EU Referendum and EU Reform (EUC Report)

Lord Faulks Excerpts

Wednesday 15th June 2016 Lords Chamber

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

My Lords, this has been a fascinating debate. It has covered an enormous amount of ground and the House has displayed great expertise and, indeed, passion. I do not exclude from that observation, despite the fact that they were very much in the minority, the noble Lords, Lord Howarth and Lord Pearson.

I must say that I had no expectation of a reference in the debate to PG Wodehouse, which was provided by the noble Lord, Lord Hennessy, in his pertinent and witty speech. I am a little concerned that the great man might have supported Brexit, however. We even had an excursion into fairy tales. I got a little lost between the second bowl of porridge and the disadvantages of having a mistress, but, broadly speaking, I agreed with the noble Baroness.

I would particularly like to congratulate the noble Lord, Lord Boswell, chair of the EU Select Committee, and my noble friend Lord Selborne on their chairmanship of the committees which have produced the three reports before us today, and to record the Government’s appreciation of the work of the respective committees. Naturally, I understand that the committees wished to have their reports debated before the date of the referendum, notwithstanding the fact that the government response will not be available until after 23 June. I do not want to pre-empt the detailed response that will be provided. However, on this final day of business, I would like to take this opportunity to set out the Government’s position on the referendum.

First, I want to restate what my right honourable friend the Prime Minister achieved in his renegotiation. This is also set out in the government paper The Best of Both Worlds: the United Kingdom’s Special Status in a Reformed European Union. Last year, the Prime Minister set out to address four key areas in the EU where the UK wanted to see reform, and at February’s European Council he reached a deal that delivered on all those areas. The noble Lords, Lord Boswell and Lord Jay, and the noble Baroness, Lady Falkner, suggested that insufficient attention had been paid to the settlement. I think they were right. On economic governance, he obtained permanent protection for the pound and our right to keep it, as well as guarantees that UK taxpayers will never be required to bail out the eurozone. We have protected the UK’s rights as a country within the single market, but outside the eurozone, to keep our economy and financial systems secure and protect UK businesses from unfair discrimination.

On competitiveness, my right honourable friend secured from the EU and all member states commitments to reform the EU in line with the vision for a more globally competitive Europe which we and others share. The EU recognised the need to act to,

“promote a climate of entrepreneurship and job creation, invest and equip our economies for the future, facilitate international trade, and make the Union a more attractive partner”.

The Prime Minister also secured a clear commitment to,

“doing more to reduce the overall burden of EU regulation, especially on SMEs and micro enterprises”,

which account for 95% of all UK firms. There will be a new focus on further extending the single market to help bring down the remaining barriers to trade within the EU, particularly in key areas such as services, energy and digital.

Our new settlement has secured a clear commitment that the EU will pursue an active and ambitious trade policy with the world’s most dynamic economies, prioritising the US, Japan and other important partners in the Asia-Pacific region and Latin America to reduce or eliminate the tariff and regulatory barriers faced by UK companies in large and growing non-EU markets.

The UK benefits from the EU’s greater economic leverage, which has allowed it to negotiate advantageous free trade agreements with more than 50 other countries—agreements with terms that are far more favourable than any we could have negotiated on our own because of the combined negotiating muscle of a marketplace that is five times greater than our own. Concluding all the trade deals already under way could ultimately be worth in total more than £20 billion a year to the United Kingdom’s GDP. Once these deals are completed, around three-quarters of UK exports to non-EU countries will be covered by EU-negotiated free trade agreements.

On sovereignty, the Prime Minister secured formal agreement that the UK will not be part of ever-closer union, that it is not committed to further political integration, and that the treaties will be changed to that effect. We will also have new powers to block or remove unwanted European laws. Until now, there were insufficient means of stopping the EU from passing laws that should be left to individual countries. There was no way of introducing a “downward ratchet” to EU lawmaking, as the Foreign Secretary and others have long demanded. This has led to unnecessary regulation and interference. However, under the new settlement, the European Commission has committed to,

“establish a mechanism to review the body of existing EU legislation for its compliance with the principle of subsidiarity and proportionality”.

This mechanism will ensure that the EU acts only where it really needs to do so. The European Commission will report its findings to the Council of Ministers every year. If Ministers decide that the EU has gone further than necessary, they will be able to ask the European Commission to withdraw or amend the legislation in question.

Finally, on welfare and migration, the deal secured new powers to tackle the abuse of free movement and reduce the draw of our benefits system. This will help to meet our aim of reducing immigration, by making sure that new arrivals from the EU cannot claim full benefits for up to four years.

