel about the principle of expecting providers to work at risk and receive remuneration only where it is established that their case is meritorious. A similar system has existed for some time in immigration and asylum Upper Tribunal appeals, where remuneration for a permission application is not paid where the application for permission is refused. There has been little about interim relief, but I have made it clear to the House that these will not be caught by the restriction on legal aid that these regulations involve.

I now respond to the argument that further guidance should be issued on the Legal Aid Agency’s discretion. During the consultation process, the proposal was criticised for prescribing too rigid a list of criteria that the agency would consider. The Government responded by modifying the criteria and making it clear that these would be non-exhaustive factors that the Legal Aid Agency would take into account, in particular when considering all the circumstances of the case.

That is important, as it will enable the agency to take into account the full range of circumstances in which a judicial review case may conclude prior to a permission decision. No two cases will be identical and the agency will necessarily need to look at the facts of each individual case in addition to the factors set out in the regulation. This provides the agency with greater flexibility to ensure that work on meritorious cases continues to be paid, which I hope all noble Lords will support. However, the corollary of this approach is that it would simply be impractical for guidance to be issued that attempts to cover all possible circumstances. The consultation response sets out in further detail how the LAA will apply the factors that we have set out and we do not consider that additional guidance could add anything further to this.

As noble Lords will be aware, the House of Lords Secondary Legislation Scrutiny Committee issued a report criticising the regulations, which has been much referenced. We have responded to the report and a copy of the letter has been placed in the House Library. I hope that noble Lords have had an opportunity to see it. The Government will also respond to the report of the Joint Committee on Human Rights in due course. Many of the questions posed in that report were repeated by the noble Lord, Lord Beecham. We will respond in detail to that report and most of the questions that he posed will be answered. We will, of course, keep the operation of these regulations under review as part of the planned post-implementation review of the totality of changes brought in by the LASPO Act, due to take place in the next two to four years.

I acknowledge that the Government have made a number of significant changes to the civil legal aid system since we came to power. The underlying rationale for all these, including the regulations that we are debating tonight, has been to bear down on the cost of legal aid. That is necessary in the current financial climate, which was acknowledged, despite severe misgivings about these regulations, by the noble and learned Baroness, Lady Butler-Sloss. We need to ensure public confidence in the legal system by targeting limited legal aid resources at the people and cases where funding is most needed. These are the aims that I believe the public firmly support.

There has been a great deal of criticism of my right honourable friend the Lord Chancellor and his role. I do not think it is appropriate for me to go into the detail of the attacks that have been made on him. I am sure that noble Lords are sufficiently generously spirited to perhaps construe his referring to left-wing causes as a bit of hyperbole on his part. It matters not, of course, whether the applicant is left wing, right wing or has no political view at all. The question is whether the case is meritorious and whether it should be supported by what are sparse legal aid funds. It is important that the limited availability of legal aid should be targeted appropriately. What this regulation does is not to abolish judicial review, but to limit—in very specific circumstances—the recoverability of legal aid, once the information is available, and subject to the discretion which I have attempted to describe. We may have further arguments, I suspect, when the Bill referred to by the noble Lord, Lord Pannick—the Criminal Justice and Courts Bill—comes before your Lordships’ House. That Bill has various other provisions which do, to some extent, restrict the scope of judicial review, but certainly do not abolish it.

I will, of course, take back the comments made by noble Lords from all round the House to my right honourable friend the Secretary of State and Lord Chancellor, and will convey the anxiety expressed about this erosion, as it characterised, of a constitutional principle. I ask noble Lords to look at the reality of what these regulations propose and not to be too exercised by what has been, I think, somewhat exaggerated in terms of their effect in restricting judicial review. I respect the rule of law, as I hope noble Lords will accept. I accept the value of judicial review and I would not wish to be part of any Government who abolished judicial review. It remains an important constitutional provision begun, as my noble friend Lord Lester described, in the 1970s and developed since, but it is not an illegitimate aim to look at where resources can be properly targeted and to make appropriate adjustments to make sure that only cases which are really worth the public’s expenditure are reaching the court.

My noble friend has expressed his regrets, with his characteristic economy of words. I hope his regrets have been somewhat mollified by this response.

