County Court Jurisdiction Order 2014
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Lord Faulks
That the draft order laid before the House on 18 December 2013 be approved.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 28 January.
Inheritance and Trustees’ Powers Bill [HL]
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Lord Faulks
“3A (1) This paragraph applies where—
(a) a figure for the consumer prices index for a month has become available, and(b) the consumer prices index for that month is more than 15% higher than the consumer prices index for the base month.(2) The Lord Chancellor must, before the end of the period of 21 days beginning with the day on which the figure mentioned in sub-paragraph (1)(a) becomes available (“the publication date”), make an order under paragraph 3(1).
(3) But if the Lord Chancellor determines under paragraph 5 that the order should specify an amount other than that mentioned in paragraph 5(1), the Lord Chancellor is to be taken to have complied with sub-paragraph (2) if, within the period of 21 days beginning with the publication date—
(a) a draft of a statutory instrument containing the order is laid before each House of Parliament, and(b) paragraph 5(4) is complied with.(4) In this paragraph—
“the base month” means—(a) the month in which this Schedule came into force, or(b) if one or more orders under paragraph 3(1) have been made before the publication date, the most recent month for which a figure for the consumer prices index was available when the Lord Chancellor made the most recent of those orders;“consumer prices index” means—(a) the all items consumer prices index published by the Statistics Board, or(b) if that index is not published for a relevant month, any substituted index or index figures published by the Statistics Board.”
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I have put down an amendment to the Inheritance and Trustees’ Powers Bill that will amend the way in which the level of the statutory legacy is set. As noble Lords will know, the statutory legacy, referred to in the Bill as the fixed net sum, is the sum awarded to a surviving spouse for his or her future maintenance before any other part of an intestate deceased’s estate is shared with any other beneficiary. It is therefore important that it takes account of the prevailing economic conditions.
The Bill as introduced required the Lord Chancellor to make an order specifying the level of the statutory legacy at least every five years. The proposed government amendment would sit alongside the existing requirement but would oblige the Lord Chancellor to make an order short of the five-year deadline if the level of the consumer prices index, known as the CPI, rises by more than 15%. The purpose of this would be to allow for the statutory legacy to be updated more frequently in times of high inflation so that it more accurately reflects the cost of living.
The CPI, which is published monthly by the Statistics Board, will be judged to have risen by the requisite amount if a particular month’s figure is more than 15% higher than the CPI for the month when the Bill comes into force in the first instance, and then the month when the most recent order specifying the level of the statutory legacy was made. It should be noted that although the default position would be that the order would raise the statutory legacy so that it is in line with the rise in CPI, the Lord Chancellor will still be able to amend the level of the legacy in some other way. However, if he chooses to do this, he must first submit a report to Parliament setting out his reasoning for doing so. If an order is made because the CPI has risen by the necessary amount, this will signal the start of another five-year period within which another order must be made.
This amendment has a very similar effect to the one that was put forward by the noble Viscount, Lord Hanworth, during a meeting of the Special Public Bill Committee. Since taking up my ministerial post, I have considered that amendment and recognise the merit in providing for more frequent updates to the statutory legacy should this be required. I am grateful to the noble Viscount for his original suggestion. In those circumstances, I ask noble Lords to look favourably on this amendment. I beg to move.
Lord Lloyd of Berwick (CB)
My Lords, in his very helpful letter of 30 January 2014, the Minister referred to the amendment moved by the noble Viscount, Lord Hanworth, at a meeting of the Special Public Bill Committee on 16 December. He indicated that the present amendment is to the same effect.
These things go out of one’s mind so quickly that I have had to refresh my mind as to what took place at the two meetings that we have had. At our previous meeting on 13 November, the noble Lord, Lord Beecham, asked why the fixed net sum should be reviewed only every five years and not annually. The noble Viscount, Lord Hanworth, strongly supported that suggestion. Professor Cooke said that she would look into why the Law Commission had come up with the figure of five years in the first place. In her letter of 28 November, she explained the Law Commission’s reasons: on the evidence that it had received, five years was a compromise figure.
By the time of our next meeting on 16 December, the noble Viscount had drafted his amendment, but it contained two, quite separate features. It contained, first, the requirement of an annual review such as we had discussed at our first meeting, but it also contained the new feature of a compulsory order if the consumer prices index should increase by more than 15%.
There was support for an annual increase from the noble Lord, Lord Beecham, but doubts were expressed by the noble Baroness, Lady Hamwee. I took the same view as the Law Commission; in other words, that an annual review was too frequent, certainly if it led to an annual revision of the fixed net sum. There was very little, if any, discussion of what is now before your Lordships; that is, the proposal for a compulsory review if the index rose by more than 15%—I think that a passing reference to it was made by the noble Lord, Lord Plant.
In due course, the noble Viscount sought leave to withdraw his amendment, but said that he would come back on Report. It is now proposed by the Government that we should accept the second half of the noble Viscount’s amendment but not the first—I think that I understand the Minister right in saying that. There is to be a compulsory review if the consumer prices index is increased by 15%, but there is to be no annual review.
My only concern is that this new amendment now before your Lordships, confined as it is to the compulsory feature, was not considered in any way by Professor Cooke—at least not to my knowledge. However, it seems a sensible amendment, and I cannot imagine the Law Commission, had it been asked for its views, having any objection. It makes sure that the Lord Chancellor will in only limited circumstances be, as it were, brought up to the mark, even though he will then—again, if I understand the noble Lord correctly—have discretion as to the amount. In my view, this represents an improvement to the Bill and I therefore support the amendment.
Lord Faulks
My Lords, I am grateful for the contributions to our short debate on this and for the thorough contributions to the Bill Committee which discussed these important, although relatively obscure to some, provisions.
The noble and learned Lord, Lord Lloyd, referred to the fact that Professor Cooke had not specifically considered the question of the 15% trigger. I can assure him, and the House, that she has now considered it and approves the amendment, which has her blessing as well as that of the Government. The Government think the 15% trigger is high enough to ensure that the level of the statutory legacy is adjusted only where there has been enough of a rise in inflation to warrant it. I, too, remember the days referred to by the noble Baroness, Lady Hamwee.
In answer to the question raised by the noble Baroness about the word “available” in new paragraph 3A of the amendment, this refers to the Statistics Board publication of the consumer prices index for a particular month. The index is published on the website of the Office for National Statistics. The monthly publication dates are published a year in advance.
I turn to the query of the noble Lord, Lord Beecham. Clause 1 refers to the interest payable on an unpaid statutory legacy. New Schedule 1A refers to the level of the statutory legacy overall. I understand that the different rates apply in different circumstances and are compatible. We will take cognisance of this matter and refer it back at Third Reading if there is any residual doubt on it.
Baroness Hamwee
My Lords, before the Minister finishes, I will test the patience of the House and say that I understand his common-sense answer, which was what I expected. However, I am not completely convinced that the Bill, incorporating this amendment, actually says that. I will leave that with him, as it is not very sensible for the noble Lord, Lord Ahmad, to go to and from the Box to answer a rather technical question. However, we are all such pedants in this Chamber that I know we all want it to be correct.
Lord Beecham
I follow the noble Baroness to take a little further our discussion on the impact of Clause 1 and the amendments. If I understand the noble Lord correctly, there are two situations. One will be governed by one rate of interest, as specified in Clause 1, and the other will be covered by these amendments. This raises a further question of why there should not be consistency, in terms of the interest to be calculated, in respect of what appear to be two separate situations. If they are not separate situations, there is a degree of confusion; if they are separate, there needs to be a rationale for having two different rates of interests. I invite the noble Lord to consider that before Third Reading. It may or may not need tidying up. On the face of it, there seems to be something slightly awry with the position we will be in when the amendment is passed.
Lord Faulks
My Lords, I accept the invitations from both the noble Baroness and the noble Lord to consider their points and come back, if necessary, at Third Reading.
Lord Faulks
Criminal Legal Aid (General) (Amendment) Regulations 2013
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Lord Beecham (Lab)
My Lords, it is once again necessary for me to thank the noble Lord, Lord Pannick, for putting down a Motion of Regret about a set of regulations on legal aid. I also express my gratitude to all noble Lords who have spoken so powerfully tonight about the regulations and the potential damage that they will do.
I begin by citing three examples of successful cases for which legal aid was, but will no longer be, available. I am indebted to the Howard League for supplying the relevant information. The first was a mother and baby case of the kind referred to by the noble Lord, Lord Pannick, the noble Baroness, Lady Kennedy, and the noble and learned Baroness, Lady Butler-Sloss. A Spanish mother, who spoke no English, was informed after sentence that her baby would be removed and placed into care because it was not known whether she would be allowed to remain with the child when she returned to Spain. Her lawyers ascertained that she would, and the decision was reversed.
In the second case, a prisoner with severe learning disabilities could not do offending behaviour courses. Experts in the prison recommended he be transferred to hospital for treatment, but nothing happened until his lawyer commissioned an independent report and persuaded the authorities to transfer him to hospital. Such a sentence case will now be out of scope.
