Arbitration and Mediation Services (Equality) Bill [HL]

Lord Faulks Excerpts

Friday 23rd October 2015 Lords Chamber

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

My Lords, I begin as others have done, by congratulating the noble Baroness, Lady Cox, on bringing this matter for debate in the House today. I, of course, share the admiration of all noble Lords for her tenacity. I also share in the admiration for those women who have given the evidence, often at great risk to themselves, which has provided much of the momentum behind what the noble Baroness has done in drawing our attention to the problems that undoubtedly exist in society now. The Government share her support for women’s rights and access to justice and her concerns for the victims of domestic violence. We are fully committed to protecting the rights of all our citizens.

The noble Baroness’s Bill is driven by a concern that sharia law principles, as applied in the decisions by sharia councils in the United Kingdom, are being used as an alternative to the legal process, resulting in the unfair treatment of women, the condoning of domestic violence and other abuses, and the undermining of equal rights and protection under the law. The measures in the Bill would, however, apply to a range of arbitration and alternative dispute resolution services, including those provided by arbitration tribunals, religious councils and boards and independent family mediation services, many of which are regulated by the independent Family Mediation Standards Board. Although these bodies and services are not identical, the overriding principle is that they must operate within the rule of law in the United Kingdom, a point made by a number of noble Lords throughout the debate and particularly by my noble friend Lord Kalms.

My noble friend Lady Buscombe asked about the future of the jury system and the personal beliefs of judges who might be appointed. She and the House will be well aware that judges take an oath to apply the law, as do jurors when deciding a particular case. There is a long and worthwhile tradition of jury trial in this country and I would not seek to say at the Dispatch Box that that should be diminished.

[Baroness Buscombe]

I would say wholeheartedly that our jury system should not be diminished. My concern is that a growing number of people who sit on our juries do not share our beliefs in one rule of law and system of justice and equality of rights for women. They therefore may have a different view as to the outcome of cases that they preside over or sit upon.

[Lord Faulks]

In this country, at the moment at least, we do not have jury panels questioned by lawyers to find out what their views and prejudices are. I would be reluctant to embark on that exercise. However, I understand my noble friend’s concerns. They are matters on which opinions can reasonably differ.

There is one Muslim arbitration council, established in 2007, which operates in five English towns and cities and which applies a form of sharia law. We do not know exactly how many sharia councils or similar bodies are in operation or have the full picture of their activities and outcomes. I would like to assure the noble Baroness that the Government take the concerns raised about some of these councils very seriously and are committed to understanding more about the problems identified.

That is why, as part of the Counter-Extremism Strategy announced earlier this week, the Home Secretary has said that she intends to commission a full, independent investigation into the application of sharia law in England and Wales. I am grateful to my noble friend Lord Blencathra for reading out paragraphs 17 and 18 of that document, which show conclusively that the Government have taken on board many of the factors which have been featuring in this debate and that they intend to commission an independent report. Of course, the announcement was made only this week. I am acutely conscious of the tendencies referred to by the noble Lord, Lord Anderson, along with all the Chilcot-ian observations made by my noble friend Lord Blencathra about the necessity to consider widely and not simply to provide a preliminary view of these matters. On the question of legislation, I do not want to prejudge anything the inquiry may find, although certainly legislation may be an option. But that is a matter which will be considered in due course. The investigation will enhance our understanding of any ongoing misuse of sharia law and the extent of the problem where it exists.

The Government are also facilitating a range of initiatives and working with others to promote integration in our society and the equality of all women. However, the Government do have reservations as to whether the measures in this Bill are the best way forward in tackling the undoubted problems identified. But first let me make it clear that, regardless of religious belief, every citizen is equal before the law. Decisions taken as part of an alternative dispute resolution are not binding in law, save in limited circumstances in civil matters which are carried out under the Arbitration Act 1996, and which are subject to the safeguards of the Act and recourse to the courts. In addition, criminal matters and certain types of family disputes, such as those over the custody or welfare of children, cannot be arbitrated and can be decided only by the courts. Many couples choose to resolve their difficulties between themselves, sometimes with the assistance of lawyers, mediators and other third parties. People may wish to apply their religious principles to the resolution of disputes, and it is right that they have that choice. The Government are keen to promote the continued use of non-court dispute resolution services to resolve family disputes.

While we agree entirely with the noble Baroness that the necessary standards and safeguards must be in place, at the moment we do not agree that the law needs changing to facilitate this, because relevant and specific protections are already in place in common law and in existing legislation.

[Lord Elton]

My Lords, the concern is not that the law is in place but that it is not understood and therefore is not working. If it is not understood and known, it is no use whatever. My noble friend’s intention is to bring this to public attention. I am sure that he has this in mind, but I would like to hear that he has.

[Lord Faulks]

Let me reassure my noble friend that of course it is well understood that one of the main burdens of the debate has been the lack of awareness of the law. There is a rather strange legal maxim that every citizen is deemed to know the law, but that is often not the case in the sort of communities that we are concerned with. I accept entirely that increasing awareness is vital to avoid some of the difficulties which have been highlighted in this debate.

[Lord Sheikh]

Does my noble friend appreciate that there are certain women who obtain a decree absolute but who may not wish to remarry unless they can get a talaq? We need sharia councils so that women can approach them for a talaq.

--- Later in debate ---

[Lord Faulks]

The Government wish people to make free choices on these matters. If someone wishes to make a choice of their own volition, it is no business of the Government to interfere with that. But we also wish to have a system where women, and men if necessary, feel free to make those choices without undue pressures of one sort or another.

Let me be a little more specific about the legislative provisions. The Equality Act 2010 prohibits discrimination on the grounds of gender. The Criminal Justice and Public Order Act 1994 prohibits the intimidation of all witnesses, including victims of domestic violence. The Arbitration Act 1996 allows parties to an arbitration to agree any system of law or rules other than the national law to be applied by the arbitral tribunal to that dispute. I ought to declare an interest as a fellow of the Chartered Institute of Arbitrators, although I have never arbitrated on the sorts of disputes which this debate has been focusing upon. Religious law considerations may be applied in the context of an arbitration only where, first, the parties have specifically agreed to the arbitral process, and secondly, where all the parties have specifically chosen to use religious law considerations. But even then the decisions of such tribunals is subject to review by the courts of England and Wales on a number of grounds. If any of the decisions or recommendations were in direct conflict with a mandatory provision of national law, the law of England and Wales must always prevail.

The Arbitration Act sets out a number of safeguards, including a duty for arbitrators to act fairly and reasonably between parties. No one should feel pressured or coerced into resolving their dispute in a particular way. Any member of any community has the right to refer to a civil court in England and Wales at any point, particularly if they feel pressured or coerced to resolve an issue or to accept a decision that is unfair or unlawful. If there has been coercion, the outcome of any mediation or arbitration cannot be enforced.

I return now to the point made by my noble friend Lord Elton. That is not to say that all our citizens have equal knowledge of access to their rights within the national law or that other measures cannot be taken to improve the situation. It is the Government’s view that the problems raised by the noble Baroness are due to a lack of awareness of rights, unequal access to the law and barriers to integration rather than a lack of protection within the current law. Integration requires changes to society, not necessarily changes to the law. The issues and barriers involved are often complex, and solving these problems is not just a job for the Government. It is also important that communities and community organisations take the lead in supporting equality and integration and help to raise expectations and awareness so that the rights of women and of all citizens are understood and protected.

[Lord Cormack]

I am grateful to my noble friend, who is disappointing me a little. Does he not feel that the Government have a duty to promote awareness? It is all very well saying that people should be more aware—we can all agree on that—but do not the Government have a role in this?

--- Later in debate ---

[Lord Faulks]

Indeed, and if my noble friend will bear with me, I will come to some of the steps which have been taken by the Government to promote awareness.

The noble Baroness raised the specific issue of domestic violence. We are determined to do all we can to tackle this dreadful form of abuse and to ensure that anyone facing the threat of domestic abuse has somewhere to turn to. In the past, it has often been either ignored or given insufficient priority. We have maintained funding of £10 million for the 2015-16 period for core domestic abuse services and national helplines. We have recently invested a further £10 million to maintain a national network of refuges, and £3 million to boost the provision of domestic violence services. A new offence of coercive or controlling behaviour has been put into the Serious Crime Act 2015 to ensure that manipulative or controlling perpetrators who cause their loved ones to live in fear will face justice for their actions. The maximum sentence of five years’ imprisonment for the new offence recognises the damage that coercive or controlling behaviour can do to its victims.

The noble Baroness also highlighted the concern over religious marriages which are not legally valid in England and Wales and so do not enable parties to seek a financial settlement in the family court if the marriage breaks down. The Government are aware of this problem and are working with others to increase integration and awareness within communities. Many noble Lords will know that the Law Commission is currently undertaking a preliminary scoping study to prepare the way for potential future reform of the law concerning how and where people can get married in England and Wales. The commission is due to report on its initial findings by December of this year and the Government will then consider the next steps.

I turn now to the specific proposals included in the Bill. As to Part 1, we do not consider a change to the Equality Act 2010 so that it applies to arbitral tribunals to be necessary. Section 33 of the Arbitration Act already imposes a duty on arbitral tribunals to act fairly and impartially. Awards can be challenged in court if this duty is breached or if there is any other serious irregularity. Section 142 of the Equality Act already makes contracts unenforceable if they treat someone in a discriminatory way. That would apply to contracts as a result of mediations, including those facilitated by religious councils if they were discriminatory.

The Bill also proposes amending the public sector equality duty to create a requirement to raise awareness of the consequences of unregistered religious marriages and polygamy. We do not think that that is the best way to address this issue or that it would be appropriate to use the duty in this way. It is a deliberately broad duty and we are concerned that this breadth of application could be undermined if specific requirements of this kind were to be separately identified within it.

As to Part 2, on the proposed changes to the Arbitration Act 1996, tribunals already have a mandatory duty, to which I have referred, to act fairly and impartially. It is already the common law that criminal acts as regards child custody and welfare cannot be arbitrated.

