Criminal Legal Aid Services

Lord Faulks Excerpts

Friday 29th January 2016 Lords Chamber

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

My Lords, I wish to repeat a Statement given as an Answer to an Urgent Question in another place by my honourable friend Shailesh Vara. The Statement is as follows.

“As the Secretary of State announced yesterday, the Ministry of Justice has had to play its part in reducing the budget deficit. Economies have had to be made in every area of expenditure. In the last Parliament, spending on legal aid was reduced from £2.4 billion to £1.6 billion. Further changes to the legal aid system were due to be implemented in this Parliament, with a second reduction to litigation fees in July 2015.

At the time the fee reduction was proposed, the market was made up of around 1,600 legal aid firms. After careful negotiation, the then Justice Secretary decided to adopt a system of ‘dual contracting’ to drive greater efficiency and consolidation within the market. But over time, opposition to this model has increased. Solicitors’ firms feared that it would lead to a less competitive market; barristers that choice and quality would diminish. In addition, a process of natural consolidation was already taking place in the market.

Although we recognised these arguments, we also needed to deliver reductions in expenditure. Since July 2015, however, two significant developments have occurred. HM Treasury has given us a settlement which allows greater flexibility in the allocation of funds for legal aid, and it has become clear that there are real problems in pressing ahead. We currently face 99 legal challenges and a judicial review of the entire process. Litigation will be time-consuming and costly for all.

We have therefore decided not to go ahead with the introduction of the dual contracting. We have also decided to suspend the second fee cut for a period of 12 months. The Legal Aid Agency will extend current contracts to ensure continuing service until replacement contracts come into force. We will review progress on joint work with the profession to improve efficiency and quality, before returning to any decisions on the second fee reduction and market consolidation”.

[Lord Bach (Lab)]

My Lords, I start by thanking the Minister for repeating the Answer given in another place. I hope the Minister will acknowledge that, although the announcement made by the Lord Chancellor yesterday is of course welcome to criminal law practitioners and others, it represents something of a disaster for his department. It was not only Her Majesty’s Opposition who opposed the two-tier contracting scheme when it was first mooted, way back in 2013 by the coalition Government, but practitioners, experts and many others. We all pointed out that it could not work, that it would mean the closure of too many solicitors’ firms and that it would result, seriously, in legal deserts where those facing criminal charges would not always be able to find advice and representation. That is why we welcome the U-turn.

However, now the scheme has been abandoned, it leaves behind it enormous costs for the Government, for many solicitors’ firms—whether successful or unsuccessful in their tenders—and, of course, for those involved in the litigation. Just think of all those wasted hours worked by civil servants, solicitors’ firms and others—and all for what? What do Her Majesty’s Government intend should happen next? Sometimes in government it is right to say sorry. Does the Minister agree that this is one of those times?

[Lord Faulks]

A Government should always say sorry when they make a mistake. This is a response to a difficult situation which confronted the Government. As I indicated, contractions were taking place within the market. There has also, fortunately, been a drop in the crime rate generally, and the need for consolidation was overtly acknowledged by the Law Society. So these changes were not, as was suggested by the noble Lord, going wholly against the grain, true though it was that many objected to those changes.

It is easy to say that this was a disaster for the department, but the noble Lord is not himself unfamiliar with changes in policy. In 2009, as he may well remember, the Labour Government altered their approach to criminal legal aid. Governments of all colours will, from time to time, in reviewing these difficult situations and in trying to balance the need for access to justice and the need to control public expenditure, adjust their plans.

What we have done has been welcomed by the profession. We have considerable regard and respect for the profession, particularly those criminal legal aid solicitors who go to the police station at highly inconvenient hours and provide valuable assistance to their clients. The profession has welcomed the abandonment of dual contracting, the suspension of the second fee cut and the Government’s intention to work with the professions, as we have indicated, to try to ensure that changes that will have to be made in due course are made with maximum co-operation from both solicitors and barristers.

Although we have not yet calculated the overall cost, this will certainly have been expensive, which is of course a matter of regret. However, if it results in stabilisation of the legal profession and continued maintenance of high standards, then that is not a matter of regret. We will of course have to accept the characterisation of this as a U-turn. I am not sure that U-turns are always quite the disasters they are depicted as in the newspapers. If a responsible government department thinks again, that may be characterised as a U-turn or it may be considered an appropriate response to changed circumstances.

[Lord Beith (LD)]

My Lords, whether we regard this as a U-turn, a breath of fresh air from a new Secretary of State or simply a dose of realism in the department, it is welcome. But does the Minister recognise that a number of factors were reducing the number of solicitors doing criminal work in most towns and many rural areas, and that he will still have to address the danger that no one will be available, particularly if there is more than one defendant? While he is looking at that, will he also look at the fact that, since the scope changes, the number of claims on the exceptional cases fund has been surprisingly small, perhaps because people have never consulted a solicitor in the first place? Does that not need looking at as well?

[Lord Faulks]

The noble Lord is right that whatever the change in policy, it is important that we are satisfied that there are firms of solicitors that can represent people in whatever part of the country they are needed. When the replacement contracts come to be considered, that is clearly one of the factors that will be taken into account. The noble Lord also asked about the scope of legal aid generally and the exceptional funding provisions. They have been the subject of litigation and further clarification. One of the difficulties was that the forms that had to be filled in were perhaps not as clear as they might be. There has been considerable improvement in that regard, and the percentage of cases where exceptional funding has been obtained as a result of an application has increased considerably.

As a Back-Bencher looking at the LASPO Bill as it went through, I found the provisions on exceptional funding somewhat opaque, referring, as they did, to the Human Rights Act and Article 6. It was not always easy to know quite what the coalition Government were driving at. I think there is increased clarification of that. There has been a decision, although it is subject to appeal, but the noble Lord is right to draw our attention to exceptional funding.

[Lord Cormack (Con)]

Does my noble friend accept that it is extremely refreshing and encouraging when a Secretary of State listens, not least to the voice of this House, and makes an adjustment and a change of policy? None of us should be churlish in welcoming this very real change. Not the least of its advantages is that it has produced a situation where we have a legal profession that is in tune with the Secretary of State and a Secretary of State who is in tune with the legal profession.

[Lord Faulks]

I am grateful to my noble friend for that intervention. He is right that this House has always held the Ministry of Justice, in particular, to account with the galaxy of legal talent that is available around the Benches. I am certainly aware that any policy change is subject to great and close examination by all those here, not least this particular policy, which I have been asked about a number times in specific debates and in the course of Question and Answers. I reassure my noble friend and the House that the Secretary of State listens to what is said in this House and will continue to do so.

[Lord Clinton-Davis (Lab)]

The amount of complacency about changes in legal aid is absolutely bewildering. I speak as somebody who, in earlier life, was much involved with criminal legal aid. At the moment, there will be immense difficulties in recruiting young solicitors to do this work. I hold the view that it is desperately unsatisfactory. I hope the Minister will not again get up and say that economies have to made in legal aid. The economies that have already been made are devastating.

[Lord Faulks]

There is no complacency on the part of this Government. This Government value the contribution that solicitors make to the system as a whole, particularly those who work in criminal legal aid. The noble Lord is quite right: rates are not what they were and, as a profession, it has considerably fewer attractions than it once had. It is important that we continue to encourage able practitioners to go into areas where legal aid is the main source of funding. However, we have to bear in mind the interests of the taxpayer. We have constraints put on us by the Treasury. I particularly pay tribute to those who, despite the difficulties that are encountered, nevertheless pursue careers in this less profitable area of the profession. Our profession is often characterised as being full of ambulance chasers and fat-cat lawyers. These lawyers are very much not in that category.

Public Advocate Bill [HL]

Lord Faulks Excerpts

Friday 29th January 2016 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Wills, for introducing this Bill and giving the House the opportunity to debate this important matter today. He was kind enough to pay credit to officials and Ministers in the Ministry of Justice who have engaged with him, and he has been helpful and constructive in explaining what lies behind this Bill. Let me make it clear at the outset that the Government share his desire to ensure that bereaved families and injured people are properly involved and supported throughout the investigation, inquest or inquiry process following a major incident.

There was unanimity in the contributions that your Lordships have heard, which echoes what lies behind this Bill. The noble Lord, Lord McNally, spoke of the sad history of disasters in football grounds and the sometimes inadequate inquiries that have followed those. He was right, however, to reflect on the improvements that have taken place, and he gave as a shining example the inquiry into the 7/7 disaster, conducted by Lady Justice Hallett.

The noble Lord, Lord Blunkett, who has particular experience of these issues, was absolutely right to praise Paul Goggins, who did so much in his modest way—I came across it briefly in committees—to help promote the interests of those so often neglected in such situations. The noble Lord made the important point that although cost must not be excluded from government consideration, we must think about costs further down the line.

The noble Lord, Lord Wood, and other noble Lords, made the point that these proposals augment rather than replace the existing mechanisms. Indeed, as I understand it, the noble Lord, Lord Wills, very much accepts that. The noble Lord, Lord Wood, also referred to the fact that, in the wake of these disasters, what confronts those who are sadly affected by them can be intimidating, and they are placed in a quasi-Rumsfeldian dilemma. He was right, too, to remind us of the Aberfan disaster and the dreadful noises made by the establishment in its wake.