In the third case, a 17 year-old suffering from ADHD and learning difficulties underwent psychiatric therapy in a secure training centre, but the local authority refused to respond to a request for a needs assessment under Section 17 of the Children Act until legal intervention by the Howard League. Resettlement cases of this kind will also be out of scope. I remind your Lordships that the cost of keeping such an offender in custody could be as much as £200,000 a year.
Those are but a few sample cases. The regulations which are the subject of this regret Motion are merely the latest example of this Government’s repeated assaults on the legal aid system and access to justice, pushed through by a Lord Chancellor indifferent to their effects and unheeding of the warnings from the judiciary, practitioners, and charities and voluntary organisations. Time after time the criticisms of bodies such as the Justice Select Committee, the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights are brushed aside. Impact analyses are vestigial in many cases, and imperfect in most.
Such is clearly the case with the proposals we are debating tonight. Not only are the measures deeply flawed but the process is tainted. Paragraph after paragraph of the Joint Committee on Human Rights report highlights these systemic failures. After their initial consultation, the Government abandoned proposals to exclude two areas from legal aid, namely where the Parole Board considers whether to order release and in relation to the calculation of sentence when the release date is in dispute. That is welcome, but as paragraph 154 of the report sets out, two new matters were excluded from legal aid—contrary to the express intention set out in the consultation that legal aid would continue to be available—namely, the areas of sentence planning and pre-tariff reviews. There was no subsequent consultation on these changes.
At paragraph 163, the committee dismissed the Lord Chancellor’s assertion that legal aid was being abused by prisoners complaining about what prison they were confined in, or about prison conditions, saying, damningly and accurately,
“legal aid is already unavailable for such claims”.
At paragraph 168, it pointed up the hollowness of the Government’s claim that judicial review would be available given the restrictions being imposed on the number of cases firms might bring and the limitations of the exceptional funding regime. At paragraph 169, it asked the Government to consider the combined effect of the residence test and the exceptional funding criteria and invited them to explain,
“how access to justice rights will be maintained where both policies are in operation”.
What is the Government’s response to that very significant question?
The Government airily dismissed the concerns on internal prison complaints but, as we have heard, the Chief Inspector of Prisons is quoted at paragraph 174 as finding the response “disappointing”. He emphasised the problems of prisoners with disabilities, especially mental health problems, and, as the noble Lord, Lord Ramsbotham, pointed out, warned that prisoner confidence in the complaints system was crucial to prison safety. As recent events have demonstrated, prison safety is a real concern. Similarly, at paragraph 174, the Prisons and Probation Ombudsman voiced concerns, especially about his lack of statutory independence that the Lord Chancellor has promised to rectify. I must ask the Minister when the legislation, urgently pressed for by the committee at paragraph 177, will be enacted.
At paragraph 181 the committee identified the need for public funding,
“to prevent infringements of prisoners’ right of access to court arising in practice”.
From paragraphs 182 to 188, it identified serious issues for prisoners with mental health problems, the vast majority exemplified by the chief inspector’s remarks in the case mentioned by the noble Baroness, Lady Stern, about segregation, in particular of women prisoners. In parenthesis, when I asked a question about women prisoners being held in segregation the reply that I received from the Ministry of Justice was that it was too costly to obtain the details of the numbers and length of time such women had been so confined. To his credit, the noble Lord, Lord McNally, agreed that the answer was ridiculous and procured the relevant information.
At paragraph 188, the Joint Committee noted that since 2010 the majority of treatment cases were mental health cases and it was not satisfied that these prisoners would be able to use the complaints procedure effectively. It recommended that the LAA retain the ability to grant funding for these cases where the implications for access to justice are clear. Noble Lords will not need reminding that the majority of prisoners suffer from mental health disorders: 70% of one or more mental health disorders for adults, 90% for young offenders. Again, what is the Government’s response to the case of prisoners suffering from these disorders? In relation to mother and baby cases, of which there are mercifully few, the committee called for an exemption in cases where legal representation would be desirable. Will the Government not accede to this request?
The concerns are echoed in relation to young offenders, as mentioned by the noble Lord, Lord Carlile, where, as the committee pointed out at paragraph 205, such matters, including in particular resettlement cases, are being removed even before the Government respond to their consultation paper, Transforming Youth Custody. Trenchantly at paragraph 206 the committee disagreed that advocacy services and internal complaints systems would be effective and asserted that:
“This could leave young people vulnerable and deny them their rights”.
This would be not least in key areas such as,
“housing law, social care law and public law”.
Moreover, it dismissed the young offender’s right to judicial review, which was raised by the Government, since a young offender would require a litigation friend to pursue the action; it cannot be brought by a minor on his own initiative. It urged the retention of young offender cases within scope, specifically resettlement cases. Finally, at paragraphs 213 and 218, as referred to by my noble friend Lord Bach, it recommended reconsideration of the position in relation to Parole Board hearings and categorisation cases. This is a formidable catalogue of concerns about, and in many cases outright opposition to, what the Government are doing.
Once again, the Minister will shortly stand at the Dispatch Box, like Horatius on the bridge, with no troops behind him. There is not a single voice that has been raised in this Chamber tonight in support of the Government’s position. It would be unfair to suggest that the Minister, who was a member of the JCHR and presumably agreed with its report, has changed his mind now that he has taken if not the Queen’s shilling, then at least the Lord Chancellor’s shilling, if only because he is not being paid a shilling or indeed anything else for the job that he has undertaken. But I hope that he can prevail upon the Government to think again, and quickly, about the direction and extent of travel reflected in these regulations.
I commend to him in particular the response of the Bingham Centre for the Rule of Law to these issues. The centre does not,
“share the Government’s view that treatment cases will never be of sufficient priority to justify the use of public funds, or that sentencing matters such as categorisation and segregation are considered incapable of warranting legal aid”.
Importantly, it dismisses the so-called “adequate alternatives” to which the Government refer—for example, the complaints system and the ombudsman—as “first ports of call”, in the MoJ’s phrase, for four substantial reasons.
First, as per the noble and learned Lord, Lord Brown, whom I welcome back to the side of the angels after his digression over the issues of miscarriages of justice and compensation, the courts require alternative remedies to be exhausted before seeking judicial review, so legal aid would not be the first port of call. Secondly, under the regulations, the non-judicial remedies would be the only point of call. Thirdly,
“the rule of law requires the possibility, at least as a last resort, of recourse to independent courts”,
and, fourthly,
“rule-of-law imperative is particularly compelling in settings—of which prisons are a paradigm example—in which individuals are subject to the exercise of highly coercive public law powers”.
The centre concluded by affirming that,
“judicial review has exerted a profound and positive influence upon the prison system in recent decades … the nature of any state’s prison system … is a key barometer of the rule of law”.
Tellingly, it adds:
“It is inevitable that the proposals, if implemented, would substantially undermine the valuable role played by courts in this area. If one of public law’s core functions is to safeguard vulnerable individuals against misuses of state authority, then it is hard to think of a more fundamental assault upon the capacity of public law to perform such a role”—
and all the more so when the custodial services are contracted out to oligopolies such as G4S and Serco.
What answer does the Minister have to this critique? Does he agree with the words uttered by Winston Churchill—who has already been quoted here tonight—as Home Secretary in 1910, when he said:
“A calm and dispassionate recognition of the rights … even of convicted criminals against the State … tireless efforts towards the discovery of curative and regenerating processes … are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it”?—[Official Report, Commons, 20/7/1910; col. 1354.]
Is the Minister, and are the Government, willing to disavow Churchill’s characteristically eloquent formulation of principle for the sake of a possible, but actually unlikely, saving of £4 million a year?
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I hope that I can rise to the challenge of the “calm and dispassionate” response to which the noble Lord referred in his closing remarks. This has been a wide-ranging debate, involving very distinguished speakers with great knowledge and awareness of many of the issues which these regulations raise. I hope that the House will forgive me if, in the course of this dinner-hour debate, I do not respond to all the many criticisms that have been made but try to focus on the effect of the regulations and on why the Government have seen fit to bring them into effect.
I will begin by saying something about the wider context of the instrument. It is worth noting that spending on criminal legal aid for prison law in England and Wales has increased markedly in recent years, from around £1 million in 2001-02 to around £22 million in 2012-13.
Legal aid is a vital part of our justice system. However, limited public resources need to be targeted at those who need them most. With departments across government being asked to reduce their expenditure, legal aid cannot be immune. The legal aid scheme is paid for by the taxpayer, and we have to demonstrate to the public and hard-working families that we have scrutinised every aspect of legal aid spending to ensure that it can be justified. Unless the legal aid scheme is targeted at the people and cases where funding is most needed, it will not command public confidence. It was with this aim in mind that the Government proposed a number of changes to legal aid in England and Wales in April 2013. Following public consultation and careful consideration of the responses, the decision was taken to restrict the scope of criminal legal aid for prison law, among other reforms.