On Part 3, on the proposed changes to the Family Law Act 1996, we believe these to be unnecessary as contracts are unenforceable if made under duress. A judge will not make an order based on a negotiated agreement unless he or she is satisfied that there was genuine consent.

On Part 4, on the proposed changes to the Criminal Justice and Public Order Act, Section 51 of the Act already makes intimidation or harm of those assisting an investigation—witnesses and potential witnesses—an offence, including witnesses of domestic violence. The Criminal Justice and Police Act 2001 contains similar offences which protect witnesses in civil proceedings and the intimidation of witnesses or others may also be punishable under common law offences of perverting the course of justice or contempt of court.

Finally, I turn to the proposed new crime of falsely claiming legal jurisdiction. It would require strong evidence that this is so, and a widespread and proper consultation before considering a new criminal offence and assessing whether it is genuinely necessary. There is not yet strong evidence of this. It may be that the investigation will find it.

In summary, the Government well understand the noble Baroness’s concerns and are committed to finding out more about how sharia councils are working in this country, to tackling domestic abuse and supporting the victims of abuse, and to working in partnership with communities to promote integration and increase awareness of rights and equal access to justice. We think that these initiatives are best placed to help address the serious problems and issues raised rather than the changes to legislation proposed in this Bill.

The Government are engaged in a range of work to facilitate integration. A number of noble Lords emphasised the importance of integration, particularly the noble Baroness, Lady Flather. This includes, in 2014-15 alone, the provision of £12 million to support 30 projects and to help build strong, united communities, reaching more than 335,000 people. Over three years, £8 million has been invested to support 33,500 isolated adults to learn English. The importance of monitoring education was emphasised by the noble Lord, Lord Taverne. This is aimed particularly at Muslim women who are unable to take up all their rights due to lack of English. Since 2011, £8 million has been spent on the Near Neighbours programme and more than 994 local projects, bringing faith and ethnic groups together and benefiting more than 750,000 local people. The Government Equalities Office is also driving government and wider action to empower all women socially and economically. We are ensuring that diverse women’s voices are heard at the highest levels of government.

To conclude, the Government are not convinced that introducing the measures proposed in this Bill represents the best way forward. As a Government, we are fully committed to protecting the rights of all citizens and there is legislation in place to uphold those rights. I acknowledge the point made by the noble Lord, Lord Carlile, that there may be no harm sometimes in underlining matters, which I think is the burden of what he was submitting. The rights of all women and vulnerable groups must be promoted and protected. The Government are taking forward a number of initiatives, as I have told the House, to help facilitate this.

In the course of the debate, there was considerable reference to culture and the danger that there can be of cultural relativism, and of being too timorous by acknowledging cultural differences to tackle what can be real discrimination. This is a matter which the Government have identified and many noble Lords may have heard what the Prime Minister said at the Conservative Party Conference about the dangers of “passive tolerance”, to use his expression. This is an important acknowledgement that for too long we have sometimes provided exaggerated respect for so-called cultural differences, notwithstanding the very real hardships that can be caused by members of the community who live under our law.

I will, I fear, sentence myself to the less attractive of the two options presented by my noble friend Lord Cormack—either to be carried shoulder high from the Chamber or to slink away ashamed at my failure to respond to the noble Baroness. However, although the Government express reservations about this Bill, they express no reservations at all about the issues and the importance of the issues that have been identified by the noble Baroness. She has done the House and the country a great service by bringing them to the attention of this House and more widely. She has contributed greatly to raising awareness. I hope she feels reassured by what I have said and by the Home Office’s response in the Counter-Extremism Strategy that we have these matters very much in mind. She deserves our congratulations and I thank her and all noble Lords for their contributions to this important debate.

Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015

Lord Faulks Excerpts

Wednesday 14th October 2015 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

My Lords, in the days when one was allowed to use Latin in court, counsel and judges sometimes delighted in the phrase res ipsa loquitur: the facts speak for themselves, or, the answer is obvious. For the reasons given by every single person who has spoken thus far in this debate, that phrase applies to the Motion. I shall not repeat the reasons, but I shall support the Motion if I have the opportunity.

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

My Lords, I thank all noble, and noble and learned, Lords who have spoken in this debate, in which, although it was short, strong feelings have been expressed and cogent arguments advanced about the criminal courts charge. The Secretary of State for Justice has developed a reputation—referred to by the noble and learned Lord, Lord Woolf—for listening to the arguments and approaching with boldness and imagination the often difficult challenges that justice and paying for the cost of justice present. Although I cannot promise the House an immediate review of this matter, I can promise that all the speeches made today will be carefully heeded by the Secretary of State for Justice. He will be considering them extremely carefully.

Let me deal with some of the points that have been made, succinctly but powerfully. First, on judicial discretion, this was one of the arguments that came before both Houses when the Bill was going through Parliament. Indeed, I was the Minister who took the relevant clauses through. The argument—except from the noble Lord, Lord Ponsonby—was not that there are no circumstances in which it is appropriate for a defendant to pay the costs of their appearance in court, but that there should be some discretion. The Government believe that convicted adult offenders should take responsibility and contribute towards the costs they impose. If they do not, of course, the cost is paid by the taxpayer. The criminal courts charge is intended to ensure that offenders take a greater share of the burden, currently borne by taxpayers, of funding the criminal courts.

Imposition of the charge is purely about recovering costs. It is not a punishment and therefore should not be treated as part of the offender’s punishment in any way. Therefore, it would not be appropriate for a discretion to be exercised. The noble Lord, Lord Ponsonby—parting company from a number of other noble Lords—said that he did not accept that any cost should be imposed on a defendant for appearing in court. One of the reasons he gave was that in some way, it would be rather invidious, because a judge or magistrate might be perceived as having some form of financial interest in the outcome of a case. Although I think the noble Lord accepted that that would not be much of a factor in reality, he was in a sense making an important point: that judges and magistrates should not be able to choose whether to charge for the use of a court, as it were, and that it would therefore not be appropriate for there to be a discretion.

I understand entirely that it is most important that the courts charge framework means that offenders are given a fair and realistic opportunity to pay the charge. Although a court does not have discretion in terms of the charge itself, it does have discretion to consider an offender’s means and set payment terms at affordable rates. Offenders will be able to contact a fines officer at any point to request variations in payment rates if their circumstances change. At such points the courts and fines officer will have an opportunity to take existing debts into account, making sure that repayment is reasonable and affordable, given the offender’s individual circumstances.

The criminal courts charge legislation also gives the offender the opportunity to have the charge remitted after two years where the offender takes all reasonable steps to pay it and does not reoffend. It will be for the courts to decide whether all reasonable steps have been taken, having regard to the offender’s personal circumstances. Here matters such as unemployment, interruptions to benefits payments or poor health can be taken into account.

Noble Lords were concerned about the possibility of there being an inducement to plead guilty. Of course, that is a highly relevant consideration. Defendants facing trial are not required to pay the criminal courts charge; they will be subject to the charge only if they are convicted following a hearing, or of course if they plead guilty. It is always a delicate matter whether defendants plead guilty to an offence of whatever seriousness. The noble Lord, Lord Beecham, and others have acknowledged the fact that it is well known that a discount—often of a third—will be given to a defendant who pleads guilty, and it will depend on the precise juncture at which that defendant pleads guilty. Pleading guilty at the first possible opportunity will obtain the maximum discount. An experienced legal adviser, such as the noble Lord, Lord Beecham, will approach the question of an appropriate plea with delicacy and will not of course encourage a defendant to plead guilty if there is a defence. Indeed, they will go further than that and tell the defendant that they should not plead guilty to an offence they have not committed. We believe that the delicate matter should not and will not be distorted by the question of a criminal courts charge.

Let me deal with the point that perhaps can be summed up by the principle of totality, which those of us, like me, who have had to sentence defendants have borne very much in mind. It is true that, very often, where there are a number of different sentencing options on the menu and more than one has to be prescribed, a judge will try to make sure that, in the round, the penalty or combination of penalties is meted out that is appropriate to the offence. I understand why certain magistrates have been rather more lenient than they might have been, obviously had there not been the criminal courts charge, but that is not what the legislation provides and is not something that should be done.

The criticism is also advanced that there was a lack of parliamentary oversight in relation to these provisions, and the suggestion is that the statutory instrument severely limited that oversight. There is nothing improper about the time in which the regulations were laid. I can assure noble Lords that the criminal courts charge provisions underwent considerable scrutiny. I can personally testify to the level of scrutiny they underwent in this House. I have looked back at Hansard for the House of Commons, and the principle and the appropriateness of a criminal charge were considered in debates. The question of the actual level of the charge is a different matter—I see the noble Lord, Lord Beecham, grimacing. I wholly understand that there is a distinction.

However, the concerns raised in this Motion regarding discretion and the effects on plea decisions are points that were carefully considered and debated at considerable length at the various stages during the consideration of the Bill in both Houses. As to charge levels, draft charge levels were also published to inform parliamentary and public debate, the charge levels set out in the regulations being a slightly adjusted version reflecting up-to-date costing information. I do not consider that the Government at the time behaved improperly by laying the regulations when they did, especially in light of the significant amount of scrutiny that took place generally on the principle. It may be that magistrates expected there to be a greater amount. This was a difficult attempt to try to cost the use of the courts. The victim surcharge is another mandatory charge—there is no discretion—which was introduced in 2007 by the then Labour Government.

On the question of benefits assessment, regarding the suggestion that claims on savings cannot be substantiated, an impact assessment was published when the Act was introduced early last year that was based on indicative charge levels. Significant work was then carried out to assess the costs of running the criminal courts, which resulted in the publication of the draft charge levels I have previously mentioned. This was published as an addendum to the original impact assessment and included an updated analysis of the benefits and costs of the policy. An updated impact assessment was produced to accompany the regulations and has now been published. It includes a considered analysis of the benefits and costs of the provisions, estimating total cash inflows arising from the charge at £95 million from 2019 to 2020.