A number of noble Lords, including the noble Lord, Lord Bach, referred to possible drafting imperfections. I know that the noble Lord, Lord Wills, is perfectly aware of the fact that there could be improvements, and the noble Lord made specific reference to them.

Notwithstanding those potential improvements, I reiterate that the Government are fully committed to making sure that victims have a voice and do not feel alienated from official processes. Indeed, I am pleased to say that much of what is proposed for the role of a public advocate already takes place, and it is fair to say that there has been much progress.

The noble Lord’s Bill is driven by the concern that following a major incident involving the loss of life in the past, such as the “Derbyshire” sinking in 1980, the Hillsborough disaster in 1989—which has been a significant focus of the debate—and the “Marchioness” tragedy in the same year, bereaved families have undoubtedly felt ignored and swept up in official processes. They have felt that once the state starts to look into the matter, their needs and wishes are not paramount, or even important, and that the process can be confusing and lacks the transparency that the noble Lord, Lord McNally, stressed as being important. In order to address this, the Bill would create the role of a public advocate to represent bereaved families and injured survivors to ensure they understand all the processes and are supported through them, and to review and make sure they have access to the documents used in the investigation.

I know that this is a matter in which the noble Lord has, as he modestly told us, a long-standing interest, as well as considerable expertise and experience. He has been closely involved with the families who were bereaved in the Hillsborough tragedy and who are now involved in the final stages of the inquest into the death of their loved ones. Indeed, it is right to say that Sir John Goldring is currently in the course of summing up to the jury in that inquest. We do not expect a decision for a few weeks yet, and quite what form that decision will take we do not know; it may be a narrative verdict or it may be something more narrow.

I had a meeting with the noble Lord, Lord Watts, who is unable to be here today, and he asked me to say that, given his personal experience, he very much supports what lies behind the Bill, without necessarily committing himself to the actual words.

The Government acknowledge that there were significant issues in the way in which the Hillsborough families were treated in the various processes which followed and we agree that it is vital that lessons are learned and that their experiences should not be that of others in the future. It is because we agree that the needs of the family are so important that we have already taken a number of steps forward.

Reference was made to the Coroners and Justice Act 2009 and the suite of rules and regulations underpinning it. They reformed the way in which coroners’ investigations and inquests are now conducted following a major disaster. These reforms have been in place since July 2013 and have the central aim of putting bereaved people at the heart of the process. The aim is that they receive the support they need and that the process is transparent and understandable from the time of a death being reported to the coroner until the end of the inquest hearing.

Under the reforms we have taken forward, bereaved people have the right to request most documents involved in a coroner investigation and inquest and they can expect the coroner’s office to update them at regular intervals. They can also expect the coroner’s office to explain each stage of the process so that they understand what is happening and why. They can expect compassion and respect for their needs to be central to the investigation and inquest.

They will also have the resource of the Guide to Coroner Services, which my department published in February 2014. This explains clearly and simply what they can expect from the coroner and his or her staff and what to do if that does not happen. Under the 2009 Act, a key role of the coroner and his or her office in an investigation is to make sure that “interested persons”, including bereaved people, understand the process of investigation and are informed of their rights and responsibilities. They are entitled to receive documents and other relevant information, such as hearing dates, so that they can fully participate in the process. Many coroners now also have a support service which provides emotional and other practical support to those attending inquests on the day.

Under the Inquiries Act 2005, the inquiry chair is under a statutory obligation to have regard to fairness. Core participants, which will clearly include all those with whom we are concerned, are entitled to disclosure. The inquiry chair will act as data controller, devising and implementing mechanisms for obtaining, handling and securely storing documents provided to and generated by the inquiry. There is guidance for those running inquiries, including inquiry chairs, teams and sponsoring departments, which sets this out.

Therefore, much of what is in the Bill setting out what a public advocate would do is already happening in the existing processes. We are today in a very different climate from that at the time of the Hillsborough tragedy and in the intervening years. The needs of bereaved people are rightly much more central. I hope noble Lords agree that the current landscape brought about by these reforms and the hard work and contributions of so many makes it less likely that what happened to the Hillsborough families will occur again.

We are not, of course, complacent about this but I believe that, at the moment, there is no need for the public advocate role that the Bill envisages. However, the Government agree that the needs of bereaved families, in particular, must be paramount and that the principles that lie behind the Bill are right. Bereaved families should feel that their voice is heard and confident that processes are fair and transparent. They should feel that they fully understand what is happening and able to participate effectively.

We are, therefore, willing to consider whether the existing processes can be improved and whether any of the principles in the Bill can be incorporated into the existing system. We could, for example, place more firmly in the guidance which is already available to inquiry chairs and teams how important the needs of the families are. We can look at whether the positive things coming from the Hillsborough inquest, not yet concluded, such as the family forums set up to keep the families informed of the investigative processes and to give them a safe space in which to discuss issues, can be replicated in other major inquests and inquiries.

As to specific next steps, I commit to meeting the noble Lord, Lord Wills—not immediately but as things progress—so that our feet can be held to the fire to see whether steps can be taken to reflect what lies behind this and further to improve the significant steps forward we have made.

On behalf of the Government I thank the noble Lord, Lord Wills, for raising the profile of this important issue and for his valuable input, which is welcomed. I hope he will accept my assurance that the Government will continue to ensure that bereaved families and injured persons are central to the inquest and inquiry processes and that their voices will not be ignored.

[Lord Woolf (CB)]

My Lords, does the Minister feel that the role of the advocate to the inquiry could be closely used to adopt many of the points required by those who support this Bill?

--- Later in debate ---

[Lord Faulks]

The concerns which would be represented by a public advocate—were there hypothetically to be one—should be properly reflected in the way that an inquest or inquiry is carried out. We are not at the moment persuaded that a public advocate as set out in the Bill is necessary. However, we do not rule out possible improvements to ensure that those factors which would be reflected in what a public advocate did find better representation in the existing arrangements.

Legal Services Act 2007 (Claims Management Complaints) (Fees) (Amendment) Regulations 2016

Lord Faulks Excerpts

Wednesday 27th January 2016 Lords Chamber

Moved by

[Lord Faulks]

That the draft regulations laid before the House on 17 November 2015 be approved.

Relevant document: 10th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 18 January.

Motion agreed.

Prison Reform

Lord Faulks Excerpts

Thursday 21st January 2016 Lords Chamber

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

My Lords, I thank my noble friend Lord Fowler for introducing this important debate and all noble Lords for contributing to it. There is a great deal of expertise in your Lordships’ House on this subject. As the noble Lord, Lord McNally, pointed out, a number of noble Lords contribute not just to debates but to reports, and by chairing committees. There is no lack of interest and, it is remarkable to report, a considerable consensus apparent in the House across all parties and among those of no party. I can report that the Secretary of State, who has received several plaudits for his endeavours so far, reads carefully the debates in your Lordships’ House, so everything that has been said will be noted by him. I will not respond in detail to all the many suggestions that have been made, but suffice it to say that the five points emphasised by my noble friend Lord Fowler received widespread support, and I find no difficulty in supporting any of them myself.

There are some positives about prisons as well as the litany of negatives that have been pointed out by so many of your Lordships. It is important to bear in mind the invaluable work undertaken in prisons. We have many dedicated prison officers and governors working in difficult and often dangerous conditions. They strive to help offenders lead better and safer lives, and they take their duties to prisoners and to the public very seriously. I am shortly to visit their training establishment to gain a better understanding of the challenges they face and the training they receive. It is about not just prison officers but a whole host of professions, from psychologists to teachers and career advisers. There are also many from the voluntary sector. We should not neglect the charitable and voluntary sector for all it does for prisoners, a matter referred to by my noble friend Lord Farmer. But there are undoubtedly many challenges that face us.

It is helpful that the current political situation does not lead one to believe that there is any sort of arms race between the parties as to who can be tougher on crime. I think we have left those days behind. What we can all agree on is that reoffending has simply been too high for too long. Although the overall reoffending rate has come down slightly over the past decade, 45% of all adult prisoners reoffend within one year of release, with the figure rising to 59% for those serving sentences of under 12 months. The figures are significantly higher than for those who serve non-custodial sentences.

Perhaps I may pause briefly to say that although the current Secretary of State has received some qualified approval, his predecessor did not on the whole receive such approval in your Lordships’ House. However, I pay tribute to him for all he did on the Transforming Rehabilitation strategy. A number of noble Lords made the point that those who serve sentences of less than 12 months are particularly likely to reoffend. They used to be allowed to leave prison with £46 in their pocket and it was no surprise that they immediately reverted to their old habits. Under the stewardship of the Secretary of State, the previous coalition Government brought in a system whereby all those offenders received support in the community from the probation service and before they left prison to enable them to rebuild their lives as best they could. That was a brave initiative and it is one that we should pay tribute to the previous Secretary of State for introducing.