[Lord Maclennan of Rogart (LD)]

My Lords, before the Minister sits down, would he give some consideration to the unanimity of the view which has been expressed in this House—which I have audited—that this measure is a constitutional monstrosity? Would he consider, and represent to his departmental colleagues, the possibility that Parliament may come to grips with these issues and take the decision? This is one which, because of its constitutional extent, should be decided not by a Minister but by a Minister in Parliament.

[Lord Faulks]

I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.

[Lord Pannick]

My Lords, the poor quality of these regulations has provoked a debate of the highest quality. I thank all noble Lords who have participated in identifying defects in these regulations. I also thank very sincerely the Minister, who has put the Government’s case without any support whatever from the Benches behind him. It is no reflection on the noble Lord’s very considerable powers of advocacy to say that the arguments he has advanced tonight in support of the Government’s position are, to use a phrase commended during the debate, wholly without merit.

The Minister emphasised that the Government are not abolishing judicial review. We must be thankful for small mercies. It is no defence to a charge of criminal damage for the defendant to say, “I have not committed a murder”. The Minister says—and who could disagree?—that hopeless cases should not be funded by judicial review. Of course they should not, but the Minister will appreciate that the thrust of this debate is that the test imposed by these regulations does not distinguish between hopeless and other cases, as would be the case if the judge were to have a power to determine for the purposes of legal aid whether the case is hopeless. I am pleased that the noble Lord has given a commitment to ask the Lord Chancellor to reflect on what has been said tonight. I hope that the Minister will be able privately to add his concerns to those expressed in the House.

I have one other point: your Lordships will have a proper opportunity in the next Session for detailed scrutiny of the Lord Chancellor’s attempts to neuter judicial review in the most regrettable proposals in the Criminal Justice and Courts Bill. I am confident that, as the noble Lord, Lord Cormack, said of these regulations in his powerful speech tonight, there will be in the next Session a coalition of Peers from all sides of the House who will express their concern about the Lord Chancellor’s proposals and, I hope and expect, in relation to that Bill will demonstrate their commitment to the rule of law in the Division Lobbies. Like so many of your Lordships and so many outside this House, I regret these regulations. I beg leave to withdraw the Motion.

Transforming Rehabilitation: Mental Health

Lord Faulks Excerpts

Tuesday 6th May 2014 Lords Chamber

[Baroness Linklater of Butterstone]

To ask Her Majesty’s Government what plans they have to include mental health treatment and support in contracts for the probation services as part of the new Transforming Rehabilitation programme.

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

My Lords, our reforms will bring in the best of the private and voluntary sectors to work with offenders and reduce reoffending. Community rehabilitation companies will be contracted to work with low and medium-risk offenders in the community, and the National Probation Service will supervise high-risk offenders. Both will be required to deliver services for specific groups such as females and BME offenders, as well as those with mental health issues, to ensure that an offender’s treatment requirements are complied with, including in situations where a court order exists.

[Baroness Linklater of Butterstone (LD)]

I thank my noble friend for that reply. I am sure that he will be aware that currently four out of every 10 people who are being supported by the probation service are actively mentally ill: that is, 39%. This underlines the range of skills and knowledge that is required today from experienced members of the probation service in managing and properly meeting the needs of these clients. Therefore, will the Minister clarify whether the new organisations now bidding for probation service contracts are specifically expected by the Ministry of Justice to include and implement mental health provision across the board—because there are not specialisms to this extent within the probation service, as far as I know—and whether this requirement will be included in the proposals? How will the quality of the proposals of the new probation service contractors and the performance of the new providers be assessed?

[Lord Faulks]

My noble friend, and the House, may recall that the Government lodged with both Houses of Parliament a detailed draft services agreement, which included provisions that would apply to mentally ill offenders. Clause 3 of the agreement provides that the contractor shall monitor that the treatment provider prepares a full treatment plan with details of the specific mental health needs of each allocated person, with the timescale indicated to the court at the time of the sentence. Therefore, companies will be contractually obliged to do this. They will have an obligation under the Human Rights Act and under the Equality Act. My noble friend is of course right that the skills should be preserved in relation to mental health.