A number of noble Lords remarked on the unfortunate response of a large number of magistrates. I agree with all noble Lords who have emphasised the importance of magistrates and what a vital task they perform for society in general, and we are of course concerned that any magistrates should not feel confident in the provisions of sentencing and indeed other provisions that they have to administer. Of course I have read about and the Government are well aware of those magistrates—reported in the media to number something like 50—who say that the courts charge was certainly one of the reasons for their resignation. Just for context, I should say that I understand that 350 magistrates have resigned in the relevant period, and of course others will have retired. They may have myriad reasons for doing so. However, I do not want to underestimate the significance of the general discontent referred to by the noble Lords, Lord Rooker and Lord Ponsonby, and others. The Secretary of State and the Ministry of Justice take that matter very seriously.

I also bear very much in mind what a number of noble Lords have said about the importance of rehabilitation. We do not believe that this will be an additional barrier to rehabilitation. The Government are extremely concerned that rehabilitation should be at the heart of reforms to our sentencing provisions and indeed in the way in which the prison service will, we hope, be changed in the following years. I should say that failure to pay the court charge will not extend the time it takes for a conviction to become spent for the purposes of the Rehabilitation of Offenders Act 1974. I take the point made by the noble Lord, Lord Ponsonby, that it is important that defendants feel that they have been dealt with fairly, and that itself can be relevant to their rehabilitation. However, we consider that setting the repayment rate fairly and proportionally according to each offender’s individual circumstances, as long as they provide the court with the details, should mitigate any sense they have of unfairness which may follow the criminal courts charge.

Property Boundaries (Resolution of Disputes) Bill [HL]

Lord Faulks Excerpts

Friday 11th September 2015 Lords Chamber

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

My Lords, I congratulate the noble Earl, Lord Lytton, on securing a Second Reading for his Bill on this important issue.

As the noble Lord, Lord Kennedy, indicated, we had a debate, initiated by the noble Earl in January this year, in which many of the issues that have been discussed today were canvassed. That is nothing but to the good. Similarly, I have had an opportunity to meet with him and others who are concerned with the issues that the Bill generates. I am grateful for that opportunity, and for the noble Earl’s acknowledging his engagement with officials in my department.

The Bill’s core aim is making it easier to resolve boundary disputes. It proposes to do this through a system like that adopted in the Party Wall etc. Act 1996, which would require disputes about the exact location of a boundary between adjoining properties in England and Wales to be referred to a surveyor or surveyors acting as independent adjudicators for final determination, subject only to a right of appeal to the Technology and Construction Court.

Pausing there, I note that the noble Earl has been in communication with Sir Antony Edwards-Stuart about the suitability of the TC court as a venue for appeals. He has indicated that he does not think it appropriate but makes some useful suggestions. I am sure that, if the Bill were otherwise to proceed, the precise venue for an appeal is something that could be satisfactorily concluded.

The Bill also proposes to apply this system to disputes relating to the location and extent of private rights of way.

The noble Earl considers that the procedure proposed in the Bill will make dispute resolution simpler, faster and more cost-effective. These are laudable aims, which the Government share. Indeed, we have made, and continue to make, considerable efforts to control the cost of civil litigation to ensure that the costs incurred are proportionate to the subject matter of the dispute. However, we have significant reservations about the extent to which the proposals contained in the Bill would in fact improve matters. Indeed, we are concerned that they could have the unfortunate effect of making the resolution of these disputes more complex and costly than at present.

A similar Private Member’s Bill relating to the resolution of boundary disputes was introduced in the other place in 2012 by the honourable Member for Dover, Charlie Elphicke. In the light of the concerns that that raised, the Government decided to carry out an initial scoping study, the results of which were published on 15 January this year. The core conclusions of the scoping study were that there would be merit in the Government carrying out further work to assess the feasibility of improving a number of aspects of the current system, including, in particular, the use of mediation and expert determination, the spreading of best practice and the provision of better information, but that more radical reform, such as that proposed in this Bill and its predecessor, would not currently be justified.

The noble Earl’s Bill differs in some important respects from its predecessor and, in particular, extends to disputes about the location and extent of rights of way. These were not considered in the scoping study to which I have referred.

Before I update the House on the steps the Government have taken since the publication of the scoping study in considering improvements in the current system, I would like to focus on what we see as the core difficulties with the approach proposed by the noble Earl.

Responses to the scoping study confirmed that boundary disputes can arise for a number of reasons. Although some disputes may follow an unprincipled unilateral annexation of a strip of land, many more will derive from two honestly held beliefs—or fairly honestly held beliefs—as to where the boundary lies. At the root of these divergent views will frequently lie a conveyance that is poorly drafted or, at least, does not define the property to be transferred with sufficient clarity and precision. Because of this, such disputes will ultimately hinge on the legal question of who owns a particular piece of land or is entitled to exercise a particular right of access, and will fall to be decided on the interpretation of the evidence in the light of the law. In particular, the outcome will depend on the interpretation or construction of legal documents, such as conveyances and the plans incorporated in them.

I do not, in any way, wish to downgrade the very substantial contribution that surveyors can and do make to the resolution of these disputes. It is of course the case that judges will often rely to a considerable extent on the advice and expert evidence that surveyors provide.

In answer to the question raised by the noble Earl—is a boundary line a technical issue or a legal one?—a technical assessment of where a boundary lies is, in part, a surveying exercise. It would be unusual not to consider the lie of the land. However, this is not the whole story. The line of a boundary is ultimately a legal issue. I note the distinction that the noble Earl has made but am afraid that I am not entirely convinced by it.

The kind of dispute with which we are concerned is one that the courts and the land registration division of the property chamber of the First-tier Tribunal are designed to determine. I entirely agree with all speakers in this debate who confirmed that surveyors have great expertise in this area. However, a surveyor, no matter how expert in technical issues, will not be able to give a ruling that is conclusive in legal terms and will not necessarily have the legal expertise to deal with the complex legal issues that might arise; of course, I include adverse possession in this. This in itself would make it likely that many decisions would be appealed—this is my answer to the point made by the noble Lord, Lord Kennedy. That prospect becomes even more likely when one takes into account the considerable bitterness and antagonism that such disputes can generate.

I agree with all noble Lords who have expressed the view that it is far better that these matters are resolved out of court by simple arbitration or the involvement, perhaps, of one surveyor in a relatively informal context. However, as a number of noble Lords have pointed out, the reality is that these disputes can escalate and often involve costs that are out of all proportion to the amount in dispute. I fear that the mere interpolation of a process, which this Bill envisages, will not prevent those determined to see these disputes carried out to the bitter end.

The comparison with party-wall cases is of course important. However, unlike party-wall cases, boundary disputes are generally likely to produce a winner and a loser. Therefore, the chances that a loser will be determined to vindicate his or her view of what is right by bringing an appeal are high. A rigid system requiring referral in all cases at an early stage to the process, as set out in this Bill, could also serve to raise the stakes in the dispute, increase hostility and entrench attitudes.

Taken together, these points would mean that the Bill would simply add a further layer to the proceedings, which would increase the costs involved rather than reducing them. In addition, in some cases, the early appointment of experts could itself front-load costs where the dispute might have been resolved in other ways.

We believe that a more effective and proportionate approach is to look at practical procedural improvements to the current system, rather than undertake a radical overhaul. With that in mind, we are exploring the scope for improving court and tribunal procedure, encouraging the use of mediation and expert determination, and improving the availability of information on ways to settle disputes. We are in the process of developing firm proposals in the light of our discussion of these issues with the relevant bodies. As we announced in the report on the scoping study, we aim to announce our emerging conclusions before the end of the year.

I note, of course, that the noble Earl quite fairly said that the date for the Second Reading of his Bill was rather beyond his choice. I think he might accept that, in some ways, he would have been a little happier if it had come after the scoping report had been concluded. Be that as it may, I hope he will be reassured by the fact that the matters raised by his Bill are receiving serious consideration by the Government.

The noble Earl, Lord Kinnoull, with whom I shared the experience of studying Roman law at Oxford—there is some comparison with these issues—referred to the inequality of arms that quite often prevails in these disputes and which can result in their escalation. It is difficult to avoid that, whatever particular procedure we adopt. He also quite rightly made the point that surveyors are often particularly useful in resolving these disputes because of their skills in relationship management. That, of course, is a valuable quality in any profession, as I am sure he would agree.

The noble Earl said that the disputes are often factual, not legal. I agree with him to some extent. They are a bit of both: both fact and law. He referred, as did a number of other noble Lords, to the fact that the judiciary tend not to welcome such disputes. That is true. In my own experience, I have seen that judges, knowing that they are facing a boundary dispute, do not jump for joy at the prospect of the decision they will have to make. But not all judges, despite the quotations that we have received, share this lack of enthusiasm for boundary disputes. Indeed, the noble and learned Lord, Lord Hope, who spoke in the debate in January, told the House that he found them extremely interesting. He also, valuably, pointed out some of the advantages that there were in Scotland in resolving these issues, and in his careful consideration of the noble Earl’s Bill said that,

“I am not entirely convinced that making it compulsory for every such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks to do—is either necessary or desirable. There will be cases where the title deeds alone will provide the answer and it may be that agreements can be reached; but I am not entirely sure that understanding these deeds is within the exclusive competence of a surveyor. There is then the problem of how to deal with other evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, cross-examination of witnesses and so on. There is also the matter of adverse possession, which could raise very difficult issues”.—[Official Report, 15/1/15; col. GC 267.]

The noble Earl, Lord Kinnoull, asked me three questions. I think that I have dealt with the party wall issue and the comparison, which I respectfully suggest only goes so far. On the status quo not being satisfactory, we are well aware of the difficulties and, as I have indicated, are considering them.

I am sure that many noble Lords have similar experience of potentially difficult and expensive disputes to that of my noble friend Lady Gardner, and the Government share her desire to do all we can to limit the expense and heartache which such disputes can cause. The noble Earl, Lord Erroll, spoke of the immense complexity that is sometimes involved in such disputes. I cannot of course comment on the particular problem that he outlined in detail, but I detect that what he was suggesting was that, if there is to be a change in the law, it would be good if it embraced as many of the potential difficulties such as those which he has described.

We are grateful to all noble Lords who have taken part in this dispute.

[Noble Lords]

Oh!