To help prisoners leave custody, we need our prison officers to be able to work in an environment which is suited to supporting offenders. However, our current prison estate is ageing, inefficient and ineffective at doing that. There are numerous “dark corners” which facilitate bullying, drug-taking and violence, and, within prisons, violence towards prisoners and prison staff is increasing. In the last year, serious assaults have risen by a third and, tragically, 95 prisoners have taken their own lives while in custody. While referring to deaths in custody, I pay tribute to the impressive and thorough report produced by the noble Lord, Lord Harris of Haringey, and we have accepted a considerable number of the recommendations made in it. He mentioned particularly the identification of a custody and rehabilitation officer who would be responsible for each offender. I understand entirely what drives the suggestion, but, notwithstanding the wisdom that lies behind it, the Ministry of Justice believes that it could undermine the concept that reducing the risk of suicide is a key part of the role of all prison staff. Our philosophy is that every contact matters and every individual matters. Of course, the noble Lord will know, as will the House, that the death of a prisoner is not only a tragedy for that prisoner and their family, but also very destructive to the morale of those who work in prisons. All prison officers should be concerned for the welfare of each individual.

[Lord Harris of Haringey]

I am grateful to the noble Lord for responding. The point of the custody and rehabilitation officer is not to get away from the concept that everyone should be responsible for the security and safety of an individual. It is to create someone who would take personal responsibility for ensuring that the journey of a prisoner through the prison system, particularly in relation to rehabilitation, so that it is owned by an individual who makes sure that that journey happens and that the right solutions are found for each person. That is what I think is being lost and is what will undermine the Secretary of State’s desire to bring about a rehabilitation revolution.

[Lord Faulks]

I do not disagree with the objectives outlined in the suggestion; rather it is simply about how they can best be achieved. But the identification of the desire for continuity is of course important.

I was saying that one of the problems we must confront is the use of psychoactive substances, known as legal highs. Their use has been plainly linked with specific acts of violence and erratic behaviour, as referred to by the noble Lord, Lord Marks. This and the previous Government have already introduced measures to tackle the use of these substances, including the use of specialist dogs to search cells, and we are currently exploring the use of body scanners to reduce the threat posed by drugs being smuggled into prisons. This is a problem being confronted not only in prisons in this country but elsewhere throughout the world. It is proving particularly intractable, but it is vital that we do so. Despite the tireless efforts of all those working in our prisons, these issues, which were identified by many noble Lords, cannot be ignored. The Secretary of State has made it clear that our prison system is in need of reform. It fails to rehabilitate and it fails to ensure that criminals are prevented from offending again. Without reform, this cycle will continue.

What changes are we making? A key aspect of these reforms is the proposed changes to the prison estate itself. We will close down ageing and ineffective prisons, replacing them with buildings fit for today’s estate. We will invest in a high-quality modern prison estate, with appropriate facilities for training and rehabilitation. This is receiving enthusiasm across government. Some £1.3 billion will be invested to reform and modernise the prison estate to make it more efficient, safer and focused on supporting prisoner rehabilitation. The Chancellor announced that the Government will build nine new modern prisons, five of which will open during this Parliament, with better education facilities—as referred to earlier this week in a debate answered by my noble friend Lady Evans, which I shall not go into now—and other rehabilitative services, while selling ageing and inefficient prisons to free up land for new homes.

This includes the closing of Holloway prison. The female prisoners held there will be transferred to better prison environments, including HMP Downview, which we will reopen as a women’s prison. Downview provides better facilities for family visits as well as being a better rehabilitative environment for women. I do not in any way disparage what was achieved in Holloway, which I visited, because it was a remarkable prison. However, we feel that we can do better.

A number of noble Lords, among them the noble Lord, Lord Judd, and the noble Baroness, Lady Healy of Primrose Hill, mentioned the problem of women in prison. In 10 years of sitting as a recorder, I always found reasons not to send women to prison and I can hardly remember ever doing so. I am glad to say that the female prison population is now consistently under 4,000 for the first time in a decade. We are modernising the prison estate to provide the best rehabilitative regimes and hold women in environments better suited to them. We want to ensure that they serve their sentences in appropriate surroundings and to maintain their strong family ties. My noble friend Lord Farmer made the point that family ties are vital to assisting rehabilitation not only for women but for all the prison population.

Of course, it is not just the structure of the estate that we need to reform, but how we manage offenders. I entirely agree with my noble friend Lord Fowler that prison is a place where people are sent as punishment, not for further punishment. If we ensure that prisons are calm, orderly and purposeful places—I entirely accept that there is a need for more purposeful activity—the skills and habits that they acquire there will prepare them for outside life. We can all benefit from that.

The Secretary of State clearly set out his commitment to “liberating offenders through learning”. Prisoners must use their time in prison advantageously. We must offer them a chance to obtain qualifications and skills—I note what the noble Baroness, Lady Benjamin, said about that. I welcome the opportunity to visit prisons where that is going on: it is a vital part of the Government’s reform agenda.

We know that one in five prisons has an “inadequate” standard of education provision and two in five require improvement, according to Ofsted. That is why we have commissioned Dame Sally Coates to chair a review into the quality of education in prisons, which will report in the spring. Talking of reporting, of course I accept what the noble Lord, Lord Beecham, said: Mr Hardwick is there to provide an independent report to the Government on the state of prisons. That is important for him and his successor, and we should be able to take criticism robustly and respond appropriately. Their independence is crucial.

While the review by Sally Coates is going on, work is under way to improve the quality of learning and skills provision in prison. These measures include improving support for prisoners with learning disabilities—unfortunately, many have them— developing more creative teaching methods and collecting better management information. Giving poorly educated adults a basic level of literacy and numeracy is vital, following tried and tested methods, and the current failure to educate prisoners well is hard to defend. I do not think the House will need much convincing about the Secretary of State’s attachment to the importance of education.

Meaningful employment is crucial. It is a vital part of the Government’s approach to support those who have committed a crime to get out of the cycle of offending. We are keen to increase the number of employers who engage with prisoners and offenders to offer them employment opportunities. We hold an Employers’ Forum for Reducing Re-offending, chaired by the CEO of Timpson, James Timpson, which brings together employers who support the employment of offenders to share their experiences and promote the benefits of employing offenders to other businesses. We have built a relationship with several employers, including Halfords, which provides work for prisoners in its academy, which is run in a prison and employs the prisoners on release if they positively engage on their 16-week course. I have had several conversations with the Prisons Minister, Andrew Selous, who is particularly keen on and pleased with the progress that has been made in this regard.

We are also anxious that there should be greater autonomy at a local level for prisoners—a point made by my noble friend Lord Fowler and the noble Lord, Lord Beith, with his considerable experience of justice issues. That is a form of localism in the Prison Service. The noble Lord made the interesting point that Texas has brought about a strange consensus between the political parties on the way forward in that regard.

I could respond on the issue of IPP prisoners at considerable length; unfortunately, I do not have time to do that. Suffice it to say that we are progressing well in the number of courses available to IPP prisoners. We are also in the process of reducing the backlog for hearings before the Parole Board. As I told a number of noble Lords at a recent meeting, there remains the question of the Secretary of State’s powers to change the test for release. That is a matter which he continues to consider carefully. I will make sure that I faithfully transmit all messages from this House and noble Lords about the need to do something about that.

The points of the noble Lord, Lord Bradley, were well made. We are aware of the importance of reviewing the working of ROTL and liaison and diversion services. The Secretary of State has well in mind a possible wider review of sentencing. Similarly, several noble Lords, including my noble friend Lord Cormack, emphasised the importance of restorative justice.

Finally, my noble friend Lord Trefgarne rightly drew our attention to the plight of older prisoners, who are becoming a particular, somewhat unusual, feature of the prison population. That is partly to do with so many offenders having been committed for ancient offences of sexual abuse and the like. All prisoners, regardless of age, need to be treated in a humane manner that reflects their needs. That is a matter we should attend to particularly carefully.

I am grateful to all those who have taken part in this excellent debate and to my noble friend Lord Fowler for initiating it. The Secretary of the State and the Ministry of Justice will have learnt a great deal from it.

Marriage: Humanist Ceremonies

Lord Faulks Excerpts

Thursday 21st January 2016 Lords Chamber

[Baroness Thornton]

To ask Her Majesty’s Government what plans they have to establish humanist marriage ceremonies in England and Wales.

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

My Lords, the Government gave an Answer to the noble Baroness on 2 June last year saying that given the broader implications for marriage law, they would consider the next steps after the Law Commission had reported in December on its preliminary scoping study of the law concerning how and where people can marry in England and Wales. The Government are carefully considering the report and will respond in due course.

[Baroness Thornton (Lab)]

I thank the Minister for his Answer. He will understand why I keep returning to this because Scotland is a long way for one to go for one’s children to have a humanist marriage. Two gay people can now marry in a church but they cannot have a humanist wedding in England and Wales. It is two and a half years since this House agreed that it thought that should happen. Can the Minister say whether it would be possible, and indeed preferable, for a modest extension of the law to accommodate humanist marriage rather than overhauling marriage law, as recommended by the Law Commission report? If Scotland and other countries can do this in a simple way, should England and Wales not be able to do so as well?

