Criminal Cases Review Commission (Information) Bill

Lord Faulks Excerpts

Thursday 5th May 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I congratulate the noble Lord on bringing forward this Private Member’s Bill—which is something of a misnomer in review of the eminent rank that he achieved in his professional life. The Bill confers powers on the commission to obtain, with the leave of the court, material that may assist it in the exercise of its important functions in reviewing the validity of convictions.

I suspect that the Guardian may not be the Minister’s journal of choice for reading at breakfast, or perhaps at all, but by coincidence it published last week a disturbing critique by Eric Allison, its respected prisons correspondent, of the working of the commission. The report was prompted by a decision of the Court of Appeal that two men who had served 24 years in prison between them after being convicted of crimes that they did not commit were not entitled to compensation. This outcome perhaps reflects a flaw in the system rather than in the court’s judgment, and I invite the Minister to undertake a review of the position with a view to empowering the courts to order compensation where they deem it to be appropriate after quashing a conviction.

The article contains further disturbing material. The commission now receives 130 applications a month, while in addition the universities that run the Innocence Project receive two or three a week. Of course, not all of these will be justified, but it would appear that the commission is struggling to carry out its important role. The commission’s chair says that for every £10 being spent on a case 10 years ago he now has just £4 with which to carry out the work, while the workload has increased by 70%. It is true that only a minority of cases are referred, but of those, 70% succeed on appeal.

Mr Allison is sceptical about the implicit conclusion that most claimants are making false claims, not least because while a claim is pending they will not get parole or better conditions. But even if that were wrong, justice surely demands more support for the commission’s work, not least when one of the contributory causes of wrong convictions is inadequate legal support during the original trial. Given the potential impact of legal aid cuts on the preparation and conduct of trials, that is something that may get worse,

I hope that the Minister, who has facilitated the passage of the Bill and to whom the House is indebted in that respect, will discuss these matters with the commission and ensure that it has the resources required to carry out its duties effectively in this important area of the criminal justice system.

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

My Lords, as the House will appreciate, we very much welcome the Bill. The noble Lord, Lord Beecham, apart from commenting on my breakfast-time reading, raised two important points. He will understand that of course I cannot comment on individual cases, but I understand the concern that he expressed in relation to compensation. It is not something, as the House will appreciate, that the Criminal Cases Review Commission deals with, so it is outside the scope of the current Bill.

The position, as noble Lords, including the noble Lord, Lord Beecham, may remember, is that where there is a miscarriage of justice—and the test was recently altered—it is the state not the courts that is responsible for compensation, and decisions are made on the basis of the statutory test. Therefore, it would not be appropriate for the Court of Appeal to take on this function after overturning a decision of the lower court. If it were to do so, we should need to consider whether a further appeal might lie against a Court of Appeal decision on compensation. So although these matters are always kept under consideration, my initial reaction is that this is not an appropriate way forward.

On the noble Lord’s second question, the CCRC is managed within the same spending review process as the remainder of the Ministry of Justice. The commission must live within its means, as we all must when budgets are tight. To exempt any particular area from finding savings means that the burden of saving falls disproportionately on other areas.

In fact, I do not think that the position is as bad as the noble Lord suggests. Since 2010, the Criminal Cases Review Commission’s annual budget has been reduced from £6.47 million to £5.178 million—a cut in real terms of 26%. During the same period, the Ministry of Justice’s net settlement was reduced in real terms by 35%—so the commission has fared well compared with other areas in the ministry. Indeed, the commission’s budget for the last three years has remained at £5.178 million, in part specifically to recognise the need for the CCRC to continue to take proactive steps to address its backlog. The budget for 2016-17 will also ensure that the CCRC can continue to prioritise tackling the backlog.

Furthermore, this is not simply a matter of resources. In these straitened financial times we expect all agencies and services to make efficiencies and improvements to their processes to provide the very best level of service. The focus over the last two years has been on efficiency, not savings—doing more with the existing level of resource. The CCRC has worked to manage its caseload more effectively by reviewing all its work practices and by making improvements. Since 2010, the commission has improved its performance. It closed 947 cases in 2010-11. That rose to 1,632 cases in 2014-15.

The Government congratulate the commission on the work that it does. It is a very valuable function. The Bill will assist it further in the discharge of its duties. It extends its scope to England, Wales and Northern Ireland. We now have a legislative consent Motion to legislate on behalf of Northern Ireland. I repeat my welcome for the Bill.

Motion agreed.

Prison Safety

Lord Faulks Excerpts

Tuesday 3rd May 2016 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government, in the light of the latest figures on deaths in custody and prison violence, what plans they have to improve prison safety in the short term.

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

My Lords, the Government recognise that our prisons need reform. There is much more to do to ensure that prisons are places of decency, hope and rehabilitation, and improving safety is fundamental. There is no single, simple solution to the increases in deaths and violence in prison, but we are taking action. This includes implementing the recommendations from the review of the process to support prisoners at risk of suicide and self-harm, and trialling the use of body-worn video cameras.

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

My Lords, my Question was quite specific. We commend the Government’s commitment to long-term prison reform, but last week’s figures demand immediate action to reduce prison violence. Homicides, assaults on prisoners and staff, suicide and self-harm are all up, by roughly a quarter overall—and that is over the previous dreadful year’s figures. We urgently need more staff, fewer prisoners, less of prisoners’ time spent locked in cells and an end to cell cramming. What action will the Government take now?

[Lord Faulks]

The noble Lord will know, because his party was in government for five of the last six years, that what happens in prisons represents a real challenge for any Government. However, I can tell him that prison officers have increased in number by 440 this year. Further to that increase, we are continuing our drive for more prison officers; the training is improving—going from six to 10 weeks; we are cracking down on psychoactive substances and their importation into prison; and we are acting through a number of different initiatives to identify particular risk points for violence. We are doing everything we can to tackle these very real problems.

[Lord Beecham (Lab)]

My Lords, given the shocking revelations about the use of synthetic cannabis by prisoners, which the Chief Inspector of Prisons described as having a “devastating impact” on prisons, including 19 deaths between 2012 and 2014, when will the Government recognise the need to reduce the prison population substantially and to increase prison staffing substantially?

[Lord Faulks]

The prison population is of course a feature of the sentences passed by judges. We are as anxious as anyone else to reduce that prison population in a way that is consistent with the safety of the population and that respects the sentences that have been passed. I have already answered the question about increasing prison staff. As to psychoactive substances, we are world leaders in what we are doing to track the ingestion of these substances. We are trying a test to detect them in 34 different prisons. We hope, when that is proved successful, to roll it out through the prison estate, so that we have an offence and a test which should get this under control.

[Baroness Finlay of Llandaff (CB)]

My Lords, what is the Government’s policy in relation to terminally-ill prisoners and the delegated authority of the governor, particularly for remand prisoners, who are innocent until proven guilty? If they are terminally ill, they risk dying in the prison sick bay rather than spending their last days and weeks at home prior to a trial.

[Lord Faulks]

All prisons, whether remand prisons or others, should have in place appropriate procedures for supporting prisoners in that condition. There should be appropriate arrangements for palliative care. Prisoners should have contact with their families and they should be advised, where necessary, of the possibility of compassionate release—either permanent release or release for particular events. This is a matter of importance and I will be sure to convey the noble Baroness’s concern.

[Lord Mackay of Clashfern (Con)]

My Lords, would it not be a suitable idea to ensure that any young person coming into custody has a single officer in the Prison Service responsible for his or her welfare? This was a very important and useful proposal, and I gather the Government have not yet accepted it.

[Lord Faulks]

I think my noble and learned friend refers to one of the recommendations from the Harris review, which concerned suicide and self-harm by those aged between 18 and 24. The Government have not rejected this as a proposal. They understand the necessity of continuity of accountability, but are not yet convinced that that can be best represented by a single person. However, what lies behind the recommendation is of course important and should be reflected in the Government’s policy.

[The Lord Bishop of Peterborough]

My Lords, given the shocking 27% rise in suicides in prisons in the last year, what can the Minister tell us about the provision of psychiatric and psychotherapeutic care for vulnerable prisoners?

[Lord Faulks]

The Government are well aware of the profound difficulties for prisoners with various forms of mental illness. I think NICE has estimated that 90% of prisoners have some form of mental illness. It is a matter for NHS England to provide the appropriate facilities, but all prisons should make sure that these are available so far as possible. As to the question of assessment when prisoners arrive, NOMS has reviewed its assessment process to ensure that those at risk are properly assessed and appropriate steps are taken to try to deal with the risks that they represent.

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the Minister for his reference to the review that I led, although I must say as the review’s author that the Government’s response read like a rejection of its central recommendation. The Minister talked about the welcome increase of 440, I think, prison officers. What are the projections for numbers, because 440 means that at any one time there may be one extra prison officer supervising 600 or more prisoners? Given that at the moment prisoners cannot be guaranteed an escort to take them to their psychiatric appointments within the prison and there is no guarantee that planned activities will take place because of staff shortages, surely the Government need to do better than 440.

