Criminal Finances Bill

Debate between Lord Faulks and Lord Kennedy of Southwark

Committee: 1st sitting (Hansard): House of Lords
Tuesday 28th March 2017 Lords Chamber

[Lord Faulks]

My Lords, I am sure the whole House shares the concern that the noble Baroness has expressed about whistleblowing and its importance generally. However, I respectfully submit that this amendment is a pretty substantial response to that. It seeks to set up a whole department—the office of the whistleblower. I accept that this is something of a probing amendment and therefore bears the standard for what the noble Baroness may hope to come, but it is little short of a job-creation scheme. The proposed functions of the office of the whistleblower are extensive and it would have powers. Of course, if an office is created, those who are given that office will appoint others to work for them and powers will be exercised. If they are not exercised it would be suggested that they were not doing their job. Before we know where we are, we will have a substantial bureaucracy that runs the risk of having the same problems that exist in other areas of bureaucratic supervision of financial institutions.

The question of incentives is interesting. I accept that that they have had some success in the United States and, as we heard from the noble and learned Lord, in Mauritius too. But as to the question of “retaliatory action against whistleblowers”, a whistleblower has remedies in civil law in any event. When she comes to respond to the Minister, will the noble Baroness give us some idea what is meant by the provision with regard to “retaliatory action against whistleblowers”? The criminal law exists and civil remedies exist for employees and I wonder whether that is not inviting something rather too much. Of course, she rightly acknowledges that whistleblowers are not entirely based in the financial institutions; they exist in the NHS and have recently been considered by Sir Robert Francis and in all other government departments.

The real question is whether the establishment of this no doubt expensive bureaucracy will deter and whether it will result in the detection of what would otherwise not have been detected. While I applaud the general thrust of the amendment, I wonder whether it is something of an overreaction.

[Lord Kennedy of Southwark]

My Lords, the noble Baroness, Lady Kramer, raised the issue of whistleblowing in her contribution at Second Reading and now proposes this new clause today with the noble Baroness, Lady Hamwee. As we have heard, it would establish an office of the whistleblower. The purpose would be to offer much-needed protection to whistleblowers who expose criminality, corruption, fraud and other illegal activity. The price that whistleblowers often pay for alerting the authorities to illegal and criminal activity is to lose their jobs and have their careers ruined and destroyed.

The noble Baroness is right to highlight that we need to do more to offer protection and compensation to people who come forward and alert the authorities to the illegal activity. The noble and learned Lord, Lord Phillips, supported action and I agree. However, I agree with the noble Lord, Lord Faulks, that setting up an office may not be the right way to go about that. What is definitely needed is further protection in statute and regulation. It may not need an office to be established. I will be interested to hear the response from the noble Baroness, Lady Williams of Trafford, to this amendment. I entirely accept that it is a probing amendment and I think that we should take the opportunity that this Bill affords us to do something to address the issue of whistleblowers and the precarious position that they can find themselves in, which the noble Baroness, Lady Kramer, has highlighted to the House today. I accept that whistleblowing goes across a variety of sectors, but we are dealing with the financial services sector and this would be a good place to start.

Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Wednesday 11th March 2015 Grand Committee

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

My Lords, the purpose of this order is to bring into force a revised code of practice under the Criminal Procedure and Investigations Act 1996, setting out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation.

The revised code that this order will bring into force replaces the current one that was introduced in 2005. The changes to the code are not extensive but they are a crucial element in an initiative that is designed to make summary justice more efficient. This is the transforming summary justice programme—TSJ for short.

The objective of TSJ is to enable guilty plea cases to be dealt with wherever possible in one hearing, and contested cases to be properly managed at the first hearing and actively progressed and disposed of at the second. One of the elements of TSJ is that summary cases that are likely to be guilty pleas and those that are expected to be contested should be treated differently, the former being listed for a hearing after 14 days, the latter after 28 days.

Last May, the senior presiding judge received the report of a review that he had asked His Honour Judge Kinch and the chief magistrate, Senior District Judge Riddle, to carry out into disclosure of unused material in summary cases. This magistrates’ court disclosure review made several recommendations that complement TSJ, including that the relevant code of practice should be amended to enable a streamlined but proportionate procedure to be used in disclosing unused material in summary cases.

