Safety of Rwanda (Asylum and Immigration) Bill

Lord Faulks Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Alton of Liverpool (CB)]

I disagree with the noble Lord; the amendments are about interim measures. The Joint Select Committee on Human Rights, on which I serve, took evidence on this issue and I want to refer to that for a moment. Having heard the evidence, these were the conclusions of a committee of the sovereign British Parliament. In paragraph 105, we said:

“We recognise that there are differences of opinion over whether or not interim measures ought to be binding on the United Kingdom. However, as a matter of international law, they are binding. Failing to comply with interim measures directed at the UK would amount to a violation of the European Convention on Human Rights”.


On Clause 5, we said that the Bill

“contemplates a Minister choosing not to comply with an interim measure and thus violating the UK’s international human rights obligations. It also prevents the domestic courts taking into account what may be a relevant factor for any decision whether or not an individual should be removed to Rwanda. This is not consistent with a commitment to complying with the UK’s obligations under the ECHR”.

That was the committee’s considered, majority view; it is not a view that has been responded to by the Government. Here I ask the noble and learned Lord, Lord Stewart, or the noble Lord, Lord Sharpe of Epsom, when they come to reply, to go back to the Committee stage of this Bill, where they gave an assurance that, before we went any further, Parliament would be told the response to the findings of the Joint Committee on Human Rights. As recently as Monday, I was told when I intervened on this point that there would be a response for today; I would like to know when it is going to be forthcoming.

It brings our Parliament into disrepute when we set up Joint Committees and say we will consider issues of this kind in great detail, and when reports have been made available to the Government, but no response has been forthcoming before detailed consideration of that legislation. Here we are, at the Report stage of a Bill that has gone all the way through the House of Commons, has almost completed its passage in your Lordships’ House, and we still have no proper response. When the noble Lord, Lord Coaker, defended, as he did earlier, the integrity and the nature of our Select Committee, I was with him, and not just because, like him, I have particular admiration for the chairs of Select Committees. The honourable Joanna Cherry is no exception in this respect. She is an admirable chair of that committee; she is not a partisan—ask members of the Scottish National Party and they will tell you that she is a very independent-minded lady who has considerable experience as a KC in the law, so chairs are not to be dismissed. These committees of your Lordships’ House should be taken far more seriously. Not to do so is a discourtesy to Parliament and to the kind of arguments that my noble and learned friend has put forward, and it is why, even if these amendments are not voted on today, the principles that underline them should be supported.

[Lord Faulks (Non-Afl)]

My Lords, I promise I will be brief. First, there appears to be agreement that there was not total agreement on the position of international law. Noble Lords will remember the speech of the noble and learned Lord, Lord Hoffman, referring to the article in Policy Exchange. This is not the time to repeat the arguments, one way or another.

It was also agreed that the procedure adopted by the European Court of Human Rights was sub-optimal and there is room for improvement. Improvement may come along the line in due course; we wait to see, and there are some hopeful signs. However, the current position is that it is not a satisfactory procedure.

We then come down to the power. It is important to stress that the Minister has a power, not a duty, which he or she can exercise to ignore the ruling. The Minister does not have to ignore the ruling, and no doubt they will look carefully at the reasons given. Amendment 37 suggests that the Minister will consult the Attorney-General, who I am glad to see sitting in her place beneath the Throne today. I imagine that in a normal course of events, a Minister taking a decision of that gravity would consult the Attorney-General. However, the fact that there is a slender basis for the jurisdiction, that the interim procedure is unsatisfactory, and that there is a power, seem to me to hedge around this provision with appropriate safeguards.

[Lord Anderson of Ipswich (CB)]

My Lords, I support all the amendments in this group and will be sorry if, as I suspect may be the case, none of them is put to the vote.

I spoke in Committee on the status of interim measures of the European Court in international law. I will not repeat any of that now, although I remind the Minister, as I did informally a moment ago, of the exchange we had at the end of that debate, at about 10.30 pm on 19 February. I asked him whether he agreed with me that if a Minister decided not to comply with an interim measure, as Clause 5 permits, this would place the United Kingdom in breach of its international obligations. He gave me no answer—and frankly accepted that he was giving me no answer—but did undertake to write to me. The Minister did tell me a moment ago that such a letter has been sent, but I am afraid that, despite his best efforts, it has not yet reached me. Will he please be kind enough to read the relevant passage when he answers this debate?

The European Court of Human Rights takes one view, which is generally accepted to be binding on contracting states—including our own—by Article 32 of the ECHR. In brief reference to the point raised by the noble Lord, Lord Lilley—I thank him for the courtesy he extended to me earlier in today’s debates—the binding effect of interim measures rulings was clearly accepted in this case by the French Conseil d’Etat, in its judgment of 7 December 2023. I know the noble Lord is very conversant with the French language; if he reads paragraph 5 of that judgment, he will be left in no doubt as to the relevant position.

If, as the noble Lord, Lord Jackson, suggested, the French Government are flouting both the interim measures of the European Court of Human Rights and the judgment of their own highest court, shame on the French Government. Shame on any Government who behave like this. We are used to seeing the Russian Government, the former Government in Poland, behave like this, and we have to make up our mind which camp we are in. That is why it is so important that we understand what the Government’s position is before we vote on the Bill. Is the purpose of Article 5 to permit Ministers to involve this country in breaches of international law, or is it not? I hope that this time, we will have some clarity from the Front Bench.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Faulks Excerpts

Committee stage
Monday 19th February 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I have Amendments 58, 60 and 61 in this group, and I share them with the noble and learned Baroness, Lady Hale of Richmond, and the most reverend Primate the Archbishop of Canterbury. I shall also say a few words about Amendment 63, which I have not signed but which is proposed by the noble Viscount, Lord Hailsham, who is sadly unable to be here today, and I said I would say something about his amendment, because I think it is very valuable to the Committee’s consideration.

Amendments 58, 60 and 61 would require the Government to comply with international law in responding to an interim measure of the Court of Human Rights. They would require domestic courts to take such interim measures into account and would disapply offending provisions in Section 55 of the Illegal Migration Act for those specific purposes.

It is difficult to contemplate why the Government want to take specific powers to disapply Rule 39 measures, given, as we have heard from the noble Lord, Lord Scriven, and others on different days, how few interim measures have been made in the history of the convention against the United Kingdom—something to be proud of—how we have pretty much always complied with them, and how we try to take a position on the world stage to encourage others in the Council of Europe, and powers outside the Council of Europe, to comply with other international courts. I need not develop that too much further; I am sure everyone knows what I am alluding to. I find it difficult to understand.

