Divorce (Financial Provision) Bill [HL]

Lord Faulks Excerpts

Friday 27th June 2014 Lords Chamber

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

My Lords, like all other noble Lords, I thank the noble Baroness, Lady Deech, for introducing the Bill and for enabling the House to debate the appropriate division of financial provision on divorce. She has done the House a great service by prompting this high-quality debate.

The Bill has the highly laudable aim of seeking to assist divorcing couples and civil partners undergoing separation in resolving disputes over the division of property. It is intended both to recognise and enforce prior agreements between separating spouses and substantially to amend the law on financial provision on divorce.

The Bill makes fundamental changes to the law on financial provision on divorce as it has applied for over 30 years. However, it differs from and goes beyond recommendations made by the Law Commission report, which the Government are currently considering. Comments were made about the speed at which the Law Commission has historically proceeded. There is no criticism of the quality of the work that the Law Commission does and I echo the comments made by my noble friend Lord McNally about the way in which a number of Law Commission Bills have been going through Parliament recently.

The Government are not anxious to pre-empt the consideration that is taking place of the Law Commission’s report. In any event, the Government have a number of concerns about the Bill’s provisions and whether these sufficiently safeguard the needs of children and families so as to avoid potential hardship. I will set out these concerns by reference to the current law, the proposals in the Bill and the proposals on matrimonial property agreements made by the Law Commission.

The current law on financial provision on divorce provides a number of important safeguards. This is governed in England and Wales by the Matrimonial Causes Act 1973. Section 23 provides for lump-sum payments and various other forms of financial provision; Section 24 enables property transfers; and further provisions allow for orders for the sale of property, pension-sharing orders and so on.

The courts have a wide discretion as to what orders to make in any particular case and must have regard to the factors set out in Section 25 of the Act. On the face of it, that might seem to be a fair state of affairs. However, there has been a great deal of criticism during the course of the debate that, although the Act provides for all these matters to be taken into consideration, it nevertheless produces uncertainty of outcome—too much depends, perhaps, on the idiosyncrasies of particular judges and fashions—and it does not enable parties to be sufficiently clear on divorce about what is the likely division of property.

However, Section 25, importantly, says that the first consideration of the court is the welfare of any child of the family under the age of 18. Other factors in Section 25 include the income and earning capacity of the parties, contributions made to maintaining the home and children, the financial needs and obligations of the parties, the age of the parties, the duration of the marriage and any physical or mental disability suffered by either.

The noble Baroness’s Bill provides that Section 25 will be repealed and will therefore no longer have effect in relation to orders for financial provision between the parties to a marriage or civil partnership. The Government would be particularly concerned if this had the effect of weakening the protection given to children when their parents divorce. The noble Baroness has indicated that maintenance for children will not be affected, but the Government are concerned that the removal of the welfare of minor children as the court’s first consideration in making financial provision for spouses might cause adverse consequences for children. This would plainly require a great deal of consideration.

Clause 6 addresses the provision for children of the family and provides that the court must have regard to any order for support of a child of the family, the age and health of any child, the educational and financial circumstances of the child and so on, but it does not make the welfare of the child the first consideration of the court, and thus may not provide as much protection for children as the current law. The Government think that the court should look at the needs of the children first and then go on to consider the division of property between the parents.

The Bill proposes that subject to certain exceptions, matrimonial property, defined as is, should be divided equally between the parties. The Government are concerned that this would also be potentially unfair and could cause hardship, particularly for poorer families and for families with children. The noble Lord, Lord Kennedy, referred to the danger of a one-size-fits-all provision. Moreover, reference has been made during the debate to the changes in society since 1973, including the demographic changes described by the noble Baroness, Lady Bakewell, and women’s increasing equality. None the less, as the noble Baroness, Lady Meacher, said, the old models of marriage do still exist in some sections of society and we cannot ignore them when deciding on an appropriate change to the law, if indeed any is needed. In fact, the Law Commission recommended that there should be no change to the law on need in financial provision on divorce.

The Bill provides that periodical payments for spousal maintenance should be for a maximum period of three years and that lump-sum payments and periodical payments should be intended to enable the recipient to become independent of financial support within three years. An absolute three-year limit on maintenance would be similar to the law in Scotland, referred to by the noble and learned Lord, Lord Hope, and my noble and learned friend Lord Mackay. Having looked at the matter, I see that it emanated from a recommendation by the Scottish Law Commission that eventually became part of Scottish law. But, again, the Government are concerned that this could cause hardship and may be inappropriate for many couples. Having to adjust to a new financial reality may take longer than three years, so the Government currently consider that it is better for the court to retain a discretion to provide as it thinks best to meet the circumstances of each individual family.