[Baroness Howarth of Breckland (CB)]

Will the Minister clarify the relationship between NHS England’s responsibility for mental health and that of the Ministry of Justice, and how contracts are laid between the two, not only in the private sector but in the voluntary sector, where a number of organisations have lost contracts through this confusion? I declare an interest as a trustee of the Lucy Faithfull Foundation.

[Lord Faulks]

There is an obligation to treat offenders and non-offenders the same. The circumstances in which they come to be treated may be different. Those who are in prison may suffer from a number of different mental illnesses. Their treatment is the responsibility of NHS England. Of course, there are complications with the delivery of treatment in the community as well, but there is no absolute difference in the treatment that is appropriate to you when you are an offender in prison or out of prison or are an ordinary member of the public. Clearly there are matters of co-ordination that the noble Baroness would say are not sufficiently attended to.

[Lord Beecham (Lab)]

Between 2010 and September 2012, 86% of the prison and probation-related work contracted out to the private sector by NOMS went to G4S, Serco and Sodexo. If the Minister is so confident of the performance of these contractors in this important and sensitive area, why has the Ministry of Justice refused to disclose the figures for the succeeding year, even after an FoI request from the Centre for Crime and Justice Studies? Is he aware that just three third-sector organisations accounted for two-thirds of the third-sector expenditure in the same field?

[Lord Faulks]

I cannot comment on the details of the noble Lord’s question, but I assure him that neither of those two organisations are part of the CRC delivery, as he may well be aware. The CRC contracts are being drawn up and will be in operation by 2015. This matter was fully debated before both Houses of Parliament and we believe that any difficulties should be capable of being found in the stress-testing that is currently being undergone.

[Lord Ramsbotham (CB)]

My Lords, to follow on from my noble friend’s question about NHS England, can the Minister comment on a recent freedom of information question and answer that showed that only 5% of clinical commissioning groups were actually funding specific healthcare for probation and that 25% of the CCGs questioned did not even realise that it was their responsibility to fund medical health provision in probation?

[Lord Faulks]

I cannot comment on the specific freedom of information request to which the noble Lord refers but I can perhaps reassure him that the Government are particularly aware of the danger of individuals escaping the net who are suffering from mental illness—offenders who come to the attention of courts and police services. Much work is done by the liaison and diversion services, which have invested a considerable sum of money to make sure that those who are often reluctant to acknowledge that they have mental illness, when they come into contact with a court or police station, are identified by appropriate health professionals. The information about them is then passed on to the appropriate figure so that, when they go to prison or are in the hands of a CRC, that information is available. A considerable investment has been made and for altogether 22% of the population it is hoped to roll out the arrangement throughout the country so that there is much better liaison in future.

County Court Remedies Regulations 2014

Lord Faulks Excerpts

Wednesday 9th April 2014 Lords Chamber

Moved by

[Lord Faulks]

That the draft regulations laid before the House on 13 March be approved.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 7 April.

Motion agreed.

County Court Remedies Regulations 2014

Lord Faulks Excerpts

Monday 7th April 2014 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the County Court Remedies Regulations 2014.

Relevant document: 24th Report from the Joint Committee on Statutory Instruments.

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

My Lords, this statutory instrument revokes and replaces the County Court Remedies Regulations 1991—the 1991 regulations. A draft was laid before Parliament on 10 March 2014 and is also being debated in the other place today. Subject to your Lordships’ consideration, the real change that will be made by this instrument concerns the county court’s jurisdiction in respect of applications for freezing orders. A freezing order is an interlocutory injunction that restrains a party in civil proceedings from disposing of or dealing with their own assets before judgment can be obtained or enforced. They are usually sought before proceedings are issued when the claimant fears that the defendant is likely to dispose of assets before proceedings are issued. However, a freezing order may be sought at any time during the course of proceedings and after judgment has been obtained.