The review endorsed the separate treatment of likely guilty and not guilty cases. It recommended that the code should be amended to remove any implication that a guilty plea might be expected simply on the basis of the defendant not having denied the offence. However, where a guilty plea was expected with good reason—typically because the defendant had admitted the offence—then a schedule of unused material need not be served.

Even in these cases, however, there remains a duty on the prosecution at common law to disclose any material that might assist the defendant in a bail application or in preparing his case. This is often referred to as “ex parte Lee disclosure”, after the case in which the principle was set out. It is perhaps unlikely to be required in a straightforward summary case, but the review recommended that in the rare cases where the need for such disclosure arises, the police must draw the material to the attention of the prosecutor. Where on the other hand there is nothing to disclose, as will ordinarily be the position, that fact should be declared.

These recommendations are reflected in the revised code. Annexed to the code are three forms, the first of which is for use in cases where a guilty plea is anticipated, declaring that there is nothing to disclose at common law.

The review noted the intention of the CPS,

“to replace the unused schedule with a short disclosure report in anticipated not guilty plea summary cases”,

which it observed would require an amendment to the code of practice. This, too, is reflected in the new code and in the second and third forms annexed to it. These are streamlined certificates for use in anticipated not guilty cases, one certifying that there is nothing to disclose under the 1996 Act or at common law, the other certifying that there is disclosable material and specifying what it is. These forms are quicker, simpler and less bureaucratic than the ones they replace.

The amendments incorporated in the revised code were drafted in consultation with the national police lead on unused material, as well as with representatives of the Law Society, HM Courts and Tribunals Service and the office of the senior presiding judge. In accordance with the process set out in the Criminal Procedure and Investigations Act 1996, the revised code was published in draft for consultation in October last year. Six responses were received, and the draft was further slightly revised in the light of them.

The resulting revised code was laid on 28 January and the draft order to bring it into force, which your Lordships are considering today, was laid the following day. This slightly unusual process is in accordance with Section 77(5) of the 1996 Act. The order was subject to scrutiny by the Joint Committee on Statutory Instruments and has been amended slightly in the light of it. The code will come into force on the day after the day on which the order has been approved by whichever House approves it last.

The revised code introduced by the order under consideration today does not alter the criteria for disclosure. Rather, it seeks to help to ensure that defendants receive the disclosure to which they are entitled earlier than at present, including an assurance that the prosecution’s obligations at common law have been met. As the review observes, late compliance with disclosure obligations, or failure to comply with them,

“frequently leads to ineffective trials, delay and the incumbent costs in both financial and human terms … Many practitioners observe that there is a procedural rather than substance difficulty in most cases. The material listed on the unused schedule (and often any items disclosed) frequently has limited, if any, bearing on the outcome of cases tried summarily. With that in mind, it is all the more frustrating for procedural failures in the disclosure process to lead to a case collapsing, or suffering delay”.

The purpose of the revised code is to prevent such procedural failures and to reinforce the effect of the TSJ programme in speeding up summary justice. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, the order before us today replaces the code of practice issued in 2005 under the Criminal Procedure and Investigations Act 1996. I understand it is being brought forward following the Magistrates’ Court Disclosure Review in 2014, which recommended the adoption of a streamlined procedure in summary cases and, I think, in those either-way cases that are likely to remain in the magistrates’ court, so that a schedule of unused material need not be served in such cases, when it is anticipated that a guilty plea is going to be entered.

The present procedure is outlined in the magistrates’ court review, which I have looked at, with particular reference to paragraph 49. The recommendation that this order is seeking to bring into effect is listed as point 220 in the summary of recommendations. It would be helpful if the noble Lord, Lord Faulks, could just set out for us how we get to this position of an anticipated guilty plea. Clearly, someone can admit, at the first opportunity, that they have committed the offence and are guilty, but what about other cases? What sort of assessment will actually take place? Is there an expectation or assumption that, on the evidence already there, they will be getting legal advice from their own solicitor that the wisest course of action for them would be to submit a guilty plea at the earliest opportunity? I just want to be clear on the process that will be followed.