[Lord Faulks]

What Parliament decided, in Section 14 of the Marriage (Same Sex Couples) Act 2013, was of course that the Secretary of State should arrange a review, which the Secretary of State did—that is the Law Commission review—and that he has a power rather than a duty to make the order which the noble Baroness refers to. It is of course quite right that Scotland has operated a different arrangement, whereby you may go to a registry office and have a schedule permitting you to get married anywhere. Marriages have taken place on the top of a mountain and in the middle of a loch, identified only by a GPS reference. However, these are serious matters. The Government think it necessary to consider marriage as a whole and it is interesting that the Law Commission’s thorough report does in fact not recommend simply activating that order-making power, as the noble Baroness will have seen.

[Baroness Barker (LD)]

My Lords, following that answer, can the Minister confirm that the system in Scotland is that the celebrants are registered rather than the locations where the ceremonies take place? That is the material difference. However, opinion polls consistently show public support for humanist marriages, so can he tell us why the Government keep trying to kick this into the long grass rather than using the powers that they have to bring it about?

[Lord Faulks]

The noble Baroness is quite right of course that it is a celebrant-based system. A schedule is issued by the register office stating where the marriage can take place, and the celebrant then goes back to the register office and the matter is registered there. The Government have considered the matter and will continue to do so, and will bear in mind the very cogent representations that have been made on behalf of humanists. At paragraph 3.20 of its report, the Law Commission said that,

“activating the statutory order-making power to permit marriages according to the rites of non-religious belief organisations is simply not, in our view, a viable option”.

The Government have to take that into account and consider the integrity of marriage as well as, of course, the wishes of individuals.

[Baroness Warsi (Con)]

My Lords, is my noble friend aware that Islamic religious marriages are recognised in the UK in law only if they are conducted overseas and not in the United Kingdom? This anomaly is the main reason why women turn to sharia councils when their marriages fail, an issue which my right honourable friend the Prime Minister was discussing earlier this week. If he is aware of that, and if the recognition of these marriages would stop references to sharia councils and indeed the practice of polygamy, why will the Government not adopt this provision? They have been aware that this is a solution as far back as 2011.

[Lord Faulks]

These are complicated issues. As my noble friend quite rightly says, the Home Secretary has initiated a general inquiry into the use of sharia councils. One area of particular concern is the circumstances in which marriages take place and the fact that there are some people in the Muslim community for whom marriage can be used somewhat oppressively. It is certainly important that all the information is available before we come to any conclusions.

[Baroness Whitaker (Lab)]

My Lords—

--- Later in debate ---

[Baroness Butler-Sloss]

I find this very difficult to understand. Why, if it was right to have a review of marriage generally, did we have the same-sex marriage Act but not allow the same for humanists? There is an unacceptable discrepancy there, and I speak as someone who is not a humanist.

[Lord Faulks]

It is not of course, as the noble Baroness would confirm, that we do not allow humanist marriage—a civil marriage can take place followed by a humanist ceremony. The gravamen of the complaint is that they cannot take place simultaneously.

[Baroness Whitaker]

My Lords, speaking as a humanist, may I ask the Government what the majority of respondents to their consultation on this subject of humanist marriage thought about it?

[Lord Faulks]

The vast majority—well over 90%—were in favour of humanist marriage. Humanists represented by far the greater majority of those who responded to the consultation. Pagans and naturists also responded—the latter, for some reason, were particularly keen on outdoor ceremonies, which might be challenging at this time of year.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it seems to me that the Minister is taking the Law Commission view ahead of Parliament. It was this Parliament that decided that the Secretary of State should have this power. Is it not now time to move on that?

[Lord Faulks]

I respectfully reject what the noble Baroness says. She is quite right that it is a matter for Parliament, and it is also a matter for the Government to consider. The Law Commission has produced a very valuable and thorough report—as I am sure she will agree, having read it—which provides material for the Government to consider. The report was only produced just before Christmas. After considering that report, the Government will then make a decision.

Legal Services Act 2007 (Claims Management Complaints) (Fees) (Amendment) Regulations 2016

Lord Faulks Excerpts

Monday 18th January 2016 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Legal Services Act 2007 (Claims Management Complaints) (Fees) (Amendment) Regulations 2016.

Relevant document: 10th Report from the Joint Committee on Statutory Instruments

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

The Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014 enable the Lord Chancellor to charge fees to regulated claims management companies to recoup the costs of the Legal Ombudsman’s work in handling complaints about these companies. Since January last year, the Legal Ombudsman has been able to consider consumer complaints against claims management companies. It is funded for this work by grant-in-aid from the Lord Chancellor, and the 2014 fees regulations enable the Lord Chancellor to recoup the costs from the companies themselves. It is right that the costs of handling such complaints fall on the claims management sector and not on the taxpayer.

The draft regulations before us amend the level of fees set out in the existing 2014 fees regulations for the financial year beginning 1 April 2016 and for subsequent years. This will ensure that the Lord Chancellor can recover the full costs of the Legal Ombudsman in dealing with complaints about the claims management industry in the 2016-17 financial year.

The Legal Ombudsman has one year’s experience of operation of the complaints scheme. During this time, the Legal Ombudsman has dealt with fewer cases requiring an ombudsman decision than expected, although the number of complaints is increasing. The number of initial consumer contacts and inquiries to the scheme has been substantially more than envisaged.

In the light of its experience so far, the Legal Ombudsman has revised downwards its estimate for the number of cases that will require ombudsman resolution during the next financial year and therefore the expected costs. However, in addition to the Legal Ombudsman’s expected costs for 2016-17 we also need to recover a shortfall in the amount invoiced for 2014-15 and 2015-16. This was the result of a greater number of market exits than was estimated in the fee model. This means that the total cost to be recovered from the market for 2016-17—around £2.3 million—remains broadly similar to that for 2015-16. Due to the contraction in the market, however, fees have had to be increased. Effectively, it is a smaller cake.

Noble Lords will be aware that a fundamental review of the regulation of claims management companies is currently taking place. The review is considering what powers and resources are required for a strengthened regulatory regime and what other reforms may be necessary, and is due to be completed in early 2016. As such, I cannot say any more about it at the present time.

The claims management sector has undoubtedly acquired a poor reputation as a result of a small number of companies engaging in poor business practices. The Legal Ombudsman provides redress for consumers of regulated claims management companies, including the potential for awards of compensation, and will continue to assist the claims management regulator in driving out poor standards and practices in the market.

I know that noble Lords welcome the fact that the Legal Ombudsman is now able to deal with complaints about claims management companies. It is therefore right that the Legal Ombudsman’s costs relating to regulated claims management complaints continue to be met by the claims management sector, in the same way that the costs relating to complaints about the legal services sector are met by that sector. I commend the draft regulations to the Committee.

[Lord Beecham (Lab)]

My Lords, the Government are right to take action in this matter, and I certainly endorse the new arrangements that have been laid out, but it has a rather curious history. Looking at paragraph 4.2 of the Explanatory Note, I can see that it was some seven years after the passage of the 2007 Act before steps were taken to deal with this issue. The paragraph contains this rather curious sentence:

“This provision treats the designated Claims Management Regulator as an approved regulator to be levied in the same way as other approved regulators for the costs of the Legal Ombudsman”.

It goes on to say:

“However, there is currently no designated Claims Management Regulator and the function is fulfilled by the Secretary of State”.

One might have thought that he had more important things to do. Obviously, Mr Gove and his predecessor will not have been involved in this personally, but it is a curious situation that for some years there apparently was no functioning regulator in post.

The position appears to be, as the Minister has indicated, that a £500,000 shortfall has occurred in a very short period. I do not know whether he is able to indicate how many cases there were. He said that there were not many, but £500,000 is a reasonably large amount of money. It will be interesting to know how many cases there were and how many of those were from small companies, which appear to be leaving the market. But the very fact that after all these years there are clear deficiencies in how some of those providing this service are operating raises questions about the degree to which their activities are regulated in advance of the unfortunate outcome, which sometimes leads them to be subject to charges for maladministration or their conduct. Does the review to which the Minister referred encompass looking at the qualitative regulation of the industry? Should there not be a floor above which the resources of these companies should be fixed? If not, we will continue to have a situation in which, quite apart from the financial implications for the Government, people who have consulted these companies presumably are being short-changed. One wonders what has happened to valid claims that have gone astray as a result of maladministration. That side of it does not seem to be touched on at all in relation to this order, but it may be encompassed within the review. I certainly hope that that is the case, but if it is not, perhaps the Minister could undertake to look into the nature and quality of the supervision that ought to be exercised and, if necessary, what improvements should be made to what has gone on recently.

[Lord Beith (LD)]

My Lords, I very much agree with the noble Lord, Lord Beecham, about the rather curious nature of the regulatory arrangements for claims management companies. The Lord Chancellor left himself holding the baby when the original legislation was taken through. I never thought that this arrangement would last as long as it has. It is quite right that it should be subject to review. It is obviously right that the costs of dealing with what the noble Lord called the maladministration in the industry is visited upon the industry and not the taxpayer. Therefore, I support the order and the principle behind it.

The history of claims management companies has been one of things that go beyond individual complaints. There have been systemic changes to the way the legal system operates and attempts to turn it into an ambulance-chasing activity. We all have some worries about whether, in another area, the necessary referral fee bands have actually brought some of the claims management activities in-house, into some solicitors’ practices, where once they were precluded. This is a very difficult area and the regulatory problems that it generates are not just individual cases being badly dealt with but systemic weaknesses. I hope that when we dispatch this order successfully as an appropriate means of dealing with the costs arising from individual claims, we will not neglect some of the wider issues that this industry has generated.