The purpose of this instrument is to remove the current limitations that restrict the county court from issuing freezing orders. It will enable the county court to make freezing orders in all cases and enable claimants to make their applications for a freezing order in the court where their substantive cases are being heard. This may be at the High Court or, from 22 April, a county court hearing centre. The Committee will note, however, that the draft regulations do not lift the restrictions that prohibit the county court from granting a search order, which is an order—often known as an Anton Piller—requiring a party to admit another party to premises for the purpose of preserving evidence. The draft regulations therefore retain the current prohibition placed on search orders. The aim of the reform is to rebalance jurisdiction between the High Court and the county court and to make optimum use of judicial resources by widening, where appropriate, the jurisdiction of the county court, while enabling High Court judges to focus on cases that require a greater level of expertise.

Before setting out further details about this instrument and why the Government are taking this action, I will briefly explain some background to the reform. In March 2011, we set out our policy to reform the structure of the civil courts in a series of proposals in the public consultation document, Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System. Those proposals were based on some of the recommendations made by Sir Henry Brooke, a retired Lord Justice of Appeal, in his report Should the Civil Courts be Unified?, published in August 2008. The recommendations, which included permitting the county court to grant pre-judgment freezing orders, were aimed at improving the administration of civil justice and providing a more efficient use of judicial resources. In endorsing that recommendation, the Judicial Executive Board, which was chaired by the then Lord Chief Justice, Lord Judge, commented that it would introduce flexibility and obviate the need for technical transfers between the High Court and the county courts. The instrument under consideration today accordingly reflects Sir Henry’s recommendation in this regard.

I will now set out the problem with the current jurisdiction of the courts in relation to freezing orders and why the Government are taking this action. Currently, under the 1991 regulations, the county court’s jurisdiction to make freezing orders is limited to making orders for the purpose of preserving property that forms or may form the subject matter of proceedings, or to preserve assets following judgment, but prior to execution of that judgment.

Those limitations do not apply if the order is made by a Court of Appeal judge or a judge of the High Court sitting in the county court or a mercantile judge in respect of proceedings in the Central London County Court mercantile list. Save in those circumstances, the county court is prohibited from making pre-judgment freezing orders. In all other cases, if a freezing order is required in county court proceedings, the application must be made to the High Court, even though the substantive case is being heard in the county court.

The result is that in county court proceedings where a claimant wants to apply for a freezing order to prevent the defendant from moving or disposing of his assets, the claimant will have to apply to the Chancery Division of the High Court at the Royal Courts of Justice in London, the London Mercantile Court or the nearest local district registry. In doing so, the county court would have to transfer the case to the relevant court to consider the freezing-order application. Once the application is determined, the court will transfer the case back to the county court.

The implication of the current procedure is that claimants—for example, estate agents suing for small amounts of unpaid commission—have either to inundate the mercantile courts with applications for pre-judgment freezing orders or to apply to the Chancery Division of the High Court or a local district registry. That increases the workload of the High Court, which is unnecessary, particularly as the High Court should not be the point of entry for comparatively low-value claims for what could be a simple and straightforward case. Also, those transfers often result in delays not only in dealing with a particular freezing-order application, but in dealing with all cases promptly.

The Government are committed to providing an effective and efficient civil justice system with a flexible judiciary that is deployed in the most appropriate way. In view of the time and costs associated with issuing and allocating freezing-order applications in the High Court and the time taken to transfer the substantive cases, consider them and then transfer them back to the county court and the potential costs to parties, the Government considered that the jurisdiction of the county court to grant freezing orders ought to be extended. It was on that basis that the Government consulted on the proposal in its 2011 Solving Disputes consultation paper. Ninety per cent of respondents, who included legal practitioners, members of the judiciary, judicial bodies and regulatory bodies, were in support, on the basis that only suitably experienced and qualified circuit judges of the county courts should be given the jurisdiction.

In view of that overwhelming support, the Government announced their intention to enable the county court to grant freezing orders in all cases under its jurisdiction. The jurisdiction will be extended to circuit judges who have been nominated by the Lord Chief Justice. Consequently, the statutory instrument before us today gives effect to that commitment by revoking the 1991 regulations and, in doing so, removing the current limitations, to enable the county court to make freezing orders in all cases.