Lord Beecham
I am sorry to interrupt the Minister, but at paragraph 175 of its report the committee says specifically:
“the Prisons and Probation Ombudsman … told us about his concerns with the Government’s proposal, particularly in relation to his lack of statutory independence and his office’s ability to deal with any increased workload”.
How does the Minister square that with the assurance that he has just given?
Lord Faulks
The assurance that I have just given is that the Government take the view that it will be rare that there will be any need to refer to the Prisons and Probation Ombudsman. However, the Ministry of Justice intends to put the PPO on a statutory footing as soon as legislative time permits. I note that the Joint Committee on Human Rights noted—and this must be in the same section to which the noble Lord referred—that the PPO has himself “acknowledged that his recommendations”, while not binding, are in fact “always accepted”.
There was understandable anxiety about mental health issues and learning difficulties for young offenders. The Government are of course extremely concerned with young offenders and their rehabilitation. I could give a detailed response, but that would be outside the scope of this debate, which is concerned with legal aid. That issue is a matter of continuing concern to the House, and indeed to the Government, just as the position with mental health issues is also a concern. I accept that many prisoners have a background with mental health issues.
Noble Lords may ask what is done to screen prisoners for mental health problems. As part of the early days in custody process, all prisoners are risk-assessed for potential harm to themselves and to others and from others. All incoming prisoners are given a medical examination to identify any short-term or long-term physical or mental health needs, including disability, drug or alcohol issues, and to ensure that follow-up action is taken.
Lord Beecham
Before the Minister sits down, can he tell the House if and when the Government will be publishing their response to the Joint Committee report of 13 December?
Lord Faulks
I cannot I am afraid give an exact date for that, but I shall take back the noble Lord’s concern and I will write to him when I have information. Of course, it is a matter that will be taken very seriously at the Ministry of Justice.
Lord Pannick
My Lords, I am grateful to the Minister for doing his best to defend this sorry set of regulations. The Government are very fortunate indeed to have his services on the Front Bench. I am grateful to all noble Lords who have spoken in this debate and who have explained with clarity and force why the regulations are wrong in principle and damaging in their consequences.
The Minister may have noticed the embarrassing lack of support for these regulations on the Benches behind him, and indeed anywhere in this House tonight. Before the Minister’s speech, your Lordships heard 15 speeches—I have been counting—all of them regretting these regulations and all highly critical of them and of the purported justifications for them. Noble Lords who have spoken tonight have reflected the widespread concern about the regulations that exists outside this House.
The Minister’s main argument, that the internal complaints system and the ombudsman system are an effective substitute for legal assistance and advice, is simply contrary to the advice of the Parole Board, the inspector of prisons and the ombudsman. It is contrary to court judgments over the years. It is contrary to the experience of all those who have spoken tonight, apart from the Minister. Indeed, it is irrational, given the lack of literacy, the youth, the immaturity and the mental health difficulties of so many prisoners, let alone their obvious inability to identify and present the issues that arise in their cases.
I ask the Minister to send a copy of today’s Hansard to the Secretary of State tomorrow morning, to ask the Secretary of State to reflect on the nature and strength of the concerns that have been expressed tonight from the broad experience and expertise that so characterise this place, to draw the Secretary of State’s attention to the absence of any support for these regulations outside his own ministry and to ask the Secretary of State to think again about this important matter. I beg leave to withdraw the Motion in my name.
County Court Jurisdiction Order 2014
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Lord Faulks
That the Grand Committee do consider the County Court Jurisdiction Order 2014.
Relevant document: 17th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this statutory instrument revokes and replaces the County Courts Jurisdiction Order 1981. A draft was laid before Parliament on 18 December 2013. Subject to your Lordships’ approval, the substantive change made by this instrument concerns the county court’s jurisdiction in respect of equity proceedings. Equity proceedings, which are specified in Section 23 of the County Courts Act 1984, include the administration of the estate of a deceased person, the execution or declaration of a trust, the dissolution or winding up of a partnership and the foreclosure or redemption of mortgages.
The purpose of this instrument is to increase the relevant financial limit in the 1981 order from £30,000 to £350,000 to extend the equity jurisdiction of the county court. This will mean that the county court may hear and determine equity proceedings up to a value of £350,000. We do not intend to change the current financial limits with regard to the county court’s jurisdiction in respect of other proceedings which are also specified in the 1981 order.
There are two objectives underlying this reform. The first is to optimise the use of judicial resources by ensuring that, where appropriate, cases are determined at the most appropriate level of the court system, commensurate with value and complexity. This will contribute to rebalancing jurisdiction between the High Court and the county court, where they both have concurrent jurisdiction, enabling the High Court to focus on those complex matters that genuinely require its expertise. The second objective is to reduce the number of equity proceedings that are transferred from the High Court to the county courts, and therefore reduce waiting times so that disputes are resolved expeditiously and with proportionate costs and procedures for court users. This, in turn, will contribute to promoting public confidence in the operation of our courts.
Before setting out further details about this instrument and why the Government are taking this action, I will briefly explain some background to the reform. The Government are committed to providing an effective and efficient civil justice system with a flexible judiciary that is deployed in the most appropriate way. As part of this, we set out our policy to reform the structure of the civil courts in a series of proposals in the public consultation document, Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System, published by the Government in March 2011.
Those proposals were based on some of the recommendations made by Sir Henry Brooke, a retired Lord Justice of Appeal, in his report, Should the Civil Courts be Unified?, published in August 2008. His recommendations were aimed at improving the administration of civil justice and providing a more efficient use of judicial resources. The Brooke recommendations included the establishment of a single county court for England and Wales and the repeal of the requirement for the Lord Chief Justice to seek the Lord Chancellor’s agreement in deploying High Court judiciary to the county court. Both of these recommendations were approved by Parliament in the Crime and Courts Act 2013 and will be implemented by the Government in April 2014.
By statutory instruments shortly to be brought before Parliament, the Government also propose, subject to approval of the House, to implement three more Brooke recommendations, which are: extending the jurisdiction to grant freezing orders to the county court; bringing certain specialist proceedings under the exclusive jurisdiction of the High Court; and increasing the financial limit below which non-personal injury claims and certain Chancery proceedings may not be commenced in the High Court from £25,000 to £100,000. Finally, of course, subject to the approval of the House, we also intend to implement in April 2014 the Brooke recommendation on equity jurisdiction that is before your Lordships today.
With that background in mind, I will set out the problem with the current financial limit of the equity jurisdiction and why the Government are taking this action. Section 23 of the County Courts Act 1984 gives the county court concurrent jurisdiction with the High Court to hear and determine those equity proceedings specified in that section, subject to the “county court limit”. Proceedings may be transferred between the county court and High Court, subject to provisions in Sections 40 and 42 of the County Courts Act 1984 and criteria set out in Part 30 of the Civil Procedure Rules 1998.
The county court limit, set by the 1981 order, requires that equity proceedings above a value of £30,000 be commenced in the High Court. The rationale for the financial limit is to provide a benchmark which will ensure that only appropriate cases, mainly those with relatively high financial value and complexity, are heard in the High Court, thereby limiting the volume of cases issued there. Over time, however, the value of the £30,000 financial limit has fallen in real terms, as the rising cost of properties has rendered it far less effective than was originally envisaged.
In 1981, when the limit was set, average house prices were only around £25,000, which meant that the county courts were able to hear the majority of property disputes involving equity. However, since 1981, house prices in the UK have increased by more than 600% in nominal terms, so that, by 2013, average house prices in the UK had risen to more than £175,000, which is seven times their value in 1981, and to around £345,000 in London. The financial limit, therefore, has not kept pace with the rising cost of house prices and has become detached from contemporary property values, which have risen dramatically since the £30,000 limit was set. This has resulted in many cases of relatively low complexity being heard unnecessarily in the High Court. In some instances, cases are issued in the High Court only to be transferred to the county court because the issues are straightforward. In view of the administrative and judicial time taken to allocate these cases in the High Court and the time taken to reconsider them for transfer and the transfer itself, these transfers often result in delays in dealing not only with that particular case but with other cases.
Following the Brooke recommendations, the Judicial Executive Board, chaired by the then Lord Chief Justice, the noble and learned Lord, Lord Judge, considered the evidence and concluded that the financial limit of the equity jurisdiction of the county court should be raised from £30,000 to £350,000. The report was then presented to the Government for consideration and implementation. On the strength of the evidence and of further engagement with the judiciary, the Government consulted on the proposal in their Solving Disputes consultation paper. A majority of respondents, who included legal practitioners, members of the judiciary, judicial bodies and regulatory bodies, was in support of an increase to £350,000. In view of the overwhelming support from consultees, the Government announced their intention to increase the financial limit to £350,000.
