Prisons: Overcrowding
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I wish to repeat as a Statement an Answer given to an Urgent Question in the other place by my right honourable friend the Lord Chancellor. The Statement is as follows:
“Let me start by challenging the premise of the Question posed by the right honourable gentleman. We do not have a prison overcrowding crisis. Today’s prison population is 85,359. This is against total useable operational capacity of 86,421. This means we have more than 1,000 spare places across the prison estate.
By next April we will have opened an additional 2,000 places. This includes four new house blocks, which will start to open from the autumn. We also have a number of additional reserve capabilities to cope with unexpected pressures. At the time of the election next year, we will have more adult male prison places than we inherited in May 2010, despite having to deal with the financial challenges that the previous Government left behind.
Since last September, the prison population has started to rise again. This has happened for a number of reasons. They include the significant increase in the number of convictions for historic sex abuse. Those people committed appalling crimes, and probably thought they had got away with it. I am delighted to be finding the space for them behind bars.
Because that increase was unexpected, I have agreed to make some reserve capacity available to ensure that we retain sufficient margin between the number of places occupied and the total capacity of the system until the new prison buildings come on stream later this year. What this means in reality is that, in a number of public and private prisons, a few more prisoners will have to share a cell for a few weeks. We may not need these places but I would rather they were available in case we do.
I am also taking steps to address what I believe is a weakness in our prison system: that we have had no access to the kind of temporary or agency staff that you find as a matter of routine in our health and education systems. I am therefore establishing a reserve capability among former staff to give us the flexibility to adapt to short-term changes of population by bringing reserve capacity into operation. We have some staff shortages in London in particular because of the rapid improvement in the labour market, and this will help us to cover any gaps.
Let me also set out for the House how we are managing the prison estate. My objective is to bring down the cost of running the prison estate while maintaining capacity levels. An important part of that is replacing older, more expensive prisons with new or refurbished capacity that is less expensive to run. So far this Parliament we have opened 2,500 new places, with a further 2,000 places due to open in the next nine months. This has enabled us to close a little over 4,500 places in older prisons in the past two years, saving a total of £170 million during the current spending review period.
In addition, we have launched a benchmarking programme across the prison estate to bring down costs. I introduced this programme in the autumn of 2012 as an alternative to privatisation, at the request of the Prison Governors Association and the unions. The leaders of the Prison Officers’ Association described my decision to do so as a ‘victory’ for them. I am grateful to our staff for their hard work in taking these changes forward.
This programme of change has been praised by the Public Accounts Committee and the National Audit Office. The NAO said recently:
‘The strategy for the prison estate is the most coherent and comprehensive for many years, has quickly cut operating costs, and is a significant improvement in value for money on the approaches of the past’.
We will end this Parliament with more adult male prison places than we inherited, more hours of work in prisons than we inherited, more education for young detainees than we inherited and a more modern, cost-effective prison estate than we inherited. That is anything but a crisis”.
My Lords, that concludes the Statement.
Lord Faulks
My Lords, the noble Lord, Lord Bach, suggests that there is a great degree of overcrowding. He will know, because he is experienced in the field, that there is a difference between the certified capacity and the certified normal accommodation. It is true that, in the short term, some prisoners have to double up, but they double up in the context of cells that have been approved for occupation by two, and of infrastructure that has also been approved in the prison in which they reside. Of course, in an ideal world most of these cells would be occupied by one person, but none the less these are prisoners who are in their cells in circumstances where there is temporary overcrowding and where they are in fact serving a prison sentence.
I reject the suggestion that the Secretary of State is somehow cavalier about the problems of so-called prison overcrowding. Of course, any death in custody or any self-harm is a matter of great anxiety to all those concerned with the management of prisons. We are fortunate in having prison officers of a very high standard and prison governors who are concerned for the welfare of prisoners.
It is difficult to ascertain exactly what is causing the increase. The fact is that, unfortunately, the suicide rate among young males is reflected to some extent by an increase in the general population outside prison as well. Every death is subject to an investigation by the police and the Prisons and Probation Ombudsman and there is, of course, a coroner’s inquest. The Secretary of State has commissioned an independent advisory panel on deaths in custody to review self-inflicted deaths of 18 to 24 year-olds in custody from 1 April 2007, chaired by the noble Lord, Lord Harris of Haringey, who I am glad to see in his place.