The changes brought by this statutory instrument support the Government’s commitment to an effective and efficient civil justice and courts system. We consider that the current position is disproportionate and that unnecessary costs are incurred. It follows that the current restriction on the county court’s jurisdiction to grant freezing orders constitutes a restriction on access to justice for court users. Consequently, it is our intention to lift those restrictions to broaden the county court’s jurisdiction in this regard to improve access to justice while optimising the use of judicial resources. That would mean that court users can have their freezing-order applications considered in the court where their substantive cases are being heard.

Invariably, this should contribute to a reduction in the volume of transfers from the county court to the High Court and the number of applications considered in the High Court. It would thereby provide efficiency benefits for the courts, since less time and fewer administrative and judicial resources would be needed to allocate these applications and transfer the substantive cases to the High Court. For the same reasons, court users could experience a more streamlined service and a reduction in transfers. As one respondent pointed out:

“Any power to help enforcement is a good move. Having to apply to the High Court often many miles away or in London can be wasteful in costs and time. There is no reason for a Circuit Judge not to deal with these applications”.

I therefore commend these draft regulations to the Committee. I beg to move.

[Lord Beecham (Lab)]

My Lords, I had anticipated that the noble and learned Lord, Lord Scott, would speak, which would have made me even more the lowest-ranked member of the legal profession to have spoken today, but I defer in any event to the Minister’s legal knowledge and expertise. As already indicated, I have no particular problem with this instrument.

However, it is ironic that the title of the response to the public consultation, which is not in itself a very brief title, is Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System. It is ironic because the original report on which the regulations are based was, as the Minister pointed out, published in 2008. It has taken three years from the publication of the response to bring forward the proposals before us today. This seems to be an example of the Bleak House style of legislation: you take an eternity to produce a response. That is not the fault of this particular Government; it seems to me characteristic of the way, perhaps in particular in legal affairs, matters take an inordinate time to be resolved. One thinks of the length of time it takes for any Law Commission report to come forward in the form of legislation. It is something perhaps that the Government could look at.

On the substance of the order, there is no particular problem, but I have just one question to ask about it. To begin with, it struck me that, even if there was an argument about the decision that might be taken by one of the newly appointed circuit judges as opposed to a High Court judge, there is of course in any event a right of appeal, so that those decisions can be challenged. However, I notice that, just four days ago, it was announced that the Supreme Court, following a hearing in the Court of Appeal, will now hear the case of Ablyazov, where the assets frozen amounted to some £40 million—this is not freezing a vehicle or goods; it is a very substantial sum of money. I wonder whether any consideration has been given to a threshold above which it might be expected that a case will still go to the High Court. I am not saying that circuit judges would be incapable of dealing with cases involving £40 million or more, but there might be some questions to be asked about that. Of course, even if people were dissatisfied with an order made by such a judge, there would still be the right of appeal, but I wonder whether consideration was given to some threshold above which a higher court judge might in the first instance be asked to make a determination. That is an aspect that might be kept under review. Subject to that, we would not quibble with the instrument before us.

[Lord Faulks]

My Lords, I am grateful for the observations from the noble Lord, Lord Beecham, who, as ever, is far too modest about his skill and expertise. On consultation, there was quite a hiatus following the original publication of the Brooke report. The consultation was deep and wide, involving all the appropriate parties—judicial and legal bodies, regulatory bodies, representative bodies, such as civil court users, local authorities, mediation and mediation advocates, academics, citizens advice bureaux, financial organisations, government departments and members of the public. It took a little time for the Government to produce their response, which was published in 2012, but since that time they have taken forward the Brooke recommendations to implement the single county court in the Crime and Courts Act 2013. In the light of the changes being made to the county court as a result of that legislation, we considered that it was appropriate for this and other Brooke recommendations to come into force on the implementation of the single county court.