This statutory instrument seeks to give effect to that commitment. The changes introduced by it support the Government’s commitment to an effective and efficient civil justice and courts system. We consider that the £30,000 financial limit set by the 1981 order is too low. Consequently, with your Lordships’ approval, we will increase the financial limit which divides the equity jurisdiction between the High Court and the county courts from £30,000 to £350,000. The increase would mean that more equity proceedings are issued and dealt with in the county courts and may be transferred to the High Court only if they are complex. It could potentially reduce the volume of transfers from the High Court to the county courts, thereby providing efficiency benefits for the courts as less time and fewer administrative and judicial resources will be needed to allocate and transfer these cases to the appropriate court.
Court users, on the other hand, could experience a more streamlined service and a reduction in hand-offs between jurisdictions. This is because more equity proceedings will be issued in the county courts rather than the High Court, which would lead to fewer cases being transferred from the High Court to the county court, and the time taken to consider cases for transfer—and the transfer itself—would be reduced. I therefore commend this instrument to the Committee. I beg to move.
Lord Beecham (Lab)
My Lords, try as I might—and I have tried—I cannot really find anything to object to in this order. However, there are one or two points to make.
I entirely agree that the consultation shows, and it is right that the Government have acted on it, that the equity jurisdiction should be increased. I have not practised much in the field of equity in my time as a solicitor, and I refer to my entry in the register of interests in that respect, although I studied equity at university with the then editor of Snell’s Equity, Mr Paul Baker, as he then was, later Judge Baker. It was therefore a subject with which I engaged at an earlier, though unpaid, stage of my legal career.
While there is nothing wrong with the order, the process by which we have received it seems inordinately long. The Minister referred to the fact that it stems from a report from 2008. The Government’s first consultation paper was issued in March 2011. It was a 12-week consultation period. The Government’s response was in February 2012, and it has taken them a year since publishing the response to produce this fairly straightforward order. This is not a political matter. It does, however, suggest either that the department is overworked and understaffed, or that it is congenitally incapable of producing fairly simple material in a reasonable time. Either way, there is a bit more to concern us about the process than there is about the change.
I was slightly amused by the notion that the real objective of this was to enhance public confidence in the system. I cannot speak for the noble Lord’s experience, which is of a different level from mine but, in my 45 years of practice, I do not recall anybody expressing their lack of confidence in the system—particularly in the procedures in the county court. That seems rather an ephemeral reason for a sensible change.
I will make two more constructive points, thereby briefly breaking the habit of a parliamentary lifetime. First, I suggest there should be some mechanism by which the level could be periodically inflated without the necessity for prolonged consultations and a ritualistic procedure such as we are going through today. Why should not the Government say that, every five years, the limit would be increased by the rate of inflation or something of that kind—there might be a simpler way of going about things—unless they concluded that it would not be sensible to do that, in which case they would at that point come back?
The second issue is of a different order, about the system as a whole and how it might be made more efficient. Here I declare a paternal interest, because my question is about the role of deputy part-time district judges who sit in the county court dealing with a wide range of matters. Have the Government looked, or are they looking, at the distribution of cases between the full-time county court judiciary and the part-time judiciary, and at whether one or the other might be augmented in order to facilitate the kind of access and quicker turnaround of cases, which the order should help in one, admittedly fairly narrow, field? I do not expect the Minister to give an answer off the cuff to that, but perhaps the department could look at it—and perhaps the Minister could look at it personally, with his obviously rich experience of the courts. It might be a way of improving the system and possibly even saving some taxpayers’ money as well. Having said that, I have no objection to the order and trust that it will prove effective in assisting litigants, containing costs and helping the system work more efficiently.
Lord Faulks
I am grateful to the noble Lord for his comments. I am glad that he was taught equity by such a distinguished teacher. He will know that for some these are difficult areas. However, he is sceptical about the aspect of public confidence to which I referred. The point is a simple one—namely, that cases that plainly ought to be heard in the county court should not be heard in the High Court. A lot of time has passed, property values have increased and, plainly, the people who are concerned in these disputes would expect them to be dealt with expeditiously and at an appropriate level by courts that are convenient to them rather than at the county court. That is the element of public confidence—a speedy, convenient process.
As to the mechanism, a lot of time has elapsed and property prices have increased far more quickly than they used to. I take the noble Lord’s point that the mechanism might appear to be a little laborious. However, there was a widespread consultation and, although it may seem in retrospect that these things should be done more quickly, the consultation included judicial and legal bodies, regulatory bodies, representative bodies, local authorities, mediators and mediation advocates, academics, citizens advice bureaux, financial organisations, government departments and agencies and, indeed, members of the public. Although the majority were very much in favour of this move, different views needed to be considered. No doubt the question of the appropriate level of expertise had also to be considered.
In terms of the judiciary, the noble Lord makes the point that consideration might be given to the deployment of deputy judges and declared his interest appropriately in that. The question of the appropriate expertise is considered by the Judicial College, which always considers any training requirements needed for the judiciary to consider equity proceedings of a value up to £350,000. However, of course, if a county court judge considers that a case is particularly complex, it is still possible for him or her to transfer the matter up to the High Court under Section 42 of the County Courts Act 1984, so there is still that possibility. I will, of course, take his comments about the deployment of judges back to the department. I know that the Ministry of Justice always considers how best to use the available judicial talent at all levels, as I indicated in my opening remarks.
I hope that I have dealt with all the points that the noble Lord raised. In the light of those observations, I hope that the House will approve this draft order. I commend it to the Committee.
Justice: Non-custodial Sentences
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Lord Campbell-Savours
To ask Her Majesty’s Government what assessment they have made of the impact of non-custodial sentences on the safety of the public.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, those who commit serious and dangerous offences should expect to receive long custodial sentences and this Government have ensured that tough sentences are available. Less serious offenders can be effectively and safely punished in the community. However, we have amended the law so that sentences served in the community combine punishment with effective rehabilitation. Since 2010, those who break the law are more likely to go to prison, and to go to prison for longer.
Lord Campbell-Savours (Lab)
I find that very hard to believe. How can the Government claim to be tough on crime when a Ministry of Justice Answer in the other place revealed that in 2012, of 16,000 criminals convicted of rape, sexual assault, manslaughter, grievous bodily harm and robbery, all crimes characterised by violence, according to the government figures 9,600 of them—that is, 60%—walked free without even a custodial sentence and sometimes without even a tag, while nearly 40% of those convicted actually served less than 24 months in prison? These are serious crimes. How can people feel safe in their home or on the streets of Britain in the light of these statistics?
Lord Faulks
My Lords, this Government take the view that the sentencing of a particular offence is best left to the individual judge, who has knowledge and appreciation of the particular facts surrounding the commission of an offence. There are guidelines and, as the noble Lord will be aware, recent sentencing guidelines on sexual offences provided by the Sentencing Council, an independent body. If he cares to read those sentencing offences guidelines, he will realise how lengthy the suggested sentences are. If, in a particular circumstance, a judge passes a sentence which is unduly lenient, of course the Attorney-General can take that unduly lenient sentence to the Court of Appeal for review.
Lord Dholakia (LD)
My Lords, while there is concern that those sentenced to a non-custodial alternative may reoffend, is it not right that the courts should send to prison those whose reoffending makes any other course unacceptable, and that those who are sent to prison should stay there no longer than is strictly necessary?
Lord Faulks
My Lords, I speak as someone who sat as a recorder—a part-time judge—throughout the period of the previous Government, and deciding whether or not to send someone to prison is the most difficult task that we perform. Sometimes people have to be sent to prison; on other occasions, it is considered possible and sensible, in the long term, to provide them with the opportunity of rehabilitation within the community. This Government are committed to providing constructive things for people to do while they are being rehabilitated in the community, and I agree with my noble friend.
Baroness Finlay of Llandaff (CB)
My Lords, can the Minister update the House on the progress of the pilots for sobriety schemes as alternatives to custodial sentences for alcohol-fuelled crime?
Lord Faulks
I believe that there will be an announcement shortly on that but I am unable to give the noble Baroness precise details at this moment. When information is available, I will write to her.
Lord Beecham (Lab)
My Lords, given the risks to the public, highlighted by my noble friend’s supplementary question, and the potential difficulties in managing offenders whose risk category may change, why are the Government not properly piloting their controversial changes to the probation service, as urged by the most recent report of the Justice Select Committee? Is there not a real risk of the Lord Chancellor proceeding in haste and the community and victims of crime repenting at leisure?
Lord Faulks
My Lords, the Government believe that it would not be desirable to introduce a sentencing reform in one part of the country but not another. To do so would risk postcode justice, with some offenders getting different sentences to others. Similarly, having competing services in any one area of the country is not a viable approach if we want to extend supervision to short-sentenced offenders. In every other respect we are carrying out extensive local testing of the reforms in no fewer than 14 probation trusts. The 21 CRCs—community rehabilitation companies—that we are creating will remain in public sector ownership until the conclusion of the competition. This gives us further opportunities to carry on testing and refine the system.
Baroness Gardner of Parkes (Con)
I congratulate the Minister on his first appearance at Question Time. There is a very good rehabilitation scheme run by National Grid, which trains young first offenders who are becoming very valuable members of society because they have been given a way of earning a living in a respectable and efficient way to the benefit of us all. I think that he should be aware of this scheme, which was started by National Grid and is now supported by many other companies. Does he believe that this sort of rehabilitation continues to be valuable?
