Dissolution and Calling of Parliament Bill

Debate between Lord Faulks and Lord Beith

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, this is a new threat. We have heard of the threat of an election being called to the detriment of Back-Bench Members whose support is being sought, but the threat of Miller 3 is not one that has been produced before. I found it an unpersuasive line of argument, particularly that the Prime Minister could go to the courts and say, “In order that I should have a stronger position in dealing with foreign counterparties, I must suspend Parliament to make sure that nobody can attend Parliament and say anything in the course of its proceedings while I am engaged in these negotiations.” I cannot see any basis for that, as opposed to the contention that has come into the debate of a Prime Minister adducing in evidence, “I wish to have a Dissolution and I have a majority in Parliament supporting me in this desire”, which would be the case under the amendment that we passed previously. We would be in an absolutely clear position and the courts would have no basis for intervening.

In the preceding debate, the noble Lord, Lord True, said that the simple and proven practice of the past is what we should follow. But the simple and proven practice of the past did not include an ouster clause of this nature. The Representation of the People Acts do not contain ouster clauses of this nature, nor does most other legislation. That is a situation that might change, as the noble and learned Lord, Lord Hope, pointed out, if this is taken as a precedent. I will come back to that in a moment.

It is necessary to be clear, first, that in the event of the other place agreeing to the amendment that we passed a moment ago, this ouster clause is particularly unnecessary because no court would interfere with so clear a decision of Parliament. There are other reasons why the request to the monarch to dissolve would be protected from the actions of the courts. One is that it is, as the noble Lord, Lord Norton of Louth, pointed out in moving his amendment, a personal prerogative power. It is not a matter of advice which might be challenged, as it was in the Prorogation case. It is a personal prerogative power, which results from a request from the Prime Minister. I do not believe that the courts would be in any way inclined to interfere with the exercise of that personal prerogative by the monarch.

I strongly assert that the comparison with Prorogation is quite wrong. The effect of Prorogation is that Parliament cannot meet; it cannot sit or discuss and it cannot challenge the Executive. That is quite different from the Dissolution of Parliament and the calling of an election. Indeed, it has been adduced from the quarters of those who support the Government’s position that the calling of an election, referring the matter to the people, is so clearly the right outcome in so many circumstances that it should not be interrupted in any way. In my view, the courts would certainly not want to be seen to be preventing a general election from taking place. I find that inconceivable.

My primary worry about this ouster clause is not that it has some practical effect or that it changes what would be the clear reluctance of the courts to become involved in arguments about the calling of an election. It is that the Government have form on ouster clauses; we saw that earlier this week when debating the Judicial Review and Courts Bill, which has its own ouster clause. In that case, the Government have declared that it is their intention to use the wording in that Bill as a precedent for ouster clauses in other, unspecified Bills in future. That was clearly stated in a government press release.

The noble and learned Lord, Lord Hope, made the point that parliamentary draftsmen like to act on precedent. When they have found a form of words that suits their purpose in one case, they like to use it again in another, if possible. We are creating precedents for issues around, for example, purported powers that will be very unhelpful in future as we seek to defend the ability of the citizen to challenge abuse of power, which is what judicial review is about. We are doing so because of fears that are not justified and dangers that do not exist, because the likelihood of courts preventing a general election from taking place is clearly vanishingly small, to the point of non-existence, for the reasons that I and others in this debate have adduced. We would be better off without the ouster clause provision. We do not need it and therefore we support the amendments of the noble Lord, Lord Norton of Louth, and the amendment of the noble Lord, Lord Butler of Brockwell.

[Lord Faulks (Non-Afl)]

My Lords, the noble Lord, Lord Butler, is right to pursue his amendment because it seems quite possible that the House of Commons will decline the invitation to accept the amendment that your Lordships’ House so recently voted in favour of. I will address a number of questions briefly, because I did have the pleasure of being here in Committee.