[Lord Faulks]

I mean this debate—I am most grateful. I hope that my comments in this debate will reassure the noble Earl, Lord Lytton, and others who have spoken that the Government are committed to ensuring that boundary disputes can be resolved fairly and effectively and to minimising the adverse impact of adversarial behaviour and entrenched positions. We believe that the work that we are undertaking represents a more effective approach than radical reform of the law, which the Bill suggests. While the Government will not oppose the Motion to give the Bill a Second Reading, for the reasons that I have given we have reservations about the changes to the law that it proposes.

Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015

Lord Faulks Excerpts

Wednesday 9th September 2015 Lords Chamber

Moved by

[Lord Faulks]

That the draft regulations laid before the House on 25 June be approved.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 September.

Motion agreed.

Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015

Lord Faulks Excerpts

Monday 7th September 2015 Grand Committee

Moved by

[Lord Faulks]

That the Grand Committee do consider the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments

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

The statutory instrument before us today amends the Civil Legal Aid (Merits Criteria) Regulations 2013 to set out the merits criteria that an applicant must meet in order to qualify for civil legal aid for a female genital mutilation—FGM—protection order. This statutory instrument also makes amendments to specify the applicable merits criteria for victims of modern slavery, servitude or forced or compulsory labour for legal representation in relation to immigration matters.

The Government considered it important that these provisions were brought into force without delay so that victims and potential victims of modern slavery or FGM could be protected. In particular, it was a government priority that the FGM protection order provisions should commence before the start of the school summer holidays as a means of protecting girls and women from being taken abroad during this period. For these reasons, and owing to limited parliamentary time, the statutory instrument before us was made and brought into force using an urgency procedure, and I am now seeking the approval of noble Lords.

FGM protection orders were introduced in the Serious Crime Act 2015 and came into effect on 17 July. Courts now have the power to grant FGM protection orders to protect women and girls against genital mutilation offences and to protect women and girls against whom such an offence has already been committed. The making, varying, discharging and appealing of FGM protection orders were brought within the scope of the civil legal aid scheme by the Serious Crime Act 2015. Amendments were also made to legal aid regulations under the negative parliamentary procedure to accommodate their introduction, including the financial means test.

The Modern Slavery Act 2015 makes provision for the protection of victims of modern slavery, servitude and forced or compulsory labour, and it came into effect on 31 July. The Act provides tools to tackle modern slavery, makes sure that perpetrators can receive appropriate punishments and enhances the support and protection for victims. Why are the Government taking this action? Why is it necessary?

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, this is one of the rare occasions on which I can congratulate the Government and the Minister on doing something positive in the arena of legal aid. Later this evening we will revert to the more normal discussions that take place between us across the Chamber in another respect. However, this is an important matter, and I very much welcome the Government’s initiative in ensuring that the change in the law can be adequately enforced.

In that connection, with regard to something that we have just discussed at some length concerning other serious matters relating to safety within the home, there is the publicity that is being given about the issue generally, but more particularly about the availability of legal aid for those suffering from abuse in terms of either of the two categories embodied in the order. It may well be the case that the Government are already directing publicity not only at the potential victims but at organisations and others who might be able to assist in disseminating the information that legal aid is available. It may be too early at this stage for the Minister to give an indication of the number of cases that are thought likely to be brought under each category, or it may be that the information is simply not available this afternoon. However, if and when it becomes available, that information would be helpful—and, of course, it would lend some force to any publicity that the Government will no doubt give about the remedies that will be available.

Having said that, the Opposition certainly support the Government’s steps here. We look forward to assistance being given to people who are being ruthlessly exploited and who hitherto have had insufficient protection from the law.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Beecham, for his support for these regulations, and I look forward to renewing our customary postures later in the day.

As he rightly says, these are early days, and it is difficult to give any figures. I made the very same inquiry of my officials and understandably they were somewhat tentative. I do not suppose that the numbers are going to be very large. What I can say, of course, is that there has been a great deal of publicity generally about both areas that we are concerned with. Therefore, I think that the general public and all those who are likely to encounter these issues will be aware of the situation and will be keen to find out the extent to which there may be legal aid, and I am sure practitioners working in this area will make themselves aware of it.

A guide to the court process was published in July this year, and I understand that it includes the relevant information. I am now being handed a copy, which lays out, in paragraphs 31 to 34, the information which will assist. This is under the female genital mutilation protection orders; it explains their scope and who can apply, and it contains information about the availability of legal aid. Anybody familiarising themselves with these orders—a practitioner or anybody affected by or concerned about them—would find out that legal aid was available. I am not sure whether there is similar information in relation to modern slavery but, if there is, I will undertake to convey it to the noble Lord.

That being, I think, the scope of the inquiry made by the noble Lord, I think we can now proceed to ask noble Lords to approve this amendment. I believe that it is a reasonable one and that it will provide appropriate frameworks for the provision of legal aid for victims of both FGM and modern slavery.

Motion agreed.

Criminal Legal Aid (Remuneration etc.) (Amendment) Regulations 2015

Lord Faulks Excerpts

Monday 7th September 2015 Lords Chamber

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

My Lords, this has been a wide-ranging and helpful debate. Although the Government have been criticised, there have been some positive suggestions. I assure all noble Lords that the Lord Chancellor and the Ministry of Justice listen to what is said in this House. I shall certainly report back what has been said during this debate.

The Motion gives me the opportunity to set out the background to the making of the Criminal Legal Aid (Remuneration etc.) (Amendment) Regulations, which were laid before the House on 10 June, concerning the fees payable in respect of criminal litigation services funded by legal aid. The coalition Government consulted twice on the proposed fee reduction. The first consultation, Transforming Legal Aid: Delivering a More Credible and Efficient System, ran from 9 April 2013 to 4 June 2013. The second, Transforming Legal Aid: Next Steps, was published on 5 September 2013. The September consultation proposed the staging of the fee reduction plus a number of legal aid reforms, including changes to the way in which criminal legal aid services are procured and a reduction in the fees for criminal legal aid services.

The response to that consultation, Transforming Legal Aid—Next Steps: Government Response, was published on 27 February 2014 and set out the decisions taken in relation to the procurement of criminal legal aid services and fee reductions for criminal legal aid services. These regulations introduce a further fee reduction for work done under a criminal legal aid contract. This follows an earlier 8.75% reduction that was introduced in March 2014, making a total reduction of 17.5% from the April 2013 figures.

As the House will be aware, the Government consider that there is a continuing need to bear down on the costs of legal aid to ensure that we are getting the best deal for the taxpayer and that the system continues to command the confidence of the public, particularly in the light of the continuing financial challenge faced by all government departments. The House will be aware that the Ministry of Justice has no ring-fence around it, and is subject to particular pressures in this respect.

The phased introduction of the fee reduction was intended to mitigate its impact while enabling realisation of necessary savings. The second fee reduction applies to new cases starting on or after 1 July 2015, and there will therefore be a period of time before it has an impact on the legal aid income of providers.

The Government also believe that the current remuneration mechanism for criminal legal aid services is overly complex and administratively burdensome. These regulations introduce fixed fees for Crown Court cases with fewer than 501 pages of prosecution evidence, and simplify the fixed fees for police station work and for magistrates’ court work. The new fixed fee schemes are being introduced for services under the new criminal legal aid contracts governing criminal litigation services from 11 January 2016.

The Motion says that the House regrets that the Government made these regulations,

“without having undertaken a review of the impact and coherence of the cuts to litigators’ fees; agrees with the Secondary Legislation Scrutiny Committee’s analysis that there is too little evidence to establish what effect the fee reduction would have; and regrets the Government’s lack of engagement with the profession and those affected by its reforms”.

As I set out in my Written Ministerial Statement repeating the Statement made by Mr Vara in the House of Commons, the Government listened very carefully to the concerns of the profession in considering the programme set in train by the coalition Government for the criminal legal aid market.

We must ensure—this point has been made during the debate—that the high quality of service provided by litigators remains sustainable in all parts of England and Wales. We recognise that changes in the litigation market have the potential to affect the provision of advocacy, and we will work with the profession to preserve and enhance the high quality of advocacy that generally obtains within the system.

In March 2014 the coalition Government agreed that, prior to putting before Parliament the second fee reduction, they would consider and take into account the following factors. The first was Sir Brian Leveson’s review, to which the noble Lord, Lord Marks, referred, aimed at identifying ways to streamline and reduce the length of criminal proceedings. I entirely accept his observations about the need to do that. This is part of the overall improvement that the Government hope to achieve in saving costs, but not at the expense of achieving a fair trial. The two other factors were criminal justice reforms such as digitisation, which will increase efficiency and affect how advocates work, and any impacts from earlier remuneration changes.

At the same time the coalition Government told legal aid providers that they should plan and bid for duty and own-client contracts on the basis of a second reduction of up to 8.75%, as they would be expected to demonstrate that they were capable of delivering at that level. Also in March 2014, the coalition Government announced that they had worked with the Law Society to agree additional support for litigation providers that would assist with the transition to the new regime. The ministry agreed to implement interim payments at plea and case management hearing stage in summer 2014 —earlier than had previously been planned. We introduced interim payments for trials at the same time—cash flow being, of course, very important to the legal profession in this area, which I wholly accept is not over-remunerated compared with other fields of law.

The present Government fulfilled the commitment given in March 2014 to,

“consider and take into account”,

the factors set out by the coalition Government. There was no commitment to any formal review or public consultation, but the Government considered the findings of Sir Brian Leveson’s report on the efficiency of the criminal courts, the impact of broader criminal justice reforms and the impact of changes already introduced. We examined changes to our forecast legal aid expenditure, changes to the existing market, provider withdrawal rates—that is, whether people were leaving the market—and reasons, contract extension acceptance and early information from the duty provider contract tender. We also considered the implications for quality, promptness and reliability of the first fee reduction. The Legal Aid Agency has monitored, and will continue to monitor, the quality of the delivery of services through its well-established audit and peer review programmes.