Lord Faulks
The Government consider it to be valuable, and it is our intention that a range of different requirements will be placed on those who are subject to supervision in the community. It is hoped that a number of suggestions, from both public and private providers, will assist in the rehabilitation revolution.
Lord Ramsbotham (CB)
My Lords, rehabilitation in the community depends on well trained probation officers. Will the Minister tell the House whether there are any plans to insist on compulsory training of members of the private sector community rehabilitation companies that will be responsible for the supervision of medium and low-risk offenders in the community in future?
Lord Faulks
I know that the noble Lord takes a great interest, and has great expertise, in this subject, and I can assure him that that is very much the intention. It is intended to set up a form of probation college that will maintain standards and ensure that all those involved in the project have suitable experience.
Baroness McIntosh of Hudnall (Lab)
My Lords, I am sure that the noble Lord will agree that rehabilitation is not an event but a process. Will he say what other criteria the Government are using to assess the success of rehabilitation, other than non-offending?
Lord Faulks
Non-offending is clearly extremely important. One of the difficulties that the Government have identified is that those who receive sentences of 12 months or less have not been getting the support in the community that they should. This will change as a result of government initiatives. Other factors, such as obtaining employment and making sure that they have appropriate skills, are equally important for the long term.
Anti-social Behaviour, Crime and Policing Bill
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am conscious that my noble friend Lord Cormack has set me a considerable task. This has been a highly impressive debate and it is a privilege to be responding to it on behalf of the Government. The issue raised by the amendment was the subject of detailed examination in Committee in your Lordships’ House and of extensive comment at Second Reading. Sadly, there was no equivalent debate in the other place. I thank all noble Lords who have taken part in this debate but hope that the House will forgive me for singling out noble and learned Lords—judges who have grappled with this very issue in a judicial capacity. The House will be much the poorer when we can no longer have the advantage of their presence to enrich our debates.
Noble Lords did not speak altogether with one voice, and that is not surprising. What is beyond dispute is that the identification of a clear test has proved elusive, despite the exertion of great intellectual endeavour on the part of the judges. The clause unamended provides that clarity which has been so far absent.
The concept of a miscarriage of justice is not a simple one and, as has been explained, has been left open to interpretation by the courts since the statutory scheme was first introduced in 1988. This has resulted in the lack of clarity to which I referred, leaving applicants in uncertainty and the Government susceptible to frequent unsuccessful legal challenge, and the associated financial implications, with the taxpayer footing the bill.
Since the debate in Committee, the Joint Committee on Human Rights has published its latest report on the Bill, to which there has been reference during the debate, which included the JCHR’s views on Clause 161. That committee and those noble Lords who have put their names to the amendment propose that the Bill be amended to remove the reference to “innocence” in the proposed statutory test for a miscarriage of justice and to enshrine into law wording similar but not identical to the category 2 test formulated by the noble and learned Lord, Lord Phillips, in the Supreme Court in the case of Adams.
The Government welcome the JCHR’s acknowledgment that the dependence on case law should cease and that legislation is now required to provide clarity where currently there are misconceptions. Although we believe that the definition developed by the Supreme Court in the Adams judgment is capable of more consistent application than that developed by the Divisional Court in Ali, it is still open to a range of interpretations. This is clearly indicated by the Divisional Court’s decision to hear five lead cases in October 2012 arising from a number of legal challenges made against the Secretary of State’s interpretation of the Adams definition. This hearing led to the court’s judgment of 25 January 2013 in Ali and others. The court upheld the Secretary of State’s decision to refuse compensation in four of the five cases. Three of those cases were back in the Court of Appeal in December and the court’s judgment is awaited.
As well as the three cases currently before the Court of Appeal, the Government are aware of a further 13 challenges that await a ruling from the courts. Very, very few of the previous challenges to the Secretary of State’s decisions on this type of case have succeeded.
We believe that the definition proposed in Clause 161 is a better, clearer and fairer way of ensuring that those who have truly suffered a miscarriage of justice are identified and compensated. This will take us back to the straightforward test that was successfully operated between 2008 and 2011—a period that spanned part of the life of the previous Government as well as this one. That being so, we are satisfied that it is a perfectly proper test to enshrine in law.
In the light of its recent case law, it is clear that, while the presumption of innocence is engaged, it is not the substance of the test that concerns the European Court of Human Rights but the way in which decisions are expressed—something referred to by both the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Phillips. In this context, the European Court of Human Rights appears to be somewhat more concerned with form than substance. It is not for the Secretary of State to adjudicate on whether someone is guilty or innocent—that is a matter to be determined by the courts. The question before him is whether they suffered a miscarriage of justice and are therefore entitled to compensation, or money.
Through this clause, the Government are seeking to determine, robustly and clearly, what will amount to a miscarriage of justice, in a way which is in accordance with our international obligations and in a way that the man or woman on the street will understand. Therefore, when the new fact on which a conviction is overturned shows that the applicant is innocent beyond reasonable doubt, they should be, and will be, compensated. There is no question of applicants for compensation having to prove their innocence; nor is this an issue of the Government seeking to pay less in compensation.
I should stress that the Government remain firmly of the view that the provision in Clause 161 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. We have further set out our thinking on this in our response to the most recent JCHR report, which we sent to the committee last week. In short, it does not follow that simply having “innocence” as the touchstone for compensation where a new fact comes to light means that any refusal to pay compensation amounts to a violation of the presumption of innocence.
Clause 161 brings much needed and long overdue clarity to the test for determining eligibility, as the noble Lord, Lord Brennan, described it, for compensation for miscarriages of justice. As I mentioned previously, this clause is not about reducing the amount paid in compensation, nor is it about the state seeking to escape its responsibilities, and nor—this is most important to emphasise—has this anything to do with depriving people of their liberty.
Of course, everyone in your Lordships’ House is appalled when any miscarriage of justice takes place and anyone, as it turns out, spends much longer, or any time, in custody when they have not committed an offence. This clause is about the Government’s responsibility to pay financial compensation to those who have not committed the crime for which they were unjustly convicted and have suffered a true miscarriage of justice, and to do so in a straightforward manner that provides clarity to applicants and seeks to avoid unnecessary and costly litigation. In answer to my noble friend Lord Elton, this is not a question of someone having to prove their innocence. The presumption of innocence remains a thread that runs through the criminal law. It has been referred to a number of times during the debate, and nothing about this provision in any sense offends that fundamental presumption, which remains a part of our law.
Baroness O'Loan
My Lords, I apologise for interrupting the noble Lord in his first foray as a Minister. However, in the light of his repeated statements that nobody has to prove their innocence and that the Secretary of State will make a decision based on the facts, can he answer the questions put by the noble Lord, Lord Brennan, about the difficulties of those whose innocence is not proved by the material on which the conviction was quashed but about whose convictions, like those of Sally Clark and others, there are such significant questions that no jury would have convicted?
Lord Faulks
I thank the noble Baroness for her question. I am reluctant to go into the particular facts of the Sally Clark case. Indeed, during the debate there have been somewhat different interpretations of that material. Of course, one hopes that if the evidence was available at the outset there would be no trial, no one would be charged, or at least a defendant would be acquitted.
This is a narrow but important provision where new facts have come to light. Of course, as the noble and learned Lord, Lord Brown, said, a number of defendants have their convictions overturned on appeal in time—this is out of time—who may have spent considerable periods in custody, unjustifiably as it turns out. This is a narrow area. The question of the presumption of innocence goes to whether or not they are guilty of an offence, but this, which I hope answers the noble Baroness’s question, is entirely concerned with eligibility for compensation—a different matter altogether. We, the Government, consider that the amendment—this is not in quite the same form as the amendment tabled in Committee—will provide, as is apparent from a number of cases before the courts, for further protracted and expensive litigation.
The noble Lord, Lord Pannick, accepted at the outset when moving the amendment that this was a difficult issue on which distinguished legal minds had expressed different views. Your Lordships have heard some of those distinguished legal minds and have expressed themselves in writing at considerable length. There is no easy answer to this question. Attempts have been made to formulate a test. A test was formulated by the noble Lord, Lord Beecham, and those supporting him in Committee. We have a slightly different test today. I do not decry the elegance of the amendment, nor the thinking behind it but I suggest that the Government’s proposal in the Bill has the advantage of clarity, simplicity, straightforwardness and it does not offend the presumption of innocence. In those circumstances I urge the noble Lord to withdraw his amendment.
Lord Pannick
My Lords, this has been an informed and interesting debate on what the Minister rightly describes as a very difficult question. I am grateful to all noble Lords who have spoken, particularly to the Minister for his conspicuously careful and fair analysis of the issues before the House.
However, the Minister’s eloquence cannot remedy the defects that we have been debating for more than an hour and a half in Clause 161. First, as the noble and learned Lord, Lord Phillips of Worth Matravers, said, when the Court of Appeal has quashed a conviction it is simply wrong in principle to require the defendant then also to establish beyond a reasonable doubt that he or she is innocent. This is incompatible with the presumption of innocence, as the noble and learned Lord, Lord Hope of Craighead, said this afternoon.
