Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014
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Lord Faulks
That the draft order laid before the House on 16 December 2013 be approved.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 24 February.
Social Welfare Law
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I begin by congratulating the noble Lord, Lord Low, on securing this debate and restating my belief, and the Government’s belief, in publicly funded legal services as an integral part of the justice system. All speakers have made valuable contributions to this debate but I am sure that noble Lords will forgive me if I single out the right reverend Prelate the Bishop of Peterborough for his excellent maiden speech. It is clear from his description of the wide variety of people and situations which he encounters in his diocese that he will be able to bring many valuable insights into our debates. I am very glad to welcome him.
Notwithstanding the Government’s continued commitment to the justice system, any discussion on legal aid funding must focus on the spending that taxpayers fund and must recognise the financial realities we continue to face. As noble Lords are aware, legal aid was introduced more than 60 years ago. It has expanded very considerably in scope to become, arguably, something it was never intended to be. The Government were, until recently, spending scarce resources—in effect rather encouraging people to take their problems straight to court rather than trying to achieve successful and often enduring resolution of disputes in different ways.
The Government were forced therefore to take a fresh look and did not embark on the reform programme lightly. However, the fiscal challenge and the spending review settlement required all departments to look critically at where they were spending money, the effectiveness of those interventions and whether they could continue to be justified. A conscious decision was taken, following the public consultation that led to the LASPO Act, that spending the limited taxpayer funding available to the Ministry of Justice on social welfare law matters, when the majority of problems in this area did not require legal expertise to resolve, could not be justified. This and other difficult choices were scrutinised, amended and debated by Parliament after a thorough and wide-ranging public consultation.
People do not always need lawyers in cases involving divorce, employment, education disputes and debt problems, and courts should be a last resort rather than a first one. These are the types of problems that can and should be resolved before tribunals or similar bodies, which are designed to be accessed by unrepresented individuals. However, with the introduction of the LASPO Act—and this is often forgotten—we safeguarded legal aid to ensure that it was targeted to those who needed it most, for the most serious cases, in which legal advice or representation is justified.
We estimate that following the introduction of LASPO around £50 million will still be available in legal aid for social welfare law, which will fund community care and other high-priority debt and housing cases. For those who need or choose to go to court, but who fall outside the scope of the legal aid scheme, there are other resources available in other forms. There are a diverse range of services available that recognise and match the differing needs of individuals, helping them to navigate the system and resolve their problems. I accept that the challenge is to ensure that relevant services continue to be available in a sustainable way. We have seen industries innovate and modernise to address changing needs and environments. It is essential that the advice sector does so too. The noble and learned Lord, Lord Hope, spoke of the increased use of technology. There is also the support for legal initiatives. My noble friend Lord Gold referred to pro bono contributions from young solicitors.
However, the Government have recognised the various pressures that the not-for-profit advice sector would face, as different funding sources were affected as a range of organisations reviewed their funding positions in the light of the changing fiscal environment. That is why the Cabinet Office led a review looking at the long-term sustainability of the not-for-profit advice sector. The Advice Services Review report, published in October 2012, acknowledged that the Government have a role in supporting the sector to adapt to the new funding realities but also made it clear that advice providers would need to take the initiative and change the way they work, adopting often a more collaborative approach with partner organisations across the sector to ensure the long-term sustainability of supply.
In fact, the Government did not wait for the outcome of that report. Since 2010 the Government have provided significant additional support over and above their usual funding to a range of front-line advice organisations such as Shelter, CABs and law centres that provide direct advice to clients on matters such as social welfare law, to help them adapt and make the transition to the new funding climate. This includes providing half of the £68-million advice services transition fund, launched in November 2012 and administered by the Big Lottery Fund, which was referred to by the noble Lord, Lord Low. This fund has provided a total of 228 grants of between £50,000 and £350,000, which are specifically available during 2013-15 to help the sector to address immediate need and help to strengthen organisations for the demands that lie ahead.
The Ministry of Justice itself has worked collaboratively with relevant partners in the sector to ensure that clients continue to be supported even after the introduction of LASPO. In the lead-up to the introduction of LASPO, the MoJ developed a targeted communication strategy to raise awareness of legal aid changes and, in particular, to signpost clients not eligible for legal aid to relevant alternative sources.
My officials also worked closely with other government departments, legal aid providers, advice organisations and relevant third-sector partner organisations to raise awareness and enable them to provide effective information about legal aid changes themselves and details about alternative sources. As part of this, we developed and introduced a new and simple online service. Those words are easy to utter but, having actually tried out this service, I can confirm that it is genuinely simple and can be accessed by those who are not sophisticated in these matters. It is considerably simpler than, perhaps, buying an air ticket from a budget supplier. People can check whether they might be eligible for legal aid. Where they might not be, this service will signpost them to alternative sources. To date, over 194,000 clients have used the site to look for assistance, and we continue to work with legal aid providers and advice organisations on improving awareness.
I turn to the excellent report itself, provided by the noble Lord, Lord Low, and his committee. I have read it with great interest. There are a number of important factors about it. I particularly applaud that it does not simply seek the reinstatement of the status quo ante but rather explores a range of different possibilities. It will be a considerable source of assistance to all the parties as they prepare for the election. The colleague of the noble Lord, Lord Beecham, Andy Slaughter, has said that he will be mining the report for ideas. I know that there have been meetings at No. 10 and that there the noble Lord has met my ministerial colleague with responsibility for these matters, Shailesh Vara. It is an important document that will provide food for thought and inspiration for the way forward.