On the second point made by the noble Lord, Lord Beecham, I think that he may have somewhat misunderstood the purport of this instrument. Of course, it extends the jurisdiction of the county court, but if it is attached to a money claim, the ceiling is £100,000, so that his scenario of £40 million would not come within the county court’s jurisdiction. It is always alarming to freeze a sum of that nature but, if there is a freezing order, as he will know, it may be ex parte originally, but there is always the possibility of the respondent coming back to court to modify, discharge or vary it or to apply exceptions to the order. Therefore, it is not as draconian a remedy as it seems, but it is an essential remedy sometimes to stop the dissipation of assets. The purpose of this extension of jurisdiction is to make sure that that valuable remedy exists whether the claim is £40 million or a much more modest sum. It allows there to be convenience for court users and it gives judges, who will have the necessary training, as wide a jurisdiction as required to enable those who seek to ensure that their assets, which they have a reasonable and proper expectation of recovering, are not frittered away and dissipated without justification. I hope that that satisfies the noble Lord.

Motion agreed.

Prisons: Education and Training

Lord Faulks Excerpts

Thursday 3rd April 2014 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government what impact prison staff cuts have had on the provision of education, job training and substance abuse programmes in Her Majesty’s prisons.

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

My Lords, staff reductions have been made as part of the benchmarking reforms of public sector prisons. Benchmarking is the best means of delivering value for money for the public purse. It either increases purposeful activity or sustains current levels, and refocuses work and job training to enhance prisoners’ employment prospects on release. The Prison Service works closely with commissioners of substance misuse services and education to optimise the provision of these services to meet prisoners’ needs.

[Lord Ramsbotham (CB)]

I thank the noble Lord for that rather disappointing reply. Provision of and access to education and training are two key factors in any meaningful attempt to prevent reoffending. I cannot imagine that anyone responsible for the conduct of imprisonment could be happy about an Ofsted report which finds that, despite some prisons having state-of-the-art facilities:

“Training and education in prisons are very poor and are failing to support offenders into employment… In many prisons, training and education comes too far down the list of priorities for prison governors and other senior staff.”

Nor could anyone be happy about a London University Institute of Education survey which found that 62% of prison educators criticised the negative effect of payment by results on prisoners as learners, and on the overall quality of education. When prison educators are complaining and prison staff are speaking openly about the difficulties of getting prisoners to education due to cuts in staffing, I hope that Ministers are suitably concerned. Will the Minister please tell the House what steps are being taken to rectify the situation?

[Lord Faulks]

Many steps are being taken. Work is progressing on introducing a new mandatory assessment for all newly received prisoners by OLASS, the Offender Learning and Skills Service providers. This will ensure that all offenders receive a learning assessment focused on English and maths, rather than those who simply go on to learning. NOMS and its partners are working towards implementing better data about sharing arrangements. I should say that intensive maths and English courses are being piloted in prisons, based on a model adopted in the Army, particularly to address prisoners serving short sentences.

[Lord Patel of Bradford (Lab)]

My Lords—

--- Later in debate ---

[Baroness Corston (Lab)]

My Lords, the Minister just referred to purposeful activity for those who are in our prisons. I know of one women’s prison where this activity is filling sandwiches for Pret A Manger. Is this the kind of purposeful activity to which he refers?

[Lord Faulks]

Purposeful activity covers a number of different areas: work, training, education, PE and programmes designed to tackle the causes of prisoners’ offending. Quite a lot of the emphasis on purposeful activity is to try to allow prisoners to engage in activities where they will have some prospects of work outside, particularly in the catering business. With great respect to the noble Baroness, who I know has great knowledge of these issues, that is in fact not out of step with where they might be able to find employment afterwards.

[Lord Dholakia (LD)]

My Lords, does my noble friend the Minister accept that prisons are overcrowded, and that controls and discipline are difficult to maintain? In fact, there has been an increase of 72% in calls on riot squads, and we have reached a high point in the level of deaths in custody. Under these circumstances, in order to ensure that prison’s objectives of education, training and jobs are not affected by cuts in government expenditure, would the Minister not agree that it is time for automatic inspections by HM Chief Inspector of Prisons?

[Lord Faulks]

Any violence or instability in prisons is clearly to be regretted. However, the noble Lord will be aware that assaults in prisons are at their lowest level since 2008, and the number of cases of escaping or absconding has reduced by more than 85% of what it was 10 years ago. I am afraid that I cannot accept that there are problems as a result of overcrowding. At the moment, although there is no room for complacency, matters are stable in the Prison Service.