The decision of the Heads of State or Government agreed at the February European Council is legally binding and irreversible. It has been registered with the United Nations as an international treaty. The February European Council conclusions and the texts of the deal agreed at that Council clearly set out the legally binding nature of the deal. This was briefly an argument mounted by the supporters of Brexit, that it was not binding, but I think that their argument has largely evaporated. It was in any event supported by the legal opinions of both the Council Legal Service and Sir Alan Dashwood QC. The deal is irreversible because it can be amended or revoked only if all member states, including the United Kingdom, agree unanimously.

The Prime Minister has, however, made it clear that more reform is needed; Europe needs to improve. The task of reforming the European Union does not end with this agreement, a point made in his characteristically thoughtful way by my noble friend Lord Howell. But as I have set out, our new settlement will give the United Kingdom a special status within the EU that no arrangement outside the EU could match. As the Government have previously stated, the UK’s national interest will be best served by our country remaining part of a reformed EU. Membership of this reformed EU offers opportunity and security for jobs, investment and doing business, as well as for tackling crime and dealing with global issues such as climate change and terrorism. We also heard from the noble Lord, Lord Low, about the advantages to those who are disabled. It offers us certainty compared with years of disruption and the uncertainty of leaving for an unknown destination outside.

Ultimately it is of course for the British people to decide. The Government have a democratic duty to give effect to the electorate’s decision. Should the majority vote to leave the EU, we would start the Article 50 process. As set out in the Government’s own analysis, The Process for Withdrawing from the European Union, the EU treaties would continue to apply to the UK until the Article 50 agreement had entered into force, or for two years if no agreement had been reached and no extension to the two-year period had been granted. A request for an extension could be granted only with the unanimous agreement of the remaining member states, a point that is either ignored or not sufficiently understood by those who want us to leave. Perhaps I may refer noble Lords to Chapter 3 of the document, which makes this point:

“An extension request would provide opportunities for any Member State to try to extract a concession from the UK”,

which is hardly a strong negotiating position. Article 50 does not specify how much the withdrawal agreement itself should say about the future relationship between the EU and the departing member state. Any sort of detailed relationship would have to be negotiated separately from the withdrawal agreement using the detailed processes set out in the EU treaties. Article 50 does not specify whether these negotiations should be simultaneous or consecutive. This would be a matter for negotiation.

The use of Article 50 is unprecedented. Consequently, there is a great deal of uncertainty about how it would work. It would be a complex negotiation requiring the involvement of all 27 remaining EU member states and the European Commission. What is certain is that the UK’s withdrawal from the EU would mean unravelling all the rights and obligations that the UK has acquired since accession, a veritable cat’s cradle, as referred to by the noble Lord, Lord Hannay, ranging from free access to the single market, to structural funds for poorer regions of the United Kingdom, to joint action on sanctions. My noble friend Lord Caithness emphasised the complexity of the process and he was right to do so. Sir David Edward QC, a distinguished lawyer, said in evidence to the European Union Committee:

“The long-term ghastliness of the legal complications is almost unimaginable”.

The noble Lord, Lord Watson, also referred to that.

We would also need to negotiate a new relationship with Europe outside the EU. The Government have previously set out their view that leaving the EU would begin a process that could lead to a decade or more of uncertainty for Britain and for the economy. But what about the alternatives: what would this new relationship look like? The Government looked at a number of options in the paper entitled Alternatives to Membership: Possible Models for the UK. These included Norway, Canada, Turkey and a World Trade Organisation-only relationship. The paper summarises that:

“These models offer different balances in terms of advantages, obligations and influence … the precedents clearly indicate that we would need to make a number of trade-offs”.

In return for full access to the EU’s free trade single market in key UK industries, we would have to accept the free movement of people. Access to the single market would require us to implement its rules, but the UK would no longer have a vote on those rules. There is also no guarantee that we could fully replicate our existing co-operation in other areas such as cross-border action against criminals.

[Lord Pearson of Rannoch]

Before the noble Lord leaves the trade aspects, is he going to answer the points I put to him? For instance, they have two and a half million more jobs selling things to us than we do to them. Taking as I did the specific example of our motor trade, given that they send us 2.4 cars for every car we send them, and they have 64% of our market, are the noble Lord and the Government really saying that the eurocrats in Brussels would actually try to impose a tariff on that? Is it not perfectly obvious to anyone used to international trade that all this would continue as it does now?

[Lord Faulks]

The noble Lord is very confident about the future. I do not share his confidence. Of course trade will continue in one guise or another, but how can we be certain that the trade arrangements will be exactly as he would want them, given all the uncertainty that exists?

[Lord Pearson of Rannoch]

I am merely saying that they would continue as they are.

[Lord Faulks]

I do not think there is any guarantee of that. I will make some progress, if I may.

