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

Debate between Lord Faulks and Lord Keen of Elie

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.

Civil Liability Bill [HL]

Debate between Lord Faulks and Lord Keen of Elie

3rd reading (Hansard): House of Lords
Wednesday 27th June 2018 Lords Chamber

[Lord Beecham]

My Lords, I am slightly puzzled at the effect of amendment as moved by the noble Lord, because the Bill prescribes that the rate of return must be started within a period; not every three years, or every five years, but within that period. So potentially, it seems to me—perhaps the noble and learned Lord will either correct me or confirm that I am right—that you could have a review at less than five years, depending on the circumstances. If, for example, there were a crash, as in 2008, which affected rates of return and so on very significantly, you would not have to wait up to five years to deal with it; you could have that review within the period. In effect, any time within that five years could mean a three-year review, a shorter review or something with a maximum of five years. If that is the case, is that acceptable to the Government?

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend Lord Faulks and to other noble Lords who raised this matter in Committee and on Report. On the point raised by the noble Lord, Lord Beecham, it is indeed the case that we are talking about a maximum period for review, and therefore it can be at any time within that period. What we are concerned to avoid is the situation that arose in the past where many years passed before a review was carried out.

The choice between the two periods, three years and five years, is essentially a pragmatic one, I suggest. The arguments for the two options appear to me to be quite evenly balanced. A number of noble Lords have made the point that there would be less likelihood of a gaming of the system if that period were extended to five years. It was a point made in particular by the noble Lord, Lord Marks, on Report, when he indicated that he would prefer a five-year period over a three-year period.

Following discussions with several of your Lordships after Report, we have given further consideration to the question of the length of the review cycle and we accept that a five-year maximum period could help to reduce the effect of the litigation practice of trying to game the system, as distinct from a three-year period. In light of the arguments that have been made, the Government propose to accept these amendments.

[Lord Faulks]

I am extremely grateful to my noble and learned friend for accepting the amendment and for listening generally to the arguments that have been advanced in your Lordships’ House in this connection and, indeed, in other connections.

Privately Financed Prisons

Debate between Lord Faulks and Lord Keen of Elie

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.

Civil Liability Bill [HL]

Debate between Lord Faulks and Lord Keen of Elie

Committee: 2nd sitting (Hansard): House of Lords
Tuesday 15th May 2018 Lords Chamber

[Lord Keen of Elie]

I do not know whether the noble Lord wants me to respond to that but I will, very briefly, if I may, with the leave of the House. Where you have major claims for catastrophic injury, the lawyers involved for the claimants are highly sophisticated. One clear message that I received when discussing this with claimants’ lawyers was that they are concerned not only with the processing and pursuit of the claim itself but with establishing a framework within which the claimant will be able to live. I imagine that almost invariably involves the provision of suitable investment advice, albeit no one is obliged to accept it.

[Lord Faulks]

My Lords, in practice, when these cases come before a court, particularly where there is a party who lacks capacity, a judge, before approving one of these orders—they have the right to approve or disapprove a settlement—must be satisfied that appropriate advice has been taken on the split between periodical payments and a lump sum and that, generally, it is a satisfactory settlement from the court’s point of view. If they are subject to the Court of Protection, the court will then be able to manage investments according to the best interests of the protected party. If I may say so, the noble Lord has a good point on what happens to those who do not need the approval of the court or who are outside the protected party, and who are like anybody else who comes into a large sum of money in any other context. They will be well advised to take advice: some do; some, I fear, do not.

Civil Liability Bill [HL]

Debate between Lord Faulks and Lord Keen of Elie

Committee: 1st sitting (Hansard continued): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

With respect, first, I understand that there was not intended to be a change between the impact assessment and the SI publication. That is why the rather odd difference of 4 point something per cent emerges. I acknowledge that that was not intended.

[Lord Faulks]

My Lords, I am very grateful to the Minister for giving way. Perhaps he will confirm to the House that even the Judicial College guidelines or awards of damages by judges for pain, suffering and loss of amenity are not mathematically calculated; they are figures arrived at doing the best that a judge can to represent the nature of the injury by such an award.

Non-Disclosure Agreements

Debate between Lord Faulks and Lord Keen of Elie

Tuesday 1st May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the House of Commons Women and Equalities Select Committee is currently conducting an inquiry into sexual harassment in the workplace and has taken evidence about the misuse of NDAs in that context. The Government want to see what the committee has to say about that before reaching their own conclusions. In other words, we will make an informed decision on the matter.