[Lord Faulks]

As to the noble Lord’s first point, the Government accepted 62 of the 108 recommendations, and a further 12 are being considered alongside the reforms. Those that they did not accept were very useful and are part of the Government’s forward thinking. As to the question of staff, we are continuing our drive to attract more prison officers. We accepted in full the Prison Service Pay Review Body recommendation, which we hope will be an encouragement, although attracting prison officers to work in the south-east is difficult because of the challenges of accommodation. There is real commitment by a number of people to join the Prison Service; they have our admiration, and we hope that we can attract more to do this important work.

[Viscount Hailsham (Con)]

My Lords, does my noble friend accept that out-of-cell activity is one of the most important ways to enhance morale among prisoners and reduce stress, which itself leads to violence?

[Lord Faulks]

My noble friend is quite right about that. He may well have read the observations of the Secretary of State and the Prime Minister about the importance of out-of-cell activity. We hope that that will increase; it is very much part of our long-term plan to enable prisoners to have purposeful activities, which will help in the rehabilitation process.

Crown Court (Recording) Order 2016

Lord Faulks Excerpts

Wednesday 27th April 2016 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Crown Court (Recording) Order 2016.

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

My Lords, the draft order removes the prohibition on recording court proceedings to the extent necessary to enable a judge’s sentencing remarks in the Crown Court to be recorded on a not-for-broadcast basis for the purposes of a test. Before setting out details of the order, I will briefly explain some background to the policy.

As noble Lords may be aware, the recording and broadcast of proceedings in courts, other than the Supreme Court and the Court of Appeal, is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April 2013, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to make an order specifying circumstances in which the prohibitions on recording and broadcasting may be lifted. The Crown Court (Recording) Order 2016 is the second order to be made under that power.

Why are the Government doing this? There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Of course, few people have direct experience of court proceedings, and public understanding of the way the justice system works is inevitably limited. In principle at least, our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to attend and see what happens in person. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings. Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society, and therefore to allow cameras into our courts.

While it is important for justice to be seen to be done, this cannot be at the expense of the proper administration of justice, the integrity of the trial process or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all parties involved. The proposed test period at the Crown Court venues agreed with the Lord Chief Justice provides the opportunity to examine how we can film in our courts in a way that protects the individuals involved and preserves the dignity of the courts and the trial processes.

I am conscious that there will be concerns about the welfare of victims and witnesses, and the potential for court broadcasting to have a detrimental effect on their experiences in court. In the event that a victim or witness is present in court during the recording of a judge’s sentencing remarks, there are a number of safeguards in place designed to minimise any potential impact that the recording might have. The order does not permit the filming of victims or witnesses, or indeed any other court user, including staff, members of the public, defendants and advocates. It will be a matter for the judge to decide whether or not filming of a particular case should be allowed and they will take into account the interests of victims and witnesses when considering this. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming in the interests of justice, or to prevent prejudice to any person. Any breach of the terms of the order may amount to a contempt of court.

None of the cases recorded during the test will be available for broadcast to the public. Recorded material will be used only by the judiciary, Her Majesty’s Courts & Tribunals Service and the Ministry of Justice for the purposes of the test, including assessing whether or not it has been successful.

The Government are committed to increasing transparency and providing the public with information on the operation of public services, and the justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work, and sentencing in particular, is critical to maintaining confidence in the system and ensuring that justice is seen to be done. We believe that the order before your Lordships today is an appropriate step forward in testing how we allow for greater visibility of what goes on in our courts without undermining the quality and reputation of our justice system.

At the end of the test period the lessons learned will be considered by the Lord Chancellor and the Lord Chief Justice to help inform their decision on whether or not broadcasting of judges’ sentencing remarks in the Crown Court should be permitted in future. If they agree, we will return to the House with a third order to allow broadcasting of recorded material to commence. I commend the draft order to noble Lords and I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for introducing this very interesting and important order, which my party and I support. I will ask a number of questions about the order itself and the policy underlying it, but before I do so, I will set out our position in relation to this. In principle, more broadcasting and recording of courts is a good thing because it increases public understanding of the court system and allows transparency in one of the important institutions of state.

I accept what is implicit in what the noble Lord, Lord Faulks, said, which is that any movement towards broadcasting of courts has to be done carefully. It has to protect witnesses, jurors, claimants, defendants and members of the public—children in particular—from any problems that may arise from the recording of court proceedings. In particular, one is conscious that being a witness in a criminal or civil trial is an anxiety-inducingin any event and one does not want to make people more anxious by having it filmed or recorded. But in principle we consider that there should be much more openness and broadcasting of what goes on in court.

First, the Act allows the lifting of the prohibition on recording what goes on in court, which is prevented by the Criminal Justice Act 1925. If the ban on recording is lifted, is it assumed that live broadcasting can take place or is it envisaged that all that can occur is a subsequent broadcast? I ask because the prohibiting word is “recording”. I respectfully suggest that the right course is that there should be the possibility of near-live broadcasting, subject to a very minimal delay, of what goes on in court but subject to the issues that I have identified.

Secondly, as the Minister said, two orders have been made under the Act: the Court of Appeal order and the sentencing remarks order. Is there a plan that will lead to maximum openness, assuming the process works, subject to the sorts of protections I have identified? That is, you do not want to film jurors, witnesses and victims. Is there a plan? It feels a bit random. We have had a Court of Appeal order in 2013 or 2014 and now a sentencing remarks order. Can the Minister please tell us what the overall plan is?

Thirdly, I understand that the Court of Appeal order has been considered, by which I mean that some review of it has taken place. Can the Minister tell us what the outcome of that review was? For example, what did the judicial participants in the Court of Appeal process think about it? Secondly, to what extent was it thought that there were changes in behaviour in court? I think I am right, although I may be corrected, that in the Court of Appeal the judges and advocates are now filmed as a matter of course. Do the Court of Appeal or the advocates—I hope that the advocates were consulted as well—think that their behaviour has changed as a result? Does it mean that things take more or less time?

I was very grateful for the very clear explanation of this order by the noble Lord, Lord Faulks. I read it in exactly the way that he read it, which is that it allows for the filming only of the judge himself and nobody else in court is filmed. It is for the judge himself, under Section 32, to decide whether or not a particular set of sentencing remarks will be broadcast. I do not see any time limit in the order but I assume that a timescale is envisaged. I am not asking for a time limit, but can the Minister say what time limit is envisaged?

The Minister indicated that the only people who would be assessing this would be judges and people in the Ministry of Justice. I recognise and accept that none of this is for broadcast, but I strongly urge the Minister that the group of people assessing the process should be much wider, obviously subject to appropriate confidentiality and to not allowing the not-for-broadcast test to be broadcast. We need much more, in all honesty, than simply the judges and the excellent Ministry of Justice officials; there needs to be a much wider group, subject to confidentiality, to look at it.

Finally, I have just come from the Hillsborough inquest. It is the most appalling shame that the conclusions of that inquest were not recorded, for either live or near-to-live broadcast. What are the proposals in relation to inquests? It would have been so good if what the jury concluded could have been readily available—for example, on the 1 pm, 6 pm and 10 pm news. You would not need to film the jury, you would have needed only to film the coroner setting out what the remarks were.

I am very supportive of this order but I am terribly anxious that things are going much too slowly. Although I completely agree about the need for care and thought about this, this is the second order after two and a half years with no apparent plan. Perhaps something a bit more focused is required, but we support this order.

[Lord Faulks]

My Lords, I am very grateful for the noble and learned Lord’s constructive comments and questions about this order and I am grateful, of course, for the Opposition’s support of it.

The overall purpose is, as I indicated, to ensure that the public have a clearer idea of what goes on in courts. The noble and learned Lord is right to say that progress is slow, but there are, I respectfully suggest, reasons to go slowly. Great care, as he acknowledges, has to be shown in how we develop it; care has to be shown for all those people potentially affected, including witnesses, as he said. Children are being excluded from this experiment, or test, altogether; clearly, we would be most concerned that children, in so far as they are allowed into court at all, would potentially be affected by expanding the scope of this order.

Of course, the Court of Appeal has been progressing with its own broadcasting and those who are disposed to find such things interesting can see a live feed of the Supreme Court. There is only a limited take-up, but I do not think there is any suggestion that it has adversely affected the way that the judges or advocates behave. Likewise, the judiciary considers the Court of Appeal experiment to have been successful and it has not noted any change of behaviour. I suspect that what happens is that people forget after a bit that the cameras are there.

Prisoners: Foreign Nationals

Lord Faulks Excerpts

Tuesday 12th April 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government how many prisoners serving indeterminate sentences for the protection of the public over the last three years have been foreign national prisoners eligible, pursuant to Section 119 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, for removal from the United Kingdom at the end of their tariff terms without a direction from the Parole Board for their release, and what proportion of such prisoners have in the fact been removed without such a direction.

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

My Lords, from May 2012, when the tariff- expired removal scheme was commenced, up to 31 March of this year, 261 prisoners serving a sentence of imprisonment for public protection have been removed under that scheme—that is, without a direction from the Parole Board. A further five such prisoners have been eligible for removal but officials decided that they did not meet the criteria, while 16 have been approved for removal but are awaiting the settling of their removal directions.