If certain noble Lords opposite are going to pop up and say there is nothing in international law that says that you have to comply with Rule 39, one answer came from the noble Lord, Lord Scriven: it is ultimately for the court to decide whether Rule 39 is binding in international law or not. When you sign up to the club that is the Council of Europe, do you sign up to the referees of that club, yes or no?

The other thing is this. If it is not a matter of international law that we comply with Rule 39 and we just do it because we are gentlemen—and ladies and noble Lords—then why would we take specific domestic statutory powers to say we can ignore it? It seems very odd and troubling to me—but I would say that, would I not?

Even though I did not sign it, because I take a rather trenchant position on the importance of complying with Rule 39, I think it is important to expose Amendment 63 from the noble Viscount, Lord Hailsham. He was prepared to go a little towards the government position and to say that there might be certain circumstances where a Minister of the Crown may ignore an interim ruling of the court. Remember, the court in Strasbourg makes these only rarely, and only where it thinks there is a real danger that something so bad will happen to the person between the case being brought and a final outcome that the case will be virtually academic, to use a phrase coined earlier by the noble and learned Lord. Here, “academic” means that you will be dead before the final outcome of the case, or you will be sent for torture. That is the territory we are talking about when we talk about interim measures.

The noble Viscount, Lord Hailsham, is prepared to go further towards his noble friends’ position than I am. In honouring comments from the Government on previous occasions, he tabled Amendment 63, which says that Ministers may sometimes ignore interim measures but only when the Government were not allowed a proper opportunity to argue against the making of the interim measure.

This goes back to a debate that arose during the passage of what is now the Illegal Migration Act, and that now rages on in certain parts of the media and on Twitter: that the wicked old Strasbourg court is constantly granting these interim measures to frustrate our immigration controls and is doing so behind our backs—so-called pyjama injunctions. I have heard all sorts of people who do not often talk about legal process pick up this soundbite of “pyjama injunctions”. The Strasbourg court is granting these ex parte injunctions to applicants without due process—that is the argument that is being made.

The noble Viscount says, “Of course we must have due process, and therefore the Minister can ignore these measures if he thinks we’ve not been allowed due process”. Since the passing of the Illegal Migration Act, which is when this argument was first ventilated, there have been productive discussions between the Government—they are indivisible, but I am talking about that nice bit we call the Foreign Office—and the Strasbourg court, because I believe everybody agrees that there should be due process. Sometimes, you need to make an urgent interim measure to stop someone being put on a plane potentially to ill treatment or death. But, even in that emergency situation, any state or Government should have the opportunity to say, “Actually, you got that wrong, so can we return to that?”

[Lord Faulks (Non-Afl)]

The noble Baroness said that the Strasbourg court would make such an order only in dire straits, when there was a matter of real emergency and death was the almost inevitable result. Can she help the Committee with the reasons the Strasbourg court gave last year, when it issued the rule 39 order?

[Baroness Chakrabarti (Lab)]

No, I will not set that out, given the hour. I am talking about the general principle here, and I will not rehearse the specific details of that interim measure. I want to focus on the fact that everybody agrees that due process requires that any state, including the UK, ought to be able to put its case, and, if it cannot do so in an emergency, it should be able to thereafter. My understanding of the Government’s position during the passage of the Illegal Migration Act was that the UK Government were in negotiations with the Strasbourg system to make sure that due process was restored. Even if an emergency interim measure needs to be made, there will be the opportunity to put the other case thereafter—that is the position we are used to in the domestic courts. That seems sensible to me.

I had an amendment to the Illegal Migration Bill, akin to the amendments I have today, and I withdrew it and did not press it at subsequent opportunities because I thought that the UK Government were entitled to have those negotiations with the Strasbourg court. Everything I read suggests to me that these negotiations have been fruitful, presumably because of the endeavours of people like the noble Lord, Lord Ahmad of Wimbledon, who spoke so powerfully about rights, freedoms and the rule of law a few moments ago.

In his reply, can the Minister tell us where we are with those discussions with the Strasbourg court? It seems to me that it would be common sense and better for everybody—not just the UK Government but other states, as well as the Strasbourg system itself, which is so important in the current dangerous times—if that mechanism worked well, so that, even if there occasionally need to be emergency interim measures, it would be clearly open to any state that felt that it had not had the opportunity to put its case to do so subsequently. An interim measure, if not needed, could be set aside. That is my first question to the Minister.

My second question is this: how can we pursue measures of this kind, taking a specific express power for Ministers of State to ignore interim measures of the Strasbourg court, when there are currently interim measures against, for example, the Russian Federation to prevent the execution of prisoners of war in the Ukraine conflict? I am becoming a little tired of hearing the Government speak with two voices: the Foreign Office voice and the Home Office voice. The poor Minister is of course a law officer and has to sit across all of this, but it is not consistent to talk about international law and how everyone must obey it, including the Russian Federation, which, while it is expelled from the Council of Europe, we say is still bound by interim measures of the Strasbourg court.

That is important because, one day, there will be a reckoning for Mr Putin and his cronies, and it may be in the ICC. It will then be relevant that there were interim measures of the Strasbourg court, and particularly relevant if they ignored them. How does that stand with what the Government propose in this Bill?

--- Later in debate ---

No Minister would therefore wish to break international law. If judicial review was sought of an order by a Minister not to comply with Rule 39, it would presumably be open to the court to say that whether the Minister is acting lawfully depends on whether not to comply with a Rule 39 order is in breach of international law—for which the court could then make an interim order restraining the effect of the Minister refusing to comply with Rule 39.

[Lord Faulks (Non-Afl)]

The noble and learned Lord kindly referred to the Answer that I gave at the Dispatch Box, which I think was a correct analysis of the law, but I am sure that he would agree that it is important not to conflate the Ministerial Code, and the obligations placed on the Minister, with the position in our law, which is the separate law. We have a dualist system as opposed to a monist system so the fact that there is a Ministerial Code does not mean that we are obliged to follow international law, wise though it may be to do so.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I was in a queue waiting to pay my bill at dinner and therefore arrived a few minutes late. I am very grateful for the Committee allowing me to speak.