[Lord Wigley (PC)]

My Lords, does the Minister recall the debate last Thursday in which it was mentioned that more than 5,000 IPP prisoners are being held in prison, two-thirds of whom are beyond their tariff, and that the main reason for this is the lack of training for rehabilitation? Given that this is costing more than £200 million a year, is it not penny wise, pound foolish to cut back on courses of that sort? Can the Minister give some assurance that these prisoners can have the hope of getting rehabilitation courses?

[Lord Faulks]

I well remember the debate and the prominent part which the noble Lord played in it. He will also recall the response that I gave him, which was that there was a considerable, co-ordinated effort to ensure that those IPP prisoners were enabled to engage in appropriate activities which would increase the likelihood of, although not guarantee, their release after hearing before the Parole Board. That is happening, and the Prison Service is well aware of the problem.

[Lord Woolf (CB)]

My Lords, on 1 April 24 years ago, if my recollection is correct, the British prison system was subject to a series of riots. A Conservative Home Secretary, now the noble Lord, Lord Waddington, asked me to make a report. Another Conservative Home Secretary, the noble Lord, Lord Baker, received that report and the House of Commons, with one exception, indicated that it accepted the recommendations, limited to 12, in that report. I am very pleased that a Government of whom the Conservatives are part have now focused on the importance of rehabilitation. Does the Minister agree that if you are going to have rehabilitation, it is very important, first, to control the numbers in prison and, secondly, to have the staff needed to cope with that number of prisons, for the reasons identified by the noble Lord, Lord Ramsbotham?

[Lord Faulks]

The noble and learned Lord is referring to the Strangeways report. I entirely accept that rehabilitation should be a key part of prison. The noble and learned Lord will recall that the transforming rehabilitation reforms mean that those serving short sentences for the first time will now be able to obtain support after leaving prison and will be enabled by means of resettlement prisons to have some continuity in the support that they receive inside and outside. I accept his general observations. It is a matter very much to be borne in mind.

[Lord Howarth of Newport (Lab)]

My Lords, whatever the Justice Secretary is now saying, is not the reality of the situation that his policy is preventing family and friends sending books to prisoners? Does not a state which treats its prisoners with gratuitous harshness and which seeks to suppress the life of the mind put itself and society to shame?

--- Later in debate ---

[Lord Faulks]

That is not strictly within the Question but entirely predictable. The Secretary of State has not banned books. Each prisoner is entitled to 12 books in their cell. The libraries in prisons are impressive. If the noble Lord would like to visit one of the prison libraries, that can be arranged with my department. It is a matter of great disappointment to the librarians that so many people have criticised the provision of books. What the Secretary of State is trying to do is prevent people sending in parcels that do not always contain books, or not exclusively books, to try to stem the real problem there is in prisons of drugs and other contraband, extremist literature and the like. We are not banning books.

Senior Judiciary: Women

Lord Faulks Excerpts

Tuesday 1st April 2014 Lords Chamber

[Baroness Garden of Frognal]

To ask Her Majesty’s Government what assessment they have made of the number of women in the senior judiciary; and what steps they are taking to increase that number.

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

My Lords, the Judicial Office produces and assesses annual statistics on the diversity of the judiciary, including gender diversity. The last publication was in April 2013 and the next one is due shortly. The Government are committed to playing their part in increasing judicial diversity, which includes the number of female senior judiciary. We introduced measures in the Crime and Courts Act 2013 to increase judicial diversity, including the equal merit provision and salaried part-time working.

[Baroness Garden of Frognal (LD)]

I thank my noble friend. Although the Government should not interfere with judicial independence, there is public interest in the judiciary’s composition, which the Government have a responsibility to monitor. Given the lack of women in the senior judiciary, will the Government encourage a fresh look at the criteria for those roles to ensure that the competitions, for some of them at least, attach weight to the distinct qualifications and experience that women candidates have and take account of the different ways of operating and career paths of these women compared with the men against whom they are being assessed?

[Lord Faulks]

This is a difficult problem and the more that I have read about it the more difficult I think it is. It was much debated during the passage of the 2013 Act. The Government are doing their best to encourage diversity but the problem probably starts much earlier, in the structure of the relative professions. The number of women applicants for High Court positions is, sadly, still relatively low. That is less the case in the lower judiciary. The position is that there is one woman in the Supreme Court, and 19 out of 108 High Court judges are women, as are seven out of 38 Lords Justices in the Court of Appeal. This is a regrettable state of affairs and, clearly, we hope that things change.