[Lord Faulks]

My Lords, I am grateful for that short debate and for the contributions of the noble Lord, Lord Beecham, and the noble Lord, Lord Beith, who, I know, when he was chair of the Justice Select Committee had considerable concern, possibly in relation to the Compensation Act going back to 2006. At that time the question of claims regulations was certainly raised, with the emergence of claims management companies and the possibility that they were and would be engaging in unacceptable practices. That is a matter of concern generally to the Government.

The claims management regulation unit in Burton-on-Trent has been doing a good job but the Government are by no means complacent about this activity. The review being conducted by Carol Brady is wide-ranging and I do not want in any way to pre-empt its conclusions, but the Government are not going to lose sight of the potential dangers that this claims management activity can present. I take the noble Lord’s point about referral fees and the possibility that they might have the unintended consequence of driving claims away from lawyers towards claims management companies.

On the plus side, I think that the increased powers to fine companies have been a positive step, together with the fact that a number of the less reputable companies have left the market. There is something like half the number of claims management companies in existence that there were. This is at least some indication that the better ones are still active rather than the less reputable ones.

The wider point that both noble Lords make about claims management is valid. I hope that the review will assist; the Government are very much aware of the field and whether it is desirable in the long term that these companies should exist, as well as the need for regulation.

--- Later in debate ---

[Lord Beecham]

I entirely endorse what the Minister has said, but the danger is that the process of finding companies works only if the companies are in existence and have resources. Therefore, it seems to me that the regulation needs to be at an earlier stage to ensure that they do not carry on business unless they can demonstrate that they have the financial capacity to meet their liabilities. I assume—but it would be good to have the confirmation, if not today than perhaps subsequently—that that element is being considered as part of the review to which the Minister referred.

[Lord Faulks]

I am grateful for that, and I understand the noble Lord’s concern about having prior approval rather than waiting for things to go wrong; I think that is effectively what he is saying. I do not want to pre-empt what is in the wide-ranging report. Of course, there are a number of ways of ensuring that, including the possibility of professional indemnity insurance, or something of that sort. But I accept his point that it is important that there is protection before, rather than after, the event. I do not undertake that the review will cover that point, but it is none the less a valid concern.

Motion agreed.

European Union Referendum Bill

Lord Faulks Excerpts

Monday 14th December 2015 Lords Chamber

Moved by

[Lord Faulks]

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1: Clause 2, page 2, line 7, at end insert “and persons who would be so entitled except for the fact that they will be aged 16 or 17 on the date on which the referendum is to be held,”

--- Later in debate ---

1A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

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

My Lords, this afternoon we return to the question of the voting age. Since we last debated the Bill, only two weeks ago, it has been considered in the other place. It agreed to all of the amendments made by your Lordships, with the sole exception of Amendment 1, which would lower the voting age to 16.

This House has now discussed the question of the voting age many times since the election in relation to this Bill and the Cities and Local Government Devolution Bill, so this is now well-trodden ground. The Government’s position is therefore well known. We do not believe that it is appropriate to lower the voting age to 16 and, even if it were, this Bill would not be the place to make such a change. That applies as much to the amendment before the House today in the name of the noble Baroness, Lady Morgan of Ely. I recognise that she has done what she can to minimise the charge on the public purse but that does not change the principle of the Government’s position.

Before I turn to the substantial arguments, I will set out the Government’s position on financial privilege and procedure. Along with the decision to disagree with Amendment 1, the other place has sent us its reason:

“Because it would involve a charge on public funds”.

This is a reference to the financial privilege of the House of Commons. There has been a great deal of discussion and speculation on this issue, so I will endeavour to set out the Government’s position. When this House amends a Bill sent to us by the House of Commons, our amendments are assessed by the clerks in another place in order to establish whether they engage the financial privilege of the House of Commons. That important process is carried out under the authority of the Speaker, and the Government—any Government—have no say in it.

The fact that a Lords amendment to a Bill has been deemed to engage the financial privilege of the House of Commons is announced to that House before it considers the amendment, but it does not prevent the House of Commons from agreeing to that Lords amendment and thereby waiving its privilege: indeed, this happens routinely. However, should it disagree to the Lords amendment, financial privilege is the only formal reason that it can give for doing so.

It should come as no surprise that the original amendment that we sent to the House of Commons, lowering the voting age, was deemed to engage the House of Commons’s financial privilege. The Government estimate that extending the franchise to 16 and 17 year-olds for the referendum would cost at least £6 million. But, as my honourable friend the Minister for Constitutional Reform, John Penrose, explained to the House of Commons last week, that is not the reason why the Government invited the House of Commons to disagree to this House’s amendment. The Government disagree with the principle. We disagree with the proposal to extend the franchise to 16 and 17 year-olds for the referendum for the reasons I made clear to this House when we considered the original amendment, and which I will again set out briefly this afternoon.

I turn now to those arguments. Given the number of times your Lordships have considered this, I of course do not intend to rehearse every part of the argument. However, I will set out briefly why we firmly believe that the voting age should remain at 18 for the referendum. Society has drawn numerous lines for when a young person is able to take various decisions. A 16 year-old may join the army but not use a sunbed. An 18 year-old may be deployed in a war zone but not drive a bus. Only a 21 year-old can supervise a learner driver or adopt a child. For many activities, parental consent is required; in England and Wales, joining the Armed Forces and getting married require the agreement of a young person’s parents. It would hardly be appropriate to require parental consent to cast a vote.

The state also requires that young people in England remain in education or training until the age of 18, and in Scotland young people will soon apparently enjoy the protection of a state-appointed guardian until the age of 18. Indeed, the United Nations Convention on the Rights of the Child defines a child as a person under the age of 18, unless national laws set a lower age of majority. The Committee on the Rights of the Child goes further and recommends that if a country’s age of majority is below 18 it should be reviewed, and that levels of protection be increased for all people younger than 18. Similarly, the Independent Inquiry into Child Sexual Abuse, led by Dame Lowell Goddard, has defined “child” to mean anyone under the age of 18.

These distinctions are, in the final analysis, a matter of judgment. There is no single answer to the question of when a young person should be able to take one decision or another. But it is at 18 that society generally views a young person as becoming an adult. The line has to be drawn somewhere, and we suggest that 18 is the logical, consistent place to choose.

[Lord Foulkes of Cumnock (Lab)]

The Minister knows that in Scotland in the Scottish referendum, 16 and 17 year-olds were allowed to vote. I spoke to many of them during the course of that referendum and found them intelligent, well-informed and exercising their right to vote with great enthusiasm and sense. Therefore, it was a successful experiment. Why does the Minister not agree that it was successful and why does he think there was something wrong with doing that?

[Lord Faulks]

I do not suggest that it was unsuccessful, nor do I for a moment cast aspersions on the intelligence of 16 and 17 year-olds in Scotland or in England and Wales. Enthusiasm is of course to be welcomed at any age. Equally, there may be 15 year-olds who are very well informed and intelligent, whether they are in Scotland or in England and Wales. But, although Scotland took the view that it did about the voting age because of the devolution arrangements, most democratic societies have made the same judgment as this Government makes. In every EU member state but Austria, the voting age is 18 for national elections, and referendums where they take place. The 1975 referendum proceeded on that basis, as did the referendum on AV—and, as your Lordships may remember, the EU Act 2011would in the event of a transfer of power on competences have triggered a referendum according to the franchise that is used for general elections.

[Lord Purvis of Tweed (LD)]

Before the Minister moves on from the point that the noble Lord, Lord Foulkes, raised with regard to Scotland, he tries to give the impression that it was decided purely and solely by the devolved authority with no support. Can he remind the House whether the Prime Minister and the leader of the Conservative Party in Scotland supported the extension of the franchise to 16 and 17 year-olds in the referendum?

--- Later in debate ---

[Lord Faulks]

With respect, whether the Prime Minister or the leader of the Conservative Party favoured a 16 year-old franchise is beside the point as to whether the Government think that it is appropriate in this referendum for those 18 and above to vote, in the traditional way of the franchise. I know that many have pointed to the Scottish independence referendum and have said, rather like the noble Lord, Lord Purvis, that in some way that “opened the door” to votes at 16. Others point to the apparent inconsistency between elections for the Westminster Parliament and elections for the Scottish Parliament. However, inconsistency is a natural consequence of devolution. The decision over the voting age has been devolved to the Scottish Parliament. It may decide to raise the voting age or lower it, but that does not bind the decisions made in any of the other legislatures in the United Kingdom. It would be quite contrary to the spirit of devolution if we thought that a decision in Holyrood should determine a discussion here or whether a discussion here, on a devolved matter, should determine the decision in the Scottish Parliament. Even if one were convinced of the case, this Bill would not be the right place to make the change.

I hope that all noble Lords can agree that this is undoubtedly a complex issue and by no means straightforward. The arguments on both sides deserve respect and a fair hearing. To suggest that 16 year-olds should perhaps wait is not in any way to disrespect or criticise them, or in any way patronising. Few things are as important as the decision about who is included in the franchise and, as such, the matter deserves proper scrutiny and consideration. There should be a proper debate in this House, in the other place and in the country at large before such a significant change is contemplated. Clearly there is no consensus between the two Chambers, but nor is there clear consensus in the country as a whole.