Full access to the single market would require us to continue to contribute to the EU’s programmes and budget. An approach based on a free trade agreement would not come with the same level of obligations, but would mean that UK companies had reduced access to the single market in key sectors such as services—almost 80% of the United Kingdom economy—and would face higher costs. We would lose our preferential access to 53 markets outside the EU with which the EU has free trade agreements. This would take years to renegotiate, with no guarantee that the UK would obtain terms as good as those we enjoy today. In order to maintain the rights of UK citizens living, working and travelling in other EU countries, we would almost certainly have to accept reciprocal arrangements for their citizens in the United Kingdom.

As the paper also sets out:

“Whatever alternative to membership the UK seeks following a decision to leave the EU, we will lose influence over EU decisions that will still directly affect us. We need to weigh the benefits of access to the EU and global markets against the obligations and costs incurred in return. It is the assessment of the UK Government that no existing model outside the EU comes close to providing the same balance of advantages and influence that we get from the UK’s current special status inside the EU”.

As to science and technology, we have seen both sides make their case for and against EU membership over the past few months. I am pleased that today, we have heard from members of the Science and Technology Committee, who bring another important angle to this debate, and to whose inquiry the Government have provided evidence. The UK plays a leading role in many aspects of EU research and science programmes. These provide access to opportunities of a different scale and scope from those that are possible nationally.

The UK received over £7 billion in EU funding for science and research between 2007 and 2013, second only to Germany. However, there is still scope for improvement, both in how the EU manages science funding and in simplifying the bureaucracy and transparency of funding instruments. The Government are keen to ensure that EU decision-making is based on the best scientific evidence. The UK has robust systems in place for providing science advice to government. Similar systems at EU level are currently being reformed.

Universities and science Minister Jo Johnson gave evidence to the inquiry earlier this year, saying:

“Britain's success as a science powerhouse hinges on our ability to collaborate with the best minds from across Europe and the world. This report is further evidence that the UK’s influential position would be diminished if we cut ourselves off from the rich sources of EU funding, the access to valuable shared research facilities and the flow of talented researchers that provide so many opportunities to our world-leading institutions”.

I will conclude by once again welcoming these reports. The noble Baroness, Lady Smith, rightly described them—perhaps rather rare in this debate—as showing objectivity. The Government will respond in due course, but I am grateful for all the contributions noble Lords have made to the debate today.

I have described the reforms that the Prime Minister secured in the UK’s settlement with the EU. There is of course more work to be done in reforming the EU, but the settlement shows the commitment of the European Commission and all 27 other countries in the EU to taking action. The Best of Both Worlds: the United Kingdom’s special status in a reformed European Union sets out the Government’s view that the UK’s national interest is best served by remaining in a reformed EU.

I have explained that the process of withdrawing from the EU is untested. The UK and the 27 other member states, along with EU institutions, would need to negotiate the UK’s new relationship with the EU. There would be difficult trade-offs, and this would lead to a considerable period of uncertainty, as we set out in the government paper.

On EU membership and its relationship to UK science, I have taken note of the committee’s report and restated the Government’s position that they believe the UK’s influential position in this field would be diminished if we cut ourselves off from EU funding, shared facilities and talented researchers.

As my right honourable friend the Prime Minister has said, this will be a once-in-a-generation vote. The Government’s position is clear. Our new settlement resets the balance in our relationship with the EU. It reinforces the clear economic and security benefits of EU membership, while making it clear that we cannot be required to take part in any further political integration. It creates a mechanism for reviewing existing EU laws and ensuring that decisions are taken at the national level whenever possible. It is in our national interest to remain in that reformed EU.

My noble friend Lord Cormack rightly referred to paragraph 258 of the committee’s report on the EU referendum and reform, with its emphasis on values as well as pragmatism. What unites the 28 member states is much greater than what divides them. I hope noble Lords will forgive me one personal observation, just as the noble Lord, Lord Browne, provided one. My grandfather fought at the Somme. My father fought in a number of theatres of war between 1939 and 1945. My generation has been spared that. We should not take peace for granted. For all its imperfection, the EU has helped to provide peace. It represents values that endure. Let us remain within it.

Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016

Lord Faulks Excerpts

Monday 13th June 2016 Lords Chamber

Moved by

[Lord Faulks]

That the draft Order laid before the House on 14 April be approved.

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

My Lords, I beg to move that the Committee has considered the draft Access to Justice Act 1999 (Destination of Appeals) Order 2016, which I will refer to as “the civil order”, and the draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016, which I will refer to as “the family order”.

The orders are intended to address the workload of the Court of Appeal and are made under Section 56 of the Access to Justice Act 1999. They have been consulted upon with members of the senior judiciary, as is required by Section 56. As their titles suggest, the orders make provision in respect of the routes of appeal from judicial decisions in civil and family proceedings. I will start with the civil order.