I listened with particular interest to two of the most distinguished lawyers in this House: the noble and learned Lord, Lord Hoffmann, with whom I sat on the Court of Appeal regularly, and the noble and learned Lord, Lord Etherton. There is undoubtedly a potential dispute. Without going into what it should be, Clause 5(2) and (3) exclude the English court. The noble Lord, Lord Jackson, complained about the international court; ought we not to be complaining that the English court is excluded?

If there is to be a dispute with the Court of Human Rights, we might bear in mind that we are a member of the Council of Europe. If we blatantly refuse to follow the ECHR at Strasbourg, we might be turfed out, like Russia. Would we want to be the second country after Russia to be excluded from the Council of Europe? Some might not care, but others might think it would not look very good.

What I am complaining about is that Clause 5(2) and (3) will stop our domestic court making a decision. That seems a very good reason to support some, if not all, of the amendments.

[Lord Faulks (Non-Afl)]

My Lords, these amendments all concern the response to interim orders of the European Court of Human Rights—not a foreign court, I entirely accept, but a court of which we are a member. At Second Reading, I absolutely accepted that courts, particularly domestic courts, will need to have powers to make interim orders—to stop a child being taken from the jurisdiction, or to stop someone disposing of assets, knocking down a building or any number of different matters that ought to be ruled on immediately, rather than waiting for the worst to happen.

However, the granting of such orders, particularly if they are obtained ex parte—that is, in the absence of the other side—is always subject to stringent safeguards, and none seemed to be honoured when the court in Strasbourg determined that the Government could not remove an asylum seeker to Rwanda. We still do not know who the judge was; there is no record of his or her reasons. That is why I asked the noble Baroness, Lady Chakrabarti, whether she could enlighten us as to the reasons why the order was made. She told us that they would be made only in extremis, when an individual was likely to suffer death or something similar, but there is no explanation of the reasons or any basis on which they came to that conclusion. We do not know what the reasons were.

[Baroness Chakrabarti (Lab)]

Hence, as I think I said, many of us across the Committee agreed with what some Ministers opposite proposed last year: that the Strasbourg process for interim measures should be reformed to encourage greater transparency and the possibility of rectification, and to give states that felt they would like to correct an erroneous interim measure the ability to do so.

[Lord Faulks (Non-Afl)]

Indeed, but not only were reasons not given; the Government were not given an opportunity to come back on a return date, which is the norm on interim applications. All this amounts, effectively, to a breach of natural justice on any basis.

Nor is the comparison with the availability of domestic interim remedies wholly analogous, as the noble and learned Lord, Lord Hoffmann, said. The Government are, of course, a valued member of the court in Strasbourg. If, at a full hearing, the court determined that there had been a wrongful removal then the Government would be expected to comply, as they have always done in the past. But, as the noble Lord, Lord Wolfson, made clear in his address to the House at Second Reading, and as we have already heard this evening, there is very considerable doubt, to put it neutrally, as to whether the court has any power to make such an order. Other countries are extremely doubtful about the legality of the rule. Of course there is talk of improving the procedure, as the noble Baroness said. That may or may not transpire.

But I understand—although it is a slightly peculiar provision—why the Government have decided to give the Minister the powers that he has under Clause 5. Otherwise, the whole policy could potentially be undermined by an unnamed judge’s decision, given without reasons. Even the most fervent supporter of the Strasbourg court must be a little uneasy at that state of affairs.

I do, however, echo the question asked by the noble and learned Lord, Lord Falconer: do the Government consider that the exercise of this power under Clause 5 would be amenable to judicial review and, if so, on what grounds? The Government must have taken a view about that. The answer to the question would, I suspect, be relevant to whatever side of the argument you favour.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

I am not a lawyer and I do not wish to refer to any of the legal aspects of the amendment; there has already been enough of that in the excellent contributions from noble and learned Lords. I just want to address the point about why the United Kingdom should feel that we are particularly vulnerable to this court.

There has been reference to other countries that have had interim measures granted against them. It is of course the case that the interim measures relating to the Rwanda MEDP have a high profile. The noble Lord, Lord Faulks, seems to continue to be uncertain as to why the interim measures were given. I think he knows that, on the day that the court issued the interim measures, it also issued the statement of the decision when it notified the UK Government of the interim measures. These are public documents and they are online.

The interim measure relating to the case of NSK was put in place on the grounds that that the individual should not be removed to Rwanda until the ongoing domestic judicial review process was concluded. That is the reason the court gave for that case. I am not a lawyer and I know the noble Lord, Lord Faulks, is, but it sounds reasonable to me that while a domestic—

[Lord Faulks (Non-Afl)]

My Lords—

[Lord Purvis of Tweed (LD)]

Just one moment—I will say what is reasonable and the noble Lord can say it is not. I think that, if there is an ongoing domestic judicial review process but the Government decide to deport that individual before it has concluded, there are reasonable grounds there. I will happily give way to the noble Lord.

[Lord Faulks (Non-Afl)]

With respect, a statement of conclusion does not give any of the reasons for coming to that conclusion.

[Lord Purvis of Tweed (LD)]

It gave the decision that the ongoing domestic judicial review process should be concluded.

--- Later in debate ---

[Lord Howard of Lympne (Con)]

My Lords, I am sorry to detain your Lordships at this late hour. I shall try to be very brief. This amendment, particularly proposed new subsection (6), is remarkably similar to an amendment put forward earlier in Committee by the noble Baroness, Lady Chakrabarti, which I characterised as outsourcing decision-making to the UNHCR. I had a little spat with the noble Lord, Lord Kerr, about that and the right reverend Prelate, who spoke in favour of the amendment, denied that it was outsourcing. Very graciously, the noble Baroness intervened to say that that was the effect of her amendment and that she would consider making it, in her words, less rich when she brought it forward on Report.

This amendment falls into exactly the same trap. In proposed new subsection (6), on the renewal of the Act after two years, the decision is again outsourced to the UNHCR. I will not go through all the reasons I gave in my earlier speech as to why that is entirely inappropriate but, for those same reasons, this amendment is also completely inappropriate.

[Lord Faulks (Non-Afl)]

My Lords, I will briefly comment on the relationship between Rwanda and the United Kingdom contained in the treaty. A lot has been said about the treaty being inadequate and how it depends on what happens in future. The noble and learned Lord took a certain amount of flak during earlier debates in Committee when he was asked what the treaty is doing if Rwanda is safe. He suggested that it might make it safer. The rather scornful response to this observation was somewhat unfair. The treaty contains a number of obligations and is entirely typical of treaties in that respect. These obligations use the word “shall” and are directed to future activity.