[Lord Brown of Eaton-under-Heywood (CB)]

I am grateful to the Minister for those figures but I am sure that he will readily understand the sense of injustice and frustration, not to say anger, felt by UK domestic IPP prisoners at this preferential treatment which is accorded to foreign national prisoners. It is preferential because, of course, the foreign national prisoners do not have to satisfy the Parole Board that they can safely be released. Would the Minister agree to see the Lord Chancellor and try to persuade him that this is yet another reason for the Lord Chancellor to exercise his powers, also given under Section 128 of LASPO, to modify the test which the Parole Board applies in the case of the domestic IPP prisoners so that, hopefully, some of them, too, may gain the earlier release that at the moment is given only to these foreign prisoners?

--- Later in debate ---

[Lord Faulks]

My Lords, the noble and learned Lord is a champion of those who have been imprisoned under the IPP scheme brought in by the previous Labour Government. The position is that this Government are committed, as I think all Governments before them were, to removing foreign criminals to their own countries where possible. They must be punished but not at the expense of British taxpayers. Therefore they are removed when the relevant section permits their removal. Of course the Secretary of State actively considers the position that he has a power to change the release test but, at the moment, he is not satisfied that it is appropriate to do so.

[Lord Wigley (PC)]

My Lords, in view of the totally unsatisfactory ongoing position with regard to IPP prisoners, will the Minister convey to the Secretary of State that if the Secretary of State is not willing to take and use the powers at his disposal, he should consider appointing a senior judge to review the working of this system in order to get justice for people who are quite clearly not getting it at present?

[Lord Faulks]

We have reduced by 584 the number of IPP prisoners in the last year. There is an indeterminate sentence prisoners co-ordination group, run by NOMS, where close examination is taking place of all serving IPP prisoners. Efforts are made to accelerate their access to the appropriate courses, and we have removed backlogs from the Parole Board. We think that everything is being done to make sure that those who are safe to be released are being released when the Parole Board decides.

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

My Lords, today we have further evidence of prison overcrowding from another shocking inspection report of Wormwood Scrubs, which holds 35 indeterminate sentence prisoners. It makes the obvious recommendation that single cells should not be used for more than one prisoner. Will the Government now recognise that the injustice of keeping IPP prisoners beyond their tariffs serves only to add to the scandal of holding prisoners in overcrowded, squalid and understaffed prisons?

[Lord Faulks]

The noble Lord refers to the report on Wormwood Scrubs, which I entirely accept shows a distressing picture. As he and the House will know, the Secretary of State and the Prime Minister are determined to improve our prison system, and the Chancellor of the Exchequer has given £1.3 billion to enable that to happen. It will not happen overnight, but I am sure the House will accept the Government’s sincerity and determination to deal with some of the most unattractive aspects of our prison system.

[Lord Woolf (CB)]

My Lords, I fully accept that the Government have been trying to find a solution to the problem of these unfortunate prisoners, but the fact remains that it is now coming up to the fourth year since the power to impose IPP sentences was removed. That is far too long a period when, as was indicated at the time, these sentences put on a prisoner the impossible task of proving that he is not a danger. That is the real heart of the problem. Unless something is done to tackle that, does the Minister recognise that there will be a substantial further period before the last of these prisoners are released?

[Lord Faulks]

My Lords, the House of course greatly respects the noble and learned Lord for his experience in this area, but it is a matter for the equally experienced Parole Board to decide whether or not it is safe to release these prisoners. It must not be forgotten that, in each of the cases, the relevant judge sentenced the defendant in accordance with the then existing powers for the protection of the public. It therefore becomes incumbent upon the Parole Board to decide whether it is safe to release them, notwithstanding the fact that they may have a short-tariff sentence. It would be easy of course for the Government to wash their hands of this, but they have taken a responsible view to unravelling this unfortunate provision, which was brought in by the previous Labour Government.

[Lord Blunkett (Lab)]

My Lords, it is probably not the moment for me to confess that I was the Home Secretary who introduced the idea. The original intention, which I hope is understood, was that only those who posed a really serious risk to the population would be subject to such orders. That did not come about, and I regret that very strongly. But is it not a fact that what is lacking are the courses and therapy to allow the Parole Board to make the necessary decisions as quickly as possible. so that the overly prolonged incarceration of many of these prisoners can come to an end?

[Lord Faulks]

I entirely accept that the intention was to protect the public and that this provision caught in the net rather more prisoners than it was expected to catch. It must be remembered, of course, that these courses are important because they can provide evidence that a prisoner has grappled with a particular problem, whether it is sex offending, violence, drugs or whatever it might be. It is not a prerequisite for their release that they have to have attended these courses, although it may provide some evidence. Equally, the fact that you attend a course does not guarantee your release. We have increased the availability of courses to these prisoners. I am aware that a letter was written to the noble Lord, Lord Beecham, by my noble friend Lady Evans when this matter was last raised. I will ensure that that letter is placed in the Library. It gives a list of all the various courses which are now available to those prisoners.

Third Parties (Rights against Insurers) Regulations 2016

Lord Faulks Excerpts

Tuesday 22nd March 2016 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Third Parties (Rights against Insurers) Regulations 2016.

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

My Lords, the draft regulations extend the range of people who are potentially within the scope of the Third Parties (Rights against Insurers) Act 2010. Subject to the prior approval of both Houses of Parliament, the draft regulations are to be made by the Secretary of State under the power in Section 19 of the 2010 Act. Section 19, in its present form, was inserted into the 2010 Act by Section 19 of the Insurance Act 2015. The purpose of the power is to make provision for adding or removing circumstances in which a person is potentially within the scope of the 2010 Act. The present circumstances within that scope are currently set out in Sections 4 to 7 of and paragraph 1A of Schedule 3 to the 2010 Act.

The draft regulations make a series of textual amendments to the 2010 Act, as amended by the Insurance Act 2015. The effect of the amendments in general terms will be to include corporate and other bodies that are subject to certain sectoral insolvency regimes or, within limited exceptions, have been dissolved within the scope of the 2010 Act. The purpose of making these amendments is to correct omissions from the 2010 Act so that it can be brought into force without adversely affecting people who are currently within the scope of the 1930s legislation that is to be replaced by the 2010 Act.

It may be helpful at this point if I explain the principles that underlie the third parties legislation in a little more detail. It has existed since the 1930s and is so called because the claimant is a third party in relation to the contract of insurance. The current legislation is the 1930 Act, which applies to England, Wales and Scotland, and the Third Parties (Rights against Insurers) Act (Northern Ireland) 1930. The purpose of the 1930 Acts, and indeed of the 2010 Act, is to protect the interests of claimants against insured persons who have a liability to the claimant but who no longer have effective control of their assets, typically because they are insolvent. The basic effect of the third parties legislation is to transfer to a third party to whom the insured has incurred a liability the contractual rights of the insured against the insurer as regards that liability. This means that the proceeds of the insurance policy are paid to the claimant, not to the creditors of the insolvent insured generally.

The 2010 Act is intended to extend and improve the protection conferred by the 1930 Acts. To trigger the application of the 2010 Act, an insured must both incur a liability to a third party against which it is insured and undergo an insolvency or analogous event specified in the 2010 Act. Unfortunately, following the enactment of the 2010 Act it was found, in some respects, to have a narrower scope than the 1930s Acts. This was partly as a result of the terms used in the drafting of the 2010 Act and partly because of developments in insolvency law following the financial crisis in 2008.

Had the 2010 Act been commenced immediately after its enactment, the effect would have been to deny insurance proceeds to claimants and to pass them to be shared out among the insured’s creditors. This would have frustrated the very purpose of the 2010 Act and had the effect of undermining the purpose of compulsory insurance, such as that which employers are required to maintain. The operative provisions of the 2010 Act have therefore not yet been brought into force and will not be so until these defects have been remedied. The remedial process is therefore essential to realising the benefits of the 2010 Act. Part of the remedial process was effected by the amendments to the 2010 Act made by the Insurance Act 2015. The draft regulations will complete the process.

I will now describe the working of the amendments to be effected by those draft regulations. First, they would extend the list of such insolvency or analogous events by adding the sectoral insolvency or administration procedures listed or referred to in the provisions to be inserted in the 2010 Act by Regulation 3 of the draft regulations. These additions cover the possibility of insolvency or administration under special legislative regimes that generally follow, but are distinct from, the Insolvency Act 1986 in a wide range of important business sectors where company failure has the potential to damage public interest or cause market contagion—for example, financial services and postal or energy companies.

Secondly, Regulation 4 of the draft regulations extends the scope of the 2010 Act to dissolved bodies, other than unincorporated partnerships and bodies that are no longer treated as dissolved by reason of subsequent events. The 2010 Act currently applies to dissolutions under Sections 1001, 1002 or 1003 of the Companies Act 2006 but not to other dissolutions, even though dissolution, after which a body will certainly not have effective control over its rights and assets, would appear to be the paradigm case in which a transfer of rights should occur. Regulation 4 therefore broadens the scope of the application of the 2010 Act to these other dissolutions.