The civil order replaces the Access to Justice Act 1999 (Destination of Appeals) Order 2000. If made, the order will remove the current distinction made for certain proceedings between interim and final decisions, so that appeals from all decisions of a particular level of judge will follow the same route and, as far as possible, lie to the next level of judge. This is the key amendment made by the order. The civil order also reflects amendments made by the Crime and Courts Act 2013 to Section 5 of the County Courts Act 1984, which widened the definition of “judge of the county court”.

The 2000 order currently makes provision for routes of appeal where a route is not already provided in other legislation. In particular, the order makes provision for an exception with regard to appeals against final decisions in claims which are allocated to the multi-track and appeals from decisions in specialist courts; for example, proceedings under the Companies Acts. At present, these appeals lie directly to the Court of Appeal, in some cases circumventing both the county court judge and the High Court, irrespective of the level of judge who made the decision to be appealed. This exception might well have been thought appropriate at the time that the 2000 order was debated, but there is no doubt that both the county court and the High Court have the requisite level of expertise to determine such appeals irrespective of whether the decisions appealed are interim or final. In the meantime, valuable judicial and administrative resources in the Court of Appeal are being lost to matters that can quite properly be determined in the lower courts.

Turning to the detail of the civil order, the Ministry of Justice has worked with the senior judiciary to ensure that these amendments will work, and we are grateful to them for their assistance. Although the civil order may appear quite detailed, its effect is to simplify the routes of appeal so that appeals from decisions of district judges sitting in the county court will lie to a circuit judge, except in respect of appeals in proceedings under the Companies Acts, which will now be determined by the High Court; appeals from decisions of circuit judges will lie to the High Court; appeals from decisions of masters and district judges sitting in the High Court will lie to a High Court judge, except in proceedings which have been allocated to the small claims track of the Intellectual Property Enterprise Court, where an appeal will lie from a decision of a district judge to an enterprise judge; and appeals from decisions of High Court judges will continue to lie to the Court of Appeal. The result will be that cases will be considered at the most appropriate level of court, which, in turn, will result in a more efficient use of available judicial resources.

Recent amendments to Section 5 of the County Courts Act 1984 significantly increased the number of judges who might sit in the county court, and list no fewer than 25 judicial officeholders, including certain tribunal judiciary, who may do so. In reflecting this reform, and to ensure that the correct route of appeal is applied in each case, the civil order also recognises that when sitting as a judge of the county court, some of that number will be accorded a level of seniority commensurate with that of a circuit judge, while others will be accorded that of a district judge.

I should add that the amended order will not undermine the judicial power to order that an appeal be transferred to a higher appellate authority should the circumstances of the case merit it. Also, as is apparent on the face of the civil order, the new arrangements are not intended to affect the rules relating to second appeals, which will continue to lie to the Court of Appeal.

The aim of this new civil order is to clarify and simplify the appeals process to ensure that the route of appeal in civil proceedings lies to the next level of judge. This should reduce the number of appeals that are lodged in the Court of Appeal and reduce pressure at that court by making best use of judicial time, ensuring that cases are heard in the most appropriate level of court.

I now move on to the family order. This order amends the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014, which I will refer to as the 2014 order, to route certain family court appeals away from the Court of Appeal to the High Court. The order also includes consequential amendments to the Family Procedure Rules 2010. Those rules set out the practice and procedure that is to be followed in family proceedings in the family court and the High Court.

Family proceedings in England and Wales are dealt with primarily in the family court, with the High Court also having jurisdiction to hear such cases. The default route of appeal from a decision of a judge of the family court would be to the Court of Appeal. However, the 2014 order already makes provision for appeals from decisions of certain judges in the family court to be routed to a different, higher, level of judge in the family court. For example, an appeal from a decision of a district judge in the family court already lies to a circuit judge in the family court.

The family order will amend the 2014 order so that appeals from certain decisions of circuit judges and recorders in the family court will lie to the High Court rather than to the Court of Appeal. It has been laid in response to concerns about the quantity of appeals currently being made to the Court of Appeal. Ministry of Justice statistics published in June 2015 show that family-related appeals to the Court of Appeal increased by over 200% between 2008 and 2014. Appeals must be dealt with in ways proportionate to the grounds of complaint and the subject of the dispute, while ensuring effective access to justice.

The changes proposed under the order mean that, rather than an appeal hearing taking place before a court of up to three Court of Appeal judges, appeals routed to the Family Division of the High Court will be heard by a single, specialist and experienced High Court judge. It is clear that this change will reduce the senior judicial resources required for these types of appeal and, by moving some work to the High Court, the Court of Appeal will be better able to manage cases of appropriate weight for that court.

Routing certain appeals to the High Court instead of the Court of Appeal should also lead to a reduction in the time it takes for these appeals to be heard and, by reducing the number of appeals going to the Court of Appeal, I hope this change should also benefit the flow of cases in that court. This will allow for more effective and expeditious determinations in other appeals, for example public law appeals relating to children.