It would not be right to bring in a novel constitutional change through an adjunct to a Bill such as this, with a specific but limited purpose. This proposal is no replacement for the proper consideration that would be given to the matter in a representation of the people Bill. As your Lordships may remember, the last one was in 1969, following a widespread national debate. When the matter came before your Lordships’ House, many noble Lords did not accept that the franchise should be lowered from 21 to 18. Some suggested that the age should be 20 by way of a compromise, but it followed widespread national debate, not an amendment to a Bill brought about by the House of Lords.

[Lord King of Bridgwater (Con)]

I have a certain conceit over this matter, as I was the first Member of Parliament ever elected by 18 year-olds following the exact Act to which the noble Lord has referred. Is that not the model that we should follow? If we are going to change the voting age, it should be comprehensively considered as a separate matter. It is certainly not something on which this House should seek to override the judgment of the elected House, which has now been given three times.

[Lord Faulks]

I respectfully agree with my noble friend and, of course, the 18 year-olds showed excellent judgment on that occasion.

Finally, the House needs to consider very carefully the perception created by a change to the franchise. We speak of this as being a once-in-a-generation referendum. If that is really the case, all sides must be able to accept the result as fair and robust. There is a real danger that a change to the voting age for the referendum could undermine that. Rightly or wrongly, a change to the franchise may be seen as an attempt to engineer the result, and that perception would damage the public’s confidence in the result of the vote.

I do not pretend for a moment to know how 16 and 17 year-olds would vote, any more than we know how 18 or 19 year-olds would vote, but the House will no doubt appreciate that a considerable part of the electorate will be disappointed with the result of the referendum. It is crucial that those who are disappointed accept the result, notwithstanding their disappointment, and do not feel it appropriate—in their minds or expressly—to cast doubt on its legitimacy.

I therefore urge noble Lords not to insist on their amendment or to agree with the amendment in lieu proposed by the noble Baroness, Lady Morgan of Ely. Instead, I urge this House to accept the position of the other place. This Bill is not the place to make a change to the age of voting; it is not the way to make good law. I beg to move.

--- Later in debate ---

[Baroness Morgan of Ely]

I cannot believe that we are being accused of playing with the constitution, given what is going on in this place at the moment. It is important for us to remember that it was suggested that the Government should decide this, but only 37% of the public voted for the Government. More people voted for Labour, the Lib Dems, the SNP and the Green candidates, who had this provision in their manifestos. It is worth noting also that the Minister leading for the Government on this Bill was the shadow Chief Whip when she led this House to 81 defeats of the Labour Government. Let us also not forget that the Labour Government had a substantially larger mandate than this Government. Perhaps the Minister will enlighten us as to whether his colleague thinks that all those victories were wrong during that period.

Let me turn to the constitutional aspects of the relationship between the two Houses, which have been thrown up as the result of financial privilege being applied to this amendment. I am no expert on constitutional matters and, no doubt, there are many experts in this Chamber. However, over the past few days, I have been trying to understand when and how financial privilege is invoked, and to find out specifically who decides on these matters. What are the guidelines or factors which determine the threshold concerning when and whether such a decision should be subject to financial privilege? I am grateful that the Minister set out some of the rules.

As this decision is crucial to the Lords’ ability to consider amendments, and as the Government have no option but to cite financial privilege as the reason for rejecting an amendment, I assumed that the system for deciding these matters would be open and transparent, with a clear set of criteria for determining each outcome. At the very least, I thought there would be a clear indication of the minimum threshold at which financial privilege would kick in.

I have requested specifically of the Commons Clerk an answer on minimum threshold. Search as I have, I have been unable to find anything written anywhere which sets out the criteria. I would be grateful if the Minister referred me to such a document, if one exists. I understand that the Government have a clear political agenda, not just in this Bill but in all Bills which come before this House. We accept that they have a majority, and have been elected and are accountable. But if it is the Commons Clerks, who are unelected and unaccountable, who decide what is subject to financial privilege, at the very minimum we need extremely clear and transparent procedures for determining this, as they have such a major impact on the ability of this Chamber to influence policy decisions.

[Lord Faulks]

It is of course the Speaker who decides, advised by the Clerks.

[Lord Morgan (Lab)]

That is only half true at best. In 2012, we were told by the noble Lord, Lord Strathclyde, that the Speaker, as the Minister says, is advised by the Clerks, but the Clerks are not expert in the financial details of legislation. Therefore, they consult the Government and so the Government have an input.

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[Lord Wright of Richmond (CB)]

My Lords, I am sure that I am not alone in thinking that I have now heard sufficient argument so that, if the noble Baroness decides to test the opinion of the House, I am ready to vote.

[Lord Faulks]

My Lords, that was a short but valuable contribution to the debate. I am very grateful to the noble Lord.

[Lord Pearson of Rannoch (UKIP)]

My Lords—

[Noble Lords]

Minister!

[Lord Faulks]

My Lords, this has been an interesting and passionate debate. However, not much has been said about the amendment. I am grateful to the noble Baroness, Lady Morgan of Ely, for setting out the thinking behind the amendment in her name, but I confess that I am somewhat puzzled by it. I appreciate that she has done what she can to minimise the cost to the public purse, but unfortunately this has left the policy in a fairly odd place, as I shall endeavour to explain.

The amendment would entitle those over the age of 16 to take part in the election if they were on the register for parliamentary elections. It goes on to say that steps taken to register eligible persons shall focus on 15 year-olds who will be 16 at the time of the referendum, and shall use low-cost means such as emails. The amendment would not enfranchise all 16 and 17 year-olds; it would enfranchise only those 16 and 17 year-olds eligible to be on the register for parliamentary elections, known as attainers. The formula for working out who is an attainer is surprisingly complex. It is set out in the Representation of the People Act 1983. A young person is eligible to be on the register for parliamentary elections if they will,

“attain voting age before the end of the period of 12 months beginning with the 1st December next following”,

the date on which an application for registration is made—that is to say, a person who will turn 18 during the year beginning 1 December following the date of the application.

The practical upshot of this is that there is a significant cohort of 16 year-olds who are not eligible to register for parliamentary elections. Because the legal definition of “attainer”, which defines who is eligible to register, is pegged to 1 December, the number of people who can register changes over time, but it means that there is never a period when all 16 year-olds can register, nor is there a period when any 15 year-olds can register. Bizarrely, therefore, the number of 16 and 17 year-olds who could vote would depend upon the date of the referendum. The closer it was to 1 December 2016, the fewer young people could take part—until 2 December, that is, when almost all 16 year-olds would be eligible. For example, a young person whose 16th birthday was on 23 November this year—a date that noble Lords may remember, as your Lordships were debating the Report stage of this Bill—would be able to take part in a referendum held before 1 December 2016, but their friend whose 16th birthday was today, only three weeks later, would not be able to take part in a referendum held before 1 December 2016.

This quirk makes the requirement to focus registration activity on 15 year-olds rather perverse. We would be left in the situation of being legally required to encourage the registration of 15 year-olds, despite there being no legal mechanism to register people aged 15 and despite the fact many people currently aged 15 will not actually be allowed to take part in the referendum. This is not a way to encourage democratic participation. The rules here are complicated because they are not designed to determine who may or may not take part in an election. They are designed to ensure an orderly administration of the electoral register. This is a wholly different thing and in no way suitable as a basis for the franchise.

I have been challenged at various times during the course of this debate on how I would explain a voting age of 18 to a 16 year-old. To turn this on its head, how would one reasonably explain this formula to a young person who would turn 16 shortly before the referendum? They ask the question, “Am I allowed to vote?”. The answer would be, “Have you got a moment? I’ve got an algorithm here, and I may be able to give you an answer in due course”. That is not a satisfactory way to make law.

The Government’s estimate of the cost of lowering the voting age for the referendum is in excess of £6 million. Most of these costs are created by the need to change the systems to deal with the addition of new young people to the registers, to register those young people, and by the increased activity by counting officers and regional counting officers to accommodate these additional voters. Of course, the noble Baroness’s amendment avoids the first two of these costs: no new people would be entitled to register for the poll, and the registration efforts must be “low-cost”. I have already explained that some of this low-cost effort will be expended on 15 year-olds who are not eligible to take part anyway. However, the amendment still expands the franchise and so expands the cost required to run the referendum. Counting officers and regional counting officers will have to take extra actions to accommodate the increased franchise. They will need to print more ballot papers and send additional postal ballots, for example, and the lead campaigners are entitled to a mailshot paid for out of the public purse; clearly, expanding the franchise means printing and sending more material.

The Government estimate that this amendment would cost the taxpayer an additional £2.8 million or £2.9 million, depending on when the poll is held. This figure is made up of the additional costs of running the referendum—printing ballot papers and so forth—and the additional cost of a bigger mailshot for the designated campaigns. There may be further additional costs, such as those relating to awareness raising amongst newly eligible voters, which we have not included in our estimates. Obviously I cannot say whether this infringes financial privilege. That is an assessment carried out by the clerks in another place, under the authority of the Speaker. However, it is clear, with great respect, that in seeking to reduce the cost the noble Baroness has had to make some rather on-the-hoof assessments of the costs.