The one exception to the proposed coverage of dissolutions generally is the dissolution of unincorporated partnerships. This exception is sensible, as technically a partnership dissolves each time a new partner leaves or is added. This would extend the scope of the legislation too widely, as many such partnerships would be going concerns. In the case of a partnership which is no longer trading, the insured would need to proceed against the individual partners.

The remainder of the draft regulations deal with ancillary matters. Regulations 5 and 6 amend Section 9 and paragraph 3 of Schedule 1 to the 2010 Act respectively. Section 9(3) and (7) of the 2010 Act provide that a third-party claimant does not have to satisfy a condition of the insurance policy regarding provision of information or assistance to the insurer by the insured if it cannot be fulfilled because the insured has died or is a body corporate which has been dissolved. Paragraph 3 of Schedule 1 to the 2010 Act gives a claimant the right to request information from officers, employees, insolvency practitioners or official receivers of a defunct body corporate, other than when the dissolved body has been restored or ordered to be restored to the register of companies. The draft regulations extend these two provisions to all dissolutions, other than those of unincorporated partnerships, irrespective of whether subsequent events result in the body in question being treated as if it is no longer dissolved or as if it had never been dissolved.

The reason for the wider application of these provisions as against the provisions relating to dissolved bodies inserted into the 2010 Act by Regulation 4 is that most such situations reversing a dissolution—for example, restoration to the register of companies—are temporary and unlikely to result in there being a person who is responsible and able, on behalf of the body in question, to assist the claimant by being able to fulfil the condition or to supply the information in relation to the liability.

Before I conclude, I should like to express my department’s thanks to all those who have contributed to the preparation of the draft regulations. It is not a simple matter, as I suspect noble Lords will concede. Insolvency law is fast moving and complicated. The Insolvency Service, the Accountant in Bankruptcy in Scotland and the Department of Enterprise, Trade and Investment in Northern Ireland have all made significant contributions to what has been a very difficult technical exercise. I am very grateful to them. I am also very grateful to the Commercial and Common Law Team at the Law Commission, which for most of the period in question was led by David Hertzell and Tammy Goriely, without whose expert knowledge and legal skills the draft regulations could not easily have been prepared. Finally, in a more general sense, I thank the Law Commission and the Scottish Law Commission for their continuing support for the reform of third parties legislation generally. I hope that in the not too distant future we shall be able to make that reform a reality.

In conclusion, the reforms to be introduced by the 2010 Act are supported by insurers and claimants alike. They apply to insurance of all kinds and will be particularly beneficial in cases of long-tail industrial diseases, such as mesothelioma. The approval of the draft regulations by your Lordships’ House will be widely welcomed and will be a key step on the way to the commencement of the 2010 Act.

I am afraid that I am not yet in a position to state when the Act will be brought fully into force, as the draft regulations remain subject to your Lordships’ approval and to approval in the other place. Nevertheless, I can say that, subject to allowing all parties affected no less than three months from the making of the regulations in which to prepare for commencement, the Government’s intention is to bring the 2010 Act, as amended by the 2015 Act and by what will then be the Third Parties (Rights against Insurers) Regulations 2016, into force as soon as reasonably practicable. I beg to move.

[Lord Hope of Craighead (CB)]

I am grateful to the Minister for his explanation and also for bringing this set of regulations forward for our consideration and for the House’s approval in due course. It is an extremely important area which I think anybody practising in the common-law field values very much. I have only one question and that is to ask for reassurance in relation to part of Regulation 3, which deals with the relevant bodies in insolvency or administration under sectoral legislation. This is an extremely sophisticated area of law and I join in the Minister’s congratulations to all those who have played a part in putting all this together.

A feature of the list of enactments set out in Schedule A1 is that all except the last deal with areas of regulation which are common to the United Kingdom, with the special provisions made in the case of Northern Ireland which are set out in the schedule. Aviation, energy, financial services, postal services and railways apply equally to Scotland as they do to England and Wales. But the question of water and sewerage has occurred to me, because Scotland, I believe, has its own legislation relating to sewers and water: there is the Water (Scotland) Act, the date of which escapes me, and I believe that there is a sewerage Act for Scotland as well.

I fear that without detailed research, which is beyond my resources at the moment, I am not sure whether the Scottish legislation provides for administration under a legislative scheme. I am fairly confident that the Water Industry Act 1991, referred to here, does not extend to Scotland. It may well be that those who have been looking at this in detail have reassured themselves that there is no need for a mention of the Scottish legislation, perhaps because it does not actually provide for this kind of administration. If that is right, of course I understand why there is no mention of those statutes, but it might be as well to be absolutely sure that there is not a gap here that ought to be plugged before the regulations are brought into force.

That aside, I regard this as a very fine piece of fine-tuning which I am sure will be greatly welcomed in order to avoid any further gaps in the valuable legislation.

--- Later in debate ---

I do not claim that any of the points I have made so far are very important, but I would be grateful if the Minister would deal with them. I end by welcoming this statutory instrument and by thanking the noble Lord and his team for presenting it so clearly to the Grand Committee this afternoon.

[Lord Faulks]

I am very grateful for those observations and for the support for the regulations which was expressed by the noble and learned Lord, Lord Hope, and by the noble Lord, Lord Bach. As I am sure many in the Committee well remember from what became the 2010 Act, the noble Lord has been involved in this for some time and is familiar with this complex area of law.

The noble and learned Lord, Lord Hope, with his customary forensic skill, identified the absence of a specific reference to water and sewerage in Scotland. The question is whether the Scottish legislation needs to be mentioned. The UK Government have consulted the Scottish Government and the Accountant in Bankruptcy about the water legislation, and are content that no special mention is necessary. I am none the less extremely grateful to the noble and learned Lord for having mentioned it. This is such a complex area that it is not impossible to omit something, although I glad that in this instance it had been specifically considered.

The noble Lord, Lord Bach, made a number of comments, and I very much echo what he said in tribute to those who work in this area in the Ministry of Justice, and the extreme skill and dedication that they have to it. I am grateful for this comments in that respect. As to his specific questions, the use of the word “general” was not, as I understand it, in any sense supposed to imply that while they generally approved of it, they did not approve of specific aspects of it. As he may remember, the 2010 Act represents a compromise between insurers and claimants, designed by the Law Commission after extensive consultation.

The changes made in the Insurance Act 2015, and to be made in these draft regulations, are supported both by the ABI and APIL, as the noble Lord said. Both have expressed the clear view that they would like these regulations to be brought into force as soon as possible—there is no reservation about it. Therefore, the use of “general” in the Explanatory Notes is supposed to convey that. I accept that there could conceivably be considered to be some ambiguity, but I assure noble Lords that there is not.

I can confirm that the charitable sector, along with all stakeholders, is content with the change in the law which this will bring into effect.

Finally, the noble Lord asked about the impact assessment and, in particular, paragraph 10 of the Explanatory Memorandum. The point made in paragraph 10.4 is that the costs are,

“not easy to quantify … The Ministry … expects that when 2010 Act, as amended by the Insurance Act 2015 and the Regulations is commenced, it will generate a small net benefit to business”—

mainly insurers and claimants because of the ease with which the process should now be able to be undertaken—

“but that any aggregate impacts will be significantly less than £1 million per annum”.

The Explanatory Memorandum goes on to explain that,

“the circumstances added by the Regulations will probably only account for a fraction of this. However, we do not know how often these circumstances will apply; how many people will be affected”.

However, it seems that it comes well within the range of those regulations that do not require a specific impact assessment.

Our submission is that these regulations are very much to be welcomed. I am grateful for all the hard work that has gone into providing their final realisation during what has been quite a long process to get here. They will extend the scope of the 2010 Act to include the specific sectoral insolvency and administration regimes and most dissolved bodies, and the benefits of the 2010 Act will now be delivered without exposing some claimants who are protected by third-party legislation to a worse situation than they currently are in because of the omissions in the original Act. In those circumstances, I commend the draft regulations to the House.

Motion agreed.

Prison Reform

Lord Faulks Excerpts

Tuesday 15th March 2016 Lords Chamber

[Lord Beith]

To ask Her Majesty’s Government what assessment they have made of the impact of the total number of prisoners on their plans for prison reform.

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

My Lords, we do not need to reduce the prison population in order to reform our prisons. We will always provide sufficient prison capacity for those committed by the courts and aim to manage the prison population in a way that gives taxpayers value for money. Prisons must be places where offenders can transform their lives. We are therefore modernising the estate and will give prison staff greater freedom to innovate. Only through better rehabilitation will we reduce reoffending and cut crime.

[Lord Beith (LD)]

My Lords, at least three recent reports by Her Majesty’s Inspectorate of Prisons have demonstrated how difficult it is to achieve the Government’s worthy objectives of rehabilitation when there is a very large prison population and a much reduced staff managing it. Is it not time that, alongside the rehabilitation policy, Ministers began to look at why we imprison a larger proportion of our population than any other western European country, thus committing huge amounts of taxpayers’ money to a system which does not sufficiently reduce reoffending?