I welcome the fact that the report does not duck the fact that there are fiscal challenges facing this Government, which necessarily means that fewer resources are available and that hard decisions will have to be made about how they are spent. I also welcome the recognition that the advice and legal aid services sectors are in a period of transition and innovation, which, as the report states, offers scope for agencies to work more collaboratively and in more cost-effective ways in order to help their clients’ needs.
I assure noble Lords that the Ministry of Justice recognises the importance of encouraging decision-makers to get it right first time—a point made in the report and by the noble Baroness, Lady Grey-Thompson, in the course of her speech—and of ensuring that we continue to innovate and improve the current system, as suggested in the report. I can confirm that the Ministry of Justice works closely with other government departments to improve decision-making. We are also considering the recommendations referring to the way in which Her Majesty’s Courts and Tribunals Service hears appeals. The Ministry of Justice has published a strategic work programme for those tribunals that describes how we are working to improve the system in line with efficiency, fairness and accessibility.
We have also established the Administrative Justice Forum, an independent body made up of a range of people who have direct contact and can represent views. We have made considerable progress in the improvement of feedback mechanisms on decision-making to the Department for Work and Pensions, with the introduction of telephone case management and the employment tribunal.
The noble and learned Lord, Lord Woolf, drew an appropriate analogy to his work on access to justice and how that changed the culture and the way that we looked upon the resolution of disputes. That was referred to by the noble and learned Lord, Lord Hope, as well. I am glad to see that the judiciary is referred to specifically in the report of the noble Lord, Lord Low, as providing significant innovation in dealing with litigants in person, which are a reality that we have to face. I refer in particular to paragraph 4.12 of the report. This is the world in which we live: judges would no doubt prefer not to have litigants in person, but they are responding well, using modern technology in assistance to make the system more user-friendly for those who do not have the benefit of legal advice.
There was a great deal of complaint made by the noble Lord, Lord Bach, who I recognise has been a persistent champion of those needing social welfare law. He has also opposed almost every other cut, but I accept that he has made a particular feature of this area. He was critical of the use of the exceptional funding scheme and said that the Government were not, in fact, providing exceptional funding in the way that it was envisaged. I endeavoured to answer questions on that when they were raised in a Parliamentary Question recently. The position is that we think it is working; no doubt the forms might be improved, but we have to provide funding where there is a potential breach under the European convention or EU law. That is the position; that is what is provided by the Act.
There are many other features to which I would like to respond, but time does not permit me to do so. We acknowledge the many useful observations made during this debate and there is a great deal of value in what was suggested in the report itself, particularly in regard to the administrative justice and tribunal system. The Government will, of course, carefully consider these suggestions in the future and continue to incorporate them into our strategic work where it is appropriate to do so.
Lord Phillips of Sudbury
Can the Minister give any reassurance at all to the many who have spoken about public legal education, particularly in schools?
Lord Faulks
I cannot give any formal reassurance as to whether public legal education will be part of any schools curriculum. It is clearly an important feature in the report and is something that will be considered along with other matters.
Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014
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Lord Faulks
That the Grand Committee do consider the Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014.
Relevant Documents: 17th Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the purpose of the draft order is to give legal effect to the administrative merger that took place just over four years ago, on 1 January 2010, between the Revenue and Customs Prosecutions Office, which was the prosecuting arm of HM Revenue and Customs, and the Crown Prosecution Service. The decision to merge the CPS and the RCPO was announced in April 2009 by the noble and learned Baroness, Lady Scotland, who was the Attorney-General at the relevant time. The purpose of the merger was to create a strengthened prosecution service, to safeguard and improve the high-quality work done by both organisations in serious and complex cases and to provide efficiency savings. Those objectives have to a large extent been achieved.
The merger that took place in 2010 did not involve legislation. Sir Keir Starmer, who was then DPP, was appointed Director of Revenue and Customs Prosecutions as well. Since that date, the person holding the positions of both DPP and Director of Revenue and Customs Prosecutions—now Ms Alison Saunders—has been running the two offices under one umbrella. There is a single management structure and cases investigated by HMRC are now prosecuted by a specialist fraud division of the CPS.
Although the administrative merger has been a success, there are disadvantages in the two organisations still existing as legally distinct entities. First, it might give the appearance that the merger is incomplete and could readily be reversed. This might call into question whether the change is intended to be permanent. Secondly, it has practical implications for how the organisations work. The Government consider that a legal merger would bring about greater efficiency and effectiveness. That is why we are bringing forward the present draft order under the Public Bodies Act 2011. The Act provides for the functions of certain public bodies—listed in the schedules—to be abolished, merged or transferred. The effect of this draft order is to transfer the functions of the Director of Revenue and Customs Prosecutions to the DPP, thus putting the existing merger of the RCPO and CPS on a statutory basis.
As there is a requirement for Ministers to consult on proposals before laying a draft order under the Act, a consultation exercise took place in 2012. Views were sought on the proposal that legal effect should be given to the administrative merger and on whether the proposed approach would achieve the desired effect. Those organisations and individuals who commented—only eight did so—either supported the proposal or did not object to it. There was concern that the specialist expertise of the RCPO should not be lost; the Government agree that this is an important aim. As the consultation response explained, cases investigated by HM Revenue and Customs are handled within the CPS by the same specialist casework division that prosecutes the most complex and serious fraud and corruption cases investigated by the police.
An order made under the 2011 Act must serve,
“the purpose of improving the exercise of public functions, having regard to (a) efficiency, … (b) effectiveness, … (c) economy, and … (d) securing appropriate accountability to Ministers”.