The general principle of international law is that a treaty is binding on the parties and must be performed in good faith. That principle is embodied in the maxim “pacta sunt servanda”. We take that very seriously. If a party breaks the terms of a treaty, provided there has been a fundamental change of circumstances, as the Vienna Convention on the Law of Treaties makes clear, the treaty in effect comes to an end. The noble Lord, Lord Clarke of Nottingham, spoke of the possibility of a coup and seemed to suggest, as the proposer of this amendment did, that because Parliament had determined that Rwanda was safe, we would be stuck with that determination.

I respectfully disagree. The treaty bears close reading. I will not refer to it at this stage of proceedings, but Clause 8(1) makes its nature clear, Articles 14, 15 and 16 concern the arrangements for monitoring and Article 22 provides a dispute mechanism. Further, the treaty will end on 13 April 2027 in any event. These seem to me to be sufficient safeguards built into the treaty, but if there is a coup or a fundamental change of circumstances, or any Government think that Rwanda is unsafe, the treaty can be brought to an end, at least until a subsequent agreement has been reached. To suggest that Parliament must somehow not be satisfied that there are obligations in international law seems to me unreal.

[Lord Purvis of Tweed (LD)]

I respect the noble Lord and am listening carefully to what he is saying, and as always, he makes well-considered arguments. I have a genuine question. I agree with everything he said, but only the Executive, under the prerogative power, would be able to make the judgment to end that treaty. Parliament cannot do it. Is that correct?

[Lord Faulks (Non-Afl)]

The noble Lord is entirely correct about the prerogative, but Parliament, perhaps unusually, in considering this Bill has the opportunity to see the treaty and the obligations contained within it. Parliament should look at those obligations and see whether it is satisfied with the terms of the treaty and whether it provides sufficient safeguards. These are relevant factors for Parliament to consider but, ultimately, I accept that the noble Lord is right—it is for the Executive to decide.

[Lord Purvis of Tweed (LD)]

I am very grateful to the noble Lord for giving way again. In essence, that was my argument in the previous group when it came to the necessity for us to have the information for the monitoring committee and the joint committee, given the circumstances, to allow us to form that view. Ultimately, we do not have the power to bring the treaty to an end or amend it because it is a prerogative power. We are, therefore, very limited as to what we are able to do if there are changes of circumstances in Rwanda that our Government and their Government do not then wish to change within the treaty.

[Lord Faulks (Non-Afl)]

That shows very little faith in a Government of whatever colour. This particular Government will take a view as to whether or not there was a breach of the treaty in relation to the various safeguards contained within it. The Opposition are proposing to repeal the legislation in any event, so the matter might well disappear as a result of such an Act. We must credit the Executive, however, with the power to review and seriously consider if there was a sufficient change of circumstances—a coup, for example—to warrant a different approach.

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the right reverend Prelate the Bishop of Chelmsford in moving the amendment. We have gone through, in some detail, the question of when this Bill is going to become law and whether it will become law before the changes are effected as a result of the new treaty.

Noble Lords will remember that the Home Secretary is asking us to bear in mind the key part of his evidence that the position has changed since the Supreme Court judgment: namely, the treaty for the provision of an asylum partnership, which was laid before this House in December. Obviously, it is only when the provisions of that treaty are implemented that the position will have moved on from what the Supreme Court found, because the Home Secretary quite rightly is not challenging the finding of the Supreme Court; he is saying the position will change when the treaty is given effect to.

Obviously, this House is very sceptical of what Ministers are saying about when the treaty changes take place. Earlier in the afternoon, Ministers were unable to identify when the law in Rwanda would be changed to give effect to it. Ministers were not able to tell the Committee at all when the monitoring committee was going to recruit a support team, independent experts were going to be appointed to advise the first instance body, and all the other things set out in paragraph 19 of the International Agreements Committee report. We have no idea at the moment whether this Bill will be brought into force before the changes envisaged by the agreement and therefore the place will then become safe, so I am very surprised the Government are willing to go ahead with it before the changes are implemented.

That is the beginning. As far as the end is concerned —as this amendment is concerned with—Ministers will be aware that the agreement that gives effect to the changes, which remedies the problems identified by the Supreme Court and accepted as problems by the Government, ends on 13 April 2027, unless the agreement is renewed. I assume, though I invite Ministers to confirm, that if the agreement with Rwanda is not extended beyond 13 April 2027, it is the Government’s intention that the Rwanda Bill will come to an end. If that is not the position, how on earth could the Government contend that Rwanda continued to be a safe country after 13 April 2027?

In any event, the possibility of changes of circumstances are something that Parliament should be able to debate. The two-year sunset clause the right reverend Prelate is proposing is a means by which that debate could take place. Everybody who has debated the Bill in this House agrees it is a very grave thing that the Government are seeking to do by promoting the Bill. The idea that it is a permanent state of affairs that can never be looked at again without the consent of the Executive promoting another Bill is an inappropriate way to deal with it.

For all those reasons, I submit that this Committee should agree to the amendment proposed by the right reverend Prelate. However, I am extremely interested to know what the answer is to the position if this agreement with Rwanda is not extended beyond 13 April 2027.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Faulks Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, the Lord Chancellor has made a statement, under Section 19 of the Human Rights Act, regarding the Bill’s compatibility with that Act and has firmly defended his stance in the House of Commons. I agree with the noble Lord, Lord Pannick, who is not in his place, that the case law, both here and in Strasbourg, supports the Government’s analysis that there is no conflict with Article 7. However, it must be remembered that the courts here do not have to follow the Strasbourg jurisprudence; they merely have to take it into account. So one cannot entirely rule out the possibility of a challenge; I hope there is not one.

Whatever the legalities, the fictional man or woman in the Dog and Duck, where they discuss these things, may not be well versed in Article 2 or Article 8 of the European convention—the right to life and family life—Article 7 or even the presumption against retrospectivity. But they might ask: “What are the Government doing to protect me? What about my human rights?” We must have considerable sympathy with that concern.

The noble and learned Lord, Lord Falconer, has made the very real point that we should make sure that the Parole Board has a chance to consider these prisoners before they are released, but I gently remind him that the shadow Minister said in the House of Commons:

“If this Bill is not passed and rushed through its stages over the next couple of weeks, terrorist prisoners will be on our streets, without any assessment of risk or dangerousness by the Parole Board. That does not leave the House in the easiest of positions, but it is the reality of the situation before us.”—[Official Report, Commons, 12/2/20; col. 873.]