All the further consideration undertaken reassured us that the legal aid reforms so far have not had any substantial negative impact on the sustainability of the service. I should perhaps pause here and remind the House that a defendant is eligible for legal aid just as he always has been; the issue is, of course, whether the changes will result in there being legal aid deserts or professionals leaving the profession, thereby endangering defendants’ ability to secure their entitlement to legal aid. The level of interest in duty contracts—when the likely reduction in fees was already known—suggested that there remained an appetite to undertake criminal legal aid work under the new regime. Having considered all these matters, we decided to press ahead with the second 8.75% reduction in litigators’ fees that was first announced by the coalition Government.

I cannot accept there has been a lack of engagement in this process. There have been three consultation exercises over a period of almost two years, two of them relating specifically to the fee reduction. There have been numerous discussions with the legal sector, many at ministerial level. The previous Lord Chancellor worked closely with the Law Society to shape the proposals for the new contracting regime. The present Lord Chancellor and Minister for Legal Aid have continued, and will continue, to engage with a broad range of legal aid providers.

The noble Lord, Lord Beecham, referred to the exchanges between the Secondary Legislation Scrutiny Committee and Mr Vara and remarked on the continuing correspondence and the failure to give what he inferred was a satisfactory response. I remind him what the Minister said on 10 July in answer to the outstanding questions from the noble Lord, Lord Trefgarne. This is particularly relevant to the audit and peer review programmes. The Minister stated:

“The LAA uses a wide range of monitoring tools”.

Although he accepted that there were no published figures, he explained:

“Ongoing monitoring is precisely that, it is not a process with a beginning and end. As a qualitative process, it is not one that generates a significant volume of statistics”.

In terms of the number of providers, which was one of the issues raised generally in the debate, Mr Vara said:

“A reduction would cause concern if the level of that reduction was likely to reduce future competitive tension. The precise level of that reduction that would cause concern, or acute concern, would depend on the design of a future competition, for example the number of contracts being tendered, so it is not possible to provide precise figures. After a great deal of analysis we concluded that we should offer 527 duty contracts. We have received 1,099 bids for those contracts. As I said in my previous letter though, it is important to bear in mind that the 527 duty contracts does not equate to 527 firms providing work under such contracts. Some providers who obtain duty provider contracts to deliver the work under that contract will do so in conjunction with other firms (either as delivery partners or agents)”.

So they may very often still have a future but not in precisely the same capacity, and of course they will still always have the possibility of own-client work. The need was to consolidate the duty provider part of the legal aid services provided by firms of solicitors.

The noble Lord, Lord Marks, referred to a number of aspects of efficiency and he was right to do so. He also referred to various suggestions which I think were almost all contained in the Liberal Democrat party manifesto as to other improvements that could be made. Some of these have already been considered. Those matters will receive ongoing consideration. At the moment, the Government are not, for example, satisfied that it is a good idea to have compulsory insurance. The coalition Government considered this and concluded that there were strong policy reasons not to make it compulsory. The coalition changed legislation to enable the recovery of legal aid costs after conviction and after a confiscation order and any compensation to victims had been paid. I accept the noble Lord’s suggestion that we could go further. It is a matter for consideration, but at the moment there are no plans to respond in that respect.

The noble Lord, Lord Ponsonby, indicated that many magistrates were not happy with the situation as regards litigants in person. I am sure that litigants in person can present a challenge to particular courts. However, of course, as I say, the eligibility for legal aid has not been changed by any of these instruments that we are considering, which are the subject of this regret Motion. Some people simply may not have applied for legal aid but many of them will be eligible for it. I have sat as a judge with litigants in person and I sympathise with such tribunals as they present particular challenges in questions of plea and advice, but these do not, as it were, arise directly out of the matter which is currently before your Lordships’ House.

The noble Lord, Lord Carlile, focused considerably on prison law. He will be aware that the coalition Government made some changes to the availability of legal aid for prison law, focusing very much on cases where the liberty of individuals was threatened, and took the view that, as he rightly points out, prisoners are in a particularly vulnerable position and may well need representation. However, I am sure he would accept that in many cases prisoners use legal aid when an objective view would consider that they should not do so. Equally, identifying precisely the cases where liberty is truly in issue is important. I undertake to take back the detailed comments the noble Lord made about that. However, the overall principle of the Government’s approach remains a good one—namely, that we should focus legal aid on aspects of prison law where individuals’ liberty is at stake rather than on some of the more trivial aspects which, unfortunately, were sometimes pursued.

As to the availability of prison law generally, the new model would still mean that specialist law providers would get a contract. They would not have to provide all the services at the same time. Those already awarded own-client contracts have the opportunity to bid for prison law as part of the tender process and will also be given authority to undertake appeal and review work.

EU: UK Opt-in Protocol (EUC Report)

Lord Faulks Excerpts

Wednesday 15th July 2015 Grand Committee

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

My Lords, I begin by thanking the noble Baroness for securing this debate. I thank her for her very clear and elegant opening of the debate, and indeed I thank all noble Lords who have participated in it. Protocol 21 plays an important role in protecting the United Kingdom’s interests in Europe. I pay tribute to the noble Baroness and her committee for the comprehensive work that she undertook as part of the inquiry into how the Government have applied it.

Before I try to respond to the various points made in the debate, perhaps I may say something about the protocol and its significance. I appreciate from the debate that there is not unanimity about the desirability of the protocol in the first instance—a difference between the Liberal Democrat position and—

[Baroness Ludford]

I apologise for interrupting, but I want to make it clear that I was expressing a personal opinion.

[Lord Faulks]

I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.

The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.

The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.

The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.

Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.

The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.

I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.

The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—

[Lord Richard]

Before the Minister leaves “pursuant to”, if he looks at the French version—“en application de ce titre”—it is impossible to claim that those words mean merely “following on from” without a definitive link. It is quite clear that the French text, which I imagine expresses the substance of the argument, refers to the application of Title V. In those circumstances, how can he claim that “pursuant to” means something totally different?

[Lord Faulks]

The French and German interpretations are also referred to in the committee’s report. Of course, the protocol has to be read as a whole on what its intention was. While I do not want to weary the Committee with the evidence that was given by government lawyers, the noble Lord will recall, no doubt, the fact that Article 1 should be read in the context of Articles 2 and 3. Indeed, I remind him of what John Ward said in his evidence to the committee, when the then Secretary of State for Justice and the Home Secretary gave evidence. He said, in answer to a question from the noble Lord, Lord Elystan-Morgan, that,

“I think it is important that the words ‘pursuant to’ need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21”.

[Baroness Quin]

I would like to pursue this further. The phrase “pursuant to”, which my noble friend Lord Richard referred to, generally has an accepted meaning, both in English and in the other language versions, which applies throughout EU legislation, and it is simply the Government who have one view and everyone else has another view. Is that not the case?

[Lord Faulks]

Of course, I do not dispute the evidence that the committee heard. The argument that was used in the course of the questioning by the noble Lord, Lord Elystan-Morgan, was that we should be looking at the natural, ordinary meaning, which is the traditional way of interpreting a statute in British law. A purposive interpretation would admit a rather broader interpretation of what the protocol was intended to achieve in terms of the opt-in and opt-out.

These are deep legal waters, and we could spend a great deal of time debating this. I accept that the preponderance of legal opinion was against the government interpretation, but I respectfully refer the Committee to the fact some of the difficulties were acknowledged by the committee in the course of its evidence—not, I accept, specifically to deal with the “pursuant to” aspect, but to do with the choice of legal basis. Paragraph 119 of the committee’s report states:

“Dr Bradshaw said that the Law Society had no insight into the Commission’s thinking, but noted that the choice of legal basis was ‘a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions’”.

Indeed, the conclusions of the committee at paragraphs 184 and 185 were:

“We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government”.

[Lord Richard]

Will you read the next paragraph?

[Lord Faulks]

I was going to do that very thing.

“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.

I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.

The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.

These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.

The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.

The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.

The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.

The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.

We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.

The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.

The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.

[Baroness Ludford]

Before the Minister sits down, I want to clarify that, although he said that I distanced myself from the previous Government, I did not. I distanced myself only from the attitude exemplified in the report. I am, in fact, very proud of the heavy lifting done, in particular, by the former deputy Prime Minister which ensured that the UK stayed in the 35 policing and criminal justice measures. It is no secret that there was disagreement between the coalition partners on these matters. While I am at it, let me say that I was expressing a personal view on Protocol 21, but that does not, of course, extend to the Schengen protocol, which governs border issues.

[Lord Faulks]

I am not going to go into the detail of who was or was not in favour of particular matters that were opted into or opted out of. The noble Baroness referred in the course of her speech to the rule of law, Magna Carta and “pacta sunt servanda”. I assure her that this Government take the rule of law and the desirability of honouring agreements extremely seriously. The commitment of this Government to those remains extremely profound.

Criminal Justice: Secure College

Lord Faulks Excerpts

Tuesday 14th July 2015 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government what plans they have to support young people in the criminal justice system in the light of the decision not to go ahead with the building of a secure college.

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

My Lords, in recent years we have seen welcome reductions in proven offending by young people and in the number of young people in custody. However, we have not seen similar success in reducing reoffending by young people. We are carefully considering how the youth justice system can more effectively prevent offending by young people and set them on a path to a better future.

[Lord Beecham (Lab)]

My Lords, will the Minister convey to the Lord Chancellor the thanks of this House for his abandonment of his predecessor’s misconceived plan to house in a so-called secure college one-third of the young offenders in custody? Can he tell us whether and how the £1.56 million staffing and procurement costs and the £4.04 million of development costs incurred during this sorry saga can be recouped?

[Lord Faulks]

I am happy to convey the good wishes of your Lordships’ House to the Secretary of State. As to the spend, it will not be recovered. The pathfinder designs could be used or adapted to other forms of youth or adult custody in the future, and alternative provision could be developed on the prepared site at Glen Parva. However, the noble Lord and the House may be relieved to know that we will not be spending £85 million on the secure college.

[Lord Dholakia (LD)]

My Lords, will the Minister agree that the purpose of the secure colleges, as against secure training centres, was to double the time available for education in these prison establishments, thus leading to better job opportunities for inmates on release? Now that this option is not available, and bearing in mind the shocking report produced by the prison inspector about the lack of staffing in prisons, how will these objectives be met, and what will be the future role of the Youth Justice Board in providing the type of education required?