[Lord Davies of Stamford]

My Lords, I am listening to the noble Lord with great attention. Would he be kind enough to say what it is that makes circumstances or human nature different in England from what they are in Scotland?

[Lord Faulks]

I am not altogether sure whether that is a serious question, but of course human nature is not different. The answer is that there is no perfect solution to these difficult problems, as I am sure all noble Lords would agree. The Scottish solution is one that is certainly worthy of great consideration. The current solution in the law of this country is rather different. At the moment we are all concerned to find a solution which best serves the interests of all parties on divorce. Scotland has much to teach us, but it does not have necessarily the perfect answer. We need to learn from the experience in Scotland while accepting that human nature is the same in Scotland as it is in England.

As I say, the Bill provides for matrimonial property agreements to be binding upon couples on divorce. In its proposals on matrimonial property agreements, the Law Commission has strongly recommended that the courts should be able to depart from a matrimonial property agreement where this is considered necessary in order to protect the needs of a spouse or in the interests of any children. The Bill departs from that proposition. In its proposals on matrimonial property agreements, the Law Commission set out a comprehensive list of the requirements necessary to underpin enforceable agreements made prior to divorce. In considering the Law Commission’s proposals, the Government wish to reflect on the sufficiency of safeguards before committing to legislate to make agreements enforceable. We are currently considering those and, as my noble friend Lord McNally said, we will announce our response to them in the very near future. That will be in August—albeit that I heard what he said about the undesirability of reflecting and responding in that particular month.

The Bill’s proposals differ quite substantially from the recommendations made by the Law Commission in the light of really extensive consultation, which included consultation with family practitioners—although I am glad to say that this debate has benefited from the contribution of family practitioners. The proposals in the Bill are substantially different and their likely effects are at least unclear.

I appreciate, as I am sure the whole House does, the noble Baroness’s desire to ensure that financial division on divorce and on dissolution of a civil partnership is made simpler so that people will much more easily be able to estimate what they are likely to receive and be better able to negotiate with each other, and that couples should be able to enter into agreements to determine what they would receive on divorce.

The Government are considering the Law Commission’s report on matrimonial property agreements and how these could be made binding, and will respond in the near future. The report recommends making information available on the likely outcomes of financial applications on divorce—that has been developed during the debate—but recommends that there should be no change to the law governing “need”. The Government are concerned to give proper consideration to these and all the recommendations made by the Law Commission.

The Government recognise that divorcing couples often need help to reach an agreement and should be encouraged to avoid court proceedings. There is unanimity that court proceedings very rarely help in resolution of these disputes. They are far too expensive and the result is usually damaging both financially and, very often, to the future happiness of warring parties and children. The Government are therefore particularly anxious to encourage people to use family mediation and other forms of alternative dispute resolution.

For those who are eligible, legal aid is available for mediation. Under the Children and Families Act 2014, from 22 April this year applicants for financial orders and for financial provision on divorce must attend a mediation information and assessment meeting—

[Baroness Shackleton of Belgravia]

Mediation and indeed prenuptial contracts are practically impossible unless the outcome has some certainty as to what you are mediating for or what you are trying to anticipate when you are drafting a prenuptial contract. Unless the law is tidied up so that practitioners understand what the outcome would be to prevent the litigation, it is impossible to mediate.

[Lord Faulks]

I take the noble Baroness’s point but those helping the mediation, albeit that there is inevitably a measure of uncertainty because of the discretion given to the court, by reference to their experience and therefore what judges are customarily doing in a particular case, will nevertheless be able to advise on what is a likely outcome and what is perhaps in the best interests of the parties, and at least assist with the possibility of their not proceeding to court to have the matter heard there.

The application forms for the orders contain details of the provisions for the meetings and potential exemptions that might apply. The Government believe that these requirements will bring a significant number of people to learn about mediation and use it to resolve their disputes. Notwithstanding the point that the noble Baroness, Lady Shackleton, makes about uncertainty, if parties are happy with the outcome, that is of itself a desirable purpose in having this mediation. As my noble friend Lord McNally said, mediation has generally got a good story to tell, and increasingly that is the case.

The Government will not oppose the Bill receiving its Second Reading today but do have reservations about its approach and scope. What, however, I can take back to the department is the very clear—in fact, I think unanimous—view of those participating in today’s debate that the time has come for Parliament to intervene. That of itself is an important message that I can take back to government decision-makers about the future of this field of law. However, we consider that we are already addressing these issues. We shall continue to do so, greatly assisted by all the work that the noble Baroness has done and by the contributions to this excellent debate by all noble Lords.