[Lord Faulks]

The Government are always anxious to find out why we imprison so many people. Of course, imprisoning is done by judges, not by government. We believe that the way to reduce the prison population is to tackle reoffending. Fifty per cent of adult prisoners are reconvicted within one year and 60% in less than 12 months. We aim to get to grips with that reoffending, and that will reduce the prison population.

[Lord Harris of Haringey (Lab)]

My Lords, does not that answer indicate precisely why the Government have a problem? If those are the reoffending figures, why is that happening? Is it not true that there are simply insufficient staff in our prisons to escort prisoners to, for example, needed mental health appointments, to the classes for which they are booked or indeed to the exercise and other facilities that would enable them to go along the path towards rehabilitation? How will that rehabilitation take place?

[Lord Faulks]

In the last year we have recruited 2,250 new prison officers—a net increase of 440—and we are continuing to recruit at that rate. We have given prison officers all that they have asked for in terms of the recommended rate of pay. We very much applaud prison officers in the very difficult task that they have to perform, and I am sure that all noble Lords will join me in offering their condolences to the family and friends of Adrian Ismay, a prison officer from Belfast, who unfortunately died today.

[Lord Farmer (Con)]

My Lords, I read in the Times recently that the Secretary of State is going to put family at the heart of prison reforms. Can the Minister expand on those plans and the progress that has been made there?

[Lord Faulks]

My noble friend is quite right to focus on the importance of family. According to research by my department, families are the single most important factor in helping prisoners to resettle on release. A number of prisons have developed visitor centres and are doing their best to make the contact between families and prisoners as pleasant as possible. This is important because, first, the families are, after all, not doing a prison sentence and, secondly, it encourages prisoners to remember that their roots in the community and in their family are the key to not reoffending.

[Lord Phillips of Worth Matravers (CB)]

My Lords, the Minister has recognised that we cannot hope to tackle prison overcrowding without improving rehabilitation and thereby reducing reoffending. But is it not the fact that we cannot hope to improve rehabilitation without reducing prison numbers? Can the Minister tell us how the Government will break this vicious circle?

[Lord Faulks]

The noble and learned Lord, with all his experience of the system, will appreciate that we have a duty, and therefore have to have the ability, to house all who are sent to prison by judges. What we are endeavouring to do is to identify the causes of reoffending. Once we have done that, we hope that that will reduce the numbers. If judges feel it is appropriate to sentence offenders to particular sentences, it is not for the Government to reduce those sentences simply to make the figures balance.

[Baroness Corston (Lab)]

My Lords—

--- Later in debate ---

[Baroness Corston]

My Lords, the Minister will know that in the nine years since the publication of my report, the reason that the number of women in prison has decreased is because of the establishment of a network of community women’s centres, which have been used by the courts to help those women turn their lives around. Under the new community rehabilitation contract regime introduced by the coalition Government one women’s centre, Alana House in Reading, has been closed because its CRC, MTC Novo, has refused to fund it. Other women’s centres do not even know what their funding is going to be after 1 April. Does the Minister agree that the inevitable result of this will be an increase in the women’s prison population?

[Lord Faulks]

I pay tribute to the noble Baroness’s contribution to reducing the population of women prisoners and her concern for them. Of course, she will be pleased that their number is lower than it has been for a decade. We hope that we can reproduce the best practice found in Holloway—albeit it is closing—and in the women’s centres in making sure that the arrangements in prison are those best suited for women and their rehabilitation.

[Lord Woolf]

My Lords, is it not right that the inflation in sentences—they are longer than they have ever been—is caused by action taken by Governments, and not by judges, to impose fixed sentences? These sentences form rocks that the rest of sentencing has to accommodate. If that were not the case, sentences would be shorter, because judges are prevented from imposing the sentences that they otherwise would by the fixed-sentencing policies of the Government of a particular time.

[Lord Faulks]

I am grateful for the contribution made by the noble and learned Lord. Of course, this Government and the coalition Government before them were very much against fixed sentences. It was the coalition Government who repealed, for example, provision in relation to indeterminate sentences for public protection. In the eight criminal justice Acts that were passed by the Labour Government, extraordinary inflexibility was given to judges in passing sentences—that is one of the results in terms of the prison population. We are endeavouring to give as many resources as we can to the Parole Board to make sure that those prisoners will be released when it is safe to do so.

Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016

Lord Faulks Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Lord Faulks]

To move that the draft Order laid before the House on 17 December 2015 be approved.

Relevant document: 20th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the purpose of this draft order is to introduce enhanced fees for certain types of civil and family proceedings. Specifically, the order will increase the fee to issue a possession claim in the county court to £355 from £280 and there will be a 10% fee discount for possession claims made online. It will also increase the fees for a general application made in civil proceedings to £100 for an application made by consent or without notice and to £255 for a contested application. These changes will also apply to general applications made in judicial review proceedings heard in the Immigration and Asylum Chamber of the Upper Tribunal.

There are, however, general applications relating to certain proceedings for which, given the particular sensitivities involved, we feel that it would be inappropriate to charge a fee above cost. These are applications in insolvency proceedings, applications in relation to an injunction for protection from harassment, and applications for payment to be made out of funds held in court. The order will also make small changes to the fees charged for copy documents in immigration judicial review proceedings heard in the Immigration and Asylum Chamber of the Upper Tribunal. Finally, the order increases the fee to make an application for a divorce or dissolution of a civil partnership. This will be increased to £550.

Where users are charged a fee to access public services, it is normally the case that the fee should be set at a level to cover the full cost of delivering those services. For many years the civil and family courts have operated on that basis. Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 provides the Lord Chancellor with a power to prescribe fees above cost on the basis that these fees are used to finance an efficient and effective system of courts and tribunals. This power was used for the first time in March last year to increase the fees for money claims.

Noble Lords will be aware of the difficult economic situation that we face. The Government were elected to continue our work to fix the economy, and that is indeed what we are doing. It is clearly right that we continue to look for opportunities to reduce public spending. That includes the courts and tribunals and those who use them. In the current financial climate, it is right that we look again at the balance between what users pay towards the overall cost of the Courts and Tribunals Service as compared with the financial burden that falls on the taxpayer. All of the increases in the draft order have been subject to consultation, and our decision to take them forward has been announced in subsequent published government responses.

Why are the Government taking this action and why is it necessary? The reason we are introducing these fee increases is to make sure that the courts and tribunals are funded in the long term. The courts and tribunals fulfil a vital function in our society. They make sure that access to justice is available to those who need it. Access to justice is critical to the maintenance of an effective and functioning democracy, helping to maintain social order, underpinning an effective economy, and upholding the rule of law. It is crucial that these principles are preserved so that people who need it have ready access to the courts and tribunals.

Equally, a strong economy is a prerequisite for effective and affordable public services. Noble Lords will be aware that the Government inherited a growing budget deficit, increasing public sector debt, and an economy in recession. We made economic recovery our first priority, and this has required some difficult decisions to be made. The action we have taken is working and the recovery is now well under way, but further reductions in spending are essential if we are to eliminate the deficit.

We have secured more than £700 million-worth of funding to invest in our courts and tribunals, and we have been working closely with the senior judiciary to develop a plan for investing this in reforming the courts and tribunals so that they can deliver swifter, fairer justice for everyone in England and Wales at a lower cost.

There is, however, only so much that can be done through cost-efficiency measures alone. If we are to secure the sustainable funding of the courts and tribunals, we must also look to those who use the system to contribute more, where they can afford to do so. We consulted on all these proposals and have carefully considered all the responses that were received. The consultations produced some very strong views, particularly on the proposed increase to the fee for a divorce or dissolution of a civil partnership. We have listened to what people had to say and have decided to limit the increase in this fee to £550—from £410—rather than £750, as originally proposed.

The measures set out in this order, we estimate, will generate around £60 million per annum in additional income, with every £1 collected spent on providing an efficient and effective system of courts and tribunals. We recognise that fee increases are not popular, but they are necessary if we want to deliver our promise to fix the economy while protecting access to justice. It is in those circumstances that I therefore commend this draft order to the House, and I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this is the second time that the Lord Chancellor has exercised his power under Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 to prescribe enhanced fees—court fees, that is, that exceed the cost to the Courts and Tribunals Service of doing that for which the fee is charged. This power was first used last year in relation to the fees for bringing court proceedings to recover sums of money. On 4 March last year—a year ago—the noble Lord, Lord Pannick, moved a regret Motion, on which I spoke. Frankly, much of what I said then applies with equal—indeed, even greater—force today. I pointed out that there has long been objection even to the basic principle of full cost recovery. The justice system exists for the benefit of society as a whole and really courts should no more be required to be self-financing than, say, the police service.

Of course, orders for enhanced fees go altogether further than mere cost recovery. In a real sense, as the noble Lord, Lord Beecham, explained, they amount to selling justice—on the face of it contrary to Magna Carta, although now of course regrettably sanctioned by Section 180 of that Christmas tree of an Act we passed two years ago, the Anti-social Behaviour, Crime and Policing Act. As I pointed out in last year’s debate, that Act stretches to 186 clauses and 11 schedules, occupying 232 pages of the Queen’s Printer’s copy. Small wonder that by Clause 180 we had grown a little lax or careless in our scrutiny of that Bill.