[Lord Faulks]

The noble Lord is right that the secure college had at its heart the ambition of improving the provision of education for young offenders. As he will know from his experience in this area, a large majority of them have either been expelled from school or not attended school, and many of them are barely literate or numerate. The Government intend to focus very much on the education of young people. Since March 2015 a greater focus on education has followed, and the number of hours of education available to young people has more than doubled. However, we are not complacent.

[Baroness Howarth of Breckland (CB)]

My Lords, the noble Lord will be aware that I am truly grateful that this plan has been abandoned. However, has he looked at all the wealth of research on community interventions with reoffending young people? Down the generations, material has been produced on how working in a one-to-one relationship with these youngsters can change their behaviour significantly. I ask the Minister to look at that again in the review, because that is what changes lives.

[Lord Faulks]

The noble Baroness was a doughty opponent of secure colleges and I acknowledge that. Of course, she will be as pleased as the rest of the House at the drop in the number of young offenders in various forms of youth custody from 3,000 in 2007 to just over 1,000 now. However, we need to do more, and she is right that when young people leave we will be encouraging them to become re-established in the community and to make up for the very unfortunate starts that many of them have had.

[Lord Elystan-Morgan (CB)]

The Minister will know that for many years we have been incarcerating far more young people per 100,000 of the population than almost any other country in Europe. Do we still hold that unmeritorious accolade?

[Lord Faulks]

I am afraid that I cannot give the noble Lord the statistics off the top of my head. At the moment we certainly incarcerate something like 85,000 of the overall adult population. As I said, we have reduced the number of young people in prison, and I shall write to the noble Lord with the comparative figure in due course.

[Baroness Corston (Lab)]

I think it is right to say that there are now fewer than 50 girls in the category to which this Question applies. A couple of years ago the All-Party Parliamentary Group on Women in the Penal System, which I chair, held a year-long inquiry which showed that even those girls do not need to be held in this kind of accommodation and can be dealt with in the community. Does the Minister accept that?

[Lord Faulks]

I can assist the noble Baroness and the House by telling her that, as of today, 36 girls are in custody—19 in secure training centres and 17 in secure children’s homes—so it is a reducing number. I think that those who are responsible for sending young women and girls to prison have it well in mind that it should be a last resort. The Government are anxious to keep all young women and girls out of prison if it can possibly be avoided.

[Lord Ramsbotham (CB)]

My Lords, in connection with the question asked by my noble friend Lady Howarth, the Children and Young People’s Mental Health and Wellbeing Taskforce, formed by NHS England, is currently looking at ways of holding these damaged children near enough to their homes to ensure continuity of treatment. Can the Minister assure the House that the findings of this task force will be included in whatever work is done in the Ministry of Justice?

[Lord Faulks]

It is very much a matter that will be at the forefront of our mind. Of course, one of the difficulties is that if a limited number of young people are in youth custody establishments of one sort or another, they will inevitably be scattered all over the country. Having, as it were, local institutions creates quite a challenge but it is a consideration that is highly relevant.

[Baroness Walmsley (LD)]

My Lords—

--- Later in debate ---

[Lord Faulks]

The noble Lord identifies one of the main philosophies behind the secure college, which was to enable a sufficient block of education to be provided to young people when they were in youth custody of one form or another. That will be very much a part of the consideration that the Government give to maintaining some sort of continuity, even if there are relatively short periods when a young offender is in some form of establishment.

Office of Lord Chancellor (Constitution Committee Report)

Lord Faulks Excerpts

Tuesday 7th July 2015 Lords Chamber

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

My Lords, I thank my noble friend Lord Lang for securing this debate and providing the opportunity for the House to consider and discuss the Constitution Committee’s report on the office of the Lord Chancellor. I fear that I may disappoint noble Lords, who have all provided great-quality speeches in the debate, in the sense that my response will contain rather few surprises.

However, what I can say, consistent with what my noble friend would say, is that the new Lord Chancellor is very much in listening mode. There is no question of complacency on the part of the Lord Chancellor or in the Ministry of Justice, as the noble and learned Lord, Lord Phillips, suggested. I know that the Lord Chancellor will read the debate with considerable interest. I cannot guarantee what his response will be but I know that great heed will be taken of what has been said. Indeed, the committee’s report will be considered more carefully than it already has been. It is a comprehensive report and the Government recognise that the committee has assimilated a great deal of material collected from written submissions and oral evidence from a wide range of experts and practitioners, including Lord Chief Justices and Lord Chancellors.

The Government welcome the committee’s report, particularly its reaffirmation of the important constitutional role of the Lord Chancellor. However, we recognise that the committee has expressed disappointment at the brevity of the previous Government’s response to this report, and with two aspects of it in particular. I will endeavour to deal with those points. I fear that I will not be able to answer all the different points raised in the debate, including the EVEL debate, mentioned by the noble and learned Lord, Lord Falconer, or prisoner voting, which deserves a debate of its own. Of course, the comments are very much borne in mind by the Government.

First, I shall reflect on the current Lord Chancellor’s position on the rule of law. Noble Lords will, I am sure, be aware of his recent speech at the Legatum Institute, where he began to outline what he sees as a “one-nation justice policy”. He said:

“The rule of law is the most precious asset of any civilised society. It is the rule of law which protects the weak from the assault of the strong; which safeguards the private property on which all prosperity depends; which makes sure that when those who hold power abuse it, they can be checked; which protects family life and personal relations from coercion and aggression; which underpins the free speech on which all progress—scientific and cultural—depends; and which guarantees the essential liberty that allows us all as individuals to flourish”.

Noble Lords may think that those statements embody the core purpose of the justice system and indicate that he does not regard the law, as the noble and learned Lord, Lord Cullen, said, as “a mere appendage”. They bear careful consideration. No definition of the rule of law is likely to attract complete consensus, although Lord Bingham’s in The Rule of Law has quite rightly attracted widespread approval. Many countries boast of their adherence to the rule of law. In Russia there is a book that extols its virtues. China, which I recently visited, speaks consistently about its adherence to the rule of law.

The committee’s report comes at a time of considerable interest in the office of the Lord Chancellor. Among others, a recent publication by University College, London, on the politics of judicial independence concerned itself with the issue. That study reached a number of conclusions, including the fact that the judiciary and judicial independence emerged stronger from the 2005 changes with the inclusion of tribunals in the courts system, a more independent and visible Supreme Court, and greater autonomy of the Lord Chief Justice as the head of a more professional judiciary. The report recognised the change in the role of the Lord Chancellor and saw it as providing a political guardian of judicial independence with sufficient channels of communication to allow a new relationship to evolve between judges and politicians.

As to the role of the Executive, it is worth noting that the Lord Chancellor has specific duties under the Constitutional Reform Act 2005 to respect the rule of law and to have regard to the need to defend judicial independence. The noble and learned Lord, Lord Falconer, told the House about the nature of the obligations, which were of course considered by Parliament not all that long ago. It is worth mentioning that all Ministers of the Crown with responsibility for matters relating to the judiciary or the administration of justice have a legal obligation to uphold the continued independence of the judiciary.

Upholding the rule of law and defending judicial independence is a shared responsibility. The rule of law plays an integral part in the policy and the operations that we develop, particularly through the administration of the courts and tribunals system. The Government believe in, and will fervently support, the independence of the judiciary. That independence has two facets: the institutional independence of the judiciary as a branch of the state; and the independence of an individual judge, who has the discretion to make the decisions they do in court according to law. We defend their right to take those decisions.

I know that the committee expressed disappointment that the Government do not agree with its suggestion that the Lord Chancellor is required, above all other Ministers, to ensure that the rule of law is upheld within Cabinet and across government, or that the Ministerial Code, Cabinet Manual and oath of office should be amended to reflect that requirement. The Ministerial Code and the Cabinet Manual already set out the way the Government comply with the rule of law. As I have already said, all Ministers have a duty to respect the rule of law, and of course the Prime Minister ultimately has responsibility for overseeing the constitution.

The Cabinet Manual, in particular, notes the role of the law officers in,

“helping ministers to act lawfully and in accordance with the rule of law”.

The Government agree with the committee on the important role played by the law officers in upholding the rule of law. This view has been shared by successive Governments. The law officers play this role in particular by advising on some of the most significant legal issues being dealt with by government through their significant public interest functions, such as bringing contempt proceedings, and through participating in the work of the Government as Ministers of the Crown. This includes the Attorney-General participating in Cabinet meetings. I know that the noble Lord, Lord Lang, and others concluded that the Attorney-General should as a right attend all Cabinet meetings. I understand that the expectation is that he will continue to attend all Cabinet meetings but, ultimately, his attendance is a matter for the Prime Minister. Despite the comments of the noble Lord, Lord Beecham, the Government consider that the law officers are adequately resourced to fulfil their functions as they relate to the rule of law. An important function of those officers is keeping all ministerial colleagues informed of significant legal issues. The relationship between the Lord Chancellor and the Attorney-General is an important one; they meet regularly to discuss matters of common concern, including those that relate to the rule of law, and the expectation is that this will continue.

I know that the committee also expressed disappointment that the Government do not agree with its assertion that the Permanent Secretary at the Ministry of Justice needs to be legally qualified, or that the department’s top legal adviser needs to be appointed at Permanent Secretary level. It is a matter of some serendipity that the recent appointment of Richard Heaton as the Permanent Secretary has arrived in time for this debate. He is also First Parliamentary Counsel and undoubtedly has weighty legal experience. However, both the Lord Chancellor and Permanent Secretary, whether legally qualified or not, have access to high-quality legal services provided by the Government Legal Department, including direct access to the Treasury Solicitor and one of his deputies at director-general level, should it be needed. Advice can be sought from Treasury counsel, external counsel and the law officers, where needed. This provides the right level of legal support. Importantly, in addition to this, the Lord Chancellor is supported by, and has access to, a wealth of experience and expertise from civil servants, many of whom have long experience of courts and the administration of justice. I can give some evidence of this in response to the—

[Lord Lester of Herne Hill]

It must be my own problem, for which I apologise, but is the Minister speaking for the old Government or the new Government in what he has just said?