I am grateful to the Secondary Legislation Scrutiny Committee for its careful consideration of the draft order, and I welcome its conclusion, which was expressed in these terms:
“the Government have demonstrated that the draft Order serves the purpose of improving the exercise of public functions and complies with the test set out in the 2011 Act”.
I do not think that your Lordships would welcome a detailed description of the draft order, which—as is so often the case—is by no means as brief as my summary of its effect might suggest. As for its effect, I cannot do better than quote these lines from the Scrutiny Committee’s report:
“The Government present a convincing argument that the overall effect of the transfer of the responsibilities of the RCPO to the CPS will result in streamlining the process by including it in a larger group where economies of scale can be identified from using prosecutors and administrators for a wider range of duties. Although the economies realised by this Order are comparatively small, the improvements to efficiency are more substantial, with the potential for the more flexible structure possible under the new arrangements”.
I commend the order to the Committee. I beg to move.
Lord Beecham
I must begin by apologising to the noble and learned Lord. I had not noticed that he was here and obviously intended to speak; I apologise for that.
As I said, try as I might—and I certainly tried—I cannot find anything much to object to in the 19 pages of the order or, indeed, the 134 amendments embodied in it. The principle is clearly right and it is sensible to combine the two positions. However, although this does not quite fall within the Minister’s brief, there are still questions to be asked about the operation of the service as a whole, particularly in relation to staffing.
Of course we are only talking about part of HMRC for the purposes of the order, but within HMRC there have been significant staff reductions. To be precise, 1,697 staff left in 2012-13. That forms part of a significant reduction in funding of HMRC amounting to about £2 billion, or 16.5%, by 2015. The Chancellor’s reinvestment, as it were, of £154 million, which was announced with a flourish a couple of years ago, will not make much of an impact on that massive cut.
The question arises, therefore, about the implications for staffing on what had been the HMRC function. Will the staff be protected, or will there be reductions? The record of HMRC in recovering moneys is clearly not very good. The Public Accounts Committee criticised it for collecting more than £1 billion a year less in December 2012 than it would have done, had it had the relevant staff.
Another question in relation to staffing is: will those who will be employed in the completely unified structure be paid comparably to those with whom they will no doubt be locking horns in the private sector? For that matter, is there much of a two-way flow between the department as it is now constituted and the private sector? I am not talking about the prosecution side thus far, as far as I am aware, but concerns have been expressed about people coming to work for the Inland Revenue from the private sector and then going back to the private sector and so on. I am not asking the Minister to answer this today, but it would be helpful if he would let us know the position in relation to movement inward and outward of staffing, particularly on the Inland Revenue side.
One of the concerns raised—I do not think with any great force in the consultation—was about the need to maintain within the prosecution side expertise of Inland Revenue matters. The Government seem to be satisfied on that, and I am not challenging that assertion, but it underlines the need to keep an eye on matters. No doubt the Government will be reviewing the situation as it progresses.
A further point relates to the third arm of prosecutions in this country, which is the Serious Fraud Office, which comes under the aegis of the Attorney-General and is separate from the DPP and HMRC, which we are now discussing. Given the somewhat challenging history of the SFO in recent years, I wonder whether it might be opportune at some time to consider a further merger between that department and the structure that we are formally approving today. I am not suggesting that the Minister can give an immediate response to that, but it is something that his colleagues could look into. In principle, it might seem sensible to have a seamless prosecution service dealing with serious fraud and tax fraud and the other matters that come under the direct surveillance of the DPP.
Having said that, we certainly do not object to this order and wish the fully combined departments well in their endeavours on behalf of the public and the taxpayer.
Lord Faulks
My Lords, I am grateful for the remarks of the noble and learned Lord, Lord Hope, for bringing to the debate his experience from Scotland and for endorsing the desirability of this move from that vantage point. As well as making certain economies, we think that it will prevent potential demarcation disputes of the sort to which he referred.
The noble Lord, Lord Beecham, as ever, probes slightly beyond the scope of the statutory instrument, as I am sure he would be the first to accept. On the question of staffing and training, there is perhaps one aspect with which I can help the Committee. The legislation removes the barriers to the staff of the CPS and the staff of the RCPO from working on mixed duties.
The question of training is relevant. The HMRC prosecution work will remain for the immediate future within the CPS central fraud division, which prosecutes cases nationally. Expertise already exists within the division and the new staff are trained internally. Where any HMRC work is to be devolved, this will be managed carefully and appropriate training and support will be provided.
I am given to understand that RCPO is entirely separate from HMRC, and there have been no staff reductions as a direct result of the merger. I anticipate that the noble Lord, Lord Beecham, was talking of staff reductions more generally, but I can confirm that, in so far as the issue of the statutory instrument is concerned, there are no such reductions.
As always, I will take back his remarks and observations generally about the Serious Fraud Office and whether or not further consolidations might be made with profit, as well as his observations generally about staffing and the involvement of the private sector. I am grateful for those contributions.
We submit that the draft order is a modest but worthwhile measure. In effect, it will complete what was unfinished business and should enable improvements and efficiency to take place. I commend it to the Committee.
Civil Legal Aid (Merits Criteria) (Amendment) (No. 3) Regulations 2014
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Lord Faulks
That the draft Order and Regulations laid before the House on 18 December 2013 and 16 January be approved.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 10 February.
Legal Aid
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government consider that the exceptional funding scheme is working effectively. We are monitoring its operation and will continue to do so.