Of course I will hear what the Minister has to say, but I wonder whether it is feasible to carry out the sort of detailed and thorough Parole Board assessment that the noble and learned Lord has in mind.

At the heart of the analysis is when, if ever, it would be safe to release a prisoner who has committed a terrorist offence. Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, whose distinguished predecessors have already spoken in this debate, said:

“It is said that keeping terrorist prisoners longer in custody will protect the public … But the question is whether keeping a non-risky prisoner longer in custody, rather than releasing them, will protect the public.”


With respect, that seems to me to beg the central question: how do we know whether someone is non-risky? Rehabilitation has never been an exact science. It fails more than it succeeds but, as a number of noble Lords have said, the problem with deradicalisation is particularly acute. As the noble Lord, Lord Evans, has pointed out, a number of attempts all over the world have failed to establish a really satisfactory way of proving to anybody that deradicalisation has worked in any particular instance.

I remember as a Justice Minister having a number of conversations with my counterparts in the European Union, all of whom had the same problems. Whatever the shortcomings of our deradicalisation programme, it was considerably more advanced than those of most European countries. It is because of the warped ideology that often lies behind the terrorism that difficulties are particularly pronounced, and I take the point of the noble Lord, Lord Cormack, that it is very different from the form of terrorism we were confronted with in the 1960s and 1970s.

I understand from the Minister and what was said in the House of Commons that the Parole Board will have special expertise to help decide whether it is safe to release these prisoners, but even very experienced High Court judges, probation officers and those with special knowledge are still confronted with the almost impossible task of assessing whether someone is safe or not. The fact is that in one case, Fishmongers’ Hall, the prisoner had fooled everybody and in another, the Streatham case, he had not fooled anybody at all. However, even then, with police and security officers right on the scene, he was not prevented from seriously wounding those at the scene.

What do we do? The Government will bring legislation, and nobody can pretend that this Bill is anything but a temporary response. The noble Lord, Lord Cormack, referred to the return of IPP prisoners, and I stand behind the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has been a doughty champion of those unfairly affected by the previous regime. He has been absolutely right to pursue the policy as he has, but we are talking about something different here. The noble Lord, Lord Cormack, talked about the threat to St Paul’s and to individuals. It needs a radical change of thought. Unfortunately, civil liberties will be threatened, but the Government have to do their job to protect the public.

Control orders have been raised, along with their somewhat more anaemic cousins, TPIMs. I am afraid that control orders would not have helped in Streatham; however close the control, it would not have done any good. Whether we have a special court or IPP sentences, we must seize this problem. This is a short response to a particular difficulty, but it does not begin to address the real problems we face.

Queen’s Speech

Lord Faulks Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, the noble and learned Lord the Minister opened this debate by emphasising that the first duty of the Government is to keep the country safe. In this context, I welcome the attention to be paid to foreign national offenders, the revisiting of the Official Secrets Act and the possible updating of treason laws, something a number of us suggested during the passage of the recent counterterrorism legislation.

We may have to acknowledge that, while rehabilitation should always be at the heart of the way we treat prisoners, deradicalisation is not a process with anything like a guarantee of success, and sentences may have to reflect this. As to immigration, we greatly value the contribution that those already here make to this country and we will continue to welcome those who contribute their skills.

However, not everyone is welcome. For example, can we not try to deter the kleptocrats who buy up large swathes of prime London and other real estate? The noble Baroness, Lady Williams, has heard me banging on before about the need for a register to ensure transparency as to who the real owners of property are. I have since had the privilege of chairing a Joint Committee conducting pre-legislative scrutiny of a Bill. It is now, in that overworked phrase, oven-ready. The Bill makes an appearance only in the final bullet point on page 27 of the 150-page memorandum but is there any reason to delay this matter any further?

Much alarm has been expressed about the possibility of setting up a commission to look at our constitution, but who can deny that our constitution has been subjected to some pretty serious stress tests in the past year or two? Setting up a commission does not sound to me like rushing headlong into change. I gently remind the party opposite that its idea of constitutional change—getting rid of the ancient office of Lord Chancellor—was not the result of a commission or a Bill; it was simply announced overnight. This is an improvement on that. Policy Exchange has given some ideas in its paper, although not all of them will be welcome. Policy Exchange should also be praised for its continuous work on trying to protect our troops from vexatious claims. I am glad that at last this is going to get a legislative response.

On online harms, noble Lords may have read the White Paper published last year, and I look forward to the development of legislation on this. We should not forget that five terrorist attacks in 2017 had an online element.

Parliament has been naive about the internet. I remember the Liberal Democrats pulling the plug on the communications data Bill, potentially compromising national security, so as not to offend the giants of social media and their hypocritical concern for privacy. We were also too gentle on them in the Defamation Act. Not before time, those giants now face public scrutiny. The need for reform is clear. I quote a former adviser to Mr Zuckerberg, who said that Facebook had

“paid lip service to reform, while doing everything possible to protect a business model that benefits from hate speech, disinformation and conspiracy theories.”

I must declare an interest as the recently appointed chair of the Independent Press Standards Organisation, which explains my slight sideways movement. A number of noble Lords have kindly offered to give me the benefit of their views on press regulation but, whatever shortcomings they may identify, it must be remembered that IPSO is concerned with a curated source of news and an identifiable and accountable publisher. Regulation of the online world represents a much greater challenge.

Finally, I come to the law. I declare an interest as a practising barrister and a former Justice Minister. Our legal services contribute approximate £25 billion to the UK economy and the reputation of our judges is very high, but there are issues that need to be addressed. I ask the Government to revisit the question of legal aid on both eligibility and rates. Can the Government improve the tatty infrastructure of our courts and ensure that there are enough sitting courts to cope with the case load that we have? We must not risk damaging the well-deserved reputation of our justice system.

There is much legislation to scrutinise. I look forward to this House returning to what it does best: improving the Bills that are brought before us. Echoing what the noble Lord, Lord Strathclyde, said, I hope the temptation to inflict multiple defeats on the Government, however pleasurable that may be, will be resisted.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Faulks Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Garnier (Con)]

My Lords, I do not want to spread dissension where none is required or even helpful, but I am persuaded by the first three noble—and noble and learned—Lords who have spoken in this debate. I am always persuaded by what my noble and learned friend Lord Mackay says, and we need clarification. Although I fully accept what my noble and learned friend has just said in relation to the political angle, there are provisions in Clause 9 which, although they refer to amending, revoking or repealing an Act, or a provision made under an Act, at heart deal with the mechanics of the procedure to be operated under the Online Procedure Rule.