Women: Custodial Sentences

Lord Faulks Excerpts

Thursday 26th June 2014 Grand Committee

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

My Lords, I join others in congratulating the noble Baroness, Lady Healy, on securing this debate. Your Lordships have long had an interest in the plight of female offenders. I am sure that noble Lords will not misunderstand me if I say that a number of them who have participated in this debate are very much recidivists in addressing the issues that we must confront.

Noble Lords will, of course, know that the decision to send someone to prison is a matter for the independent judiciary. Courts take into account all the circumstances of the offence and the offender in determining this, including whether the offender is a primary carer, as will often be the case. Courts must consider custody only where they are satisfied that the offence is so serious that neither a fine alone, nor a community order, can be justified—the so-called custody threshold.

I should declare an interest as having sat as a recorder for some 10 years until relatively recently. I can tell the Committee how slow someone in my position is to send a woman to prison, for all the reasons that have been so ably outlined in this debate. In fact, I can hardly think of an occasion when I had cause to do so.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced a new provision which means that people should be released on bail if it is unlikely that they will receive a custodial sentence on conviction. That provision should go some way to dealing with the point made by a number of noble Lords about women who are remanded and then ultimately not sent to prison when their case comes up for sentence.

As was acknowledged by a number of noble Lords, custody must be available where appropriate, but only when the thresholds are passed. I should be absolutely clear that the Government are committed to making sure that all offenders are given the support they need to turn their lives around. That commitment is central to our transforming rehabilitation reforms. We also recognise the need to address women’s specific needs where these differ, as they often will, from those of men.

Noble Lords will recall that the Government published their strategic objectives for female offenders in March last year. These are aimed at reducing the number of women in custody—which is desirable for all the reasons that have been given throughout this debate—by making sure that women receive the support that they need in custody and in the community to address the factors associated with their offending. Those are fine words, but what do they mean in practice?

First, our transforming rehabilitation reforms mean that those serving sentences of less than 12 months will, for the very first time, be subject to statutory supervision, including a licence period in the community aimed at supporting successful community reintegration and rehabilitation. As was rightly pointed out, proportionally more women than men are serving short sentences, so they, in particular, will be beneficiaries of this element of the reform.

The companies bidding for contracts under our transforming rehabilitation reforms must demonstrate in their bids an effective approach to the identification and recognition of women’s needs to make sure that those needs are properly addressed. To assist, we have made available guidance which identifies the key gender-specific factors associated with women’s offending and provides signposting to specialist services. The contracts will also require providers, where practicable, to give women the option of being interviewed in a women-only environment, having a female supervisor and not being the only woman in an otherwise all-male group on, for example, unpaid work, subject to any requirements.

The noble and learned Lord, Lord Woolf, quite rightly drew attention to Section 10 of the Rehabilitation of Offenders Act. I join him in paying tribute to the Prison Reform Trust in this context. Section 10 relates to female offenders and was widely supported across the House. It came into force on 1 June and the new requirement specifically to address the concerns of female offenders will apply both to contracts with CRCs—community rehabilitation companies—and services provided by the new National Probation Service.

My noble friend Lady Hodgson of Abinger raised the suggestion of a women’s commissioner, and the noble Lord, Lord Ramsbotham, suggested someone with overall control of women’s prisons, an official or even a Minister. All those points have been made eloquently before. The Government do not think for the moment that that is appropriate. It would be a significant cost at this time. However, I hope and believe that the provision of Section 10 will be something of a catalyst—as the noble and learned Lord, Lord Woolf, said. Together with the other initiatives, it should help to address the many issues that have been identified in this debate.

We are working towards ensuring sentencers have robust community options at their disposal. Under the guidance of the Advisory Board on Female Offenders, we are working with Greater Manchester to develop a pathfinder that will look at how we can provide robust and effective sentencing options in the community for female offenders that may divert women from custodial sentences, where appropriate.

We are also working with the Department of Health, the Home Office and NHS England to develop a model for youth and adult liaison and diversion services at police custody and courts. That service will assess and refer individuals with a range of vulnerabilities, including mental health problems and substance misuse. Those with mental health problems represent a considerable proportion of women who are or might be sent to prison. The Department of Health has committed £25 million this year to test a liaison and diversion model in 10 different areas in England.