Lord Bach (Lab)
My Lords, I thank the Minister for his Answer as far as it goes. Parliament and the public were told time after time to believe that Section 10 would act as a safety net for those cases where it was manifestly unfair that the citizen should not have access to civil legal aid. However, the application forms are impossible for a non-lawyer to complete and a lawyer will not get paid a penny if the claim for legal aid is unsuccessful. Even worse is the fact that only in 3% of claims has legal aid ever been granted. The noble Lord was a member of the JCHR which, along with the Low Commission and many others, has recently criticised the working of this provision. Now that he is a distinguished member of Her Majesty’s Government, will he act to make this vital provision fit for purpose?
Lord Faulks
The provisions contained in Section 10 of the LASPO Act make it perfectly clear that it is there for exceptional cases where, in the absence of legal aid, there would be a violation of Article 6 of the European Convention on Human Rights or possibly of the provisions of the European Union. It is not about whether a case may be deserving; it has to fall specifically within the confines of the section. As to the application form, it was consulted on regularly and in detail before it became part of the process. I am surprised that solicitors are having difficulty in filling it in. It is possible for someone to fill in the form on their own and they can then have a preliminary view given to them by the Legal Aid Agency as to the prospects of success. It is true that the number of applications has been much lower than expected and it is also true that very few have been granted, but we are satisfied that the system is working in accordance with the section.
Lord Thomas of Gresford (LD)
My Lords, before the Bill was introduced, the Government said that they were expecting 5,000 to 7,000 applications a year. In fact, in the first year there were 893, of which only 23 were granted, which represents 1%. Is it not nonsense to suggest that this provision is a safety net for those who seek justice?
Lord Faulks
I can update the noble Lord by saying that in fact the total number of applications received is now 1,030, and the number granted is 31. I agree that it is a small percentage. It was difficult for the Government to predict exactly how many applications would be received. In fact, in some areas, including the area in which I practised, that of clinical negligence, there have been virtually none when it was expected that there would be very many. Trying to anticipate what might or might not be considered to be a violation of Article 6 has confounded many courts, not only in this country but also in Strasbourg.
Lord Woolf (CB)
My Lords, perhaps what the Minister has just said indicates that I may have been right when I differed as a judge from my distinguished predecessor, Lord Bingham. He took a narrow view of the word “exceptional” while I took a very broad view of it. I regard it as a word which should be used to ensure justice in all cases where justice is required. Does the noble Lord agree with my approach?
Lord Faulks
The answer to the noble and learned Lord is that it depends very much on the context in which “exceptional” is used. The context in which it is used in this particular section is by specific reference to the European Convention on Human Rights.
Lord Beecham (Lab)
My Lords, in answer to a recent Written Question from me, the Minister said that there had been 1,130 applications, of which 35 were granted, not the figures that he has given today. Be that as it may, what was the Government’s estimate of the number of successful applications and what did they anticipate would be the proportion of successful applications? Given that it has taken 14 months to reach a decision to grant legal aid in an important inquest case in which counsel appeared four times without any certainty of being paid, will the Government publish details of the times taken to determine applications?
Lord Faulks
In answer to the second part of the noble Lord’s question, the Government will be happy to publish the times taken. Indeed, I think that the noble Lord will be pleasantly surprised at how quickly these applications are being processed. In answer to the first part of his question, it was expected that some 3,700 would be funded each year. As I said in answer to an earlier question, it is somewhat mysterious as to why so few have qualified. Each case is considered separately by the Legal Aid Agency in accordance with guidelines given by the Lord Chancellor. All those doing this work are experienced and all of them follow the guidelines.
Lord Pannick (CB)
My Lords, the noble Lord said that Section 10 is working effectively. Will he give further consideration to the recommendation of the Low commission, chaired by the noble Lord, Lord Low of Dalston, that the application process for Section 10 is much in need of simplification? Will the Government act on the concern expressed by the Joint Committee on Human Rights about the lack of training for Legal Aid Agency employees who are responsible for making decisions about Section 10?
Lord Faulks
The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.
Lord Phillips of Sudbury (LD)
My Lords, can the Minister say whether any research has been done into the number of cases of citizens who would wish to make applications but are unable to find anybody to help them in making those applications?
Lord Faulks
I think it is approximately 61. I will have to write to my noble friend with the precise number who actually made applications. Very often they are given a preliminary view, which they can then take to a solicitor, who will then be able, if he has been given some encouraging words, to take the matter forward.
Baroness McIntosh of Hudnall (Lab)
My Lords, will the noble Lord reassure the House, in view of the very small number of applicants who have been successful, that the Government have no plans to withdraw the funding before people have figured out how to fill in the forms?
Housing: Commonhold
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Baroness Gardner of Parkes
Oh! I beg leave to ask the Question standing in my name on the Order Paper.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government have no plans to review the 100% rule for conversion from leasehold to commonhold.
Baroness Gardner of Parkes
My Lords, is the Minister aware that I have asked this Question repeatedly over the years and I have always had the Answer that it is totally impossible? That is on record in Hansard many times. Does the Minister think that, as we now have so many different Acts covering the same issues, even for the skilled property lawyer it has become quite a nightmare, and is impossible for ordinary people? Even today I am wandering too. Does the Minister think that it is time that the Government asked the Law Commission to review this legislation with a view to bringing in a consolidation Act?
Lord Faulks
My Lords, my noble friend Lady Gardner has been a doughty champion of commonhold and has indeed recorded her interest and Questions on a number of occasions, in the past decade in particular. Of course, commonhold is successful and well established in other parts of the world, particularly Australia. Unfortunately it has failed to attract much enthusiasm in this country. It was originally the creation of the Law Commission in the 1980s. Whether review of commonhold legislation might be suitable for the commission’s further consideration is a question for the Government ultimately to decide. They have to decide priorities in accordance with the protocol but will bear in mind what the noble Baroness has said.