It would also be helpful if the noble Lord could just outline for us what will happen if the anticipated guilty plea does not materialise after all that. As the noble Lord said, I have served as a magistrate. I was on the Coventry bench for many years, and most cases that come before you, especially summary offences, result in a guilty plea and there are very few trials. However, things do not always go to plan, and it would be useful for that to be outlined for the Grand Committee.

I am grateful to the noble Lord for confirming when he spoke earlier that material that is of assistance to the defence and that meets the appropriate tests must be disclosed to the defence. As he said, that is the rule of common law disclosure. He referred to the ex parte Lee case, which is helpful in this respect. With those few points, I am very happy to support the order.

[Lord Faulks]

I am grateful to the noble Lord for his careful consideration of the order, informed of course by his own experience as a magistrate. He is quite right that the question of a plea is not simply a binary one or an automatic process at a particular juncture. People change their minds, and it is important that their right to do that is respected by the procedure rules and that we do not become too much a servant of process, at the risk of in any way jeopardising the important choice that a defendant has. Of course, it is important to stress in that context that defendants, whatever their intended plea, are entitled to know the case against them. They receive that in the form of the initial details of the prosecution case. Under the proposed arrangements they will receive that information earlier.

This is about disclosure of unused material. However, as I have endeavoured to stress, defendants are still entitled through the ex parte Lee case to the disclosure of material by common law which might potentially assist them. If, for example, a witness had a previous relevant conviction or had refused to give a statement, the police would have to reveal that before or at the first hearing. Such information is vital for the defence in making a bail application—quite apart from anything else—and the amended code reminds the police of the importance of making such disclosures even in a guilty plea case.

The noble Lord asked what would happen if an expected guilty plea did not materialise. In those circumstances the appropriate certificate must be prepared and served as soon as possible. The procedure is outlined in paragraph 6.4 of the code, which embraces the possibility quite reasonably and sensibly suggested by the noble Lord. Experience tells him that defendants sometimes get cold feet for one reason or another.

The importance of the order is that the defendant will be protected by this process. Important material which may assist will still be disclosed, but not a considerable amount of unused material which would have no relevance to a decision or to the outcome or strength of a case. Such material would simply slow up the process, causing additional expense and inconvenience, not only to the court but, importantly, to the defendant.

This order meets the desire to streamline the process —the transforming summary justice programme. It means that there will be fewer hearings but none the less protects the defendant and his or her freedom to choose whether to plead guilty or not guilty.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Wednesday 11th March 2015 Grand Committee

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

The draft rules amend the Special Immigration Appeals Commission—which I will call SIAC—rules of procedure, giving effect to two provisions contained within the Immigration Act 2014. These are straight- forward—being consequential to the new Act—but, none the less, important amendments. One will amend a current right of appeal to SIAC and introduce a new power of statutory review to ensure that all cases that should be dealt with by SIAC remain there, while the other will tighten up its bail processes.

Your Lordships will be aware from previous debates that SIAC is a specialist tribunal dealing with the most serious immigration and asylum appeals where there are issues of national security or other matters of public interest. For instance, it has heard cases under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists. SIAC heard the deportation case of Abu Qatada, for example. Unlike other immigration tribunals, it has processes in place designed to control the disclosure of material which, if released into the public domain, could be damaging. These are its closed material procedure and its use of special advocates, whereby some of the Home Secretary’s evidence is withheld from the appellant and his representatives. The purpose in both instances is to avoid compromising intelligence sources and the UK’s national security. The appellant’s interests are instead represented by a special advocate—a lawyer of the highest experience and ability and who has access to all the material withheld from the appellant.

The Immigration Act 2014 is being implemented by the Home Office on a phased basis, starting last July, with full and final implementation on 6 April this year. It contains a number of provisions to improve and streamline immigration processes. We have already considered and debated all of the Act’s provisions during its passage last year, so today is not about revisiting those, but rather about the consequential procedural rule amendments that are now required.

The Immigration Act provides that there will be a right of appeal to a tribunal only where fundamental rights are involved. From next month, the Act will remove the current right of appeal to SIAC against deportation decisions where the individual does not claim that removal would breach their human rights. Although it is likely that an individual will claim deportation would breach their human rights, there may still be cases where an appellant does not want to challenge their deportation on that basis, but rather that the reasoning behind the deportation decision itself is flawed. The Act allows for that by introducing a further power of statutory review to SIAC’s jurisdiction.