First, is this really an ouster clause at all? I accept that it is not easy to imagine circumstances in which a Dissolution is challenged in the courts, but the noble Lord, Lord Butler, wants at least to keep open that possibility—apart from anything else, as I understand it, to save potential embarrassment to the sovereign. The noble and learned Lord, Lord Hope, does not want this ouster clause, if it is so described, to act as a precedent, and the noble Lord, Lord Norton of Louth, does not like the word “purported”.

It is probably not, strictly speaking, an ouster clause at all. During the deliberations of the Independent Review of Administrative Law, which I had the privilege of chairing, we looked at this clause. We thought that there was a distinction between Parliament creating a power and, at the same time, including a provision that limits or absolutely prevents the courts’ powers from challenging that.

Policing and Crime Bill

Debate between Lord Faulks and Lord Beith

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Faulks]

My Lords, we know that this is an issue on which it is very difficult to find a satisfactory compromise. I am also conscious of not taking drafting points which might serve to divert us from the central issue. However, I am a bit concerned about this proviso. I understand that it is a sensible idea to have one, so that a judge can be satisfied that it is in the public interest to remove the restriction in respect of a person. If that is to be meaningful, will the noble Lord, Lord Paddick, explain to the Committee in what circumstances he envisages an application being made and who will make it? How is the public interest going to be defined? Whose interest is the public interest? Reference was made to a case where there was corroborating or forensic evidence being circumstances in which a judge would be satisfied. However, many of these claims may concern young people who did not know they could complain. Many years have gone past; there is no forensic evidence. As far as they know, there may be no corroborating evidence. Are they to come within that exception? How is the judge to assess this? If this is to be a meaningful exception to change the law, we need to set out with some precision the sorts of factors that ought to be taken into account.

[Lord Beith (LD)]

My Lords, I have great respect for both my noble friend Lord Paddick and the noble Lord, Lord Pannick. On this occasion, it is with the former, rather than the latter, that I agree, although one takes on either of them with a measure of reluctance and trepidation. I was partly struck to say something in this debate when the noble Lord, Lord Pannick, asserted that to impose obstacles to convicting the guilty is a very high cost. We actually pay this cost throughout our criminal justice system. It would be a lot easier to convict some people that we and the police think are guilty if we did not have to prove that they actually are, to the satisfaction of a jury, or if various procedures, such as disclosure, did not have to operate—the prosecution must disclose any evidence it comes across that might support the innocence of the accused. Many of these things make it more difficult to convict people, but they are part of the protection for the innocent and uphold the principle that someone has to be proven to have committed an offence.

Much of the argument about whether the kind of prohibition which my noble friend has advanced—and I agree this should be done—revolves around whether people who have had similar experiences of the accused will come forward. There are several points at which, if this clause were in operation, they would still be able to do so: between charge and trial or between the various stages of a trial process, for example between committal and trial. I am not an expert in this, but it appears that in most of the cases where this has happened it has been at that stage, rather than at the stage of initial accusation, except perhaps in some of the most notorious cases, which have been referred to this afternoon, where injustice has been done by publicity.

As the noble Lord, Lord Faulks, correctly pointed out, the proviso has to be precisely worded. The point of the proviso is that anonymity might be broken if the police and prosecuting authority consider that they would like to go to trial and the evidence is not quite strong enough for them to do so but there is some knowledge that it is likely that people will come forward. A case where there is substantial evidence that does not quite meet the Crown Prosecution Service’s normal criteria, yet there is reason to believe that there may be others, might be just the circumstances in which an earlier breach of anonymity would be justified.

The weakest point put forward by the noble Lord, Lord Pannick, was the one about gossip and speculation. The whole process is attended by the risk of these. If the name of an accused person cannot be disclosed prior to charge, there may be those who seek to gossip about it. That is something we should try to deal with in whatever way we can. But of course the same applies to the anonymity of the victim. Most of us have read newspaper stories which speculate and hint at who the victim might be in such a case. We cannot use that as a reason not to afford protection to the victim, and we should not use it as a reason not to afford protection to the accused at a stage in the process when it is unreasonable to visit a punishment more severe than applies in many other criminal offences, arising out of the publicity and shame and loss of office and other consequences that have attended some of the cases that we have heard about.