[Lord Beecham (Lab)]

My Lords, I declare a paternal interest since my daughter sits as a part-time district judge. Given the high proportion of women among criminal and family law practitioners in particular, will the Government rethink the position that they set out in their response to the Transforming Legal Aid consultation in which, in relation to the need to promote diversity, they said that even if the reform of legal aid were,

“to make the attainment of the objectives more difficult, we consider that the changes are necessary and justified”?

Will the Government accept that they have a responsibility in this area, rather than simply asserting, as they did in the same response, that for underrepresented groups like women and BME aspirants, the primary responsibility is that of the Bar and the solicitors’ profession?

[Lord Faulks]

I agree with the noble Lord that the primary responsibility is for the professions: the Bar Standards Board and the Solicitors Regulation Authority. The question of legal aid, we submit, is not the right instrument in order to encourage diversity. The provision of legal aid depends upon trying to target those most in need of legal aid in accordance with the available budget.

[Lord Mackay of Clashfern (Con)]

My Lords, how many women have applied over the past 10 years for senior judicial appointments—that is to say, the Appellate Committee of the House of Lords, the Supreme Court and the heads of division—and how many were appointed?

[Lord Faulks]

My Lords, currently we do not disclose details of the number of applicants for the Supreme Court or the heads of division. There is a very limited pool from which applications can be made, and therefore it is thought that the publication of this information could lead to speculation about the identity of candidates and possibly discourage applicants. I can say, however, that in the High Court 81 applications were received in 2013 of which 17% were appointed.

[Baroness Butler-Sloss (CB)]

My Lords, I wonder whether, as a former woman judge, I might add something. I agree with what the Minister said about the problem being further down, but I wonder whether the Government might look at women who leave the professions, both the Bar and solicitors, because of the stresses of family life, who ought to be encouraged back several years later but will require some training? Nowadays, it is of course possible to go up the ladder, as indeed I did—my husband called it a hawsepipe—to go from a fairly junior position through to the High Court and even higher. You need to get the women back who have left because they have skills that are underused.

[Lord Faulks]

The noble and learned Baroness is of course right. That is probably a significant reason why more are not applying for the higher judiciary. There is flexible part-time working as a result of the 2013 Act, and I think that more people should be encouraged to sit part-time earlier in their career in order to develop the career pattern that will then make them more inclined to apply, and of course it is important that women who otherwise might not apply do so. I entirely accept that. It is something that the sub-committee on diversity and the judicial diversity task force, which are both concerned with this, are looking at very carefully.

[Baroness Scotland of Asthal (Lab)]

My Lords, has the Minister undertaken any analysis of those who have applied but who have not succeeded? Is there any support for any such applicants to make them better able to make a successful application on the next occasion?

[Lord Faulks]

I think I have already given the answer regarding the percentage of applicants to the High Court Bench. One of the ways of fulfilling what the noble and learned Baroness has said is the system of mentoring. This is one of the suggestions being considered by the judicial diversity task force. The Lord Chief Justice is particularly keen to encourage diversity, and I know that the suggestion that the noble and learned Baroness makes is one that is very much on his mind.

[Baroness Prashar (CB)]

My Lords, does the Minister agree that the progress of women at senior levels of the judiciary has been slow because what constitutes “merit” is defined predominantly by men in the senior judiciary and then assessed by panels that are predominantly made up of men?

[Lord Faulks]

As the inaugural chair of the Judicial Appointments Commission, the noble Baroness speaks with great authority. I entirely accept that the definition of merit is somewhat elusive, particularly equal merit. Whether you decide that there is clear water, as Lord Sumption said in his lecture on the subject, between all candidates or whether you say that there is equal merit between quite a number who have risen to the relevant level, it is then permissible to decide questions of diversity at that level in the appointment. Of course, there is plenty of anecdotal evidence that there has been too much a question of men seeking to promote men of a similar type.