We need to think more carefully before rushing into this. I take my noble and learned friend’s point about the possible inconsistency between this legislation, if it is to be amended, and earlier provisions. However, sometimes consistency runs in the wrong way. If the current amendment points out something that would then become inconsistent, it may be that the earlier provision also needs to be amended. In any event, I am utterly convinced that my noble and learned friend on the Front Bench will be able to persuade me that what the noble and learned Lord, Lord Judge, has said, supported as he is by the noble Lords, Lord Pannick and Lord Beith, will enable us to move forward in a spirit of complete concurrence.

[Lord Faulks (Con)]

My Lords, I repeat the declaration I made at Second Reading that I am a practising barrister. The balance of powers between the Executive and the Lord Chief Justice is a delicate matter, and I too will listen with care to what my noble and learned friend says about it. However, I wonder whether the powers are quite as wide as the noble Lord, Lord Pannick, says they are. Clause 8 admittedly gives a power to the appropriate Minister to do what they think is expedient for the Online Procedure Rules, and the committee must make Online Procedure Rules. But that throws the matter back to the committee to make the rules and, in doing so, once again the committee has to go through the procedure that itself involves getting the agreement of the Lord Chief Justice—so there is a safeguard at that level.

As far as Clause 9 is concerned, there is consultation in relation to the Lord Chief Justice, as my noble and learned friend Lord Mackay said, and the powers are limited to making such changes by getting rid of impediments and tidying up, as is necessary or desirable, as a consequence of Online Procedural Rules. I wonder whether we are not putting up a rather alarming prospect of a Minister, as it were, riding roughshod when in reality these are necessary provisions for the Executive to use—subject of course to the actual making of the relevant rules which do themselves provide safeguards.

I of course endorse what has already been said: if these additional amendments are incorporated into the Bill, it would make it more restrictive to make these rules in relation to online procedure than is the case under the current Civil Procedure Rules. That would be odd, although I take the point made by my noble and learned friend Lord Garnier that if there is something wrong with it, there is no reason simply to rely on precedent. None the less, this has not been criticised so far and I wonder whether we are wise to do it now.

[Lord Garnier]

My noble friend has reminded me that I should have declared an interest as a practising barrister, given that that may not always be clear.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Faulks Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Faulks (Con)]

My Lords, as several noble Lords have pointed out, the Bill reflects what was in the Prisons and Courts Bill, which fell because of the 2017 general election. I was a Minister in the Ministry of Justice when Lord Briggs’s interim report on the online court was published. It was met with enthusiasm. I shared the general view that it was necessary to harness modern technology to improve our justice system. At the same time, I retained a little anxiety that some of the enthusiasm was prompted by the cost savings that would accrue to a department which had been a major casualty in the spending cuts—necessary though those cuts were.

The Government’s court reform agenda involves £1 billion-plus investment in transforming the courts and tribunal services. The Bill is a key part of that reform programme. The recommendations for changes to existing rule-making were made by Lord Briggs in his 2016 review, where he described the current system as designed by lawyers for lawyers. The Briggs plan was to introduce simple rules to go hand in hand with the online court. The rules of the Supreme Court were known for their arcane and sometimes impenetrable content. The CPR, born out of the proposals of the noble and learned Lord, Lord Woolf, were an improvement in terms of the accessibility of the language but have, I fear, become just as lengthy and encrusted with case law.

I welcome the call for simplicity and echo what the noble and learned Lord, Lord Thomas, said about access to justice, although we must be careful not to throw the baby out with the bathwater when approaching the making of the rules. It is plainly important to establish an appropriate committee to oversee the new rules, and in that connection, Clause 4 seems eminently sensible, although I take note of what the noble and learned Lord, Lord Mackay, said about the role of Scottish lawyers and others. I also note that the Law Society suggests that there should be representatives on the committee from all branches of the legal profession—solicitor, barrister and legal executive—whereas the current composition suggests that there would be only one of those three. I also observe that a lot of responsibility will fall on the one IT expert on the committee.

Lord Briggs recognised the need for help that may be required with the new process. He stated in a lecture I attended that, “that means face-to-face help for the digitally challenged, not just a helpline with a 25-minute waiting time”. I think all noble Lords will know what he meant. I hope that one slip in the process will not result in the dreaded words: “Start again”. We are, after all, not dealing with the renewal of a parking permit but a dispute likely to be of great importance to the parties. The Government have responded to those concerns by announcing a number of initiatives. I welcome them, although I would expect certain teething difficulties.

The Law Society goes as far as suggesting that there should be a choice between digital and paper when the rules are formulated. I am not sure about that. The pilots should help to evolve a satisfactory solution. If the online procedures are sufficiently accessible and there is assistance of the sort that has been discussed, would it not be better to make the whole process online? Of course, fundamental to the whole revolution is getting the IT right, a point emphasised by Lord Justice Briggs. The noble Lord, Lord Ponsonby, made some important points in connection with that.

By and large, the Explanatory Notes to the Bill are reassuring. I accept that the purpose of setting up the OPRC is clear and likely to operate in the interests of justice. I too retain some doubts about the adequacy of the safeguards against a theoretical Minister who might want to make some quite radical changes to court procedures. In this context, I must declare an interest as a practising barrister, although I accept that judges have given the courts the sort of reputation described by the noble and learned Lord. We advocates do our best to help, although what I say may be regarded as somewhat protectionist.

My reading of the Bill—I may be wrong—is that Clause 7 gives the appropriate Minister an effective veto in respect of the rules that the committee makes or amends. Clause 8 allows the appropriate Minister to give notice to the committee to make a rule for a,

“purpose specified in the notice”.

What is to stop a Minister—not the Lord Chief Justice—doing away with oral hearings or providing that disputes be resolved by officials employed by the Government? With great respect to the noble Lord, Lord Beith, the ECHR does not mandate an oral hearing in all circumstances. They are not always necessary but sometimes they are. Cross examination can and should be illuminating and while oral arguments can be too lengthy, they are still required even in the appellate courts where much of the work is done on paper. What safeguards are there in the Bill to prevent a Minister imposing unsuitable rules on the committee? Should there not be some restraints built in?