The number of cases that we are talking about is likely to be very small indeed. SIAC is a low-volume jurisdiction: it currently has only 17 appeals, although it has some other work. Although this does not represent a significant extension to the use of the closed material procedure, we must still make provision to allow SIAC to continue to consider these cases. Without the new review, the only route of challenge once the statutory appeal is removed would be by way of a judicial review to the High Court. This would not be satisfactory for two reasons. First, the High Court has only limited provision for the closed material procedure. Secondly, SIAC is the tribunal with the greatest judicial and panel member expertise in immigration matters and national security cases, and is the specialist in deciding and using closed material procedure.

SIAC is a superior court of record. It is presided over by a senior and experienced judge of the High Court, so this is not a lesser option. SIAC already deals with two other types of statutory review: to set aside a direction by the Home Secretary to exclude a non-EEA national from the UK and to set aside a decision by the Home Secretary in relation to naturalisation and citizenship applications. In both instances, SIAC is required under primary legislation to apply the same principles that would apply in judicial review proceedings; namely, the principles of natural justice and general public law. This further statutory review will also apply these principles, so SIAC will, as it does now, give full and proper consideration to any request for the closed material procedure.

In mandating those two statutory reviews in SIAC, Parliament has decided that it is the appropriate forum for all immigration challenges involving matters of national security or other public interest. I am sure noble Lords will agree that we would not want to go back on that decision when deciding whether to approve this amendment today.

The Immigration Act also tackles repeated bail applications, which are often made in an effort to delay someone’s removal from the United Kingdom. Before the new Immigration Act there was no limit on the number of bail applications that someone could make, and an identical application could be filed the day after one had been refused. These all currently require a hearing, which can be costly and time consuming. From April, these draft amendment rules will allow SIAC to dismiss a repeat application without a hearing if it is made within 28 days of an earlier unsuccessful application and there has been no material change in the applicant’s circumstances. Similar rules are in place in the First-tier Tribunal Immigration and Asylum Chamber, as required by the Immigration Act provisions which were commenced in October last year, so these amendments provide parity in the rules of procedure.

The draft rules have been produced on behalf of the Lord Chancellor following a short period of consultation by the Home Office and the Ministry of Justice with several of the bodies most familiar with SIAC, including the Law Society, the Bar Council, special advocates and the SIAC chairman and judiciary. We are therefore satisfied that they meet the needs of SIAC users and adjudicators.

The rules before us represent straightforward changes but, as I have outlined, they are critical in preserving our national security. Decisions made by the Home Secretary in reliance on sensitive and potentially damaging material should continue to be challenged at SIAC rather than the High Court. SIAC’s hearing time is best saved for dealing with such matters and for the appellants who genuinely need it, rather than being spent on unmeritorious applications for bail. I therefore commend these rules to the Committee, and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the Minister has outlined, these rules make amendments to bring the 2003 rules into line with the provisions of the Immigration Act 2014. The first change to the rules is the removal of the current right of appeal to SIAC against deportation decisions where there are no human rights grounds and the application of a new section of the Special Immigration Appeals Commission Act 1997 allowing SIAC to deal with these by way of a statutory review. Appeal rights properly and rightly remain for human rights matters. Will the Minister comment on whether any thought has been given to whether the restriction of these appeal rights is likely to increase the number of cases claiming human rights as a reason? Has any further work been done on the potential cost in that case? Have the Government taken account of those costs when they looked at the savings they think they will make?

On the forum for appeals, we are always concerned when there is an extension of the use of closed material procedures. Will the Minister say something further about the matters that will be dealt with by SIAC rather than the High Court by a process of statutory review rather than by judicial review? I assume that the terms will be of a similar effect. I was pleased when the Minister confirmed that asylum will be looked at on human rights grounds, using the same criteria as the High Court. I agree with his comments about the members of the judiciary who work in that court.