The Government are by no means complacent about any incident of self-harm or death and are doing their best to avoid such consequences. However, it does not help the morale of prison officers or the welfare of prisoners generally to manufacture some crisis which, in truth, is no more than and no different from the situation that prevailed in many years when the party opposite was in government. For example, the so-called overcrowding figures were higher between 2003 and 2010 than they are now. This is a storm that has been manufactured and does not help the welfare of prisoners.
Lord Faulks
My Lords, the Government take no pride in the increase in the prison population, of course, but it is a matter for the judges to decide the length of sentences and whether an individual is sent to prison. It is the Government’s job to ensure that there is prison capacity to deal with the sentences that are passed. The Government are indeed anxious to prevent the cycle of reoffending. As my noble friend quite rightly says, the Transforming Rehabilitation programme is particularly designed to deal with the many short-term prisoners—less than 12 months—who have unfortunately simply gone in and out of prison as a matter of routine. He is right to refer to the fact that the Transforming Rehabilitation programme, which went on stream in June, is going to mean that for the first time those prisoners have support outside prison from the probation service and that they receive contact with the probation service before they leave prison. That should help to reduce the prison population in the long term.
As to his observation about IPP prisoners, to whom I know he was referring, of course there is some anxiety about this. The Government, as he correctly acknowledges, repealed the relevant legislation. Steps are being taken to ensure, in so far as it is possible, that prisoners can be released when it is safe for that to happen. That will sometimes involve prisoners going on appropriate courses, but it should not be thought that simply going on a course automatically makes them appropriate for release. It is a matter for anxiety and the Government are particularly concerned that those who should be released are released and that the prison population should be kept as low as it can be, commensurate with public safety.
Lord Elystan-Morgan (CB)
My Lords, does the Minister accept that there are many ordinary, decent, right-thinking members of society representing all manner of political persuasion or none who find their minds exercised by two considerable ironies? One is that while for many years the level of crime has been falling substantially, the prison population has nevertheless been going in a totally different direction. Secondly, and perhaps more fundamentally, despite the historical traditions of decent and law-abiding attitudes in the United Kingdom, of all the major countries of Europe we, per 100,000 of population, incarcerate many more than any other major country. I am not entirely certain of the figures for France, Italy and Germany, but they are far below ours. The figure for Britain, I remember, is 149 per 100,000. Is there no possibility of a deep and searching study into those two considerable ironies?
Lord Faulks
My Lords, as the noble Lord says, the level of crime has gone down under this Government. Sentences are longer than they were, as the sentencing guidelines suggest. Unfortunately, while serious crime remains a problem, that is unlikely to change. I take the noble Lord’s point, but I cannot announce any investigation from the Dispatch Box.
Lord Howarth of Newport (Lab)
My Lords, the House has just given a Second Reading to the Serious Crime Bill, which creates new imprisonable offences and provides for longer sentences for existing offences. Does the Minister not think that the Home Office should think more carefully before it introduces torrents of legislation that place great pressure on the Prison Service, which is already highly stressed and at the limits of capacity?
Lord Faulks
The Serious Crime Bill is intended to deal with serious crime, which unfortunately is a problem. If serious crime is committed, sadly it will result in sentences of imprisonment.
Crime and Courts Act 2013 (County Court and Family Court: Consequential Provision) Order 2014
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Lord Faulks
That the Grand Committee do consider the Crime and Courts Act 2013 (County Court and Family Court: Consequential Provision) Order 2014.
Relevant document: 26th Report, Session 2013–14, from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, as noble Lords may be aware, this statutory instrument is required as a consequence of the creation of the new family court and single county court. Section 17 of the Crime and Courts Act 2013—the 2013 Act—establishes a new family court and a single county court for England and Wales, both of which came into being on 22 April 2014. Since the creation of the single family court, the county court and magistrates’ courts no longer have family jurisdiction.
The 2013 Act made amendments to a large number of Acts in consequence of the creation of the family court, and further consequential amendments to primary legislation were made in an order made and laid on 12 March 2014. That order included amendments to the Legal Aid, Sentencing and Punishment of Offenders Act 2013 which enabled the provision of legal aid for advocacy in the family court. However, amendments were not made to the Access to Justice Act 1999 to include similar references to the family court; it was thought that it did not need amending as it had been repealed. This was an oversight as amendments are required to that Act. Although it was repealed by LASPO, it was saved for certain purposes and still applies to some pending cases. These amendments are required to enable the provision of legal aid for advocacy in the family court.