The noble Lord, Lord Elton, asked the Minister if there are any other contexts in the criminal law in which a defendant is required to prove his innocence. The Minister’s response was that Clause 161 does not offend against the presumption of innocence, but the answer to the noble Lord’s question is that there are no other contexts in our law in which a person is required to prove his or her innocence.
I understand the concern expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which repeated—none the worse for that—the dissent that he gave in the Supreme Court in the Adams case. However, the answer to the noble and learned Lord was given in that case by the noble and learned Baroness, Lady Hale of Richmond, at paragraph 116. The noble and learned Baroness, who cannot be in her place today because she is a serving member of the Supreme Court, said:
“I do sympathise with Lord Brown’s palpable sense of outrage that Lord Phillips’ test”—
that, of course, is the test in the amendment—
“may result in a few people who are in fact guilty receiving compensation … I say ‘a few’ because the numbers seeking compensation are in any event very small. But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
That is the answer to the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
There is a second defect in Clause 161 to which, with respect, the Minister has no adequate answer. It would require the Secretary of State to decide on the innocence of defendants whose convictions have been quashed. To require the Secretary of State to perform that role when no court has done so would be to impose a complex and contentious role on Ministers in cases which are among the most sensitive.
Lord Faulks
When someone has had their convictions overturned, the Secretary of State would, as the noble Lord will realise, have the benefit of the Court of Appeal’s reasoned judgment to assist him.
Lord Pannick
As the noble Lord well understands, the Court of Appeal will not have pronounced on innocence. To require the Secretary of State to decide not only whether there has been a miscarriage of justice because of some new or newly discovered fact, but whether, in truth, the defendant is innocent, will inevitably lead to protracted litigation which will simply prolong the pain and suffering caused by the miscarriage of justice which led to the quashing of the conviction.
As King Lear said, “That way madness lies”. It is that way madness lies for the Secretary of State and for the defendants, although not of course for the lawyers who will benefit considerably from Clause 161. I cannot accept that the amendment is any less clear or any more likely to produce litigation than Clause 161. Amendment 94E raises an important issue of principle. It seeks to enact the test of the noble and learned Lord, Lord Phillips, for the Supreme Court in Adams. I wish to test the opinion of the House.
Lord Faulks
“Abolition of defence of marital coercion
(1) The defence of marital coercion is abolished.
(2) Accordingly, section 47 of the Criminal Justice Act 1925 (coercion of married woman by husband) is repealed.
(3) This section does not have effect in respect of an offence alleged to have been committed before the date on which it comes into force.”
Lord Faulks
My Lords, in Committee, the noble Lord, Lord Pannick, tabled an amendment seeking to abolish the defence of marital coercion. The Government agreed to return with a view on that matter on Report and, accordingly, we have tabled these amendments.
As the noble Lord, Lord Pannick, explained in the earlier debate, it is currently a defence to all criminal offences other than treason and murder for a wife to show that she committed the offence in the presence of, and under the coercion of, her husband. The defence is an historical one. It was introduced in England and Wales by Section 47 of the Criminal Justice Act 1925, which abolished the previously existing presumption that a wife who committed any offence except treason or murder in the presence of her husband did so under his coercion and that she should therefore be acquitted. For these historical reasons, the defence applies only for the benefit of a woman married to a man.
Time has moved on. The circumstances in which the defence made sense no longer pertain. It is now an anachronism, and we accordingly agree that it can be consigned to history. I commend the noble Lord, Lord Pannick, for raising this issue and he can rightly take the credit for this overdue reform. I beg to move.
Lord Pannick
My Lords, I am very pleased that the Minister has responded so positively to the amendment which I tabled in Committee and thank him for it. As he said, prior to 1925, the law contained a presumption that a wife was coerced by her husband. The Minister said that time moves on, but Sir James Fitzjames Stephen, the great 19th century authority on criminal law, described this area of the law as “irrational”. In 1922, the Avory committee recommended abolition of any special rule for wives and so did the Law Commission in its 1977 report. Therefore, it could not sensibly be suggested that law reform in this context has in any way been rushed.
It was of course this area of the law to which Charles Dickens referred in Oliver Twist. When Mr Bumble is told that,
“the law supposes that your wife acts under your direction”,
he replies:
“If the law supposes that … the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor”.
I am delighted that this truly idiotic provision of English law is at long last to be abolished.
Baroness Kennedy of The Shaws
I, too, welcome this reform. I think it is important that a female voice is heard saying that this is a good move forward, rather than something that looks as though it has been gifted to us by men; women are happy for this to be happening.
I reiterate what my noble friend just said about the position of women in the circumstance of domestic violence, where the abuse can often mean that they are fearful of not participating in looking after stolen goods or whatever. I have several times recently acted for women who have failed to inform on their husbands in situations of terrorism. Your Lordships will remember that we introduced new law which made it a duty to inform if you are conscious of people plotting or planning acts of terrorism. A number of wives have been prosecuted for that. I have to say that juries do not like it. They often realise, particularly in the circumstances of very powerful personalities in the form of the menfolk and where women have little power, as in some minority communities from which terrorism has recently been emanating, that there has to be understanding of ways in which women are prevailed on and are in terror of going to the authorities. I hope that making this change does not in some way militate against the raising of domestic violence as a background to an understanding of women’s roles when it comes to allegations in the criminal courts.
Lord Faulks
I shall respond briefly. I am most grateful to the noble Lords, Lord Pannick and Lord Beecham, and the noble Baroness, Lady Kennedy, whose voice is always welcome. As she said, it is important to have a contribution from someone of her gender.
I should emphasise that the Government are absolutely committed to ending violence against women and girls in any community. The noble Baroness rightly draws attention to particular communities where that may be a feature. Duress as a defence has been well established for many years and will continue to be available to men and women, regardless of marital status. Of course, the matter will remain under active consideration. The Law Commission last looked at the issue specifically in 1977. If there are further matters, it will no doubt consider them. I thank noble Lords very much for their contribution.
Lord Faulks
“(2A) The Secretary of State may by order make amendments to sections 136 and 142 of the Sexual Offences Act 2003 that are consequential on the coming into force of any amendment of Part 2 of that Act made by the Criminal Justice Act (Northern Ireland) 2013.”
Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
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Lord Faulks
That the draft Regulations laid before the House on 25 November 2013 be approved.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I shall speak also to the draft Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013.
The Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013 amend the Prosecution of Offences Act 1985 to provide that acquitted defendants who have been found to be ineligible for legal aid as a result of the new Crown Court financial eligibility threshold of £37,500 or more annual disposable household income can receive a payment from central funds in respect of their private defence costs.
The purpose of the regulations is to introduce an additional exception to Section 16A of the Prosecution of Offences Act 1985 and the general rule that a defendant’s costs order may not require payment out of central funds in respect of the accused’s legal costs. This amendment allows acquitted Crown Court defendants ineligible for legal aid as a result of the new threshold to apply for a defendant’s costs order and to receive a payment from central funds in respect of their private defence costs at legal aid rates. This is in line with the changes made in respect of acquitted defendants in the magistrates’ court which were approved by Parliament during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The Prosecution of Offences Act 1985 makes a number of provisions in relation to costs in criminal cases, including in relation to defence costs. Section 16A, in relation to legal costs, provides certain exceptions to the general rule that a defendant’s costs order may not require the payment out of central funds of an amount in respect of the accused’s legal costs.
The draft instrument under consideration makes provision for an additional exception under Section 16A. It allows acquitted Crown Court defendants ineligible for legal aid as a result of the new threshold to receive a payment from central funds in respect of their legal costs. Such defendants would be reimbursed at the rates and scales set out by the Lord Chancellor in guidance, as provided for by Regulation 7(6) of the Costs in Criminal Cases (General) Regulations 1986.
The amendments introduced by this instrument are an important element of the introduction of a financial eligibility threshold in the Crown Court, to ensure that the wealthiest defendants would no longer automatically be provided with legal aid up front at public expense. The threshold has been set at a level where we believe the majority of defendants should be able to pay the defence costs of Crown Court cases privately, as set out in the Transforming Legal Aid: Next Steps response paper. There will, however, be a review mechanism to ensure that those individuals who really cannot pay their defence costs privately can be represented in court. This will be similar to the existing hardship scheme in the magistrates’ courts. As I outlined earlier, acquitted defendants, subject to your Lordships’ approval, will receive a payment from central funds at rates and scales set by the Lord Chancellor.
To conclude our proposals on criminal costs, the Government believe it is right to include an additional exception to allow acquitted Crown Court defendants ineligible for legal aid as a result of the new threshold to receive a payment from central funds in respect of their legal costs. Even though this will cost the public purse at a time of significant pressure on departmental budgets, it is a fair change to make given that such defendants will need to pay privately.