On the question of bail, some concerns have been raised as to what constitutes material change. Could the Minister say a bit more about that as well? I get his point about renewed bail applications being permitted only when there has been material change. I assume that I am right in thinking that a procedural defect would be a very serious material change. Could he outline any further things that would constitute material change? With that, I accept that these are important and serious matters and matters of national security and I am happy to support the rules.

[Lord Faulks]

I am grateful to the noble Lord for his observations and for his acceptance, for the most part, of what lies behind these rules. He makes a valuable point in asking whether there could be a perverse incentive for somebody to claim that there were human rights violations and therefore get themselves within SIAC. That is, with respect, a little unlikely. In fact, the purport of the regulations is to embrace those cases where national security is an issue but the person is not relying on human rights grounds. Classically, that would happen on the grounds of Article 3 or Article 8 of the European convention. It has to fall within SIAC because of the national security arguments; it is not a simple incantation of a human-rights based challenge.

I caused some inquiries to be made as to precisely what cases might come within the regulation when somebody was not claiming human rights grounds and would therefore be covered by this measure. I was given to understand that the likely applicant would be someone who was before the court in relation to espionage, who would not want to rely ex hypothesi on Articles 3 or 8 but might want to challenge the underlying assertion that they were, in effect, a spy. In that way, they would still come within the national security ambit of SIAC, involving all the closed material procedures with which we are familiar—the special advocates and well travelled range of things—and not rely on human rights matters.

The noble Lord asked about costs. I do not believe that the human rights element of itself would cause additional costs. In relation to the rules amendment costs, there are minimal costs on the work of drafting and laying the amendment rules and no costs to the SIAC administrator or Her Majesty’s Courts and Tribunals Service in introducing this new statutory review. They already deal with other statutory reviews, so forms, guidance and IT are not affected. The bail amendments will reduce costs for SIAC, because they will save hearing time from being used on unmeritorious applications.

The question of material changes is a fairly well travelled doctrine in terms of bail applications generally, and judges will be familiar with that. It involves something material, as the adjective suggests, not just a minor change that warrants an application—something that may have an effect on personal circumstances, such as their address, giving the court grounds for thinking that the risk was somewhat less than originally appreciated. It might be a matter for SIAC to give further guidance, but of course material change of circumstance is the sort of thing that courts are used to addressing in a number of circumstances. Indeed, the noble Lord may be familiar with it in his guise as a magistrate, with frequent bail applications—although I may be wrong in thinking that he is a magistrate. It might be something that affects the range of considerations which the tribunal thought important when the previous bail application was decided. I would be reluctant to specify precisely what might constitute material circumstances, but it does not mean de minimis matters, things that do not really alter the basis of the application. It would be a matter for the court on the particular facts of the case to decide whether there had been a material change.

I hope that, with those assurances, the Committee is content that the rules should proceed, and I beg to move.

Legal Services Act 2007 (Warrant) (Approved Regulator) Regulations 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Wednesday 11th March 2015 Grand Committee

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

My Lords, I shall speak also to the draft Legal Services Act 2007 (Warrant) (Licensing Authority) Regulations 2015.

By way of background, as noble Lords will know, the Legal Services Act 2007—the 2007 Act—governs the regulation of legal services in England and Wales and established a new regulatory framework for legal services. The 2007 Act enabled the widening of the legal services market to allow for different regulators to regulate legal services and for different types of legal businesses to provide those services.

The intention of the 2007 Act was to put the consumer at the heart of legal services and deliver a more effective and competitive market. It established a number of regulatory objectives which the Legal Services Board and the approved regulators must promote, including protecting and promoting the public interest and the interests of consumers, encouraging an independent, strong, diverse and effective legal profession and promoting competition in the provision of legal services by authorised persons.

The Legal Services Board was established under the 2007 Act to be the independent oversight regulator with responsibility for overseeing the approved regulators. Under the 2007 Act, approved regulators are under a duty to act in a way that is compatible with the regulatory objectives set out in the Act. Where acts or omissions of an approved regulator are likely to have an adverse impact on these regulatory objectives, the LSB has a range of enforcement powers that it can exercise, including issuing performance targets and directions, public censure and imposing financial penalties.