For the reasons I have endeavoured to outline, the Electoral Commission has advised that it does not support this amendment. The briefing makes very clear that it does not have a policy position on the voting age but that if the voting age is to be changed, this is not a sensible way to go about it. The Electoral Commission notes that,

“only a small proportion of 16-year olds are currently eligible to be included in electoral registers”.

The commission is also concerned about the provisions on registration. It wants to be free to use “proven methods” to contact young people, such as by post, and warns that although email is widely used, it is,

“not yet a well-established method of encouraging electoral registration”.

The amendment requires a particular focus on registering 15 year-olds, which the Electoral Commission says could,

“lead to a significant proportion of the newly enfranchised group not being targeted”.

Clearly, this amendment is a deeply unsatisfactory way to go forward.

Legal Aid

Lord Faulks Excerpts

Thursday 10th December 2015 Lords Chamber

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

My Lords, this has been an excellent debate, with significant contributions from a number of noble Lords, covering not just legal aid but our system of justice as a whole. I am afraid that in the time available to me I will not be able to cover all the issues but I will, I hope, at least respond to a number of the points that have been particularly highlighted.

I begin by joining in the tributes to the noble Lord, Lord Howarth, for introducing this debate so well. This is not the first time that he has decorated the House in debates of this nature. His knowledge is considerable and he approaches the subject with great passion.

I also join the noble Lord, Lord Bach, in expressing my, and the Government’s, commitment to the principles of maintaining and ensuring access to justice. I wish him and his colleagues good fortune and wisdom in their approach to their significant task, and we look forward to hearing the results of their endeavours. Of course, the Ministry of Justice remains receptive to all constructive and innovative ideas which can assist in providing access to justice. The noble Lord indicated the nature of those who might be joining him on that commission. I hope that he will also include members of the public and taxpayers, who may not have quite the same identity of interest as those with legal experience in this issue. I hope also that there will be no shirking from an analysis of the cost of any proposals, because it is vital that one does not consider these matters in the abstract. If, for example, the suggestion is that the Government—whatever Government—should spend £1 billion more on access to justice, that should be identified.

The noble Lord, Lord Marks, made a number of suggestions about improving access which did not restrict themselves entirely to simply increasing the cost of legal aid. Of course, they are all valuable, and indeed some of them were foreshadowed in the Liberal Democrat manifesto.

The LASPO changes were fundamental. They reduced the cost of legal aid from more than £2 billion to £1.6 billion a year—a significant reduction. Inevitably, some results will have been certainly less than optimal. However, the Government consider that legal aid remains a vital element in our justice system and, although these comparisons are difficult because of the different nature of justice systems, we believe that we have a generous system at £1.6 billion a year.

The challenges that the coalition Government faced when they came into power were considerable and, in their view, it was necessary to reduce the amount of spending. The country’s finances have, to a significant extent, been put back on course, although there is still a great deal to be done in that connection. We remain of the view that, if possible, cases should be diverted away from court and court proceedings, and sometimes away from lawyers, where suitable alternatives are available, and that court, although an important and indeed vital part of a civilised society, should be the last resort rather than the first. We do not shirk from the fact that we think that those who benefit from the civil legal aid scheme should have a strong connection to the United Kingdom. That is why we remain committed to the residence test and are now planning the next steps following the success of the Government in the challenge in the Court of Appeal. We welcome a great deal of the work done by the noble Lord, Lord Low, in his reports. They are of great assistance to policymakers, as I hope I have acknowledged in the past; I continue to do so. We recognise the importance of advice being available in all sorts of contexts.

Criminal legal aid has undoubtedly suffered in terms of remuneration for lawyers. The Government are well aware of the concerns expressed by the noble and learned Lord, Lord Judge, about the possible damage to careers and the prospect, in due course, of a reduction in the quality of criminal judges. I acknowledge that. In fact, there is no reduction in the availability of legal aid to defendants, but I think the issue was that the career structure is so unattractive that this will diminish in the long term the quality of those involved in what is, I agree with the noble and learned Lord, Lord Brown, probably the most important part of the legal system. However, the Bar cannot be entirely immune from the need to reduce legal aid expenditure, but the Government remain committed to maintaining a vibrant and independent Bar and decided in June 2015 not to proceed with the planned reduction in advocacy fees, as we made clear in a Written Ministerial Statement.

Changes in the criminal process, which were heralded by the report from Lord Justice Leveson and the observations by Sir Bill Jeffrey, will, I hope, result in greater efficiency and a reduction in the costs of court processes generally, without diminishing in any way—enhancing, indeed—what we recognise as criminal justice. As for civil legal aid, the result of LASPO has undoubtedly been an increase in the number of litigants in person, but litigants in person have always been a feature, to some extent, of the legal system. The question of employment tribunal fees was specifically raised by the noble Lord, Lord Low. A review of employment tribunal fees was announced in June last year and will be published in due course. It will consider how effective the introduction of the fees has been in meeting what was the original objective, which was to deter inappropriate and frivolous claims. It is important that those who have genuine disputes should be able to bring them to court.

The noble Baroness, Lady Dean, and the noble Earl, Lord Sandwich, mentioned the question of exceptional funding. Over time, the Legal Aid Agency has, in fact, granted ever more applications for exceptional funding. In fact, these have increased every quarter. I accept that the forms were originally probably less than clear: they have been changed. In the most recent quarter for which we have data there was a grant rate of 35%, a considerable increase on the figure mentioned by the noble Baroness and the highest number since the scheme began. Mr Justice Collins decided that the existing scheme as it was administered was unlawful; that is subject to appeal. However, in the mean time the Government brought forward a statutory instrument to amend the provisions, which makes it much easier to obtain exceptional funding.

The main burden of the debate could be said to be that it is time the Government looked again at the fall-out from LASPO. We committed to look at those results within three to five years. Noble Lords may be aware of what the Permanent Secretary at the Ministry of Justice said to the Justice Committee on Tuesday 13 October, which was that we were enjoined to do a post-implementation review of LASPO and that we would do it at the front end of the period rather than the latter end. Discussions are going on as to whether to run the various reviews together.

He also wrote to tell the committee about three projects being undertaken in respect of civil legal aid. One, Varying Paths to Justice, was a large-scale qualitative research project examining how people seek to resolve civil, administrative and family justice problems. The second, a survey of not-for-profit legal advice providers in England and Wales, will provide an indication of how advice providers in the sector have been affected by legal aid—a number of noble Lords mentioned the importance of the not-for-profit sector; I entirely accept that. The third is the initial findings from the legal problems resolution survey on the prevalence of civil justice problems in England and Wales, which will be published early in 2016.

I hope that we will be able to provide a response—assisted, no doubt, by the commission of the noble Lord, Lord Bach, although the timings may not precisely coincide—to some of the matters that have arisen from LASPO. The purpose of LASPO was, of course, to reduce the cost of legal aid and to try to focus legal aid where it was most needed, in the most important cases. The noble Lord, Lord Bach, has been a consistent critic of the effect of the lack of legal aid in social welfare cases and I understand this concern, but I think he and the House would agree that not all problems that come from social welfare difficulties— particularly debt, for example—are best approached by lawyers. That is not to undervalue the lawyers’ contribution, but lawyers, at whatever hourly rate they charge, may not be the best people to sort out, for example, the many debt problems that beset those people who have social welfare problems.

A number of noble Lords mentioned the question of the process for solicitors’ legal aid contracts. There was criticism from the noble Lords, Lord Marks and Lord Cotter, of the whole process by which such contracts are obtained. This process is the subject both of litigation in respect of the procurement process itself and also judicial review in respect of those contracts. It would not be appropriate for me to go into much detail about that, save to say that the Ministry of Justice, as I have said previously from this Dispatch Box, is satisfied that the process was fair and will maintain that in court. The noble Lord, Lord Cotter, returned to an issue he has raised in this House before about a geographical problem with solicitors being outside of a necessary area. I can tell him and the House that bidders would be required to have, or commit to have, an office in the relevant area where the work was delivered. That would be a matter taken into account.

The Law Society acknowledged that there was a need for some consolidation. Fortunately, the crime rate has dropped and the process was undertaken in a way that we think was appropriate to make sure that taxpayers’ money was well spent but that, nevertheless, there could be access to the duty solicitor scheme. Of course, solicitors will still be able to have the own-client system and they will be able to provide, as agency providers, services that they have hitherto provided.

Litigants in person are undoubtedly a feature of the current system, but a number of initiatives have been undertaken; and not simply pro bono, although I entirely endorse the importance of the pro bono sector and the valuable work done by solicitors and barristers in this connection. There is support taking place across England and Wales; for example, the LawWorks clinics network, which provides a local face-to-face and telephone advice service for litigants in person, predominantly in the area of social welfare law. The network has continued to grow and has 220 legal advice clinics in England and Wales, supported by volunteer solicitors, barristers, trainees and law students. That is just one example of the strategy in action across England and Wales to support litigants in person. There is also a national campaign launched this autumn to raise awareness of the help available to litigants. Postcards and posters will be distributed widely.