For women who are given custodial sentences, we are making changes to the women’s custodial estate to keep women closer to their home. This is one of the issues raised during this debate. It will help them to maintain links with their children and families and also support them to get the skills they need to find employment on release. We are increasing capacity at prisons close to conurbations, including giving priority to Welsh women at Eastwood Park. We are also improving access to interventions and resettlement opportunities across the entire estate, supported by the fact that all women’s prisons will become resettlement prisons.

I was asked questions about Askham Grange and East Sutton Park. I cannot discuss the Government’s intention to close these open prisons as this is the subject of ongoing litigation, as the noble Baroness, Lady Gale, may know. However, we are reconfiguring the estate to allow women to be held closer to home, for the very reasons that have been identified by a number of noble Lords.

In addition, an officials’ sub-group under the Social Justice Cabinet Committee has been set up to examine the relationship between women’s offending behaviour and debt and finance issues. The support of the SJCC for this work is a good example of the progress we are making. We will continue to work with other government departments to make it easier in the future for women to move away from crime.

I think that the noble Baroness, Lady Royall, asked me about ensuring that community services will be maintained following the transforming rehabilitation plan. As well as the Section 10 requirement, we are continuing to fund women’s community services in 2014-15 and taking appropriate steps. There is not a gap between those existing services and whatever will be provided by the new providers. As the noble Baroness will understand, this is a complex matter, and I will write to her in a little more detail about how we are going to ensure this continuity. I wholly understand her concern about it.

I conclude by saying that the anxiety to avoid sending women to prison is one that is of course shared by the Government and all noble Lords, as is the desire to explore alternative options. We believe that the initiatives we are taking with transforming rehabilitation represent a real opportunity to improve this. As I said, those who are serving a sentence of less than 12 months will, for the first time, be able to get help. I think that noble Lords will be peculiarly aware of the danger that when women, and of course men, leave prison they are lost. They do not know what the next step is and are particularly vulnerable to reoffending and coming back to prison. We believe that this will be significantly addressed by our changes.

We are concerned that the strategic objectives on female offenders will be addressed. The report by the noble Baroness, Lady Corston, has remained extremely valuable. Almost all her recommendations have in fact been implemented; I think it was something like 40 out of 43 of them, so it remains an extremely valuable source. I repeat my gratitude to all noble Lords for their participation in this important debate.

Crime and Courts Act 2013 (County Court and Family Court: Consequential Provision) Order 2014

Lord Faulks Excerpts

Wednesday 18th June 2014 Lords Chamber

[Lord Faulks]

Moved by

That the draft orders laid before the House on 9 April and 6 and 14 May be approved.

Relevant documents: 26th and 27th Reports, Session 2013-14, from the Joint Committee on Statutory Instruments, 1st Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on Monday 16 June.

Motions agreed.

Digital Bill of Rights

Lord Faulks Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Mitchell]

To ask Her Majesty’s Government whether they consider that there is a case for a digital bill of rights to protect personal privacy and promote a free and open internet.

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

My Lords, the Government are acutely conscious of the need for the protection of individuals’ privacy both online and offline. We believe that the protection of these rights should go in tandem with, and not be at the expense of, an open, innovative and secure internet that promotes economic growth and freedom of expression. We believe that sufficient safeguards already exist to protect individuals’ privacy through the Data Protection Act 1998, together with other legal remedies.

[Lord Mitchell (Lab)]

My Lords, I thank the Minister for that reply. We are all under digital surveillance, not only by the security services but also by retailers, hospitals, online suppliers and network operators. They are able to collate massive amounts of data about who we are, where we go, what we buy, who we speak to and even the state of our health. Next year is the 800th anniversary of Magna Carta. To celebrate this in a modern setting, should we not introduce a digital Magna Carta, designed to guarantee our online rights and privacy?

[Lord Faulks]

The noble Lord is of course right to remind us of Magna Carta and its impending anniversary. The Government are not, at the moment, minded to introduce a Bill or any legislation of the sort that the noble Lord refers to. Of course we must be nimble to protect those rights which are expressed digitally. However, there are, as I said in my Answer to his Question, a number of remedies available. The Information Commissioner’s Office performs its task well and, for the moment, any legislation brought in by the Government or the party opposite should emphasise not only rights but responsibilities.

[Baroness O'Neill of Bengarve (CB)]

Does the Minister think that the new draft data protection regulation now in process in Brussels will provide more or less adequate protection of personal privacy in the event that it is passed without further amendment?

[Lord Faulks]

I think that the noble Baroness is referring to the so-called “right to be forgotten”. The Government have some reservations about this. Anxiety has been expressed in the light of this proposed amendment to the directive and the recent decision of the ECJ. The progress of this directive is still a matter of active consideration and negotiation by the Government.