I appreciate that this may seem alarmist, but all Governments want to save money and hearings cost money. More worrying is the possibility of a Government of an extreme nature, left or right. This is not impossible in these volatile political times. Authoritarian Governments are not generally supportive of open justice systems, particularly if courts can and do find against them.

The noble and learned Lord, Lord Keen, said that this is a standard power and is there for minor revisions. I am sure that that is what he or some other Minister would use it for, and that the noble Lords, Lord Beecham or Lord Marks, would approach the matter in a similar way. However, what guarantee is there that some Minister of a Government of a different hue would exercise such restraint?

I turn next to enforcement. I understand that the Ministry of Justice is developing ideas about this. Enforcement is critical to the whole process. It is no good having a system that generates a judgment online using modern technology but leaves only 19th-century methods of enforcing that judgment. I look forward to hearing about the progress that the Ministry of Justice is making.

The financial implications of these potential changes are not spelled out in the Explanatory Notes. It is said that the rules will help drive efficiencies in the system and enable delivery of wider court reform savings of approximately £237 million benefits in steady state in 2024-25. Does the Minister have any further details? In this context, he might want to say something about the programme of court closures. I have never been convinced that all court proceedings must necessarily be resolved in large, formal and expensive court buildings. Council buildings have been adapted and have served adequately for many years. It may be different where there needs to be a cell infrastructure or there are particular security requirements. Closing courts is always controversial, as with local hospitals, since it can take a court further away from the locality of the parties to a dispute. Can my noble and learned friend help us as to whether the existence of the online court is of itself going to result in fewer court buildings?

This Bill has benign and worthwhile intentions, and I applaud them, but they should not prevent your Lordships’ House scrutinising it carefully to ensure that there is no collateral damage to our much-valued justice system.

Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Amendment) Regulations 2019

Lord Faulks Excerpts

Wednesday 20th February 2019 Lords Chamber

[Lord Adonis (Lab)]

My Lords, is it correct, from my scanning of the web as to what the dispute before the Court of Appeal, to which the noble and learned Lord referred, is about, that the taxpayer could potentially face a bill of upwards of £750 million if this case is lost? It seems to me to be an extremely high figure. I assume it is a calculation to do with the massive additions to pensions that would be required if all judges got the transitional relief which, at the moment, is only going to be afforded to a small proportion.

My second question makes an obvious point for somebody who is not a lawyer or a judge. Am I right in assuming that the judges who will sit on this case are adjudicating on their own pensions? In no other walk of life would that be considered a satisfactory arrangement. Will the noble and learned Lord tell us whether that is the case? If it is the case, what is the protection against judges simply, to be blunt, ruling in their own self-interest?

[Lord Faulks (Con)]

My Lords, before my noble and learned friend answers that difficult question, I wonder whether he can help the House on a general question about judicial pensions and eligibility. Judges must now retire at the age of 70; there is strong feeling abroad that this often wastes judicial talent. In other fields, people often peak at 70 so a retirement age of 75 may be far more suitable, given that the same retirement age applies to magistrates, jurors and other people given the task of determining matters of justice.

[Baroness Chakrabarti (Lab)]

My Lords, in a crowded and noisy political landscape, it is easy to overlook the importance of protecting our judiciary and making adequate pensions provisions for our people. Forgive me for suggesting this, but this House is perhaps uniquely qualified to value the importance of both.

I begin by politely disagreeing with the concerns expressed by my noble friend Lord Adonis a moment ago. I have no concerns about the Supreme Court’s ability to deal with any disputes relating to judicial pensions. Of course, the Opposition do not seek to divide the House on the interim provision set out by the Minister but I want to take this opportunity to urge him not to kick the can down the road into next year and beyond. It is concerning that the Government have recently had a number of disputes of this kind with judges, including the defeat referred to earlier. I agree with a number of the points made by the noble Lord, Lord Beith, about the importance of a confident and, frankly, happy judiciary to which we can adequately recruit to protect our reputation as a rule-of-law nation, whether we are inside or outside the EU. We need to boost our judiciary’s morale now and for some years to come.

I agree with the one-year extension of this scheme but concerns over judicial pensions need to be considered in the broader context of the austerity measures that hit the Ministry of Justice particularly hard, including budget cuts of a third since 2010. Savings made in the revised pensions schemes are just one area where spending has been seriously squeezed. Devastating reductions to the court estate, further proposals for the relocation of case management functions, listings and scheduling, new off-site service centres and service centres supervised by authorised staff, not judges, are some of the issues we discussed last year in the context of the then courts and tribunals Bill.

We on these Benches are concerned about the judgment to which the Minister referred. A finding against the Government relating to unlawful age discrimination is very concerning. Going forward, I urge the Government, in as friendly a manner as possible, to consider the acute shortage of High Court judges. As I imagine many people in the Chamber will be aware, senior lawyers and practitioners are not putting themselves forward for High Court appointment—including some highly qualified people who would be keen to complete their prestigious careers in what is a vital public service in this country. Too many positions have been left vacant for years with the very slight prospect of them being filled in the next few years. Time and again one hears that this recruitment crisis is in no small way affected by the change in judicial pensions.

We must ensure confidence in our legal system, perhaps more than ever in the times we are all attempting to navigate now. We need our judicial Benches—the entire judiciary, whether tribunal panel members, chairs, district judges, county court judges or circuit judges—to be made up of exceptional individuals. Those stressful and expert roles need to be properly remunerated for that to continue. I urge the Minister and the rest of the Government to sit down promptly with judges and have a serious discussion about how to fund that vital part of our constitution going forward, and how to boost morale and recruitment to our judiciary. With that plea to the Government, there will be no objection from these Benches to this interim measure.

Non-Contentious Probate (Fees) Order 2018

Lord Faulks Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, I want to say just a little since the noble Lord, Lord Pannick, has dealt with the law and I happen to agree with him. As your Lordships all know, I frequently disagreed with him in a previous existence. Whenever I did, he appealed to a higher court and was always right. This time I agree with him because I happen to agree with him. I will not repeat the reasons.

I will take a slightly different stance. The debate we have had, assuming that the noble Lord, Lord Pannick, is right—as I say, I agree with him—is whether section whatever it was of some 235 sections produced the power the Lord Chancellor now seeks to exercise. If it did, the problem is not with this statutory instrument, which we are all attacking and which the noble Lord, Lord Marks, has indicted ferociously and accurately, but with the primary legislation, which, I am sorry to say, we probably did not analyse with sufficient care. I was not here at the time, so I do not bear any personal responsibility.