Lord Clement-Jones (LD)
My Lords, as my noble friend the Minister has pointed out, my noble friend Lady Gardner has on many occasions very effectively brought to the attention of the House the defects in domestic leasehold law. He gave a rather dusty reply as far as the Law Commission was concerned but it has been engaged in consultation about its 12th programme. The decision is in the hands of the Lord Chancellor. Is it not high time that the whole question of commonhold enfranchisement and leasehold law was considered by the Law Commission?
Lord Faulks
My Lords, the 100% rule, which is the subject of the Question from the noble Baroness, was in fact discussed in some considerable detail during the passage of this Bill through Parliament—the original Bill having been introduced by the party opposite. For reasons that we suggest are substantial, it was decided not to make the 100% rule a part of the law. Unfortunately, commonhold has not proved to be popular and there has been a very limited take-up. There is no obvious reason why this should be, particularly with new developments, although I accept it is much more complicated when converting leasehold to commonhold.
Lord Best (CB)
My Lords, I declare my interest as chair of the council of the Property Ombudsman, which receives complaints from leaseholders. I fear that no one in your Lordships’ House will recall my maiden speech, during the passage of the Bill to which the Minister has referred. In that, I expressed considerable hope that commonhold would solve a lot of the problems that leaseholders face. That has proved utterly unfounded and this piece of legislation must be one of the least successful on the statute book. However, it works in other countries and this approach to leasehold in the future would bear scrutiny from perhaps—if the Minister’s own department or the Law Commission will not take up the cudgels—a group of parliamentarians. Does the Minister support the idea of a group of parliamentarians having their own inquiry to see whether we can break out of the logjam that seems to leave leaseholders in a very adverse position?
Lord Faulks
The noble Lord is right about the degree of success. The House might like to know that only 16 commonholds have been registered in England and Wales, and the legislation came into force in 2004. None of them is particularly large. The largest, which has 30 units, is apparently a caravan site and only one with four units seems to be a conversion from leasehold.
During the passage of the Bill to which the noble Lord referred a number of increased rights were given to leaseholders, in particular of flats, to allow them to take over management of the building; to make it easier for leaseholders of flats to buy, collectively, the freehold of their building; and to allow unreasonable service charges to be reviewed by leasehold valuation tribunals. Part of the reason for the lack of take-up may be because other advantages accrued to leaseholders as a result of that legislation.
I am afraid that I am not in a position to give any of the assurances that the noble Lord required from me, but of course this is a matter that goes across different government departments and all his observations will be taken back to the Secretary of State.
Baroness Hayter of Kentish Town (Lab)
My Lords, this group of leaseholders is very lucky that it has the noble Baroness, Lady Gardner of Parkes, speaking on its behalf. But does the Minister accept that there is absolutely nothing in the Consumer Rights Bill currently going through Parliament to help this group or any other group of consumers in any meaningful way on a group issue such as this? Will he agree to try to work with BIS to strengthen that Bill to help these and other issues where a group of consumers is not getting the requirements that it wants?
Lord Faulks
The noble Baroness is no doubt right, although I cannot confirm that there is nothing in that Bill that adds to the rights of potential commonholders. The position is that, although it has been available, it simply has not been taken up by professionals who might be considered to be aware of it—solicitors or surveyors. It has not been the subject of articles in journals. There simply does not seem to be genuine enthusiasm for it. That is regrettable, but it is a fact and the Government do not believe that people should be forced to go into these arrangements if they do not want to.
Lord Campbell-Savours (Lab)
Having listened to the question of the noble Lord, Lord Best, will the Minister join me in suggesting to him that he applies to the Liaison Committee for an ad hoc committee to consider the matter?
Lord Faulks
The noble Lord is very experienced in parliamentary matters. No doubt that is a matter for the noble Lord, Lord Best, and he will have listened to what the noble Lord, Lord Campbell-Savours, suggested.
Inheritance and Trustees’ Powers Bill [HL]
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I briefly take the opportunity to thank the Law Commission for making possible the reforms contained in the Bill. I also express the Government’s gratitude to the noble Lords who served my predecessor, my noble friend Lord McNally, on the Special Public Bill Committee, under the chairmanship of the noble and learned Lord, Lord Lloyd of Berwick. I am sure that I speak for all members of the Committee in thanking the several witnesses who provided evidence on the Bill, including Professor Elizabeth Cooke, who many times throughout the course of the Bill provided invaluable expertise on the areas of law that it covers.
Lord Beecham (Lab)
My Lords, I join the Minister in expressing thanks, particularly to Professor Cooke and her colleagues on the Law Commission and all those experts in the law who were so helpful to the Committee. It was almost a pleasure to revisit issues like hotchpot, remainder and the like, with which the noble Lord and I were last acquainted many years ago—more years ago in my case than in his. Their involvement proved the value of that procedure. That being the case, given what was said earlier about leasehold enfranchisement and commonhold, I would commend the use of the Law Commission in that connection, and I hope that the commission might prove as successful in reviewing that issue as it has on this. We are indebted to all those who participated, including the noble Lord, Lord McNally, who struggled along with the rest of us through the earlier stages of the Bill, and to the present Minister, who took over with considerable aplomb.
Lord Faulks
I acknowledge what the noble Lord, Lord Beecham, has said. Indeed, his own contributions to the debates are notable. I also thank the Bill team, whom I now see in their place, for providing such valuable assistance.