The senior judiciary was consulted on these proposals in November 2015. It was supportive of these proposals and its views were key in determining the content of the order. We also consulted 10 key stakeholders, including the Law Society, Bar Council and the Council of Her Majesty’s Circuit Judges, who were broadly supportive of our proposals and whose responses helped us to finalise the policy position. Further details in relation to the points raised in the consultation responses are summarised in the Explanatory Memorandum to the family order.

The amendments to the 2014 order made by the new family order will apply to appeals from decisions of the family court made by circuit judges and recorders in all proceedings, including appeals from decisions made relating to contempt of court, with some exceptions. Those exceptions are: appeals from decisions made on appeal in the family court, so as not to create an extra level of appeal; appeals from decisions made in proceedings under Part 4 or 5 of the Children Act 1989, for example appeals against orders placing a child in the care of a local authority; appeals from decisions under the Adoption and Children Act 2002, including adoption and placement order appeals; and appeals from decisions relating to contempt of court linked to the above proceedings.

In the case of appeals relating to proceedings under Parts 4 and 5 of the Children Act 1989 and those under the Adoption and Children Act 2002, the consequences of the state intervening in a family’s life, the fact that the relationship between a parent and their child may be completely severed and the child’s status changed by adoption, and the complexities arising in these proceedings are considered so serious as to merit these types of appeal continuing to be heard by the Court of Appeal.

To summarise, appeals must be dealt with in ways that are proportionate to the grounds of complaint and the subject of the dispute, while ensuring effective access to justice. The amendments made by the family order will allow that to happen. By moving some work to the High Court, the Court of Appeal will be better able to manage cases of appropriate weight for that court.

I should add that, as well as these measures to improve the flow of work through the Court of Appeal, the Civil Procedure Rule Committee has recently launched a further and separate consultation outlining proposals to raise the threshold for permission to appeal to the Court of Appeal and remove the automatic right of oral renewal for permission to appeal where permission has been refused on the basis of the documents in the case. The consultation closes on 24 June.

If the proposals under consultation, which I have described to the House, are accepted then they will apply to appeals to the Court of Appeal in both civil and family cases. This consultation, along with these two orders, form a suite of reforms to improve efficiency in the civil courts. We are grateful for the ongoing work of the judiciary in our efforts to achieve this. Noble Lords will be aware that judicial recruitment is the responsibility of the Lord Chancellor. That of course means ensuring that he meets his statutory obligation in respect of appointments, but also keeping workload under review—as he does—to ensure that enough judges are available to hear appeals within a reasonable timeframe.

Noble Lords will wish to know that the Lord Chancellor’s decisions are informed by a so-called complement group made up of senior judiciary and HMCTS officials who examine the business need at all levels of the judiciary and advise the Lord Chancellor on the optimum complement. Both orders respond to concerns about the volume of appeals directed to the Court of Appeal and they will ensure that cases and appeals are being heard in ways that are proportionate to the grounds of the complaint and the subject of the dispute. I beg to move.

[Lord Beecham (Lab)]

My Lords, when these orders were debated at the Third Delegated Legislation Committee, for all of 13 minutes, with an opening in the Commons by the Minister responsible there of two minutes, my honourable friend Christina Rees expressed support for the changes, which had the backing of the senior judiciary, as we have head, recognising the need to reduce the workload on the Court of Appeal. It took a freedom of information request from the Law Society, apparently, to reveal that almost half of the 646 trials adjourned in that court were adjourned because of a lack of judicial resources.

Can the Minister explain why the Government allowed the number of cases to increase by 59% in the last five years without increasing resources or taking action of the kind embodied in this order? Is there a particular category of case which is responsible for this increase? To what extent, if any, has the reduced availability of legal aid in both family and other proceedings had a bearing on the matter, particularly given the number of unrepresented parties? Can he answer the question asked by my honourable friend and not answered by the Minister in the other place, as to the evidence base for the assertion that:

“The High Court has the capacity to absorb the extra appeals, thus lowering waiting times”.?

She also asked to what extent these changes meet the four requirements made by Lord Justice Briggs for easing the load on the Court of Appeal, namely increasing the court’s resources, reducing its workload, improving its efficiency and—I hope this would not be the case—deliberately reducing the quantity and quality of the service.

Somewhat disconcertingly, the Minister in the Commons admitted that, on their own, the changes,

“will not necessarily address any backlog of work held by the Court of Appeal, but they will ensure that the backlog does not continue to increase and that cases are dealt with at an appropriate level and as swiftly as possible”.—[Official Report, Commons, Third Delegated Legislation Committee, 8/6/16; col. 6.]