The noble Lord, Lord Pannick, produced several convincing examples of drafting that might be improved in this Bill, but that is what it was—the principle needs to be addressed, and it is not adequately satisfied by guidelines. Even though the better the guidelines the better the situation, guidelines fall short of the value of a firm principle enshrined in law, which the criminal justice system can itself uphold.

Crown Dependencies

Debate between Lord Faulks and Lord Beith

Tuesday 12th July 2016 Lords Chamber

[Lord Beith]

To ask Her Majesty’s Government what recent discussions they have had with the Governments of the Crown dependencies about the dependencies’ relationships with other countries and with the European Union.

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

My Lords, regular dialogue happens between the UK Government and the Crown dependencies at both ministerial and official level across a range of issues, including Crown dependencies’ interests in relation to the EU and other countries. This has become especially important in the light of the result of the EU referendum, and on 27 June the Prime Minister confirmed that the Crown dependencies will be consulted on any new negotiation with the European Union.

[Lord Beith (LD)]

My Lords, although the Channel Islands and the Isle of Man are not in the EU, they benefit from the single market in goods. They also have a pressing need to conclude bilateral investment treaties with a number of third countries. Given the huge task facing UK negotiators, what mechanism will be put in place to ensure that Crown dependency interests are not lost sight of in EU negotiations? In order that third country treaty negotiations do not grind to a halt, will more use be made of letters of entrustment, so that they can get on with the job themselves?

[Lord Faulks]

The noble Lord has had a continued interest in the Crown dependencies: as chair of the Justice Select Committee, he wrote an influential report and a subsequent report in 2014, in which he applauded the response of the UK Government to the challenges that the Crown dependencies threw up. As the Prime Minister said, we are most concerned to ensure that the Crown dependencies’ interests are reflected in any negotiation. We are also anxious to encourage letters of entrustment where appropriate, to ensure that those interests are recognised in all treaties. There was a 2007-08 agreement which paved the way for such arrangements.

Prisons: Staff Safety

Debate between Lord Faulks and Lord Beith

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

I cannot, from the Dispatch Box, give the noble Lord a detailed account of why people left the Prison Service. Of course, he is right that that indicates that quite a number of them did leave, perhaps for reasons of retirement or simply a change in their job satisfaction. But I will endeavour to give him a more detailed analysis of those numbers.

[Lord Beith (LD)]

The Minister has recognised that the present numbers are a barrier to the Government achieving the rehabilitation objectives. However, will they not remain high if we continue to regard the length of a prison sentence as the only measure of the seriousness of an offence and until we put sufficient resources into alternative punishments?

[Lord Faulks]

With great respect to the noble Lord, that is a little unfair. The judges will of course determine the length of the sentence by reference to a whole host of factors: the seriousness of the offence, the history of the offender, and the best way both to protect society but also to rehabilitate. I know that judges always consider alternatives and that sentencing prisoners to prison will only be the last resort; very often judges will say, “I will sentence you to the least possible sentence that I am permitted”. Therefore the judges do not, as it were, oversentence.

Prison Reform

Debate between Lord Faulks and Lord Beith

Tuesday 15th March 2016 Lords Chamber

[Lord Beith]

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

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

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

[Lord Beith (LD)]

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

[Lord Faulks]

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

Criminal Legal Aid Services

Debate between Lord Faulks and Lord Beith

Friday 29th January 2016 Lords Chamber

[Lord Faulks]

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

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

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

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

[Lord Beith (LD)]

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

[Lord Faulks]

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

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

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

Debate between Lord Faulks and Lord Beith

Monday 18th January 2016 Grand Committee

[Lord Beecham (Lab)]

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

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

It goes on to say:

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

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

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

[Lord Beith (LD)]

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

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

[Lord Faulks]

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

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

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

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