At the debate in Your Lordships’ House on 3 March on the order making consequential amendments to legislation to create the family court, the noble Lord, Lord Beecham, who I see in his place, brought to our attention a possible gap in the legislative provision concerning interest payable on debts resulting from orders made in the family court. The order we are debating here today makes amendments to legislation to fill that gap to allow for interest to be automatically carried on certain orders made by the family court in the same way as it would have been carried when such orders were made by a county court.
Noble Lords may recall that the independent Family Justice Review recommended the setting up of a single family court as the three-tier structure was complicated, inflexible and difficult for families and other court users to navigate. The creation of the new family court was complex. It required amendments to a large number of Acts and required an extensive package of secondary legislation. It was also part of the largest family justice reforms for a generation, with provisions contained in the Children and Families Act 2014 coming into force at the same time which firmly put children at the heart of the system.
Section 59 of the Crime and Courts Act 2013 enables the Lord Chancellor to make by order such amendments to enactments as he considers appropriate as a consequence of that Act. The amendments made in Article 3 of this order are required to enable the provision of legal aid for advocacy in the family court, in circumstances set out in secondary legislation, and to remove references to matters which will no longer be dealt with in the magistrates’ courts. The equivalent amendment to LASPO has already been made. Once this instrument has been made, we will bring forward the necessary amendments to the secondary legislation under the Access to Justice Act 1999, which will complete the process of amending legal aid legislation in consequence of the creation of the family court.
The amendments made in the rest of this order concern interest payable on judgments or orders made in the family court. I must repeat my thanks to the noble Lord, Lord Beecham, for raising this issue in a previous debate. On that occasion, I promised to write to the noble Lord, which I did after the debate. As I set out in my letter, the Government acknowledge that there is a gap in the legislation for the family court, which provisions in this order seek to close.
The current situation is that if the new family court makes an order for lump sum provision under the Matrimonial Causes Act 1973, Section 23(6) of that Act means that the court can at the same time order that the sum should carry interest. Therefore, there is some provision for interest to be made payable in the family court, but this is not automatic. To allow for interest automatically to be carried on certain orders made by the family court, in the same way as it would have been carried when such orders were made in the past by a county court, amendments are required to Section 74 of the County Courts Act 1984 and to the County Court (Interest on Judgment Debts) Order 1991.
Lord Beecham (Lab)
My Lords, I am glad that in just under four years’ membership of the House, I have at last been able to persuade the Government to do something. I hope that this is the start of a trend for the last 12 months of the Government’s life. I would not dissent from the Minister’s proposal in these amendments, but I feel it is necessary to reflect a little on what is happening in the family court system because some worrying factors are emerging.
I cannot now recall whether the Minister was in his place in the Chamber during that part of the debate on the Queen’s Speech in which I spoke. I have no doubt that the noble Lord, Lord Taylor, will be replying in due course to some of the points I made, but some of them were around the business of the family court and, in particular, how the court is now operating. I am not speaking so much about the geographical location aspect—although that is a factor of some concern because now we have designated courts hearing these matters as opposed to just the local magistrates’ court which previously would have dealt with matters—but more particularly of the impact of the legal aid changes.
The Minister rightly referred to the fact that there is some legal aid available but, as noble Lords might recall, there was an extensive argument about the fact that a significant number of cases would fall outside the scope of legal aid, and it would appear that that is beginning to have a significant impact in turn, as was predicted, on the number of litigants in person in family court matters. I think the figure nationally has now risen to 52%. In the north-east, 61% of people in the family court are now unrepresented. That is apparently already causing significant delays to develop. Given the particularly sensitive area in which these cases are brought—disputes in the family are necessarily sensitive—that is an extremely unwelcome development. Of course, I cannot ask the Minister today to give any assurances about that matter, but I hope that he can say that the Government will be looking at the impact in terms of delay and the administration of justice in this sensitive area and will assess the position. It seems to me that that need not wait much longer because the legal aid impact has now been perceptible for some time, as these figures demonstrate. I hope the Government will take a look at the number of cases and the length of delays that are occurring and at whether any action can be taken to put that right because without that the reorganisation of the court structure will not achieve its objectives, which were to simplify the system and to make it more accessible and more efficient. That cannot be the case if unrepresented parties are clogging the courts, requiring adjournments and requiring the court effectively to intervene to run the case, as it were, when previously the parties would have had representatives who were capable of doing that and perhaps even of negotiating properly before the matter reached the court.