[Baroness O'Neill of Bengarve]

My Lords, I was referring to the draft data protection regulation—which is not a directive—not to the right to be forgotten.

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

My Lords, the noble Lord, Lord Mitchell, rightly raised this privacy issue in the Queen’s Speech debate. Most of us are, I suspect, blissfully unaware that the so-called location services on our mobiles act as an insidious spy in the pocket, constantly recording our every movement wherever we go. Should we not at least start by obliging smartphone and network providers to tell us clearly what personal information they collect and how, and how we, as consumers, can turn it off?

[Lord Faulks]

The noble Lord is right that this is a source of anxiety and a matter which continues to alarm all sorts of people and organisations. The consumer has a role to insist on this information being provided. That, rather than legislation, is probably the answer for the moment.

[Lord Foulkes of Cumnock (Lab)]

Is the Minister aware of the vile, personal internet abuse heaped on supporters of the union in Scotland, including the author JK Rowling—in her case merely for giving £1 million to Better Together? Will he condemn this and indicate whether a Bill as proposed by my noble friend, or some other legislation, could be introduced to protect all of us who suffer such attacks?

[Lord Faulks]

I am happy to agree with the noble Lord that this is an appalling practice, and I deplore what has been said about those with a particular viewpoint. The internet being used in this way is the enemy of democracy. We should nevertheless be hesitant before we prevent access to the internet. Russia, China and some of the Arab states prevent access to the internet. Once you start doing so, you prevent some of the advantages, economic and otherwise, of this extraordinary phenomenon, now 25 years old.

[Baroness Kidron (CB)]

My Lords, given the centrality of the internet and digital technologies to the lives of young people, can the Minister tell me what the Government are doing to make certain that young people can explore the creative potential of the online world knowledgably, fearlessly and with an understanding of the privacy issues?

[Lord Faulks]

The Government are certainly trying to protect children from access to parts of the internet to which it would be most ill advised for them to have access. We are trying to promote by a number of means responsible use of the internet but, once again, my answer is that, for the moment, we ought to hesitate before using legislation to do this. However, I entirely accept what the noble Baroness says about the importance of responsible access.

[Lord Harris of Haringey (Lab)]

The Minister talks about the importance of protecting children, but do not all consumers need protection on the internet? While it may not be appropriate to legislate, would it not be appropriate for the Government to put their weight behind requiring that there is a robust system of identity assurance so that you know who you are dealing with on the internet and a robust system of age assurance so that only people of an appropriate age can access material that is appropriate for that particular age group? The Government’s weight would surely be helpful in making sure that that was delivered by contractors.

[Lord Faulks]

The noble Lord is right in that the Government should, and indeed do, work with internet industries to improve—or in some cases to limit—access. An example of that is what they have been doing with children’s access online. The Government have a strong track record of working with the internet industries to drive progress, to allow parents to have network-level domestic filtering, parental internet controls and the like, and to ensure the availability of family-friendly public wi-fi in places children are likely to be. Of course, it must be remembered that all individuals have their normal legal rights, wherever the information is contained.

Prisons: Overcrowding

Lord Faulks Excerpts

Monday 16th June 2014 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[Lord Deben (Con)]

Why is it—

Crime and Courts Act 2013 (County Court and Family Court: Consequential Provision) Order 2014

Lord Faulks Excerpts

Monday 16th June 2014 Grand Committee

Moved by

[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.

--- Later in debate ---

[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.

Motion agreed.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014

Lord Faulks Excerpts

Monday 16th June 2014 Grand Committee

Moved by

[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.

--- Later in debate ---

[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.

Motion agreed.

Transfer of Tribunal Functions (Mobile Homes Act 2013 and Miscellaneous Amendments) Order 2014

Lord Faulks Excerpts

Monday 16th June 2014 Grand Committee

Moved by

[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.

--- Later in debate ---

[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.

Motion agreed.

Queen’s Speech

Lord Faulks Excerpts

Monday 9th June 2014 Lords Chamber

[Baroness Anelay of St Johns (Con)]

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

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

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

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

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

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

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

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

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

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

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

The coalition agreement included a specific commitment to,

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

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

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

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

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

[Lord Foulkes of Cumnock (Lab)]

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

[Lord Faulks]

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

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

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

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

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

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

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

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

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

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

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

Law Commission

Lord Faulks Excerpts

Monday 12th May 2014 Grand Committee

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

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

[Lord Beecham]

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Faulks]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Kirkwood of Kirkhope]

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

[Lord Faulks]

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

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

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

[Lord Beecham]

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

[Lord Faulks]

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

Committee adjourned at 5.36 pm.