[Lord Faulks (Con)]

My Lords, I am sure that the whole House deprecates the use of non-disclosure agreements to bully employees or former employees, and appreciates that the Government are looking carefully at this. However, does my noble and learned friend agree that non-disclosure agreements originally came into being to protect, quite legitimately, trade secrets and other matters that it was in the interest of both parties should remain secret? I hope that the Government will bear that in mind when deciding what to do in this area.

[Lord Keen of Elie]

My Lords, my noble friend is absolutely correct: non-disclosure agreements have an entirely legitimate use, particularly in the context of protecting confidential information of an employer upon the departure of an employee.

European Union (Withdrawal) Bill

Debate between Lord Faulks and Lord Keen of Elie

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Faulks]

My Lords—

[Lord Keen of Elie]

My Lords, I wonder whether, with the permission of the House, I might respond to the noble Lord, Lord Pannick. I appreciate that there may be other contributions, which I will seek to answer, but it may help the House if I indicate the Government’s position on the four propositions put forward by the noble Lord, Lord Pannick, so that we can be clear on the way forward. I shall seek to move government Amendments 23, 24 and 25, which directly address and respond to the concerns raised by many noble Lords when your Lordships last debated the matter in Committee. I hope that noble Lords will support those amendments; I note in passing that they bear a striking resemblance to Amendment 21, tabled by the noble Lord, Lord Pannick, and Amendment 22, tabled by my noble friend Lord Faulks, whom I cut across a moment ago.

For the avoidance of doubt, I want to make clear that the provision in Clause 6(2) does not seek to legislate to give effect to the content of a withdrawal agreement or implementation period. If there is a role for the Court of Justice as part of that agreement, as has been set out in the joint report on citizens’ rights, it would be legislated for under the separate withdrawal agreement and implementation Bill. I reiterate that Clause 6(2) has always intended to make clear that, after exit, UK courts will no longer be bound by future judgments of the Court of Justice. Instead, our courts will be free to take them into account when making their decisions, just as they would also be able to consider anything done by another EU entity or the EU itself. This approach reflects the Government’s core belief that our domestic courts are best placed to consider whether, and to what extent, to have regard to post-exit Court of Justice case law.

Prisons: Careers Guidance

Debate between Lord Faulks and Lord Keen of Elie

Wednesday 31st January 2018 Lords Chamber

[Lord Keen of Elie]

I do not have those figures immediately to hand, but I am content to write to the noble Lord, outlining such figures as we have in that regard, and I will place a copy of the letter in the Library.

[Lord Faulks (Con)]

Would the Minister agree with me that one of the encouraging features about jobs and careers for prisoners is the number of times employers from the private sector engage prisoners, while they are still in prison, who turn out to be satisfactory employees who then continue that employment when they leave?

[Lord Keen of Elie]

My Lords, in response to the question from my noble friend, I agree that there have been notable successes in this area, and we should appreciate the work done by some particular employers in this regard. There is one in particular where present indications are that something like 10% of their workforce are former inmates. If we can encourage other employers to take this step forward, we can help to reduce recidivism in the prison population.

Non-Disclosure Provisions

Debate between Lord Faulks and Lord Keen of Elie

Monday 22nd January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Government have committed to consider the report of the committee that is looking into this issue, and will then determine what further steps should be taken. We would prefer to react to the outcome of that report rather than anticipating it.

[Lord Faulks (Con)]

My Lords, my noble friend Lady Stowell referred to the problem with lawyers. This is a problem that has emerged particularly in Hollywood, where a very powerful industry, which unfortunately has been responsible for exploiting often young women in particular, has allowed them to obtain at least some form of legal advice, but there has nevertheless been a considerable inequality of bargaining power between the two. Does my noble friend not think that the Government ought to be looking at a presumption that unless there is equality of bargaining power, these sorts of agreements should be unenforceable?

[Lord Keen of Elie]

My Lords, I am not sure that the introduction of some form of legal presumption is necessary. Thanks to the Employment Rights Act 1996, if an employee is not given independent legal advice, any non-disclosure provision becomes unenforceable.

CPS: Disclosure of Evidence

Debate between Lord Faulks and Lord Keen of Elie

Monday 18th December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, the matter to which the noble Baroness, Lady Chakrabarti, alludes was a recent case in which the Crown withdrew and the matter did not proceed. There is to be a joint internal review by the CPS and the police to determine what occurred in that case. With regard to the case that she alludes to, the CPS has acknowledged that its standards may have fallen below what is expected and it has apologised to all the parties involved.