What does that mean in terms of the number of cases that will go to the Court of Appeal, as compared with the present situation, and as to the waiting time for hearings in that court? Needless to say, the so-called impact assessment, as is all too often the case, fails to supply the relevant information.

The Explanatory Memorandum to the family proceedings order refers to the consultation carried out by the Ministry of Justice and referred to by the Minister with a range of 10 stakeholders, albeit none from court users, as opposed to the judiciary and legal professionals. The consultation responses “broadly supported” the rerouting of appeals from circuit judges and recorders in family proceedings to a High Court judge rather than the Court of Appeal. But what does “broadly” mean? Did any of the consultees raise questions about resources or target times for hearings?

Finally, to what extent will the Ministry of Justice monitor progress under this new regime, both in terms of the cases to be heard in the High Court as now prescribed, and in relation to the effect of the reduced workload in the Court of Appeal? I trust that we will not be waiting for three or more years before the position is reassessed, particularly given that the changes are principally directed at a significantly sensitive area of law—the family area. I should declare a paternal interest inasmuch as my daughter sits as a part-time deputy district judge.

[Lord Faulks]

I am grateful for the questions posed by the noble Lord and I congratulate his daughter on the contribution that she is making to the administration of justice. I am sure that she, like all judges, will be feeling the pressure that heavy workloads can create. The noble Lord asked if any consideration had been given to whether the lower courts could cope with additional work. The answer is that HMCTS, as is its responsibility, is fully aware of and supportive of the changes, and the Ministry of Justice has been working with the senior judiciary, who are supportive of the measures and keen for the order to come into force.

The noble Lord suggested that there has been a somewhat tardy response to what was clearly something of a crisis in the build-up of cases and the capacity of the Court of Appeal to deal with them. I am sure he will understand that any Government will have to be careful before depriving any litigant of their rights of appeal, which are well established, and will have to satisfy themselves, after the appropriate level of consultation, that restricting or changing the routes of appeal is in fact in the interests of justice and will not prejudice the interests of a particular appellant, while of course bearing in mind the fact that justice must be administered in an efficient way. The noble Lord will see that there has been a nuanced response in terms of the appeal process, so some of the appeals that I outlined in my opening remarks will still go straight to the Court of Appeal, where it is considered that that is appropriate. So this has not been an across-the-board response.

As to the consultation, there was a requirement for the Ministry of Justice to consult with the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division and the Chancellor of the High Court before making the order. All specifically indicated that they were content with the provisions, and their views were key in determining the content. But in addition to the consultation with the senior judiciary required by statute, the Ministry of Justice held a wider consultation on these proposals with 10 key stakeholders: the Council of Her Majesty’s Circuit Judges, the Association of District Judges, the Magistrates Association, the Chief Magistrate, the Bar Council, the Association of Lawyers for Children—very much, I respectfully suggest, representing the consumer—the Justices’ Clerks’ Society, the Family Law Bar Association, the Law Society and Resolution. That was a pretty broad series of bodies to consult before deciding on the appropriate changes to the arrangements.

[Lord Beecham]

My Lords, I am grateful to the Minister for supplying that information, but perhaps he could advise the department that in future when it sets out a position on these matters, it should give a rather fuller account of the consultations it has carried out—because it does not appear in the documentation that has been put before us.

[Lord Faulks]

I am tempted to say better late than never—but, in any event, the information is available, and I hope that it has satisfied the understandable curiosity that the noble Lord had about the extent of the consultation.

On the management of resources—clearly something that is a responsibility of the Government—this is an estimation. Of course one can never be precisely sure about how many people will be appealing. I do not have any figures on whether the increase in appeals is related to any of the matters that the noble Lord suggested. On the face of it, it seems somewhat unlikely that the reduction in legal aid in certain areas would result in there being more appeals. It could result in more or fewer appeals—but none the less, there has been an increase. As I also indicated, there is a consultation shortly to close as to whether there ought to be a change in the threshold for allowing an appeal to be launched in the first place. The Government are waiting for the response to that before deciding the next step.

On the question of backlog, the answer is simply this: we do not want to deprive anybody retrospectively, as it were, of a right to appeal that they had, so it will take a little time for the changes, which we think will improve matters, to take effect. Nothing very dramatic will happen until this order takes effect and we can reroute the appeals in the way we suggested.

On the question of monitoring progress, we will do so. If necessary, we will make appropriate changes to ensure, in so far as possible, that the administration of justice is efficiently carried out. We will continue, as we have done, to consult the judiciary—not only the heads of division, but various other bodies—to ensure we do this in the best way we can.

These are important changes. The appeal process is fundamental to civil and family jurisdictions. We feel we have the balance right. This should help to deal with the volume of appeals currently being made to the Court of Appeal and will make a significant difference to the progress of appeals prospectively after the order comes into effect. We also take the view that the order will clarify and simplify the process to ensure that the route of appeal is to the next level of judge. The family order will mean that certain family appeal hearings take place before a single, specialist and experienced High Court judge.