I now turn to the draft Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013, which amend the Civil Legal Aid (Merits Criteria) Regulations 2013. They amend the merits criteria that apply in applications for civil legal aid to prevent funding for cases assessed as having borderline prospects of success. It is important to note that this affects only certain applications for a specific form of service. The purpose of these regulations is to prevent cases assessed as having borderline prospects of success from receiving civil legal aid in the future.
In order to be funded, civil legal aid cases must pass the applicable merits test, as set out in the 2013 regulations. The aim of the test is to ensure that funding is targeted at the cases that most justify it. The prospects of success test is just one element of the overall merits criteria that civil legal aid cases are subject to, but it is an important element. Not all applications are subject to a prospects of success test. Only applications for full representation, a specific form of civil legal service, are directly subject to a prospects of success test. Therefore applications for legal help—the advice and assistance level of legal aid—and other types of service are not subject to this test. Also, there are certain categories of case, for example certain family and mental health cases, where the test does not apply. It is important to note that these cases are not affected by this instrument.
However, where the prospects of success test applies, its purpose is to ensure that taxpayers’ money is targeted at the cases that most justify it. It also ensures that weak cases are not funded. Currently, certain cases assessed as having borderline prospects of success can be funded in limited circumstances. The regulations that your Lordships are considering today will remove funding for cases assessed as having borderline prospects of success. I am aware that concerns have been raised about our policy on borderline cases. Let me deal with one or two of those. I recognise that there is some unease over the effect these regulations might have on the development of case law and the funding of so-called test cases or those with the potential to advance the common law. Legal aid cases have indeed led to the development of case law in the past, but that alone is not sufficient justification for legal aid to be granted in cases that do not have at least a 50% prospect of success. In addition, I do not think that our proposal will hinder or prevent the development of case law. The arguments are likely to be strong for such a development to be warranted.
Lord Beecham
At this hour of the night, I am quite prepared to accept any correction of the arithmetic. The Government, of course, are never prepared to accept a correction of their arithmetic.
Lord Faulks
My Lords, I thank all noble Lords and noble and learned Lords for their very generous welcome to me. It is a daunting position to find yourself in. I know that, despite the generosity of the welcome, there will be no lack of rigour in the examination to which I am put as a representative of the Government and I look forward to receiving the many useful contributions characterised by those today, which, I am likely to be advised, will be forthcoming in the next weeks and months.
This debate has ranged far and wide, perhaps rather further than the strict terms of the two Motions envisaged. For example, there have been general laments about the Government’s approach to legal aid from the noble Lord, Lord Bach. There has been reference by the noble and learned Lord, Lord Hope, to the difficult interpretation of Section 2 of the Human Rights Act and by the noble and learned Lord, Lord Woolf, to the need for high-quality judicial assistance. All these are important points, but I hope that the House will forgive me if I do not deal with all those points but try to concentrate more specifically on the issues that concern these regulations.
One of the main themes of the debate was the fear that the lack of legal aid for these borderline cases will result in some form of ossification of the common law—that it will not develop in the absence of legal aid for such borderline cases. It is worth remembering that the common law develops in a number of different ways, sometimes with cases which one would not expect to result in a change in the law. The Government believe that prospect of success—the test that is applied—remains a useful and sound test and that a 50% prospect of success is a reasonable one and should not result in cases not being brought and the law not developing.
Individual cases were mentioned, including Pinnock, Smith v Ministry of Defence, Purdy, Pretty and Anufrijeva, to name but a few, all of which were important cases. Of course, the Government are not in a position to comment on individual cases, or precisely on the funding arrangements that may have existed in those cases. There may be other cases which have not resulted in success or in the development of the law. The Government remain doubtful that the change which these regulations will bring about will prevent cases being brought in areas where the law will develop and has developed. One of the ways in which the law has developed is through the Human Rights Act, and it shows little sign of standing still in that regard.
The noble Lord, Lord Bach, asked particularly about the impact on housing cases. I recognise the serious consequences that can ensue from housing cases—the potential for someone to lose their home. Indeed, there are all sorts of cases where there may be serious consequences. But there always has to be an assessment of the merits of a case—that has been well established in the granting of legal aid—and it has been a fundamental part of the scheme since its inception.
The noble Lord also questioned the accuracy of the savings which are put forward. The Government’s best estimate is £1 million. An impact assessment estimated that 100 fewer cases would be funded. As was made clear in the methodology, those were rounded figures. Further supporting data consisting of a breakdown by category of law have been included in the updated impact assessment published alongside the consultation response. While the estimate is based on 2011-12 data, I can assure the House that it is consistent with more recent data; that is, the data from 2012 and 2013. The noble Lord also made reference to the criticism of the regulation by the Secondary Legislation Scrutiny Committee.
The cases which may be included are those where there is a dispute over law or expert evidence. I mentioned that there may still be legal aid where it is as yet impossible to assess the prospect of success, but the Government have been frank that they consider it reasonable in principle that 50% should be the touchstone. We suggest to the House that it is a very reasonable and rather modest prospect of success when one bears in mind the sort of decisions that somebody paying privately might make in deciding whether to pursue litigation. Indeed, many would say that 50% was rather a modest prospect of success and very few privately paying citizens are much enthused or encouraged by the fact that their case raises an interesting point of law. They may well find that that is a less enticing prospect than the fact that they risk losing the case.
Several noble Lords made reference to the fact that there might be some form of inequality of arms because many of the cases were brought against government, either local government or government in one department or another. The Government’s position regarding litigation is that they take into account a broad range of factors when deciding whether to defend or appeal legal challenges, including the prospects of success and the potential costs versus benefits of that action. However, it would be simplistic to say that the Government simply took advantage, as it were, of their overall position in deciding their approach to litigation. It is already a principle of the current scheme that most cases, even those concerning issues of high importance, must have a reasonable prospect of success in order to warrant public funding, and there has to be an assessment of merits and a decision must be made.
Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2013
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Lord Faulks
That the draft Regulations laid before the House on 25 November 2013 be approved.
Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, 21st Report from the Secondary Legislation Scrutiny Committee, 7th Report from the Joint Committee on Human Rights.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I have already spoken to the regulations, and I commend the regulations to the House.
Amendment to the Motion
Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013
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Lord Hope of Craighead (CB)
My Lords, along with others, I am extremely grateful to the noble Lord, Lord Carlile, for tabling these Motions so that we can debate these important measures. I should make it clear that I have never practised at the English Bar and never sat in an English court. My experience has been of practice, both civil and criminal, north of the border. However, although I have never sat in an English court, I have sat in a United Kingdom court, have had some experience of dealing with criminal cases and think that I can speak with some authority in support of the points which have been made so effectively by the noble and learned Lords, Lord Woolf and Lord Brown of Eaton-under-Heywood.
A cut of 30% on fees previously set by the Government surely must be regarded in the present financial climate as severe. I appreciate, of course, that the Minister and those for whom he speaks in this House have very little room for manoeuvre, given the cuts that already have to be made across the entire department. However, it would help if the Minister in his reply were able to put these two measures into their overall context. As I understand it, we are dealing here with cases that take a very long time and provide the advocate with the benefit of continuity of employment throughout a long period. As has been pointed out, these are complex cases which require unusual amounts of work outside the court room and are, in comparison with rates elsewhere in the system, better paid. I could therefore perhaps understand it if the strategy behind these measures was to reduce the cost of legal aid at this level, so as to keep any reduction at the lower levels, with which we are not concerned this evening, to an absolute minimum—or even to preserve the existing position at the lower levels. After all, it is at the bottom of the scale that there is real hardship. One hears not infrequently that the costs of travel and other overheads exceed the amounts payable as fees to the advocate. If there is any margin over that, it is often very small. I would be grateful if the Minister would say whether this is what the Government have in mind, and give us an assurance that there is no question of cuts of this dimension being made elsewhere across the system. That would be some reassurance to those who are deeply concerned about what the Government have in mind in the overall planning.
I will direct my remarks to the amendment set out in regulation 3(5) of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, as the provision which it seeks to insert affects the advocate’s freedom of contract. The standard terms already provide for their amendment within the terms of the contract. There is a contractual power to do this, but it is not entirely unqualified; this is not the place to debate how extensive that power is. However, when it comes to altering the terms for payment, I suggest that it is a question of degree. The stage may be reached when the amendment proposed, purportedly within the contract, is so great that it cannot be altered without the advocate’s agreement. In that situation, if agreement is not reached, the advocate would have a right to terminate the contract.
That leads me to consider what the effect would be if the amendment goes through. As I understand it, it would tie the advocate who agrees to this form of contract to the rates set out in Schedule 6. That being so, those rates can then be amended by a further order without the need for the advocate’s agreement. There is no need to alter the contract: what one does is to look at the schedule and alter the schedule by a further order. Once the advocate is tied in to such a contract, he or she has no escape from it, however much the reduction in the rates may be. As there is every prospect, if one is realistic, that the cuts now proposed will not be the last, the stage could be reached when the rates will become wholly uneconomic—indeed, some may say that this stage has already been reached. That amendment is a profoundly unattractive change in the existing arrangement. I do not understand why it is there and I suggest that the Government are taking a great risk by proceeding along these lines.