[Lord Faulks]

I am speaking for the present Government.

On the question of whether the Lord Chancellor is adequately advised by lawyers, I say that the quality of the lawyers remains extremely high. I take the point made by the noble and learned Lord, Lord Woolf, with his experience of the old Lord Chancellor’s Department and the quality of the lawyers there, but there is a great deal of continuity within the Ministry of Justice now.

I return to the role of the Lord Chancellor and deal briefly with the point of whether combining the role with another Cabinet position helps strengthen his or her position in government. Experience shows that both can be successfully carried out by the same person. I echo the views of the previous Government: we welcome the committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice does, indeed, strengthen the office. I also welcome the committee’s view that it is not essential for the Lord Chancellor to have a legal background. The last two Lord Chancellors did not, but I suppose I hope that it does not become a disqualification for office if you happen to be legally qualified. The committee instead focuses on the necessary gravitas and status that the incumbent who undertakes the role must have, which does not require specific legal experience.

It may be useful to the House if I set out the current policy remit of the Lord Chancellor and Secretary of State for Justice, which I think helps illustrate the benefits of combining the two roles. The Lord Chancellor has responsibility for matters relating to the judiciary, courts and tribunals, coroners, civil, family and administrative law, legal aid, legal services and the legal professions, public records and the Crown Dependencies. The Secretary of State for Justice’s policy responsibilities include prisons and probation, criminal law, sentencing policy, human rights, data protection and freedom of information. It is evident that having one person who is responsible for the effective and efficient delivery of that system combining the functions is of great benefit. It helps give him the necessary clout in Cabinet—or, as the noble and learned Lord, Lord Hope, said in evidence before the committee, makes sure that he is not at the,

“far end of the table”.

I touched on the Lord Chancellor’s responsibility for ensuring the proper administration of HM Courts & Tribunals Service. I want to say a little more about this as it is an important example of how upholding judicial independence is critical to the successful delivery of that service. The Lord Chancellor discharges his responsibility for the courts and tribunals in partnership with the Lord Chief Justice and the Senior President of Tribunals. He has a statutory duty to provide the support necessary for the judiciary to perform its functions and to ensure that there is an efficient and effective system to support the business of the courts. This duty is discharged in conjunction with the senior judiciary, as laid out in the HM Courts & Tribunals Service Framework Document of 2014, which reflects the partnership arrangement between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in relation to the effective governance, financing and operation of HM Courts & Tribunals Service. It is very much a joint venture.

The final point I want to address—and it is a very important point—is the committee’s concern that:

“There is no clear focus within Government for oversight of the constitution”.

[Lord Falconer of Thoroton]

Before the Minister moves on to that, can he identify whether he accepts the central recommendation of the Constitution Committee that the Lord Chancellor has an especial role in protecting the rule of law, or does he, like Mr Grayling, think that the Lord Chancellor has no special role that is any way different from that of the Secretary of State for Health or the Secretary of State for Education?

[Lord Faulks]

The Lord Chancellor’s role and his oath, as the noble and learned Lord said, is defined by the Constitutional Reform Act 2005. Clearly, his role is the same as other Ministers’ but must be larger than theirs. Its precise ambit may be a question of some debate but clearly he would regard, as indeed he said in the Legatum Institute talk, that he has a greater and particularly specific role in relation to the rule of law.

I was dealing with the oversight of the constitution. The committee recommended that, “a senior Cabinet minister”—in its view, most appropriately the Lord Chancellor—should have responsibility,

“for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms”.

The Prime Minister, of course, has overall responsibility for the constitution. The Cabinet Office has oversight of constitutional policy and has done since 2010. The Chancellor of the Duchy of Lancaster, Oliver Letwin, oversees co-ordination of the Government’s constitutional reform programme and is supported by two Ministers and officials from the Cabinet Office constitution group. The Chancellor of the Duchy of Lancaster works in close collaboration with the Prime Minister and other relevant Cabinet Ministers, including the Lord Chancellor, the Attorney-General, the Leaders of the House of Commons and the House of Lords, and the Secretaries of State for Scotland, Wales and Northern Ireland. This senior ministerial oversight reflects the importance that the Government attach to their constitutional reform programme.

In answer to the noble and learned Lord, I am not aware of any precise protocol, but it is clear that there is a great concentration within the Cabinet Office, in close collaboration with the other offices.

[Lord Crickhowell]

My noble friend has again repeated the phrase that was used in the Government’s response with regard to who is responsible for constitutional reform. But the point that was made in the report, and has been made repeatedly this afternoon, is that the constitutional responsibility goes much wider than reform. Our concern, as expressed in the report, that the previous Deputy Prime Minister appeared to think he was responsible only for reform was one of the centrepieces of the criticism that we were making. I therefore hope that my noble friend will at least go back to his colleagues and point out that we are concerned about not just reform but the overall constitutional responsibility.

[Lord Faulks]

I am grateful to my noble friend. He makes a very fair point, which I entirely take: the constitution needs to be considered at a moment of any prospective reform but, none the less, the Government have a continuing duty to maintain constitutional integrity.

The Chancellor of the Duchy of Lancaster and other Cabinet Office constitution Ministers are currently dealing with some difficult constitutional policies, including English votes for English laws, devolution, English decentralisation, the EU referendum and the British Bill of Rights. There is a significant area of potential reform but I absolutely accept that the role those who are charged with looking after our constitution have goes beyond reform.

We could spend quite a lot of time dealing with the definition of “rule of law”. I am of course aware of the comments made in speeches by the noble and learned Lords, Lord Hope and Lord Steyn, and the discussion in Lord Bingham’s book The Rule of Law of whether parliamentary sovereignty really is the governing principle. At the moment, however, the supremacy of Parliament is generally considered to be the predominant constitutional principle and the capacity of judges in certain circumstances to strike down, as it were, an Act of Parliament is one that has not yet been taken advantage of.

In conclusion, we recognise that the office of the Lord Chancellor is an ancient one. During its time, the role has been occupied by individuals of varying skills and experience, reflecting the contemporary demands of the office and the somewhat quixotic choices made by Prime Ministers, which have sometimes haunted the noble Lord, Lord Beecham, and others. Some have been colourful characters, some have attracted criticism and some have even met an untimely end. The changes introduced in the Constitutional Reform Act 2005 were significant, albeit that they came about in rather an unusual way. They emphasised the independence of the judiciary and defined the new nature of the relationship with the Executive and Parliament.

The Lord Chief Justice said in his speech of the week before last:

“What appears clear is that over the first ten years since the reforms of 2005, the judiciary has evolved a new way of working. It has developed a capacity and a will to lead reform. It has forged a new method of engagement with the Executive and Parliament in this task so that all can work together to bring about an overhaul of the administration of justice”.

The House is very clear that the office of the Lord Chancellor will continue to be a key office of state, with very real and important duties that have a constitutional importance and underpin judicial independence and the rule of law. This Government are very grateful to the Constitution Committee for its clear and thorough report. I am sorry that there has been so much criticism of the inadequate response. I reassure the House that what has been said in that report, and what has been brought to the House’s attention in this debate, will be considered very carefully by the new Lord Chancellor. I thank all noble Lords who have taken part in this excellent debate.

Human Rights and Civil Liberties

Lord Faulks Excerpts

Thursday 2nd July 2015 Lords Chamber

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

My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, a former ministerial colleague, for initiating today’s debate. The subject is, of course, always of critical relevance but perhaps never more so than today, when we face challenges to civil liberties and the Government are faced with trying to balance civil liberties with the security of the nation. The debate has been instructive and thought provoking, graced by contributions of a very high standard. I have listened to all the contributions with care and would stress that the Government have a clear mandate on the question of the current legislative framework for human rights but nevertheless are currently very much in listening mode.

On that point, I am disturbed that the noble Lord, Lord Lester, received no response from the Lord Chancellor. I know that the Lord Chancellor is anxious to see as many people as he can and that, in fact, the noble Lord, Lord Lester, is on the list of those he would like to see. I cannot explain any administrative failing, but I can assure the noble Lord that he will be most welcome and that, if he could put up with the company of a couple of zealots, we would be happy to discuss these matters with him.

Noble Lords are aware that, as Minister of State for Civil Justice at the Ministry of Justice, I am responsible for representing the department and the Government in this House on the subjects of human rights and civil liberties. I share this task and responsibility with my ministerial colleague Dominic Raab. We are both equally committed to coming up with lasting solutions to meet the challenges which this responsibility entails.

Brief reference was made during the debate to the so-called snoopers’ charter, which is understandable, because we are shortly to have a debate on the report from David Anderson QC. I was on the pre-legislative scrutiny committee for the original draft communications data Bill, so I have some personal knowledge of the issues, which perhaps particularly illustrate the difficulties that a Government have in balancing individual privacy with security. I know that the Government are carefully considering David Anderson’s report and will have to consider how that balance is best reflected. It is a little unfortunate that the journalese expression “snoopers’ charter” has been so widely adopted. It demeans a very difficult argument that has to be undertaken by all those who care about these things.

The noble Lord, Lord Addington, mentioned vigilance over disability rights, and made some valuable points about the need not to characterise or mischaracterise those with disabilities—and how we as a Government, or any Government, should tread very carefully in this area.

In a debate involving the Liberal Democrats, it was perhaps no surprise that the noble Lord, Lord Roberts, mentioned the perennial subject of electoral reform, and the lack of a democratic mandate. Of course, what he said will be regarded by many as a valuable contribution to the debate, but I hope that he will forgive me if I do not go into a long response on questions of democracy.

I shall focus considerably on the question of the reform of the Human Rights Act, which has formed the bulk of the debate in your Lordships’ House. It is beyond dispute that the United Kingdom has a strong tradition of respect for human rights, which long predates our current arrangements. The Government are proud of that tradition and, in developing proposals for reform, will make sure that the tradition is not only maintained but enhanced. However, we take the view that all is not well with the current law in relation to human rights, and the Government were elected with a mandate to reform and, where appropriate, modernise the United Kingdom’s human rights framework. Therefore, we will bring forward proposals for a British Bill of Rights, which will replace the Human Rights Act. Our Bill will protect fundamental human rights, but also prevent their abuse and restore some common sense to the system.