I hope that I have answered the questions the noble Lord asked. I beg to move.

Motion agreed.

Access to Justice Act 1999 (Destination of Appeals) Order 2016

Lord Faulks Excerpts

Monday 13th June 2016 Lords Chamber

Moved by

[Lord Faulks]

That the draft Order laid before the House on 3 May be approved.

Motion agreed.

Prisons: Violence

Lord Faulks Excerpts

Monday 9th May 2016 Lords Chamber

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

My Lords, I wish to repeat as a Statement an Answer given to an Urgent Question in the other place by my honourable friend the Prisons Minister. The Statement is as follows:

“Before I move on to the substance of this question, I should like to update the House on events which occurred at HMP Wormwood Scrubs this weekend.

On the morning of 6 May, prison officers refused to enter the prison citing health and safety grounds. Later that day, an agreement was reached between the National Offender Management Service and the Prison Officers Association. All officers have now returned to work and the prison is running a normal regime. NOMS and the POA are jointly committed to resolving any outstanding health and safety concerns at HMP Wormwood Scrubs.

On Sunday 8 May, two members of staff at Wormwood Scrubs were assaulted and taken to hospital for treatment. We do not tolerate any violence against our hardworking officers. The alleged perpetrator is now facing a police investigation, which could lead to criminal charges.

Moving on to the wider question, I take the issue of safety in prisons very seriously. Reducing the harm that prisoners may cause to themselves or others is the Government’s top priority in prisons. The most recent statistics on safety in custody show that levels of self-inflicted deaths, self-harm and violence in prison are too high. The figures demonstrate the very serious challenges facing the Prison Service.

There is no single, simple solution to the increases in deaths and violence in prisons. These trends have been seen across the prison estate, in both public and private prisons, and in prisons both praised and criticised by HM Inspector of Prisons. We have already taken a number of steps to address these problems: we have recruited 2,830 prison officers since January 2015, a net increase of 530; we are trialling the use of body-worn cameras in prisons; we are strengthening case management of individuals who risk harming others; we have introduced tough new laws which will see those who smuggle packages over prison walls, including new psychoactive substances, face up to two years in prison; and we have reviewed the case management process for prisoners assessed as being at risk of harm to themselves, known as assessment, care in custody and teamwork, and are implementing the recommendations. However, it is clear we must do more. We need to reduce violence and prevent drugs entering prison. We have to do better at helping prisoners with mental health problems. We have got to ensure prisoners can be rehabilitated so they are no longer a danger to others. That is why this Government are committed to fundamental reform of our prisons. We have secured £1.3 billion to modernise the prison estate, and we will give greater autonomy to governors so they are truly in charge. I look forward to setting out our plans in greater detail shortly.

These problems are deep-seated and there are no easy answers, but I can assure the House that this Government will not waver in their determination to reform our prisons, so that they become places of decency, hope and rehabilitation”.

My Lords, that concludes the Statement.

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for repeating the Statement. Given the long-standing concerns about overcrowding, self-harm, violence and suicides in prison, last week’s revelations about the use of synthetic cannabis and the damning reports on the misuse of force and restraint of young offenders in Rainsbrook Secure Training Centre last March and Medway Secure Training Centre last week, is it not time for a judge-led review of the management of custodial services and the Youth Justice Board along the lines of the report from the noble and learned Lord, Lord Woolf, published in 1991? Should that not include reconsideration of the outsourcing of provisions to overseas private companies and palpably overstretched organisations such as G4S?

[Lord Faulks]

My Lords, of course, any outbreak of violence, wherever it takes place, is concerning. The noble Lord referred particularly to Medway and Rainsbrook. On Medway, I hope to be able to update the House shortly, following the inquiry into how Medway Secure Training Centre had been run in the wake of the “Panorama” programme.

In the Statement, I said that there was no single solution. It is significant that there is violence in all sorts and types of prisons, so one must beware of thinking that there is one particular solution. I take the noble Lord’s point about the very useful and seminal report prepared by the noble and learned Lord, Lord Woolf, following the Strangeways riots in Manchester, which provided a lot of guidance to prison management in future. We will learn from that and from all these events. As the noble Lord will be aware, reports are shortly to be published on education and mental health in prisons. All that will help to inform the substantial reform that I mentioned, and we hope that that will contribute to stamping out the violence.

[Lord Dholakia (LD)]

My Lords, there are two aspects that are matters of concern. One was mentioned in the Statement: the use of psychoactive drugs and the extent to which that could destabilise the control of discipline in prisons. The Minister has not mentioned the other one, though, so I wonder if he could throw some light on the extensive use of severe and harsh sentences. They are one of the causes of overcrowding, which ultimately results in the type of violence that we saw in Wormwood Scrubs.