Having said that, we do not object to the order as laid but hope that the matters I have referred to today, which others have raised elsewhere, can be looked at and a response ultimately given.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, who modestly did not acknowledge his own part in one part of the changes that we are proposing by this statutory instrument. As to litigants in person and the problems that they could cause in family justice, as the noble Lord would expect, I cannot comment on particular local difficulties. I understood him to be saying that his quarrel was not so much with the structure as with the practical difficulties that could be encountered by unrepresented litigants, with possible delays that might flow from that.
The Government want to help people to reach their own agreements outside court, when that is appropriate or safe. It is the case, and always has been, that people have to attend court on occasions, and the Government are taking a number of steps to assist litigants in person. We have provided funding to, among others, the Royal Courts of Justice and the Citizens Advice Bureau to develop and expand what is known as CourtNav—an application that helps selected users to complete applications to the courts in an effective way—and to Advicenow, to update a number of its guides, as well as to the Personal Support Unit, to provide free independent assistance to people facing proceedings without legal representation in civil and family courts. The Courts Service and the Ministry of Justice have also provided easy-to-understand practical information about family mediation, making an application to court and attending hearings. This has included updating leaflets available to court users and a number of videos have been made available online. I am sure that the noble Lord would like to have a look at those videos to assess their quality.
Judicial training is being delivered to support the implementation of the new private law programme—and this is an important feature. A key focus of the training is to ensure that judges, magistrates and legal advisers are better equipped to support litigants in person through the court process. I do not pretend that judges would not on the whole prefer litigants to be competently and well represented by lawyers, but as noble Lords are aware we are operating on a restricted budget and cuts have had to be made.
As to the number of litigants in person in family proceedings, I cannot give precise figures, but there have always been litigants in person in the family justice system. It is true that Her Majesty’s Courts & Tribunals Service data show a reduction in private law children disposals where both parties were represented in October to December of 2013, compared with the same period the previous year. Although the number of litigants in person has increased since LASPO came into effect, available data show that the time that cases are taking has remained steady. In private law, the average number of weeks to disposals remains steady at 16 to 18 weeks, but the Government are monitoring the situation and continue to do so very closely. The noble Lord is right to raise the issue—it is a source of anxiety—but I reassure him and other noble Lords that the Government are well aware of potential problems and will keep a close eye on the matter.
To sum up the statutory instrument, the order provides the vires by which legal aid may be provided for advocacy in a family court. It allows the Legal Aid Agency to provide legal aid for advocacy in the small number of cases that may still be before the family court under the old Access to Justice Act 1999, and it also allows interest to be automatically carried on certain orders made by the family court in the same way as it would have been carried when such orders were made by county courts. I commend the order to the Committee.
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014
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Lord Faulks
That the Grand Committee do consider the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014.
Relevant document: 27th Report, Session 2013–14, from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
This order is part of the Government’s ongoing commitment to keep safeguarding measures in step with developments elsewhere. The amendments contained within this order seek to maintain the balance between the rehabilitation of offenders and the need to protect the public.
As noble Lords will be aware, the Rehabilitation of Offenders Act 1974 seeks to aid the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified time, as spent. Once a conviction has become spent an ex-offender is not required to declare it when, for example, entering employment, or applying for insurance. Research has consistently shown that obtaining employment reduces the risk of offending. Noble Lords will recall that in March this year, the Government implemented the provisions in Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which mean that more convictions can become spent and, in most cases, sooner. This means that even more ex-offenders can benefit from the Rehabilitation of Offenders Act, which should help them reintegrate into society.
However, there must be a balance, of course, to ensure that members of the public are adequately protected. To this end, the exceptions order to the Act allows certain employers, bodies and proceedings to be excluded from the application of the Act. When, for example, a person applies for a job listed in the exceptions order, the employer is entitled to ask about certain spent cautions and convictions, as well as those which are unspent. The exceptions listed relate to activities where the individual is presented with a particular opportunity to cause harm to the public or has regular contact with particularly vulnerable groups such as children. In these circumstances, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their criminal record.
It is, therefore, the exceptions order which sets out the exceptions to the general protections under the 1974 Act. The Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates and enhanced criminal record certificates, otherwise known as standard and enhanced disclosure. Standard disclosure contains details of a person’s unprotected spent cautions and convictions. Enhanced disclosure includes, in addition, any information which the chief officer of police considers is relevant to the particular application. These disclosure certificates are issued by the Disclosure and Barring Service.