Where an approved regulator’s acts or omissions cannot be adequately addressed by these other enforcement powers the LSB can, in appropriate cases, issue an intervention direction providing for certain functions of the approved regulator to be exercised by the LSB or a person nominated by it; or it can recommend to the Lord Chancellor that he cancel the approved regulator’s designation. Similarly, the LSB may recommend that the Lord Chancellor cancel an approved regulator’s designation as a licensing authority in relation to one or more reserved legal activities, but only if it is satisfied that it cannot address the issue through its other enforcement powers. This is intended to ensure that the power to issue an intervention direction or to cancel a designation remains reserved for the most serious or persistent infractions.

Where an intervention direction is made under Section 41 of the 2007 Act or an approved regulator’s designation is cancelled under Section 45, the LSB or a new regulator will assume some or all of the approved regulator’s functions. In order to provide continuity of regulation in these circumstances, the LSB, or a person nominated by it, can apply for a search warrant for the approved regulator’s premises under Sections 42 or 48, as appropriate.

Section 79 makes similar provision for licensing authorities to that made by Section 48 for approved regulators, in that it makes provision for search warrants which may be issued following the cancellation of a designation. It applies where a body has had its designation as a licensing authority cancelled, either automatically under Section 75 of the Act because its designation as an approved regulator has been cancelled under Section 45, or by an order made by the Lord Chancellor under Section 76 of the Act.

The 2007 Act permits the LSB to apply for a warrant in certain circumstances authorising it to enter and search the premises of an approved regulator or licensing authority and take possession of any written or electronic records found on the premises. There are two separate powers under the 2007 Act which are set out in Sections 42 and 48. These allow search warrants to be issued for an approved regulator’s premises, and one power in Section 79 which allows search warrants to be issued for a licensing authority’s premises. Regulations must be made by the Lord Chancellor under each of those three sections specifying further matters which a judge or justice of the peace must be satisfied of or have regard to before issuing a warrant, and also regulating the exercise of a power conferred by the warrant. That is the purpose of these two sets of regulations before the Committee, one of which relates to approved regulator warrants and one to licensing authority warrants.

The intention in exercising a warrant under Sections 42, 48 or 79 will be to provide continuity of regulation in specific circumstances of regulatory failure by an approved regulator or licensing authority. If both sets of these regulations come into force, they will enable the LSB or a person appointed by it to apply for warrants as part of its enforcement strategy. As required under the 2007 Act, the Lord Chancellor has also formally consulted the LSB about the making of these regulations.

Finally, I regret to say that there is a small error in the version of the approved regulator regulations before the House—the result of a computer glitch. In Regulation 1(2) the paragraph lettering is incorrect in that it runs through from (a) to (g) rather than restarting for each definition. I take it that no confusion has been caused. This error will be corrected in the final “made” version of the regulations.

In conclusion, these regulations enable the LSB or a person appointed by it to apply for a warrant as part of its enforcement strategy, enabling the LSB to assume effectively the functions of the relevant regulator. Overall, this has the potential to act as a deterrent against poor regulation, to improve the standard of regulatory practice and to strengthen the LSB’s regulatory powers, leading to greater consistency and better protections for consumers. I commend both sets of regulations to the Committee and beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I can say at the outset that we are not opposing either of these two sets of regulations. As the noble Lord, Lord Faulks, has outlined for the Grand Committee, the Legal Services Act 2007 permits the Legal Services Board to apply for a warrant in certain circumstances authorising it to enter and search the premises of an approved regulator or licensing authority. The Lord Chancellor must make regulations specifying further matters which a judge or justice of the peace must be satisfied of, or have regard to, before issuing a warrant and regulating the exercise of a power conferred by a warrant.

I am aware from the guidance that a previous draft of these regulations was originally laid in February 2010 and then withdrawn. That was at the end of the last Parliament and here we are, five years and one month later at the end of this Parliament, with another set of regulations that we are seeking to put through. Quite a lot of time has elapsed. I understand and accept that sometimes when things are drafted, that can highlight problems and defects, but it would be useful if in his response the noble Lord could outline in some detail why have we waited so long for these regulations to be brought back. We are literally in the last few days of this Parliament. It would also be helpful if he could say something about the nature of the problems which have been uncovered.