Today I want to focus briefly on the increased fees now to be exacted for a decree of divorce or nullity, an increase of about a third from £410 to £550. In the Government’s January 2015 response to part 2 of the consultation on the so-called reform of court fees, it was recorded at page 40 that the senior judiciary, who were, naturally enough, a statutory consultee in the process,

“noted that the current divorce fee was above cost”.

The recent 20th report of the Secondary Legislation Scrutiny Committee confirmed this, noting at page 4 that the Ministry of Justice’s own estimate of the average cost of dealing with an uncontested divorce application is only £270—this new enhanced fee being therefore just over double that.

Of course, that earlier consultation related specifically to the then-proposed increase of the fee to £750—a proposal later abandoned. However, the objection remains essentially as to the original proposal, summarised in the case of the higher judiciary at paragraph 8.5 of the Explanatory Memorandum to this order. The objection was that,

“it will be a disincentive for divorce and in particular, women that are victims of domestic violence”.

Essentially, that echoed earlier objections that an increased divorce fee,

“could lead to parties being trapped in unhappy or violent marriages”,

and could prevent people from marrying or remarrying and being therefore,

“without the protection the law affords to married couples”.

At the conclusion of last year’s debate, noting that the Motion was one of only regret and not a fatal Motion, I expressed the hope that at least it would persuade the Government that enough is enough and really there must be no more use of this enhanced fee power. Alas, the Government have now chosen to go still further down this sorry road. This order is to be not merely regretted; it is to be deplored.

[Lord Faulks]

My Lords, this debate has been short but not lacking in power nor indeed in criticism of the Government. It feels almost nostalgic to hear in this Session of Parliament criticisms of the Government generally in their handling of the economy and of the Ministry of Justice and the Secretary of State. We are on familiar ground. It even included, from the noble Lord, Lord Beecham, the customary disavowal of anything being wrong with the economy at the time of the election in 2010.

[Lord Beecham]

The noble Lord misrepresents me. I did not say that there was nothing wrong with the economy. I said that it was recovering—and it was.

[Lord Faulks]

I stand corrected, though the recovery seemed to be rather in the eye of the beholder. In any event, the approach of the noble Lord appears to be that these changes are not justified in economic terms and that they will or might have the tendency to cause hardship.

Of course, I readily accept—as I did in opening this debate—that fee increases are never likely to be popular. On the question of divorce, there was an acceptance, if not an enthusiastic one, by the noble Lord that we had listened to representations, concluded that the original proposal was too high and reduced the sum that needs to be paid in order to obtain a divorce. Reference was made by the noble Lord to what judges said in the course of giving evidence—distinguished judges, I fully acknowledge.

Sexual Offences: False Accusations

Lord Faulks Excerpts

Thursday 10th March 2016 Lords Chamber

[Lord Campbell-Savours]

To ask Her Majesty’s Government whether they intend to review the law concerning those making false accusations in relation to sexual offences.

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

My Lords, there are no plans to review the law in this area. It is a very serious matter to make a false allegation relating to a sexual offence and there are strong sanctions against those who do.

[Lord Campbell-Savours (Lab)]

My Lords, should we not now consider the reform of the law which allows someone like this man, Nick, who, hiding behind a wall of anonymity, makes allegations of a sexual nature against reputable public figures such as Lord Bramall, the late Lord Brittan and the late Mr Edward Heath, the former Prime Minister, and others, with not a shred of forensic or corroborative evidence whatever? It is simply unjust. Is it not now time that the whole issue of anonymity for the accused, and in particular the defence of the falsely accused, was put back on the national agenda and considered here in Parliament?

[Lord Faulks]

My Lords, I am sure that the noble Lord will accept that this is a very delicate issue. Parliament in 1976 decided that there should be anonymity both for complainant and for defendant. Parliament then abolished that in 1988. In 2010, the coalition Government considered the matter and decided, in balancing the various public interests, not to take further action. The noble Lord refers to a well-known case, and of course legitimate criticisms can be made about the handling of that matter, although we must allow the police some operational freedom. But I can say that Sir Richard Henriques, a retired High Court judge, is looking into the matter, an IPCC complaint has been made, and in due course the Government will respond to any recommendations or publications on that matter. But one must remember how difficult it is to make these allegations, and while I entirely accept what he says about those people in high places, of course no one is above the law.

[Lord Geddes (Con)]

My Lords, to follow on from my noble friend and enlarge on his point about whether the accusation is ultimately proved true or false, and referring back to the 1988 decision, would it not be far more equitable if either both parties had anonymity or neither did?

--- Later in debate ---

[Lord Faulks]

I accept that there is a superficial attraction about that symmetry. But I suggest that one of the important things that the public policy demands is that making a complaint should not be discouraged. It is no easy thing to make a complaint about, for example, rape or sexual offences. The possibility not only that you will be cross-examined and traduced in court but will have your name emblazoned on newspapers or other means of communication is a considerable inhibition in making that complaint. That is one of the difficult factors that Parliament took into account when deciding to retain anonymity.

[Lord Armstrong of Ilminster (CB)]

My Lords, I have stated elsewhere the reasons for my conviction that Sir Edward Heath was not a child abuser. The allegations that have been published in the media to that effect have no shred of credible corroboration. Wiltshire Police are conducting an investigation, which is forecast to last for 12 months or more and which involves interviewing an extensive range of Sir Edward’s friends, colleagues, staff and former crew members and searching through 4,500 boxes of his archives. I have suggested to the chief constable of Wiltshire Police that there can be no conclusive or satisfactory outcome to this investigation. Even if, as seems likely, the police find that there is insufficient evidence to have justified a prosecution, the cloud of suspicion which has been hanging over Sir Edward’s memory would not be definitively dispelled. In the unlikely event of a finding that there is sufficient evidence, that evidence could not be tested in a court of law because Sir Edward is dead and cannot be prosecuted. It seems as if Wiltshire Police are arrogating to themselves the role not only of investigator but also of prosecutor, judge and jury in this matter. Does the Minister not agree that the investigation is a travesty of justice and a prodigious waste of police time and resources?

[Lord Faulks]

I am sure that there will be a lot of sympathy around the House and elsewhere for what the noble Lord says. Of course, we must not interfere with police operational independence. However, the points that he eloquently makes about proportionality in view of the death of Sir Edward and the likelihood of any significant evidence one way or another being unearthed at this stage are valuable, and I take them on board.

[Lord Thomas of Gresford (LD)]

My Lords, there are sound public policy reasons for keeping the anonymity of a complainant throughout the trial and beyond, but are there not also sound public policy reasons for giving the trial judge the discretion, after an acquittal, to consider whether the identity of the complainant should be released if he is satisfied that it is a false accusation and not tainted by mental illness?

[Lord Faulks]

The noble Lord makes an important point. But of course, he will know only too well that someone who has had a false complaint made against them is vulnerable to prosecution for perjury, perverting the course of justice or wasting police time, and that an individual has the right to sue for malicious prosecution or defamation. So remedies do exist.

[Lord Fowler (Con)]

My Lords, is not the noble Lord, Lord Campbell-Savours, absolutely right in what he said? Is it not quite clear that the present system of protecting the innocent from having their names plastered all over the media has broken down? Does justice not require that the Government take a fresh look at this whole issue and not just leave it to the police?

[Lord Faulks]

At the moment, as my noble friend will appreciate, this is a matter for the police, who consider that only in exceptional circumstances will it be appropriate to name suspects. Sometimes it is true that naming a suspect provokes people to come forward who they have kept quiet about allegations for fear that they will not be believed when they accuse prominent members of the so-called establishment. However, I accept my noble friend’s point. Clearly it is a matter to which any Government will give anxious consideration in weighing up these very difficult, conflicting issues.

Prisons: Violence

Lord Faulks Excerpts

Thursday 3rd March 2016 Lords Chamber

[Lord Marks of Henley-on-Thames]

To ask Her Majesty’s Government what steps they are taking to tackle the incidence of deaths, serious assaults and incidents of self-harm in prison.

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

My Lords, the Government recognise the seriousness of this problem and are taking action to respond. We are trialling the use of body-worn video cameras, the Psychoactive Substances Act will introduce new offences to control supply and possession and we have reviewed the process for supporting prisoners at risk of suicide or self-harm. We recognise that our prison system needs reform, and there is much more to do to ensure that prisons are places of decency, hope and rehabilitation.

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

My Lords, 2015 saw a record number of deaths in custody, a 20% increase in assaults and a 25% increase in self-harm incidents. Those increases were over record figures the previous year. The Justice Secretary appears committed, rightly, to prison reform, but has he been promised the resources to address the causes of these dreadful figures—squalid conditions, overcrowding, understaffing and prisoners locked for far too long in their cells?