Bill passed and sent to the Commons.
Civil Legal Aid (Merits Criteria) (Amendment) (No. 3) Regulations 2013
Lord Faulks Excerpts(10 years, 4 months ago)
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Lord Faulks
That the Grand Committee do consider the Civil Legal Aid (Merits Criteria) (Amendment) (No. 3) Regulations 2014.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishes the criteria and mechanisms for determining the member state responsible for examining an application for international protection lodged in one of the member states by a third-country national or a stateless person, known as the Dublin III arrangements. Under these arrangements, the United Kingdom can apply for another member state to consider an asylum application, and provide appropriate protection if that application is successful, where an individual’s first point of entry to the European Union is that other member state but an application for asylum is made in the United Kingdom.
Under these arrangements, a member state is required, if the financial means of the individual and merits of the case justify it, to provide free legal assistance and representation in relation to an appeal or review of certain decisions made under Dublin III. The Dublin III arrangements replace those set out in Council Regulations (EC) No 343/2003 of 18 February 2003, known as Dublin II. We have in this country routinely provided legal aid in relation to Dublin II matters.
The key difference between the old and the new arrangements, from the Ministry of Justice’s perspective, is that the requirement to provide free legal assistance for certain appeals, which in the UK is met through judicial review, is made explicit. The explicit provision in Dublin III for legal aid also prescribes a merits test, particular to it, that is to be applied. These regulations amend the Civil Legal Aid (Merits Criteria) Regulations 2013 to give effect to the particular merits test. The merits criteria are tests which the Director of Legal Aid Casework must apply in deciding whether an individual qualifies for civil legal services.
The amendment before us today allows for the merits test set out in Dublin III to apply—namely that the prospects of success of an individual case must be judged to be greater than,
“no tangible prospect of success”.
The instrument therefore makes provision to ensure that we meet our international obligations but changes nothing else. Noble Lords will be aware that the Ministry of Justice laid an urgency statement alongside this instrument, in order that it could come into force without delay, as per the procedures set out in Section 41(9) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Due to an administrative oversight, my officials at the Ministry of Justice failed to recognise that there was a subtle difference between the merits test prescribed in Dublin III and the existing tests more generally applied to applications for judicial review. In the case of judicial review, the prospects of success must be at least moderate. By the time this oversight was recognised, insufficient time remained to make the necessary changes via the standard draft affirmative procedure. The urgency procedure was used to ensure that the appropriate test applied from the point when the Dublin III arrangements came into effect, on 1 January this year. This means that there was no risk of an individual being unfairly disadvantaged by having the incorrect test applied to their application for legal aid, hence the urgency. I hope that my explanation has been of assistance to noble Lords. I commend this instrument to the Committee and beg to move.
Lord Beecham (Lab)
My Lords, this is a rare opportunity for me to congratulate the Government on breaking the habits of this Parliament’s lifetime on access to legal aid. It is only 12 days since we had a debate about prison law and entered into a discussion about borderline cases for legal aid, when the noble Lord was vigorously supported by precisely no members of the Government—nor, indeed, anybody else—in a debate in which 15 Members were exercised about the restrictions on legal aid and the merits criteria under which these decisions will be taken.
However, on this occasion, the Government have not only done better than that, they have also refrained from stigmatising European legislation as an outrage to our constitution which should not be implemented if at all possible. For that small mercy, I am sure that we are grateful. Perhaps the noble Lord would like to convey to his Secretary of State the fact that a move towards something less stringent than the previous formulation about “no tangible prospect of success”, which is effectively what we are ending up with in other areas, would also be better applied to the remaining legal aid jurisdiction and not just that which is invoked by the European treaty and Dublin III. Having said that, we very much welcome the regulations.
Lord Faulks
My Lords, congratulations being in short supply in the context of legal aid, I gratefully accept them from the noble Lord, Lord Beecham. I will pass on his comments on the lack of stigmatisation of European legislation and his suggestion to amend the merits test. I am sure that the Secretary of State will read carefully his comments in Hansard.
There is little more for me to add, except that this should enable no injustice to be done. Legal aid should be available. The urgency, while regrettable, has been explained to the Committee. In those circumstances, I commend this instrument.
Tribunal Security Order 2014
Lord Faulks Excerpts(10 years, 4 months ago)
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Lord Beecham (Lab)
My Lords, this is a perfectly sensible change to the rules to provide for security on tribunal premises. I do not expect the Minister to be able to answer the one or two questions I have immediately, but it would be interesting to know whether there is a record of any significant incidents in which the presence of a security officer with these powers would have made a difference. It would be interesting to know how many problems have arisen or are arising, and how that compares with the other courts. That said, it is clearly sensible to have these provisions. However, can the Minister say how the Government intend to proceed in terms of the employment of such staff? Will they be seeking to contract this operation out, like so much else of the administration of justice, to contractors such as G4S and Serco? Or will it be done, as it were, in-house?
Secondly, will they, in any event, ensure that staff employed on this important task are paid at least a living wage? I fear that people may be employed on part-time, minimum-wage conditions. Given the nature of the job, that would be entirely unjustified. It would be helpful to know, if not now then subsequently, what the Government’s attitude would be, whether it is providing the services directly or contracting them out. Subject to these observations, I very much endorse the regulations.
Lord Faulks
Contrary to his expectation, I think I can answer some of the questions posed by the noble Lord, Lord Beecham.