In looking at the regulations and the helpful Explanatory Memorandum, it appears to me that they have been quite tightly drawn up to limit the circumstances in which they can be used and to ensure that the issue of these warrants is a matter of last resort. That seems right and sensible to me. However, is the noble Lord satisfied that the regulations are proportionate and strike the right balance? Have any problems been caused to the Legal Services Board in exercising its regulatory duties over the past few years by not having these powers? If he is satisfied that there are no problems, perhaps he would inform the Committee of how he has come to that conclusion. With those points, I am happy to support the regulations.

[Lord Faulks]

I am grateful to the noble Lord for his consideration of these regulations and for his observations in general about them. He asked why there has been effectively a delay in these matters and also asked me to say a little more about whether I was satisfied with the various safeguards which exist.

In a sense both those questions have a common answer, which is that these powers are very much ones of last resort. They follow from the Act; Parliament expressed the view that there should be this residuary power but the circumstances in which the super-regulator—if one can call it that—would actually wish to step into the shoes of the regulator are very hard to foresee. I believe Parliament felt that there should be that power at least, hence the existence of the regulations. This is not, I think, something the absence of which has caused the LSB any difficulty at all in the delay during the five years since the replacement regulations were drafted.

The powers are not to be used, of course, until after all the other LSB powers have been utilised, and the noble Lord and the Committee will realise that there are a range of other powers short of these last-resort powers which the LSB can exercise. It was in those circumstances that these powers were prioritised below other more immediately required orders such as those required in the implementation of the Act and subsequently those recommended by the LSB. As outlined in the memorandum accompanying the regulations, we have produced 11 other legal services statutory instruments since 2013, which perhaps gives the Committee an idea of the scale of recent work. We have therefore prioritised our resources.

Progress on the approved regulator draft has continued steadily. For example we have consulted twice on the content of the regulations with the stakeholders—and there are a considerable number of stakeholders—who will be affected by them. We have made numerous changes as a result and taken their comments into account. The licensing authority regulations have also been drafted during this period allowing the two sets of regulations to be consulted on and progress through Parliament together, given how similar they are. I think the noble Lord will understand that regulators were likely to express a view as to whether the super-regulator should be allowed these powers and if so the appropriate restrictions on them. There is perhaps, one might say, a healthy tension between the interests of the regulators and the super-regulator, which, I think, provides some explanation.

In terms of the safeguards, the word “necessary” or “desirable” is an important one for the exercise of a regulatory function. A judicial officer must be satisfied before issuing a warrant. Specifically, the regulations allow a judicial officer to issue a warrant only if satisfied that the LSB has made reasonable attempts to obtain the records sought by other means. This would be likely to result in the records being removed, hidden, tampered with or destroyed. There is also provision to prevent repeat applications where another of the same substance was refused. There are other safeguards providing for the return of seized documents. A key safeguard is that a warrant may not be used to take possession of or copy records subject to legal professional privilege. That matter was drawn to the attention of the regulators by the Bar Standards Board as a matter of importance and that finds its way into the regulations, as the noble Lord will have seen. Any such record which is taken or copied in error must be returned.

These regulations were drafted in consultation with the approved regulators, whose suggestions were incorporated in the way that I have indicated to achieve the desired balance. I hope I can satisfy the Committee that there are these appropriate safeguards. I do not think it could be said that the LSB is champing at the bit to exercise these regulations—it is unlikely it will do so—but Parliament has envisaged that it should have its power. By providing these regulations, albeit they have taken a little time to produce, we are acting in a way that is faithful to Parliament’s intention. In those circumstances, I hope the regulations can be approved.

Freedom of Information (Designation as Public Authorities) Order 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Monday 9th February 2015 Grand Committee

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

My Lords, the purpose of this draft order is to bring Network Rail’s public functions within the scope of the Freedom of Information Act. This is a significant extension of the Act and the latest step by this Government to expand its scope in the interests of transparency and accountability.

We are committed to achieving greater openness and transparency in order to enable the public to hold those who deliver the services affecting their day-to-day lives to account through both the Freedom of Information Act and the wider transparency agenda. In relation to that Act in particular, the coalition agreement set out this intention, stating that the Government would,

“extend the scope of the Freedom of Information Act to provide greater transparency’.