I am sorry to say this, but we were vesting in statute after statute vast powers in the Executive. We do it and we let it happen. We cannot complain if the Executive, having been vested with these powers, choose to exercise them. We vest powers in not just this Executive, but the next one, the one after and the one after that. That seems an aspect arising from the present order that we really should not overlook. We should be more alert when powers are being vested in the Executive to do almost anything by secondary legislation.

That has got that off my chest. Now I declare an interest. Because of the office I once held, I am perfectly well aware of the fact that our civil courts system is in a shambles. It needs funding. It needs much more funding than this funding would provide. If the Lord Chancellor has the powers—as I said, I agree with the noble Lord, Lord Pannick, that he has—this seems a sensible use of them to achieve a very important societal purpose.

[Lord Faulks (Con)]

My Lords, the 2014 Act was passed by Parliament when there was a coalition Government in power. I had the privilege of bringing in enhanced fees that, it has been suggested, should be viewed in rather a favourable light compared with the probate fees that are the subject of this statutory instrument. I certainly do not remember that being the response at the time, although the arguments—namely cross-subsidy—were the same. Indeed, I specifically remember making the point that it was always an option whether you chose to litigate. That has been raised as a favourable point in support of this statutory instrument, where obviously there is no question of choice.

The reality is that both these provisions were there to subsidise the much-needed court system. The noble Lord, Lord Marks, will remember that the coalition Government came to power facing an economic crisis and that a number of cuts had to be made, particularly to the Ministry of Justice budget, which the Liberal Democrats went along with happily, as did the Conservative Party, as a result of which the courts have been feeling the strain and are continuing to in a way that a number of noble Lords have pointed out. This is an attempt to at least alleviate some of that strain.

My noble friend Lord Hunt mentioned the case for cross-subsidisation. I respectfully suggest that he is right. He mentioned a number of areas. I could mention more: non-molestation orders, occupation orders, forced marriage protection orders and female genital mutilation protection orders. There are all sorts of tribunals involving family immigration and asylum that do not pay for themselves but need cross-subsidisation.

Crude though it may be, this order will be a valuable addition to our beleaguered legal system, about which I am sure the noble Lord, Lord Marks, and all in your Lordships’ House share concern. The Government have responded to the initial outcry, if I might describe it as such, about the amounts involved. They have been lowered. I respectfully suggest that the Minister has made out the case.

[Lord Northbrook (Con)]

My Lords, clearly, after an hour and 20 minutes, this non-contentious probate order is misnamed. It is interesting that opposition to it unites the noble Lords, Lord Marks of Henley-on-Thames and Lord Beecham, and the Daily Mail. I am also in strong agreement with my noble friend Lady Browning that it is a distinctly un-Conservative policy that will alienate our natural supporters once a lot of them have woken up to what is going on.

I will not talk about the order in detail because everyone else has discussed it, but the fee of £6,000 for an estate of £2 million is high if, for instance, a main residence is taken into consideration. It is not just I and other noble Lords in this House who disapprove of the order. A helpful Law Society brief which I do not think has been touched on so far states:

“The service involved in a grant of probate is the same whether an estate is worth £50,000 or £2 million. However, under the new proposals, some estates would face a charge of £6,000. This is excessive … It is unfair to expect the bereaved to fund/subsidise other parts of the court and tribunals service, particularly in circumstances where they have no other options but to use the probate service”.


Echoing the Law Society’s concerns, as many other noble Lords have stated, our Secondary Legislation Scrutiny Committee has stated that it has very serious concerns that the order,

“arguably amounts to a ‘stealth tax’ and, therefore, a misuse of the fee-levying power”.

Similarly, the Joint Committee on Statutory Instruments, as other noble Lords have stated, raised concerns as to whether the order is intra vires, noting that it makes an unexpected use of the power conferred by the enabling Act.

The Law Society wholly agrees with the two committees that the current proposed fee is a misuse of the fee-levying power under Section 180 of the Anti-social Behaviour, Crime and Policing Act. I will not join in the debate about this section and the different views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lord, Lord Pannick, except to say that once you start levying this sort of thing, what is to stop any amount being levied by way of an extra fee, or even applying to other aspects of the legal system?

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Review

Lord Faulks Excerpts

Monday 12th November 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, there are challenges facing those who seek to deliver legal services in our country today. We are conscious of that, which is why the review of LASPO has been undertaken. In the context of matrimonial matters, I observe that we have at least introduced a digital portal for undefended divorces, which has been a considerable success. In addition, we have seen a very significant increase in the provision of legal aid in cases involving domestic violence.

[Lord Faulks (Con)]

My Lords, Part 1 of LASPO, referred to by the noble Lord, Lord Bach, covers third-party funding by the state. But there is another source of third-party funding: that is, those who invest in litigation, which is a growing field. It used to be unlawful. Many are concerned that it distorts the whole business of litigation. Can my noble and learned friend the Minister tell me whether this is a matter for consideration, either in this report or generally by the Ministry of Justice, and whether there is not room for more regulation of this area?

[Lord Keen of Elie]

My Lords, the matter of third-party funding has now become well established and makes a contribution to the delivery of legal services in this country, but it is a matter that is the subject of consideration as we go forward. I cannot say that it is directly addressed in the context of the LASPO review that is to be published by the end of the year.

Privately Financed Prisons

Lord Faulks Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I do not accept that there is such a necessary link between the construction of the infrastructure and the operation of the prison. Nevertheless, we are committed to replacing our present prison estate with modern facilities to achieve the very outcome referred to by the noble Lord.

[Lord Faulks (Con)]

My Lords, I welcome the various initiatives taken by the Government in relation to the prison population—one of which was mentioned by the noble Baroness, Lady Corston—and the reduction of the prison population from what it was a couple of years ago: 85,000. Does the Minister agree that it is important when thinking about building 10,000 prison places not to become too ideological? HM Inspectorate of Prisons has found examples of good practice in both the private and public sectors. As a Government, we should be looking for examples of good and satisfactory proposals from either source.

[Lord Keen of Elie]

My Lords, I entirely agree with my noble friend’s observations. One of the reasons why we benefit from the competition between private and public provision of custodial services is that we can identify and take the best from each sector.