In the reporting period from April 2013 to 31 December 2013, a total of 75 security incidents were reported from tribunal venues and hearing centres. Those incidents are classified in a number of ways. Examples include verbal abuse, verbal threats and unauthorised access through to security systems or loss of ID. I do not have any further breakdown, but I hope that gives the noble Lord at least some idea of the scale. I also do not have information comparing that with security incidents at courts, but it can be seen that it is a substantial potential threat, and the noble Lord has been good enough to acknowledge that it is appropriate to make this change. Of course, it was not possible under the 2003 Act until the Tribunals Service was brought within the overall control of the Courts Service.
I turn to the questions around employment. Important pre-employment checks will be made on contractors—and there will be independent contractors—to assess their suitability to work within the organisation. I am instructed that the guards will be provided by G4S and Mitie. Some tribunal venues and hearing centres are covered by the PRIME contract. The contract has input from the Department for Work and Pensions and is managed by a private organisation, Telereal Trillium. The guards will be supplied to these sites by G4S or Mitie depending on their geographical location, and the template seen across the court sites will be used to manage security within tribunal venues and hearing centres.
As part of the employment process, the relevant contractor will undertake pre-employment checks to assess applicants’ suitability to work within their organisation, including obtaining references, interviews and so on. Before designation—the word apparently used in this context—HMCTS undertakes further suitability checks to confirm the identity of the individual. Checks are made of disclosure and barring service certificates, and an assessment is made of the appropriate level of training required. The assessment of this suitability is part of the designation process, with assurances going to the Lord Chancellor. As part of the application process, all potential designates must hold a current Security Industry Authority licence and have completed training on conflict management and physical intervention. There is also continuing monitoring of employees’ ability, but I will not provide all the details now.
I noticed that the noble Lord’s eyebrows were raised slightly by the reference to G4S. He may be thinking back to the question of electronic monitoring and tagging. The tagging contract is not linked to the provision of security on court sites; rather, it is managed by a separate department within G4S. I hope that that provides some assurance for the noble Lord.
Lord Beecham
Will the noble Lord respond to the questions about the conditions of the staff in terms of earnings, zero hour contracts and so on?
Lord Faulks
I am grateful to the noble Lord for reminding me about the question of the living wage. I do not have any details on the precise wages, but I will write to him.
Prisons: Deaths of Young People
Lord Faulks Excerpts(10 years, 5 months ago)
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Lord Ramsbotham
To ask Her Majesty’s Government whether they intend to hold an independent review into deaths of young people in custody as recommended in the report by Inquest and the Prison Reform Trust Fatally Flawed; and, if so, when.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, we have decided to hold an independent review to learn lessons from self-inflicted deaths of young adults in custody aged between 18 and 24 and to identify actions to prevent further deaths. The review will be led by the noble Lord, Lord Harris of Haringey, who I see is in his place. He is the chair of the Independent Advisory Panel of the Ministerial Council on Deaths in Custody. The review will report by spring 2015.
Lord Ramsbotham (CB)
My Lords, I am grateful to the Minister for that positive response, but I am sorry that the review’s remit does not include children aged under 18. Since January 2011, 16 young adults aged between 18 and 21 have taken their own lives in custody and, worryingly, eight of those deaths have occurred in the last four months. All of them took place in adult prisons, to which it is currently the policy to send young adults rather than to young offender institutions.
In a thematic review, Suicide is Everyone’s Concern, in 1999, I made specific recommendations regarding the safety of young people, yet year after year the same old failings following young suicides are recorded in inspection and inquest reports, such as the lack of institutional understanding of, or attention paid to, the particular needs of that vulnerable age group. Now the Ministry of Justice plans to create secure colleges—fortified schools—for under-18s and, as I have mentioned already, to put all those aged over 18 into adult prisons, both of which could exacerbate existing flaws and create significant risk to young lives. Does the Minister accept that a degree of urgency exists and will he consider advancing the time by which the noble Lord, Lord Harris, is required to complete his review so that necessary improvements to current practice, based on the mass of existing evidence, can be considered in time to be built into the new proposals?
Lord Faulks
My Lords, the review will start as soon as resources are in place, and we are anxious that it should report back by the spring of 2015. That does not mean that lessons are not continuously learnt from all the other sources that provide information. The review will focus on key themes, including vulnerability information sharing and the safety of young people.
The noble Lord referred to the secure colleges which are shortly to be established, the announcement of which is contained in the Criminal Justice and Courts Bill. The secure colleges will put education at the heart of youth custody and are intended to provide an innovative and holistic approach to the education and rehabilitation of young offenders so that fewer go on to reoffend.
Those aged under 18 are currently held in secure children’s homes, secure training centres and young offender institutions. No under-18s are mixed with over-18s. As to 18 to 20 year-olds, they are currently in young offender institutions, and the Government consultation on whether this age group should be in prisons with older adults closed in December. We are putting on hold the Government response to the consultation pending the result of this particular review.
Lord Patel of Bradford (Lab)
My Lords, what inquiries are the Government making and, better still, what action are they taking with respect to what appears to be the disproportionate number of young black men dying in a range of custodial settings?
Lord Faulks
My Lords, every single death in custody is investigated by means of an inquest by the Prisons and Probation Ombudsman and all lessons are shared. One of the purposes of the review is to go beyond the focus on individual circumstances, important though they are, to see whether lessons can be learnt from putting together all the individual facts which are derived from those investigations. I accept what the noble Lord says and, if there are specific aspects deriving from ethnic origins, I am sure that those will be taken into consideration.