In this exceptions order, we introduce four amendments aimed at maintaining the balance between the rehabilitation of offenders and public protection. There is also an amendment to update the description of a probation officer.
Following changes made to the Childcare Act 2006 by the Children and Families Act 2014, a person wishing to provide childcare on domestic premises will be able to register with a childminder agency instead of registering with the Office for Standards in Education, Children’s Services and Skills—Ofsted. This is so that childminder agencies can support the training and development of childminders, thus improving the quality of childcare provision. In addition, anyone wishing to operate a childminder agency will be required to register with Ofsted.
The amendments to the exceptions order will permit Ofsted to ask a person seeking to register as a childminder agency about their spent convictions and cautions. The amendments will also permit childminder agencies to ask those it proposes to employ about their spent convictions and cautions.
Special guardians are appointed by a court under powers in the Children Act 1989. They share the parental responsibility of the child with their birth parent but can exercise that responsibility to the exclusion of the child’s birth parents or anyone else with parental responsibility. The child resides with the special guardian but the legal relationship with the parents is not severed, as is the case in adoption.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for the various points that he made pertaining to these provisions. I cannot give a comprehensive answer to all the questions that he raised. However, I can say that the exceptions order covers all those who are engaged in regulated activity, which includes all those working unsupervised with vulnerable people—that is, those in care and, I would imagine, subject to confirmation, those vulnerable for one reason or another such as those he exemplified in his remarks. I would be surprised if they did not have this protection, but I undertake to write to him to confirm that that is the case.
The question of whether someone should be employed if they have any form of conviction and the degree of disclosure is difficult because, for example, as part of the community rehabilitation process recently begun as part of the transforming rehabilitation process, some of those who may be recruited by the CRCs may in fact be offenders themselves who will be provided as mentors to former offenders, so that one does not to have a hard-and-fast rule about these matters. Of course, safeguards need to be very much in place to ensure that the correct people are selected as mentors. It is always a difficult balance to achieve. The Government think that they have achieved it with these necessary changes which will, of course, arise from time to time with the development of particular bodies or services, as in the case of CILEx. This instrument is focused on maintaining the correct balance towards public protection, and the amendments, although limited in scope, clarify which people working with children are covered and keep up to date the legal services sector. They respond to the continuing need for public protection but at the same time maintain the balance towards rehabilitation acknowledged by the noble Lord as something we should be striving for in so far as is possible without jeopardising public safety.
Transfer of Tribunal Functions (Mobile Homes Act 2013 and Miscellaneous Amendments) Order 2014
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Lord Faulks
That the Grand Committee do consider the Transfer of Tribunal Functions (Mobile Homes Act 2013 and Miscellaneous Amendments) Order 2014.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the purpose of this order is to transfer the appellate jurisdiction in the Caravan Sites and Control of Development Act 1960 and the Mobile Homes Act 2013 from residential property tribunals to the Property Chamber of the First-tier Tribunal and to make other changes in the law in connection with that transfer. It also makes changes to certain forms required to be used under the Housing Act 1988 with reference to the relevant tribunal. The order applies to England only.
Residential property tribunals had jurisdiction to settle disputes between owners of park homes and their site owners and to hear appeals on contractual matters arising under the Mobile Homes Act 1983. This dispute resolution was transferred to the First-tier Tribunal when it was launched on 1 July 2013. In the mean time, the Mobile Homes Act 2013 received Royal Assent on 26 March 2013. This hugely important Act started as a Private Member’s Bill in the other place and was navigated through your Lordships’ House with great skill by the noble Lord, Lord Best. The Government were pleased to support it.
The Act reflects the Government’s commitment to ensure that park home owners’ rights are respected and their health and safety protected. It introduced a reformed local authority licensing regime, modernising the scheme in the Caravan Sites and Control of Development Act 1960. This came into force on 1 April 2014 and for the first time gives local authorities real teeth in ensuring that park home sites are properly maintained and managed. Local authorities can now require works to be carried out to ensure that licence conditions are complied with and, in the case of an emergency, can enter the site and do the works themselves, recovering their costs from the site owner.
We want, of course, to ensure that local authorities act proportionately and site owners are not required to carry out works that do not come within the terms of the site licence or that are excessive, which is why the Act provided for appeals against local authority decisions to be heard by residential property tribunals. As I have already indicated, those tribunals were already dealing with disputes under the Mobile Homes Act 1983, and were therefore familiar with the issues in this very small niche part of the housing market.