[Lord Faulks]

The causes of violence are multifactorial. They include of course the increased use of psychoactive substances, to which the Government are responding positively. It is a ceaseless challenge to try to prevent them coming into prison, but we have a new offence, and we are taking steps to make it very difficult for these substances to be thrown over walls or secreted in parts of the body. It is generally a significant challenge. We are also looking at a two-year violence reduction project, to help us better understand the causes and characteristics of violence and to strengthen our handling of it. There is also the use of body-worn cameras. Ultimately, the best way to reduce violence may be to give, as the Prime Minister and the Secretary of State have suggested, much more power to prison governors to give them the tools necessary to reform the way their prisons are run and to help rehabilitate offenders.

[Lord Cashman (Lab)]

My Lords, we are all deeply concerned about the number of deaths in prison, but I wish in particular to raise the issue of the increasing number of trans people who are taking their own lives in prison. Are there special provisions for dealing with the LGBT community, in particular the trans community? If so, will the Minister publish them so we can ensure that they are fit for purpose?

[Lord Faulks]

There is a prison service instruction in relation to the care and management of transsexual offenders, which is being reviewed. People with particular experience of these issues are involved in the review, including Peter Dawson of the Prison Reform Trust and Jay Stewart of Gendered Intelligence respectively. We are concerned of course to tackle this very delicate issue, so that those who are on the journey, very often to change gender, are properly looked after and their considerations taken into account, so that prison can be adapted in a way that most suits their requirements.

[The Lord Bishop of St Albans]

My Lords, in the light of the welcome announcement last autumn that a number of the old, unsuitable prisons were going to be replaced with purpose-built ones, will the Minister assure the House that the specifications for those new-builds will take very careful account of mental health issues, consulting with the charities that are dealing with this particular area and producing excellent educational, medical and spiritual facilities, so that we can minimise the level of mental health problems and maximise rehabilitation?

[Lord Faulks]

The right reverend Prelate makes an important point. He will have been reassured by what the Prime Minister said in his speech on 8 February—namely, that the design of these new prisons should be particularly directed towards helping mental health treatment. If necessary, that should allow individual governors to have appropriate control, with co-commissioning with NHS England to ensure that the significant numbers of inmates in prisons with mental health problems are adequately treated.

[Lord Hamilton of Epsom (Con)]

My Lords, following the right reverend Prelate’s question, can my noble friend tell us what percentage of prisoners have been diagnosed with mental illness problems, and is prison the best place to treat them?

--- Later in debate ---

[Lord Faulks]

The NICE estimate is that 90% of prisoners have at least one psychiatric disorder. Of course, the precise nature of a psychiatric disorder will vary. With many of them, prison may not be the correct place to treat them—although there may be other factors that make it appropriate for them to be there. NHS England has developed national specifications for health and justice services in English prisons and all prisons have clear commissioning models that focus on outcomes specific to custodial settings. All judges who sentence offenders will, or should, have adequate information to allow them to sentence appropriately. It then becomes a matter for the prison estate as to how best they are housed.

[Baroness Corston (Lab)]

My Lords, the Minister may be aware that there are about 82,000 men in our prisons and over 3,000 women. Those women are responsible for about 50% of the self-harm in prison. Furthermore, since my report published nine years ago this week, the number of women who took their own lives in English prisons last year was a record. Two have taken their lives this year already, in the first two months. What factors does he think underline the deterioration in the safety of women in our prisons?

[Lord Faulks]

On the positive side, the female prison population is now under 4,000—the lowest it has ever been. In the speech I referred to earlier, the Prime Minister made a particular point of the importance of finding alternative ways of dealing with women offenders, preferably avoiding sending them to prison altogether, which has been very much the trend with sentencing. Of course, there will be an irreducible number who have to be sent to prison. Although the noble Baroness is quite right that any suicide in prison is a matter of complete regret, and self-harm is equally concerning, we are in the process of modernising the prison estate to ensure that there are the best regimes and that women are held in environments that better meet their gender-specific needs.

[Lord Dholakia (LD)]

My Lords, the Minister must have read the report in 2015 by HM Chief Inspector of Prisons—a devastating report that talks about violence and poor conditions in our prisons. The most disturbing aspect of the report and the allegation made by the then Chief Inspector, Nick Hardwick was that the Secretary of State tried to influence his report. Will the Minister make sure that that sort of thing does not happen in future? Public confidence will be eroded if independent reports by prison inspectors are interfered with by Ministers.

[Lord Faulks]

The noble Lord is right to suggest that the report by Mr Hardwick was unfavourable in a number of respects. The Government will learn lessons from what he said. It is important that we should take on board an objective analysis of that. It is perhaps an indication of the Secretary of State’s willingness to embrace criticism that he has appointed Mr Hardwick to have continued involvement in the criminal justice system, by his appointment as chair of the Parole Board. I hope that the noble Lord will accept that that is a real sign of somebody getting to grips with a critical friend of the system.

European Union Referendum (Date of Referendum etc.) Regulations 2016

Lord Faulks Excerpts

Wednesday 2nd March 2016 Lords Chamber

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

My Lords, this has been a historic debate. The House has well and truly put its stamp on this very important issue. Many have spoken with personal experience. Sometimes there has been an acknowledgement that there is a visceral element to the reaction that many people have to this issue, as there will be throughout the country. So many points have been made that I hope noble Lords will not be too disappointed if I confine my remarks to rather few of the issues raised during the debate.

Unfortunately, being a late arrival to the debate, I was unable to be here during the maiden speech of my noble friend Lord Gilbert of Panteg. My late inclusion was because of the acute discomfort that my noble friend Lady Anelay was in. I salute her tenacity throughout the whole business of the European Union Referendum Bill and her dedication to bringing matters to the House’s attention. But I have it on the highest authority that he made an excellent maiden speech, and we very much welcome him to the House and look forward to his future contributions.

My task in winding up this debate has been made easier by the fact that the noble Lord, Lord Kerr, made many of the points that I might have made in winding up, and rather better than I would have done. I can deal with the date quite briefly, in view of the widespread acceptance of the SI. The Prime Minister has announced his intention to hold the referendum on 23 June, and my noble friend Lady Anelay explained why the Government believe that that date strikes the right balance between giving enough time for a proper debate and not making voters wait too long to have their say. There will be four months from the announcement of the date until polling day, six weeks for campaigners to apply to be designated, and a 10-week regulated referendum period. We believe that that is ample time. Traditionally, general elections have only six weeks’ notice; this referendum will have had much more. The intention to hold a referendum before the end of 2017 was announced in the Prime Minister’s Bloomberg speech of 2013; it was affirmed at the election last year and reaffirmed by the passing of the referendum Act in December. No one can claim that they were not given sufficient notice.

Most importantly, the Electoral Commission has confirmed that it is content with the Government’s proposals and that, in its view, arrangements for a well-run referendum are “well advanced” and that the date does not pose a “significant risk”. It was only the noble Lord, Lord Stoddart, who suggested a different date; he suggested that the Government should wait until after the Tory Party conference, an invitation that the Government have no difficulty in refusing. The approval of the procedure has been echoed by the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee; both have considered the instrument and both are content with the proposals.

[Lord Howarth of Newport]

The noble Lord has suggested that the Electoral Commission is content—maybe it is—but has it offered a view on the character, integrity and neutrality of the various so-called information documents that the Government have been pouring forth? It might be that it would consider that those documents are not in fact as neutral as they ought to be.

[Lord Faulks]

I am unaware of any view having been expressed about those documents but, since the noble Lord asks about those documents, which have been variously described as “propaganda”, they are the Government’s attempt to make their case and to make it clearly—The Best of Both Worlds, as the Government see it. We look forward to those who wish to leave the European Union putting forward their views in writing so that they can be scrutinised and dismissed as propaganda if they must be. But rather, I would suggest, a proper analysis of views on one side and another should be undertaken.

I turn to the deal—the EU renegotiation. I take the point made by my noble friend Lord Ridley that this is a question of a relationship not with Europe but with the EU. There have been a range of opinions. The special status that the renegotiation has delivered means that Britain can, as the pamphlet suggests, have the best of both worlds. We will be in the parts of Europe that work for us, influence the decisions that affect our economy and help to keep our people safe. We will be in the driving seat of the world’s biggest single market, but we will be out of the parts of Europe that do not work for us—the euro, the eurozone bailouts and the passport-free, no-borders Schengen area—and we will be permanently and legally protected from being drawn into ever-closer union.

The deal has achieved agreements in each of the four areas that were set out by the Prime Minister in his letter to Council President Tusk in November last year. On sovereignty, the deal ensures that the UK is out of ever-closer union, will never be part of a superstate, and has achieved new powers to block unwanted European laws. On competitiveness, the deal secures new commitments from the EU to cut red tape, complete the single market and sign new trade deals. On economic governance, we have made sure we will never join the euro, that British taxpayers will never be required to bail out the eurozone and that British businesses cannot be discriminated against for not being in the eurozone. On welfare and migration, we have made sure that new arrivals from the EU will not be able to get access to full benefits for four years and that child benefit will no longer be sent home at UK rates.