Baroness Linklater of Butterstone (LD)
My Lords, for a child to commit suicide at all is a tragedy, but for a child to commit suicide while in custody is a catastrophe. Will the Minister ensure that professionals inside and outside the prison are required to share information and to look at the underlying issues as part of sentence planning for these children? This is not routine practice today. Will the Minister also ensure that much more specialist training is given to prison staff? These children are very disturbed, damaged and difficult, but also in deep distress. The Government must act on this intolerable situation instantly.
Lord Faulks
My Lords, the noble Baroness identifies a matter of great concern to the Government. Under-18s are considered in various ways, through the work of the Youth Justice Board and the NOMS review of the assessment, care in custody and teamwork process—the acronym ACCT will be familiar to the noble Baroness and to the House. However, we intend to learn from this review as applied to this age group.
I entirely accept that suicide in any circumstances is a tragedy. We are concerned to focus on the early days in custody, when young offenders are particularly vulnerable. All prisoners will receive an initial health screening within 24 hours of reception and there will be an initial assessment of their risk of self-harm. If the prisoner is identified as being at particular risk, the assessment will take place within 24 hours and governors must ensure that arrangements are in place for staff to monitor prisoner safety and well-being throughout the first night in the prison. It is right to say that there is a disproportionate occurrence of suicide during the early stages of custody, so the suicide prevention strategy will be specifically targeted at that stage.
Lord Beecham (Lab)
My Lords, the Government have drawn attention to the problem of the deaths of young people in custody. I welcome the Minister’s announcement today, although I continue to share some of the concerns expressed by the noble Lord, Lord Ramsbotham. There is continuing concern about the incidence of self-harm and suicide among women prisoners, who form 5% of the prison population but account for one-third of the incidence of self-harm and four times the number of suicides as men. They are 36 times more likely to commit suicide or die of an accidental overdose of drugs in the first two weeks after release. It is time for a radical change of policy in relation to the imprisonment of women and especially in the practice of segregation.
Lord Faulks
My Lords, we have been working hard to improve support for women in prison. We have issued gender-specific standards in all areas of prison regimes, including training for staff working with female offenders in prisons, which has now been extended to service providers in the community. New search arrangements ending routine full searching for women prisoners have also been introduced. The House will know that there are six mother and baby units in England and Wales which provide an overall capacity of 64 places.
I am slightly surprised at the noble Lord’s statistics. He is right that my research into this matter shows that women are disproportionately more likely to self-harm than men, relative to their occupation of prisons. Fortunately, the self-harm, compared with men’s self-harm, does not tend to be as serious, and does not usually require hospitalisation, although I do not suggest for a moment that any self-harm is not a significant factor. The statistics that I have been given do not indicate that women form a large part of those who have been responsible for self-inflicted deaths. I will write to the noble Lord with statistics. I hesitate to bandy them across the Dispatch Box but I do not think he is quite right.
Earl Cathcart (Con)
My Lords, will legal aid be available following a death in custody if there is an inquiry?
Lord Faulks
My noble friend identifies a statutory source of inquiry that is of great importance to the inquest, which very much expanded following the application of Article 2 of the European convention. The House will know of the establishment of the post of chief coroner, who gives directions as to how these inquests should be carried out. Although the Government, because of the restricted financial circumstances, have had to make various cutbacks in legal aid, I am glad to say that the scope of exceptional funding under Section 10 of the LASPO Act allows the Director of Legal Aid Casework to provide legal aid in circumstances where Article 2 is engaged and there is a convention right. The Lord Chancellor’s guidance to the director makes it clear that,
“It is … likely that an arguable breach of the substantive obligation will occur where the individual has died in State custody other than from natural causes: for example, killings or suicides in prison”,
so it is highly likely that legal aid will be available.
Baroness Howarth of Breckland (CB)
My Lords, the Minister will be quite aware that it is the build-up of stress throughout the system that leads to these young people self-harming. He will also be aware that, at the very beginning of the process, many of them are being held inappropriately in police cells because of the lack of facilities in the rest of the system. Would he ensure that that is included in the inquiry? I am absolutely sure that, if it is not, there will be a tragedy and we will have another inquiry.
Lord Faulks
We have the good fortune of having the noble Lord, Lord Harris, present in the Chamber. I am sure he will have heard that question and taken it into account. I am unable to give the House actual statistics on the situation that the noble Baroness describes, but clearly the duty on the state to look after young people arises just as acutely whether they are in police cells or in prison.
Baroness McIntosh of Hudnall
My Lords, briefly, could the Minister confirm that the health assessment at the very beginning of custody includes assessment of mental health? If it does—which I hope it does—can the Minister say who conducts those mental health assessments and whether they are fully competent to do so?
Lord Faulks
The noble Baroness makes a very good point. Prisoners are screened on arrival in prison by a trained nurse to find out their health needs, and people with mental health problems who might be vulnerable to suicide are referred for a mental health assessment. All prisoners have access to an on-site healthcare team which deals with most problems. If a prisoner is suffering from a severe mental health illness, they may be transferred to a secure hospital. Approximately 1,200 prisoners with a severe mental illness are transferred to NHS secure services. We recognise that prison may not be the most appropriate place and we are developing liaison and diversion services, together with the Department of Health and the Home Office, to ensure that people who are vulnerable are identified and can be diverted, if necessary, away from the criminal justice system.
Lord Shutt of Greetland
My Lords, I have a simple but important question. Is the inquiry of the noble Lord, Lord Harris, to be an inquiry under the Inquiries Act 2005?
Lord Faulks
I am unable to give a precise answer, but it is certainly not within the scope of those terms specifically. I will write to the noble Lord to confirm that.