Secondly, residential property tribunals already dealt with appeals on housing conditions and licensing in the private rented sector. It was therefore logical that those tribunals be given the appellate jurisdiction in the new licensing regime in the Caravan Sites and Control of Development Act 1960 and take over existing licensing functions in that Act from magistrates’ courts. It is now necessary to transfer the functions conferred on the defunct residential property tribunals under the 1960 Act and the Mobile Homes Act 2013 to the Property Chamber so that appeals against licensing decisions can be determined by the First-tier Tribunal, which is what this order sets out to achieve. The transfer order also amends the 2013 fees order to allow fees to be charged for applications regarding mobile homes site rules and under the Caravan Sites and Control of Development Act 1960.
I accordingly commend the draft order to the Committee.
Lord Beecham (Lab)
My Lords, I must follow the noble Lord, Lord Shipley, in declaring an interest as a vice-president of the Local Government Association and as a former leader of the same council for, if I may say so, quite a bit longer than the noble Lord. I have a certain sympathy with his view on this order to the extent that we are talking essentially about commercial organisations bearing the cost. The implication behind the noble Lord’s question is clear enough: is this a sufficient amount? If it were to fall on the occupier of a mobile home, I would be somewhat concerned about that. If the intention is that it should fall on the owner of the site as a commercial proposition, I think he makes a significant point. I am glad that he has made it because my only reservation about this order would have been to point to the split infinitive in the Explanatory Note.
Lord Faulks
I am grateful for the learned contribution from the north-east and for the grammatical point made so ably by the noble Lord, Lord Beecham. On the question of costs, as the Explanatory Note states, the position is that the fee of £155 is for making an application to the Property Chamber relating to a dispute over a mobile home. It is set at the same level as the fee applied to applications which follow similar tribunal processes for other applications. There are circumstances in which fee remissions can be obtained, but they are available only to individuals. On 7 October last the Government introduced reforms to the scheme of fee remissions in the courts and tribunals, and the purpose was to reduce the cost of the scheme to the taxpayer while ensuring that fee remissions were better targeted at those who cannot afford to pay the fee. They introduced a single fee remission scheme across the HM Courts and Tribunals Service, which is a simplified means test based on a gross monthly income and disposable capital test.
The question arises as to whether the costs payable in these cases should act as a deterrent to elderly residents. I think that, perhaps contrary to the sense of the debate so far, those concerned with these disputes are often people who would not normally venture into a court of any sort. This is to provide a relatively cost-neutral risk for those who want to resolve what can be quite highly charged disputes about their homes without great expense and involving the paraphernalia of lawyers. In fact, in answer to the question put by noble friend Lord Shipley, the fees reflect only the costs of the tribunal, not of the local authority. I accept his point that that means that there are a number of costs which are not reflected in that overall fee. What lies behind it is the provision of the sort of service I have endeavoured to describe.
So as further to assist those who might feel that they are receiving somewhat oppressive treatment from the site owners, and sadly there are some instances of that, the procedural rules contain provisions for cost awards if the tribunal considers that a party has acted unreasonably, although of course that is a judicial decision based on the particular facts of the case. Generally, however, costs are not awarded in the Property Chamber and parties meet their own expenses in bringing a case. These hearings are conducted by tribunal members who are experienced in the area and help unrepresented parties to frame questions where necessary, so clearly it is a cheap and, I hope, effective way of resolving disputes. However, I accept entirely what lies behind the question put by my noble friend Lord Shipley, which is that there is a cost involved which is borne by the local authority.
I hope that that deals with the points made by noble Lords. However unsatisfactory this might be to local authorities from the financial point of view, they are at least in the position of knowing that a useful service is being provided to those who are often in a vulnerable position in society. That is because those who acquire park homes, as they are known, often have little by way of rights and do not have clear contracts. Despite the fact that quite a lot of money is involved in these homes, there is nothing like the same security that someone would have if they were acquiring a house by the normal conveyancing route. This tribunal is providing an extremely useful and important source of remedy to help often vulnerable people.
To summarise, this order will make the changes necessary to transfer the functions conferred on the defunct residential property tribunals to the Property Chamber, so appeals against licensing decisions can be determined by the First-tier Tribunal. I commend this draft order to the Committee.
Queen’s Speech
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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
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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.
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.
European Union: Justice and Home Affairs
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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).
Commonhold and Leasehold Reform Act 2002
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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?
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
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
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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(11 years, 1 month ago)
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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.