The strategy is not of course the only answer. There are numerous schemes going on nationally and also at a local level. I heard about some of these developments at the Civil Justice Council’s fourth National Forum on Access to Justice for Litigants in Person, which I attended last Friday. It was well attended by representatives from across the justice system and I was struck by the level of expertise, experience and enthusiasm shown by delegates to maintain the momentum that has been building for litigants in person.

Much has been done in this process. A simple rule change—rule 3.1A—is helping in this regard. The noble and learned Lord, Lord Woolf, was unfair to himself in suggesting that the CPR had not been a total success. In many ways it improved a great deal the system which prevailed under the rules of the Supreme Court—the predecessor of the civil procedure rule. With respect, he is right that it has not prevented disputes being very expensive. Certainly, the reforms that we intend to bring forward in our civil justice system, using the increasing availability of technology and reducing the number of court hearings, will build on those reforms. Rule 3.1A, on “case management—unrepresented parties” will encourage judges when dealing with litigants in person to use language and a way of dealing with them which is wholly different from the way it was used before. Simple illustrations were given at the meeting to which I went that the terminology is mysterious. What is an appellant? What is a respondent? Ordinary language will help. In the new climate that we live in it was encouraging to see so many judges attending this civil justice forum who deal with litigants—

[Lord Woolf]

I am very grateful for the comments made by the noble Lord. What about Latin?

[Lord Faulks]

We are very much discouraged from using Latin in any context now, although I do not know whether the noble and learned Lord would agree that it is remarkable that when you are told not to use Latin, it becomes almost irresistible to use it and somehow will only serve as the correct way. It is very much a thing of the past, I think.

[Lord Lester of Herne Hill]

In deference to the noble and learned Lord, Lord Woolf, will the Government reinstate the word “writ” instead of claim form?

[Lord Faulks]

I share the noble Lord’s dislike of that expression but I cannot give any commitment at the Dispatch Box on that matter.

Mediation is not, I entirely accept, a panacea but the Government have done a great deal of work on mediation. It is clear that the courts need to be concerned with most decisions of great importance but we need to encourage mediation. We have taken a number of steps to promote family mediation and its benefits. From April last year the Children and Families Act 2014 made it a legal requirement that anyone considering applying to court for an order about their children or finances must first attend a mediation, information and assessment meeting, unless exemptions such as domestic abuse apply. On domestic abuse, we have changed twice the evidence requirement, to make it easier for legal aid to be obtained for domestic abuse.

From November last year we fund the first single session of mediation in all cases where one of the people involved is already legally aided. In this scenario both participants will be funded for MIAM and the first session of mediation. So, I am pleased to share with the House that the number of people starting legally aided family mediation has increased over the last year and is at its highest volume since April to June 2013.

Legal aid remains a vital part of the system. It was brought in by the Attlee Government post-war and remained part of a significant improvement to social justice. This Government do not want to abandon legal aid. We are, of course, suffering under financial constraints but that does not mean that we should not be directing our attention to ensure that access to justice can be obtained, partly by legal aid and partly by improving our justice system in the various ways touched on in the course of this debate.

The Ministry of Justice remains open, as I hope has been indicated by the Lord Chancellor’s response to one or two areas, which may be characterised as U-turns or, more properly, further consideration. I do not consider the capacity to change course to be a weakness and I hope that noble Lords will agree about that. The lessons that we learn from LASPO will, I hope, inform policy-making. We remain under significant financial constraints. However, there is no reason to abandon our commitment to access to justice. I am grateful to all noble Lords, all of whom I know share the Government’s commitment, for bringing these matters to the attention of the Government and to the House.

British Bill of Rights

Lord Faulks Excerpts

Thursday 10th December 2015 Lords Chamber

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

My Lords, we will set out our proposals in due course. While we want to remain part of the ECHR, we will not stay at any cost. If we cannot achieve a satisfactory settlement within the convention, we may have no option but to consider withdrawal. However, we are confident that we can make progress from within the ECHR.

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

My Lords, the convention obligation to comply with final decisions of the Strasbourg court protects us all against breaches by Governments, in other Council of Europe countries and our own. In the light of the Russian Constitutional Court’s decision that Russian domestic laws should trump Strasbourg decisions, do the Government not accept that if we took a similar line—let alone threatened to leave—it would encourage other Governments to do the same? Will the Government commit on this Human Rights Day that they still accept that the binding obligation to comply with final decisions of the Strasbourg court is the bedrock on which the convention is built?

[Lord Faulks]

My Lords, the legislation passed by the Russian Duma does not actually mean that Russia is leaving the ECHR. It was a response to a decision of the ECHR about the unfettered right to tap phone calls and Article 8. This Government remain absolutely committed to the protection of human rights, both here and abroad, on this international Human Rights Day. We are party to no fewer than, I think, seven explicit treaties protecting human rights, as well as many others which bear on them. We will remain within the convention and the obligations under Article 46. Any future plans will involve the protection of all those rights contained within the convention.

[Lord Goldsmith (Lab)]

My Lords, does that mean that the Government accept the proposition put by the noble Lord, Lord Marks, that they will not try to rule out the obligation of this country to comply with decisions of the European Court of Human Rights? Does the Minister agree that, given the proud history that this country has had leading other countries in Europe, if we were to take a different view it could mean the dismantling of the fairer and more just Europe which we in this country, including his party, have tried to maintain and to build?

[Lord Faulks]

As the noble and learned Lord knows, Article 46 requires all members of the Council of Europe to adhere to the convention, and the implementation of decisions is subject to the supervision of the Committee of Ministers. We have an extremely good record in complying with recommendations of the Committee of Ministers. There is one outstanding matter, of which the House is well aware, where there is a tension between a decision clearly made by Parliament and a decision made by the Committee of Ministers. My ministerial colleague attended the day before yesterday; we have yet to hear the outcome.

[Lord Anderson of Swansea (Lab)]

My Lords, does the Minister accept that to remove ourselves from the convention means in effect to remove ourselves from the Council of Europe, for which this is the bedrock? Does he also recall that the Prime Minister sacked the former Attorney-General precisely because of his concerns over this and that the only countries which will rejoice if we adopt this policy of half-in half-out when choosing whether to accept judgments of the court will be the serial defaulters, such as Russia?

[Lord Faulks]

Clearly, I would not wish to comment on the circumstances of the former Attorney-General’s departure from government. I accept that it is important that we comply with our treaty obligations and we have no intention of departing from them. We have a proud record of complying with human rights obligations and protecting human rights throughout the world. It is no part of the Government’s intention that we in any way weaken our resolve to protect human rights here or abroad.

[Lord Lester of Herne Hill (LD)]

My Lords, the Minister has been more equivocal in his replies to this House than was Michael Gove in the evidence he gave to the Constitution Committee recently. Will the Minister confirm that the Government have no intention of following the example of the Russian Federation in its recent legislation?

[Lord Faulks]

I have, of course, read what the Secretary of State said to the Constitution Committee, of which the noble Lord is a distinguished member. I do not think anything I have said is divergent from the evidence he gave and we certainly have no intention of legislating specifically as the Russian Duma did yesterday.

[Lord Bach (Lab)]

My Lords, given the extremely difficult situation the world community faces, is this really the right moment to repeal the Human Rights Act? Do the Government really believe they are setting a good example to other countries, some of which may not have the same respect for the rule of law as we traditionally have, by repealing the Human Rights Act and inevitably coming into conflict with the ECHR?

[Lord Faulks]

The repeal of the Human Rights Act is part of a manifesto commitment; it does not in any way diminish our respect for the importance of protecting human rights. What we are concerned with is the overreach of the Strasbourg court and the relationship between this Parliament, the Supreme Court and the Strasbourg court. This does not mean that there is any diminishing of our respect for the protection of human rights.

[Lord Judd (Lab)]

Does the Minister recognise that while he keeps referring to our good record in this respect, Russia has a very bad record and is introducing legislation to try to give effect to its dissent? Does he not understand that it would have an historic significance if we were to withdraw because it would lend credence to the present moves within Russia and, indeed, encourage such activity elsewhere?

[Lord Faulks]

As I indicated to the House and the noble Lord, it is not our intention to withdraw from the ECHR, although, as the Secretary of State said, we cannot rule it out absolutely. We are confident that we can realign our relationship with the Strasbourg court in a satisfactory way, which means we comply with our international obligations and bring some common sense back to the business of human rights.

[Lord Lawson of Blaby (Con)]

My Lords, does my noble friend agree that this country’s proud record of respecting human rights goes back well before the creation of the Strasbourg court? As far as courts are concerned, does he also agree that the membership of our Supreme Court is at least as distinguished as the membership of the Strasbourg court and that some would say more so?

[Lord Faulks]

I am grateful to my noble friend. He is, of course, absolutely right that this Parliament and our courts have always been astute at protecting human rights. We had human rights long before 1998, when the Human Rights Act was brought into force. Our Supreme Court will continue to protect them. Our Supreme Court has the admiration of the whole country. The Strasbourg court has judges of, I have to say, varying quality.

Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015

Lord Faulks Excerpts

Wednesday 25th November 2015 Lords Chamber

Moved by

[Lord Faulks]

That the Regulations laid before the House on 7 September and 22 October be approved.

Relevant document: 5th and 8th Reports from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument). Considered in Grand Committee on 23 November.

Motions agreed.