Members of the Bar, after all, are not civil servants. One of the strengths of the Bar, vital in our modern democratic society, is the independence of each one of its members from each other and from anyone else. That is an essential part of the system, which lies at the centre of maintaining the rule of law, which we all believe in. One of the characteristics of their independence is that advocates cannot be forced to accept terms to which they have not agreed or which they find unattractive. That leads directly to the consequences—to which the noble and learned Lord, Lord Woolf, drew our attention —which could be very far reaching and very damaging. Those already engaged in work of this kind might be well advised to withdraw from their contracts, lest they be sucked into an ever increasing pattern of cuts. There are many who might be attracted to this kind of work in other circumstances who would not wish to subject themselves to the reformed contract where they are subject to change without any further amendment of the contract itself.
I therefore have this further question for the Minister: what assurance can he give to those who may be willing to accept employment on these amended terms as to what the future holds for them? This is very relevant to the issue of recruitment. Schedule 6, as I have suggested, is open to further amendment. Are we to expect further cuts in these rates next year or is it proposed to do so within the life of this Parliament? If so, what further opportunity will there be—indeed what opportunity will there be at all—for consultation before any further amendments are proposed? What opportunity will there be for an advocate to withdraw if he decides that the rates that are then proposed are so completely unattractive that he is not prepared to carry on with that work? These are questions that all those engaged in this kind of work would wish to be answered and I hope very much that the Minister will be able to do so.
Lastly, on the point raised by the noble and learned Lord, Lord Brown, about jury trials, I come from Scotland where, as it happens, there is no right to a jury trial. It is up to the prosecutor to decide whether the offence should be tried by a judge alone in the sheriff court, with a sheriff and a jury, or in the High Court with a jury. The length of sentence is affected by that decision, but there is no reason why a case of very considerable complexity should not be tried before a single sheriff. The accused has no right to object to that. It raises the issue as to whether there is not considerable force in the point of the noble and learned Lord, Lord Brown, that we are reaching the stage where a jury trial in some of these cases may need to be reconsidered.
Lord Faulks (Con)
My Lords, my noble friend Lord Carlile has summarised the arguments against the statutory instruments with his usual clarity and vigour, and I do not wish to weary the House with repetition. I would, however, like to add a few words and in doing so should declare an interest as a practising barrister. I am not a barrister who does criminal cases and I very rarely do cases where legal aid is involved. However, I have sat until recently as a recorder in the Crown Court and am thus familiar with our criminal justice system.
I entirely understand the desire on the part of the Government to reduce spending on legal aid. The LASPO Act was the Government’s first move in reducing costs. There is no reason why lawyers should be in any way immune from austerity, nor should justice be recognised as some sort of special case, up to a point. Nevertheless, what troubled many noble Lords in scrutinising that Bill as it went through the House was the risk of real injustice not to lawyers but to those who encountered the system and would be at risk of being denied access to justice. The Minister reassured those of us who were anxious, particularly in relation to Part 1 of the LASPO Bill, as it then was, and made some important concessions. However, the impact of the Act is going to need careful watching to ensure that real injustices do not result.
Anti-social Behaviour, Crime and Policing Bill
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Lord Harris of Haringey (Lab)
My Lords, the noble Baroness, Lady Manzoor, has put forward an interesting amendment. The principle behind it, that Governments ought to report to Parliament regularly on the effectiveness of pieces of legislation, is one that I am sure that we would all wish to see more widely spread. However, I have a reservation about the terms in which the amendment has been put.
The noble Baroness said that she has reservations over whether criminalisation will have the desired effect. She implied, and I believe that all of your Lordships would agree, that criminalisation is not a panacea as far as this problem is concerned; it will not solve all the issues. Therefore, I would hope that if we were to receive a report to Parliament, it would look at not just the effectiveness of criminalisation but also at the effectiveness of the totality of policies on forced marriage.
My noble friend Lady Thornton moved an amendment earlier that would have broadened the scope of this and placed obligations on various public authorities in terms of the actions that they should take. I hope that the report requested by the noble Baroness would look not just at whether criminalisation makes a difference for good or ill, but also at whether all the other activities that the Government and public agencies undertake to try to eliminate forced marriage are effective. I think that that would be very valuable in terms of taking these matters forward.
Lord Faulks (Con)
My Lords, I have little to add to what my noble friend Lady Manzoor said so expertly in moving this amendment. As a member of the JCHR, this was one of the recommendations that we made in our report.
I very much endorse what the noble Lord, Lord Harris, said. I hope that the reporting to Parliament would not just be a dry recitation of the effect of criminalisation in terms of statistics, but would go wider. I am sure that the Minister will reassure us on that. This should not be simply a formality. We are stepping into an acutely sensitive area and, although we said that we approved cautiously of the decision to criminalise forced marriage, it is a matter that must be looked at very carefully for fear that more harm may come than good.
Baroness Kennedy of The Shaws (Lab)
My Lords, I, too, support the noble Baroness in her amendment. I saw her nodding at the suggestion that any reporting back should be more comprehensive than simply reporting on the criminal aspects. There should be many other opportunities taken up by Government to press for the changes that underpin what the Government are seeking in criminalising forced marriage.
One factor that I would press upon the Government is that there should be greater discussion in families, for example about marrying close relatives, such as cousins. I used to chair the Human Genetics Commission and there was considerable sensitivity about this kind of discussion and about the implications of marriage within certain boundaries and how it perhaps increased risks for future generations. I think that when people are well informed that often changes social practices.
I also think that imams should be well informed about the ways in which the women in their congregation are disadvantaged by not having the cover of civil marriage so that they have rights that can be enforced in the courts. My clients have sometimes invoked Sharia law as being generous towards women at the ending of marriages or after death. Although that might have been the case in the past, nowadays women are more advantaged by what is available to them through the civil courts in the United Kingdom. I think that such pieces of information should be much more widely disseminated to communities where these issues arise.
Baroness Hamwee
My Lords, I was quite right to wait for others to table the amendment before adding my name, so that they could all go first with the arguments. I tried to canter through them at Second Reading in considerable haste and will try to be quick now. I accept that the new clause is to do with compensation, not the criminal law, otherwise every overturned conviction would lead to a right to compensation and Section 133 makes it clear that that is not the case. However, what has been troubling me is that if you do not have to prove innocence at the original trial and then the matter turns on a new or a newly discovered fact, surely you would not have had to prove that. If the fact had been available at the time of the trial, this would not have changed whether you would have to have proved your innocence, which you did not have to do. I do not see that bringing in a new fact should change that at all. I do not see why that is necessary now.
The noble and learned Lord, Lord Brown, has said that this is about who should be entitled to compensation. The Government say that it is about clarity. They do not argue in any effective way that the amounts involved are such as to require a change in the law in order to save the taxpayer. The impact assessment on this clause says:
“The intended effect is to lessen the burden on taxpayers and reduce unnecessary and expensive legal challenges to Government decisions to refuse compensation”.
Those are two quite separate points. The lessening of the burden on taxpayers is very small, but legal challenges to government decisions are another matter. That goes to clarity and it seems to me—I am not nearly as well qualified as everyone else who has spoken—that the chain of cases we have has produced the clarity. The impact assessment says that we need the provisions to be unambiguous and decisions on eligibility to be more transparent. I should have thought that the cases have taken us to that point.
Lord Faulks
My Lords, I fear that I do not share the view just expressed by my noble friend Lady Hamwee that the law is clear at the moment. The number of decisions, one following another, with disagreements between judges in the same tribunal indicates the difficulty of the question and, I conclude, the lack of clarity in the test that should be applied. One of the reasons for this provision is in order to provide clarity. That, I believe, it does. The second question is whether it is appropriate and whether it offends the presumption of innocence. I am part of the Joint Committee on Human Rights and originally I took the view that it did offend the presumption of innocence. I have changed my mind, having thought about it. Although I was not often able to persuade the noble and learned Lord, Lord Brown, of anything, he has contributed to persuading me, on the other hand, of the merits of the arguments he advanced, both at Second Reading and today.
I have also had the opportunity of reading the cases of Allen v the United Kingdom and KF v the United Kingdom and I agree with the noble and learned Lord that they do not in any way require the retention of the law in its current state, or that they offend the presumption of innocence—provided, it seems, that some judge, in declining to award compensation, does not make any comment to the effect that there is any doubt about someone’s innocence.
I also respectfully disagree with the noble Baroness, Lady Kennedy, that the point of these applications for compensation is to hold the state to account. The point of the applications is to obtain compensation, and the difficult question is that of who is entitled to it. It is not an easy question, but in my submission the Government have come to the correct answer. Sadly, a few people who are genuinely innocent will not obtain compensation, which in my view, for the reasons given, is an unsatisfactory element. However, it does not involve people being deprived of their liberty; it is simply a question of compensation.