[Lord Faulks]

The question of sentences is difficult. As the noble Lord will know, the choice of sentence is a matter for the judge in the individual case and generally will reflect the severity of the offences that have been committed. From time to time Parliament will intervene—notoriously, for example, with IPP prisoners—and set certain parameters within which judges have to sentence certain offenders. The fact is that there is currently a higher cohort of violent offenders in prison than there has been for some considerable time. Together with the substantial difficulty caused by psychoactive substances, that contributes to the problem of violence in prisons. It is important not to generalise too much about sentences. A sentence should be long enough to reflect the seriousness of the offence but short enough to give the offender a chance to rehabilitate and give them some hope. In due course, through the work that we are doing on rehabilitation, we hope to ensure that when people leave prison they do not return, because of course the biggest increase in prison sentences is for those coming back again through the prison door.

[Baroness Masham of Ilton (CB)]

My Lords, are prison staff trained enough in dealing with alcohol and drug abuse and mental health?

[Lord Faulks]

The noble Baroness raises the important point of training for prison officers. I can tell her and the House that the training of prison officers has increased in terms of the length of time, from six weeks to 10. I have visited the training centre at Newbold Revel, and included in the training is a greater emphasis on the very things that the noble Baroness mentions. Mental health problems are very apparent in the prison population; NICE estimates that 90% of prisoners have some sort of mental illness, so it is extremely important that prisoners are assessed on arrival in prison and that any change in their condition is properly monitored through co-operation between prison governors, who have greater power, and NHS England at a local level. Alcohol and drug problems are profound and must be treated as medical issues. Drug issues tend to last longer in prison than alcohol problems, but of course both provide challenges for the Prison Service.

[Lord Ramsbotham (CB)]

My Lords, during an extradition case recently I inspected a prison in Abu Dhabi, where I found completely the opposite conditions to here. The cells were on locked landings but every cell door was open 24 hours a day so that prisoners could get showers and have access to telephones, recreation, television and so on. There have been three suicides in prison in Abu Dhabi in the past 25 years. Having seen exactly the same conditions in Dubai and Kenya, I wonder whether in fact our locking people away for so long and not allowing them to circulate with others has something to do with the violence presently in our prisons, and whether anything is being done to look at doing things in the completely opposite way.

[Lord Faulks]

I am grateful to the noble Lord for his insights from what he learned in Abu Dhabi. The Government are looking at all sorts of different indicators for why violence occurs in certain circumstances. Plainly, keeping people locked up for longer than necessary can provide a significant exacerbation of what is a tendency to violence anyway. As I say, there is no one single cause. The problem with psychoactive substances, which at the moment are a very significant cause of the violence, is that the drug or drugs not only precipitate violence in the individual, but promote an unpleasant subculture within prisons whereby debts are incurred in the buying and selling of drugs, which then promotes violence between prisoners. Therefore it is multifactorial. However, what the noble Lord says should of course be very much part of the general response to the challenge that prisoners present.

[Baroness Howarth of Breckland (CB)]

My Lords, I am interested in what the Minister says and apologise for being a moment late—I was chairing another meeting. Within the last parliamentary working week, including the weekend, two sets of people have come to me to talk about violence that they are experiencing in prison and about which they can do nothing. One case involves a woman whose child was killed by a paedophile in a famous case. She is being harassed from prison by the person who killed her son and is being told that nothing can be done about that. The second is a case I am trying to pursue, so I will not say too much about it, in which gangs in two of our major London prisons are running extortion rackets. A woman is paying to protect her son, who has not only been badly beaten up twice—there has been no incident report—but severely radicalised while in prison. I have two questions. First, what is the management doing in our large prisons where there is gang influence and where the gangs are able to work with gangs outside to terrorise families, and secondly, what are we doing to ensure that where telephones are available—and there are reasons why they should be—they are not used inappropriately to harass families outside?

[Lord Faulks]

The noble Baroness will understand why I cannot comment on individual cases, particularly when all the facts are not yet known. However, she makes a general and important point. It is perhaps significant that the problems in prisons do not come entirely from within prisons, and it is most important that prison governors work closely with the National Crime Agency and local police officers and that their intelligence reaches beyond the prison gate and walls. I have to say that from my understanding that is not consistent across the country as regards its effectiveness. However, the noble Baroness identifies an important point which we feel should be more realistically achieved once there is greater governor independence and there can be this link of intelligence which will prevent the sort of situations that she describes.

Crown Court (Recording) Order 2016

Lord Faulks Excerpts

Thursday 5th May 2016 Lords Chamber

Moved by

[Lord Faulks]

That the draft Order laid before the House on 21 March be approved. Considered in Grand Committee on 27 April

Motion agreed.

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.