[Lord Faulks (Con)]

My Lords, one of the problems is that there is a great deal more to disclose than there once was in terms of the number of records that are kept. However, does not the obligation go both ways? Not only must the prosecution make sure that everything is available to the defence, but defence lawyers must make sure that every single piece of relevant information is disclosed to them and that it is analysed properly for the benefit of their client, which places a considerable burden on them. Is my noble and learned friend satisfied that adequate resources, by way of legal aid or otherwise, are made available to enable them to do this?

[Lord Keen of Elie]

I am obliged to my noble friend. It is of course important that the defence has the opportunity and the means to consider what requests should be made of the prosecution in the context of disclosure. Indeed, in the context of the case alluded to earlier, that point will be addressed.

Prosecutions: Defence Legal Costs

Debate between Lord Faulks and Lord Keen of Elie

Wednesday 15th March 2017 Lords Chamber

[Lord Keen of Elie]

I say with respect to my noble friend that it is necessary in this context to have regard to the public interest as well as the private interest of individuals. A balance has to be struck in that context. On the case he referred to of an 82 year-old, as I indicated earlier, the individual in question was offered legal aid having been eligible for it. Had he accepted that offer, he would have recovered his costs.

[Lord Faulks (Con)]

My Lords, the rule used to be far more straightforward. If you were acquitted of an offence, you were entitled to your costs, but the judge had a discretion not to award costs if you had somehow brought the prosecution upon you. Is that not the best way to approach matters?

[Lord Keen of Elie]

My Lords, there are clearly a variety of ways in which this matter can be addressed. Nevertheless, I fail to understand how someone who has been acquitted could be accused of having brought the prosecution on themselves.

Personal Injury Claims: Motor Vehicle Incidents

Debate between Lord Faulks and Lord Keen of Elie

Wednesday 1st March 2017 Lords Chamber

[Lord Keen of Elie]

The discount rate is related to the rate of return on government bonds, because there is an underlying assumption that those who receive large damages awards for future care will invest them in a very conservative manner, in bonds. Therefore, as the interest rate drops, so the discount rate will also drop.

[Lord Faulks (Con)]

My Lords, I should declare an interest in that I practise in this area. May I suggest to my noble and learned friend that one way to get round this difficulty would be for the Government to legislate to reverse the effect of Wells v Wells, which was decided on the basis that a notional investor would invest in gilts? That is not realistic and has resulted in this extraordinary change to the discount rate.

[Lord Keen of Elie]

My Lords, I agree with the observation that the level of the discount rate reflects a very conservative assumption about how a person would deal with a large lump-sum payment of damages in order to protect their future position. That has to be the subject of review, because it is clearly outdated.

IPP Prisoners

Debate between Lord Faulks and Lord Keen of Elie

Monday 20th February 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to the right reverend Prelate but I would point out that the backlog is being tackled and the rate of release of these prisoners is increasing all the time. The number of IPP prisoners is now at an all-time low, but we have to remember that these are individuals who for a variety of reasons pose a very serious threat to members of the public. Indeed, a recent analysis of IPP prisoners still in custody whose tariff was originally less than two years indicates that 88% were assessed as posing a high or very high risk of causing further serious harm.

[Lord Faulks (Con)]

My Lords, I think my noble and learned friend the Minister has suggested that 200 hundred prisoners come within the cohort that is the subject of the Question. Can he reassure the House that, as regards those prisoners, there will have been at least one determination by the Parole Board as to whether it is safe to release them? Can he also reassure the House that, if necessary, further determinations will be made or hearings held to reconsider whether it may be safe to release them?

[Lord Keen of Elie]

I am obliged to my noble friend. These prisoners have been the subject of assessment by the Parole Board and, where they have failed to satisfy the board that they cannot be released without a risk of serious harm to the public, further provisions have been put in place for psychological assessment and assistance. Where before there were long backlogs, various courses are now available to help these prisoners towards an open system of supervision.

Lay Magistrates

Debate between Lord Faulks and Lord Keen of Elie

Monday 20th February 2017 Lords Chamber

[Lord Keen of Elie]

I was not aware that the noble Lord had read my brief before I arrived in the Chamber. I rather think that if he did he did it in a cursory manner, because I can assure him that the answers I have given have not simply been a recitation of what was in the written brief.

[Lord Faulks (Con)]

My Lords, my noble and learned friend referred to the reduction of workload among magistrates. Can he confirm that that is at least in part due to the reduction in the rate of crime in the UK at the moment? Will he also register his and the Government’s approval of the contribution that magistrates make to the criminal justice system? I think they decide something like 90% of all cases.