The noble Lord, Lord Green, suggested that this might not reduce the flow of EU migrants. The new relationship means that EU migrants can no longer claim full benefits for some time, and this ends what has been characterised as something-for-nothing welfare arrangements. The Government are not making a forecast of numbers, but we know that around 40% of EU migrants are supported by the benefits system, so reducing this artificial draw will, the Government believe, help us control and reduce immigration from Europe.

The legal nature of this deal has been called into doubt by some, but let me be clear: this deal is legally binding for all EU member states and the decision of the heads of state or government has now been registered with the United Nations as an international treaty. The conclusions of the February European Council as well as the text of the deal itself clearly set out the legally binding nature of the deal, and the European Court of Justice has held that decisions of this sort must be taken into consideration as being an instrument for the interpretation of the EU treaties.

Council President Tusk was clear that:

“The 28 Heads of State or Government unanimously agreed and adopted a legally binding and irreversible settlement for the United Kingdom in the EU. The decision concerning a new settlement is in conformity with the Treaties and cannot be annulled by the European Court of Justice.”

The legal opinions of both the Council Legal Service and Sir Alan Dashwood QC further confirm the legally binding nature of the deal. All those documents are footnoted in the document described as propaganda by those who oppose this process.

My noble friend Lord Astor asked whether the European Parliament could veto elements of the deal after a remain vote. Martin Schulz, the president of the European Parliament, has said that he absolutely rejects the notion that MEPs have a veto and has given a guarantee that the European Parliament will, immediately after the referendum to stay in Europe, legislate on the proposal of the Commission. Manfred Weber, the leader of the centre-right EPP, the biggest block in the European Parliament, has said that with strong backing from EU member states and parliamentary leaders a UK package,

“could go through very quickly after the referendum. One or two or three months is possible”.

So we are confident that we can get the changes we need written into EU law.

[Lord Hunt of Chesterton]

Perhaps the Conservatives might join this group. It might be more expeditious.

[Lord Faulks]

I am sure they will be grateful for that suggestion.

The position is that this is a legally binding agreement. Of course all countries have evinced a clear agreement to be bound by the terms. The European Court of Justice cannot be bound by the agreement itself—it is a final court determining the validity of an agreement—but it is not realistic to expect that it will in any way go against what is a clear agreement in international law entered into by all members of the European Union.

[Lord Forsyth of Drumlean]

Will my noble friend explain why the Lord Chancellor takes a different view from him?

[Lord Faulks]

In an interview which I saw, the Lord Chancellor suggested that the European Court of Justice—or the CJEU, as it now prefers to be called—is the supreme court in Europe and is above all European institutions in interpreting the law. That is entirely a correct statement of the position. If he suggested—and I am not sure whether he did or did not because it seemed to me that he and the Prime Minister might have been talking about rather different things—that the treaty was not binding on the European Court of Justice, he was right to the extent that it is open to the European Court of Justice to decide that its jurisdiction is determined by the nature of the treaties only. It is highly unlikely that they would do so—highly unlikely because there is a clear agreement evinced by the 28 countries, the members of the European Union. No self-respecting court that had any say for its own reputation would do violence to that agreement.

[Lord Howard of Lympne]

Is it not the case, however, that although all courts these days are unpredictable, the European Court of Justice is more unpredictable than most? Unless and until a case came before the European Court of Justice, we simply do not know what their decision will be.

[Lord Faulks]

Some courts are more predictable than others, but the confident assertion from all legal advisers whose opinion I have read is that, for example, were there to be an argument to the effect that our changes to migration arrangements were somehow contrary to the principle of free movement, there is no way that the European Court would say, “Well, the treaty has freedom of movement, but all the member states have agreed to the contrary that there should be this arrangement for the United Kingdom”. I simply cannot believe that it is arguable that there would be any other conclusion than that there was honouring of the agreement.

[Lord Hannay of Chiswick]

My Lords, could the Minister confirm what I believe to be the case, and stated when I addressed the House earlier: that in the cases of Denmark and Ireland, where postdated commitments were entered into for treaty change, which took quite a few years to fulfil, there was no evidence and no case in which the European Court of Justice sought to tamper with those agreements? That is rather more important than endless speculation about what it might do.

[Lord Faulks]

I am grateful to the noble Lord. He is quite right. Those are substantial precedents and a clear indication of what might happen—as he quite rightly said, in invoking the Latin maxim pacta sunt servanda.

[Lord Spicer]

Can my noble friend think of an example where the European Court has intervened and where it has not done so in favour of an integrationist centralist Europe, according to the acquis communautaire?

[Lord Faulks]

With great respect to my noble friend, I am not sure that going over the entire jurisprudence of the European court would help, either at this time of night or at all, in terms of answering this fundamental question. We, the Government, submit that the answer is clear: this is a binding agreement.

May I also advance the argument that we are better off in the EU? The Government believe that the UK will be better off. The Government’s long-term economic plan is delivering economic security for families and businesses, underpinned by sound public finances. We plan to do this by investing in the UK’s future, addressing the productivity challenge and rebalancing the economy towards trade and investment. With turbulence in the global economy, membership of the EU supports this plan by giving British business access to the free-trade single market, and dozens of trade deals across the world.

Through our EU membership, we already have trading agreements with more than 50 countries. Concluding all the trade deals currently under way could ultimately be worth more than £20 billion a year to the United Kingdom GDP. Once these deals are completed, around three-quarters of UK exports to non-EU countries would be covered by an EU-negotiated free-trade agreement. Of course, we could make other deals—whether we could make them on better terms must be seriously in doubt. This Government’s deal keeps the EU moving firmly in the right direction and hard-wires competitiveness.

Would we be safer in the EU? The Government believe that we would. Our EU membership allows the UK to work closely with other countries to fight cross-border crime and terrorism, giving us strength in numbers in a dangerous world. Our new settlement reiterates that the responsibility for national security rests solely with national Governments and that EU institutions will fully respect the national security interests of member states.

The Government believe that the UK will be stronger in the EU because we can play a leading role in one of the world’s largest organisations from within, helping to make the big decisions that affect us. Membership of the EU, like our membership of NATO and the UN, amplifies the UK’s power and influence on the world stage. At a time when we are, as many noble Lords have pointed out, faced with an increasing range of serious threats, co-operation at an international level is more important than ever.

This is a significant package of measures, delivering changes that are substantial, legally binding and irreversible in the sense that they can be changed only if all 28 member states agree. Of course it will not solve all the problems with the EU. In that sense, it should be seen as an important step on the road to EU reform —a point made by my noble friend Lord Howell, in his thoughtful speech—rather than the destination.

As to leaving the EU, noble Lords will be aware of the discussion elsewhere about a vote to leave being a means of securing further concessions in the renegotiation process, ahead of a second vote. That appears to have been briefly the view of the Mayor of London and is still the view of Mr Dominic Cummings.

The noble Baroness, Lady Morgan of Ely, asked if there was any contingency planning for Brexit. The Civil Service is working full-time to support the Government’s position, and the Government’s view is that the UK will be stronger, safer and better off remaining in a reformed EU. I want to be very clear on behalf of the Government: a vote to leave is exactly that—a vote to leave. The Government cannot ignore the democratic decision that will be made on 23 June; there is no option on the ballot paper to have a second renegotiation or to hold a second referendum. The Prime Minister has been explicit that a vote to leave would trigger Article 50 of the treaty. It would begin the process of a British exit from the EU.

[Lord Lawson of Blaby]

On the point that the Minister has just made, it is not a matter for the Prime Minister to decide whether Article 50 is invoked in the event of a referendum for leaving; it is a matter for Cabinet. The Cabinet will have to have before it papers setting out all the various options, and it will be for Cabinet to decide which of those options it wants to pick up.

[Lord Faulks]

Whatever the process, it is clear that Article 50 will have to be adopted. The EU treaties, which the UK is signed up to, set out a legal process for EU member states to leave. My noble friend Lord Lawson suggests that we can simply ignore that process by repealing domestic legislation in the form of the European Communities Act, which is the piece of legislation that incorporated the treaty into our domestic law, but if we simply did that and ignored the UK’s international obligations, we would be violating the rule of law. It would hardly be a good way to begin a negotiation with 27 other member states to get a good deal for Britain by breaking international law.

The public would expect that if we were to leave, we would do so, as we have traditionally done, in accordance with the law and following the terms of the treaties. A vote to leave would start the clock on a two-year period to negotiate the arrangements for the UK’s exit. I should also be clear about what would happen if that deal to leave was not done within two years. Our current access to the single market would cease immediately after two years and our current trade agreements with 53 countries around the world would lapse.

The Government have made our position clear: the UK’s national interest—the interests of every individual, family, business, community and nation within our United Kingdom—will be best served by our country remaining part of a reformed EU. There was almost total agreement across the House today that we should let the British people have their say on 23 June. Clearly, then, there is no reason to wait. Let us give each side time to make their case, then let us put the question to the British people. Let us settle this issue for a generation, and let us vote to remain.

There is a Motion to approve the statutory instrument before the whole House. I beg to move.

Motion agreed.