We will consult fully on our proposals before introducing legislation. I hope that will be acknowledged around the House as an appropriately cautious way in which to proceed—not a sign of weakness or second thoughts but a sensible way in which to undertake reform of a major constitutional nature. I do not want to pre-empt that consultation, but it may be useful if I give the House some pointers to our current thinking, without prejudice to any final conclusion on what is or is not in the consultation. It is unfortunate that so many noble Lords make the assumption that any British Bill of Rights would contain rights that are “more restrictive” than those in the convention.

The Human Rights Act was passed shortly after the Labour Party won the general election in 1997. As a number of noble Lords observed, it was a very clever piece of draftsmanship. The narrative was that the Act would bring rights home, obviating the need for a trip to Strasbourg by UK citizens. There was much speculation about what the impact of the Human Rights Act would be on our law domestically; many thought that the effect would be marginal. In fact, there is virtually no aspect of our legal system, from land law to social security, to torts and consumer contracts, that has not been touched to some extent by the Human Rights Act.

The noble Lord, Lord Cashman, in his passionate speech said that the Act had worked magnificently—and certainly I would not quarrel that there have been good decisions influenced by it. But he should not, and the House should not, underestimate the capacity of the courts before the Human Rights Act and the capacity of the court of Parliament to protect human rights by showing an ability to pass new legislation to develop the common law. This Parliament passed the Modern Slavery Act and the previous Government passed the equal marriage Act. One issue about equal marriage was whether there would be difficulties with Strasbourg if the Act came into force. So we should not underestimate what this country has in its capacity to protect human rights.

Many lawyers are very enthusiastic about the Human Rights Act. I have to say that my own experience as a practitioner does not make me an unequivocal supporter of it. As a barrister representing public authorities, I saw the incursion of human rights law into the fields of social services, education and police investigations. It contributed a great uncertainty to the law, and I am afraid that I am not persuaded that it resulted in any real improvement in the protection of fundamental rights. It certainly resulted in a great deal of additional expense in areas where budgets were already tight. But whatever views might be taken of the effects of the Human Rights Act—and I do not want to embark on a litany of cases for and against; views can reasonably diverge—I think it would be accepted that the Act has not endeared itself to the public generally. That was one conclusion that the commission reached. Not all of this is the fault of the tabloid press; the problems with Abu Qatada and others, prisoner voting—on which there can reasonably be different views—and some of the frankly trivial claims have not helped.

[Lord Lester of Herne Hill]

The Minister and I were on that commission. Is it not right that our report, which I have here, showed that there was overwhelming support for the Human Rights Act in Scotland, Wales and Northern Ireland, and among those who answered our two consultations?

[Lord Faulks]

I am grateful to the noble Lord, and of course I shall come to the question of Northern Ireland and Scotland in due course. There were two consultations, of which the Government will take account, along with their own consultation, to enable them to form the fullest picture possible of the way forward.

Section 2 of the Human Rights Act, as noble Lords have correctly observed, requires courts only to take into account the Strasbourg jurisprudence. As the noble and learned Lord, Lord Carswell, frankly admitted, the superior courts—the Supreme Court and the Court of Appeal—went rather further than simply taking into account the Strasbourg jurisprudence. I think that it is now generally acknowledged that the Ullah case involved a wrong turning. As noble Lords have said, it is true that something by way of a dialogue has ensued. It is also true to say that the Supreme Court has shown something of a retreat or modification of its approach to Section 2. None the less, there is need—there may be some general agreement on this—for clarification. The Strasbourg court should not be demonised, as some of its decisions would continue to be useful, whatever our precise relationship with it, but it may not be the only source of wisdom. We should not pivot entirely off the Strasbourg court when there are useful decisions elsewhere in the world—and, of course, it should not impede the development of the common law as it has always developed.

The convention was drafted, as has been said, by Conservative politicians, and is a remarkable achievement in itself. To encapsulate human rights is perhaps a philosophical task, but I do not think the Government have a difficulty with how they are expressed—it is, of course, only in their interpretation. However, the convention must be seen in the context in which it was drafted, in the aftermath of the Second World War, just as the Magna Carta, so much commented on, must be seen in its particular historical context.

I should make it clear, in answer to a number of questions, that it is no part of our plans to leave the convention. The noble and learned Lord, Lord Brown, referred to the number of cases that he had lost, no doubt having valiantly argued them for the Strasbourg court. When our British Bill of Rights becomes law, as I hope it does, there will still no doubt be some cases before Strasbourg and the successor to the noble and learned Lord, Lord Brown, may achieve better or worse results.

The Prime Minister, in his speech at Runnymede—

[Lord Wallace of Tankerness]

The Conservative manifesto also said something about curtailing the role of the European Court of Human Rights. Could the Minister, for the benefit of the House, elaborate on what was meant by that part of the manifesto?

[Lord Faulks]

I am reluctant to say very much more, for the very reason that we have an open consultation. I think I have made it clear that our minds are not closed on this. Earlier in my comments I referred to Section 2, and that particular provision, and its relationship with the Strasbourg jurisprudence. That is a matter that will be considered carefully as part of the consultation for reasons that a number of noble Lords have given.

The Prime Minister made this comment during the celebration of Magna Carta:

“Magna Carta takes on further relevance today. For centuries, it has been quoted to help promote human rights and alleviate suffering all around the world. But here in Britain, ironically, the place where those ideas were first set out, the good name of ‘human rights’ has sometimes become distorted and devalued. It falls to us in this generation to restore the reputation of those rights—and their critical underpinning of our legal system”.

We want our human rights law to be fair and just and to regain public confidence. We intend that a British Bill of Rights will be a positive response to the challenges facing the culture—the subject of the debate—of human rights and civil liberties in the United Kingdom.

It is not just a question of this Government believing this needs to be done. Previous Administrations seem, by what they have said, to have reached similar conclusions, but then have, for one reason or another, failed to follow matters through. During an appearance on the BBC in May 2006, the noble and learned Lord, Lord Falconer of Thoroton, said about the Human Rights Act:

“We all agree about liberty, about the right to life, the right to privacy, those issues. And the problem is not a subscription to those rights, it is how it operates in practice”.

The last Labour Prime Minister, the right honourable Gordon Brown MP, in July 2007 said in the other place,

“it is right to involve the public in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties”.—[Official Report, Commons, 3/7/07; col. 819.]

Talking to the BBC later the same year in October, he said:

“Jack Straw is signalling the start of a national consultation on the case for a new British Bill of Rights and Duties…This will include a discussion of how we can entrench and enhance our liberties— building upon existing rights and freedoms but not diluting them—but also make more explicit the responsibilities that implicitly accompany rights”.

He said that on BBC News on 27 October 2007.

I also refer the House to comments made by the noble Baroness, Lady Falkner, in May’s edition of Prospect. She said:

“Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken … A British Bill of Rights is a good idea”.

A majority of the commission on a Bill of Rights thought the same. I served on that commission, as the noble Lord, Lord Lester, said. He was part of the majority. I would not claim for a moment that our reasoning was precisely the same, but the conclusion that we reached was identical.

Many other countries, within the Council of Europe and outside, have their own equivalent of what we will have in a British Bill of Rights. I hope that by engaging in a proper consultation on our proposals for how the United Kingdom’s human rights framework should be reformed we will be able to identify many points of agreement across the whole political spectrum, including with more members of Her Majesty’s Opposition. It has quite rightly been said, I think by the noble Baroness, Lady Ludford, and others, that at various times different political parties have varied enthusiasms for a British Bill of Rights. We intend to try to produce a Bill of Rights that can produce real consensus across the parties.

The noble and learned Lord, Lord Wallace of Tankerness, no doubt had an eye on devolution when tabling this Motion for today’s debate. Certainly, since the election and since the debate about the shape of the future human rights framework has begun in earnest, it has been repeatedly raised as an apparently intractable issue that will stump any reform and of which the Government are currently unaware. The Government are fully alive to the devolution dimension, and we will consider the implications of a Bill of Rights for devolution as we develop our proposals. I think the noble and learned Lord will understand if I do not comment on meetings that the Secretary of State has, or on discussions, but I assure him and the House that we will fully engage with the devolved Administrations and the Republic of Ireland in view of the relevant provisions of the Belfast, or Good Friday, agreement. I heard what my noble friend Lord Lexden said in that regard.

It is important to emphasise that the United Kingdom’s international obligations neither begin nor end with the European Convention on Human Rights, a point underlined by the fact that, as we debate here today, a team from the United Kingdom is being questioned about our country’s performance against the commitments we have signed up to in the United Nations International Covenant on Civil and Political Rights. Whatever form the Bill of Rights finally takes, the Government have no intention to resile from its many other international obligations, such as those arising under the United Nations convention against torture, which prevent removal of a person to another country,

“where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

We were not a lawless country before 1998. We will not be in the future. We will comply with our many international obligations.

I am sorry that the position of those in my party was compared to Syriza by the noble Baroness, Lady Ludford. We have been described as zealots by the noble Lord, Lord Lester, who has previously described the position that we take as being part of the Tea Party tendency in the Conservative Party. Worst of all, he accused me the other day of being a Eurosceptic. None of those things I believe to be true.

I am grateful to noble Lords who have spoken in this debate and to the noble and learned Lord, Lord Wallace, for calling it. Much of what has been said has been extremely valuable. I hope the debate, both formally and informally, will continue. Much of what has been said will help to influence what the Government decide. I am glad that my noble friend Lord Lexden reminded us that the originator of “one nation” was Stanley Baldwin, not Disraeli, as is so often thought. “One-nation government” is a phrase that has been bounced from one side of the Chamber and possibly beyond recently. We intend to govern as a one-nation Government. This British Bill of Rights will, I hope, be quintessentially a one-nation document, including all the parts of the United Kingdom and, so far as possible, the agreement and consensus obtained from all the parties. I am grateful for all contributions. I know this debate will continue.