[Lord Keen of Elie]

My noble friend is absolutely right: more than 90% of all criminal cases are disposed of by the magistrates’ Bench. If I may read a little further—

Serious Disturbance at HM Prison Birmingham

Debate between Lord Faulks and Lord Keen of Elie

Monday 19th December 2016 Lords Chamber

[Lord Keen of Elie]

With respect to the noble Baroness, Lady Farrington, that is precisely what this Government are providing. Let us not look back but look forward. We are looking forward to providing, more or less immediately, 400 additional prison officers, many hundreds of whom have already been recruited. We are looking forward to providing another 2,500 prison officers. As I say, let us look forward to what we are seeking to achieve, not look back to what has been.

[Lord Faulks (Con)]

My Lords, I am sure the House would be interested, if my noble and learned friend can tell us, in whether drugs played a significant part in what went on in Birmingham, although it may be that that will have to await the inquiry. However, can my noble and learned friend confirm that drugs are not only a problem because they tend to create aggression in prisoners, but because they also create an atmosphere where money is owed by one prisoner to another and gangs are set up, the combination of which is quite toxic? I note that the Statement said that the Government are rolling out tests for dangerous psychoactive drugs in prison. Will the Minister please assist us and tell us how that rolling out is going and what the Government hope it will achieve?

[Lord Keen of Elie]

I am obliged to my noble friend. It is too early to say whether drugs played a direct part in the incident at Her Majesty’s Prison Birmingham. No doubt that will be the subject of inquiry during the course of the investigation, which I have already referred to. However, the development of a prevalence of psychoactive substances in prisons has been a major factor in engendering violence for the two reasons that my noble friend indicated. First, the use of these drugs engenders behavioural changes that lead to violent conduct, and, secondly, the competition for control of these drugs leads to further intimidation and violence within the prison estate—there is no question of that. We have struggled to address the issue of psychoactive substances but we have now reached the point at which we have developed blood tests that are effective in identifying their use. That has been a considerable challenge, and we are now essentially a world leader in that field. Those tests will be rolled out to control the use of psychoactive substances. It is believed that that will assist in reducing the level of violence within our prison estate.

Magistrates: Sentencing Powers

Debate between Lord Faulks and Lord Keen of Elie

Tuesday 8th November 2016 Lords Chamber

[Lord Keen of Elie]

Clearly, magistrates have the training and skill to consider a wide variety of sentencing powers and to impose a wide variety of sentences. We have no hesitation in acknowledging that. Whether they should or should not be custodial sentences, at the end of the day, must be a matter of judgment in each individual case.

[Lord Faulks (Con)]

My Lords, last week saw a disgraceful attack on the judiciary.

[Lord Faulks]

Will my noble and learned friend take this opportunity to show the Government’s support for the entire cohort of the judiciary, whether it be the Supreme Court, the Divisional Court or the magistracy? Can he also confirm that, were magistrates to be given additional powers, it is overwhelmingly likely that those sentencing powers would be subject to a right of appeal, as of right, to the Crown Court?

[Lord Keen of Elie]

My Lords, we have a judiciary of the highest calibre. We have a free press, which is not always of the highest calibre. Sensationalist and ill-informed attacks can undermine public confidence in the judiciary, but our public can have every confidence in our judiciary, a confidence which I believe must be shared by the Executive.

Press Matters

Debate between Lord Faulks and Lord Keen of Elie

Tuesday 1st November 2016 Lords Chamber

[Lord Keen of Elie]

The noble Baroness is right to anticipate that I am not going to comment on an individual case. The conduct of IPSO may be the subject of criticism but it has not applied for, or been granted, registration under the present scheme.

[Lord Faulks (Con)]

My Lords, the Statement quite rightly acknowledges the balance that has to be struck between freedom of the press and the very important matters that come under the heading of “freedom of the individual”. Does the Minister agree that it is important that newspapers that are sued—whether regional or national—should be able to defend themselves with reasonable ability? If they are not only going to face the penalties in Section 40, but also exceptionally be liable to have conditional fees brought against them, this may result in an uneven playing field. Will the Minister confirm that the future of the conditional fee regime as regards libel actions will be considered when the consultation takes place?

[Lord Keen of Elie]

The Government have set no limits on the consultation process so far as costs are concerned. Clearly, the question of conditional fees will arise in the context of whether Section 40 should be brought into force. The noble Lord is quite right that it is important, while bearing in mind the victims of press abuse, to ensure a fair, acceptable and level playing field in issues between the press and powerful individuals. The press should not be coerced by the issue of cost into not reporting in a fair, open and effective manner.