We have already taken a number of steps to meet this commitment since May 2010. In 2010, we extended the Act to academies, in 2011 to the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service, and in 2013 to more than 100 companies wholly owned by more than one public authority. The order to extend the Act to Network Rail is a further step along this road.

I recognise that some noble Lords may wish to see the Freedom of Information Act extended in further directions. There is certainly a case for its further extension, in particular to more bodies performing public functions through Section 5 of the Act. There is also a case for extending it to other bodies. For example, the Home Secretary has already announced her intention to extend the Freedom of Information Act to the Police Federation. This would require primary legislation and, in the absence of a suitable vehicle in this Parliament, the Home Secretary has registered this as a longer-term commitment which this Government intend should be fulfilled as soon as possible in the next Parliament. I hope, however, that no matter the views of noble Lords about other bodies which might be included in future, this change will itself be welcomed as a significant and positive step.

Turning to the detail of the draft order, Section 5(1)(a) of the Freedom of Information Act enables the Secretary of State to designate a person as a public authority if they appear to the Secretary of State,

“to exercise functions of a public nature”.

Where a body is designated as a public authority under this limb it is also necessary, under Section 7(5) of the Act, for the order to specify each of the body’s functions which appear to the Secretary of State to be of a public nature. Only those functions specified in the schedule to this order will be subject to the Act.

Network Rail is not a single legal entity but is made up of a group of companies instead, hence the need to designate the listed companies separately. The companies affected, which are listed in the schedule to the draft order, are Network Rail Ltd, Network Rail Holdco Ltd and Network Rail Infrastructure Ltd. Network Rail Holdco Ltd, which is the holding company for Network Rail, and Network Rail Ltd, the umbrella company for the group as a whole, are legally responsible for many of the same functions as Network Rail Infrastructure Ltd, so they are also listed in the order. In practice, however, Network Rail Infrastructure Ltd is responsible for the day-to-day delivery of Network Rail’s public functions.

The functions performed by these companies which are considered of a public nature are those relating most directly to the development and operation of the rail network. Network Rail’s network services function covers its ownership of the rail network and the related activities that it is licensed to carry out under Section 8 of the Railways Act 1993. This includes the full range of activities carried out by Network Rail which enable our railways to operate, from large-scale projects relating to the construction or improvement of new lines to more locally focused works on, for example, individual stations, bridges or level crossings. It also includes the provision of information about train movements to train operators to enable them to meet their information obligations to the public.

In addition to owning all UK railway stations, other than those in Northern Ireland, Network Rail operates a number of major railway stations under a further licence issued under Section 8 of the Railways Act. The operation of these stations also constitutes a public function and is covered by the “station services” function listed in the schedule to the draft order. Finally, Network Rail’s provision and operation of light maintenance depots for the purpose of providing services, including the refuelling and cleaning of trains, also constitutes a public function and is covered by the order.

I appreciate that this designation is quite technical but, importantly, it covers rail safety issues in connection with the networks, stations and depots. The designation will also cover information about the management of Network Rail, such as pay. The Secretary of State has accordingly concluded that all these functions are of a public nature, for a number of reasons. Of critical importance to this decision are factors such as: the extent to which these functions are performed in the public interest, given the importance of the services which Network Rail provides to the travelling public; the extent to which Network Rail receives public funding; and the degree to which Network Rail is subject to government control, and is accountable to government and Parliament.

Network Rail provides a variety of other services which do not constitute public functions and are therefore not capable of being covered through this order. As self-funding commercial services provided in a competitive market environment rather than on a monopoly basis in the public interest, it would not be appropriate to include them. In any event, it is not possible to include such non-public functions through an order made under Section 5 of the Freedom of Information Act.

Article 2(2) of the draft order is intended to provide clarity about the services which are excluded from scope on the above basis. With the exception of permitting train companies to access and use stations and tracks, the order does not cover services for which Network Rail charges fees or receives other consideration. This includes, for example, the provision of consultancy or property services, such as the letting of shop units, railway arches and advertising space, not directly related to the operation of the railways.

Network Rail representatives have been consulted about the companies and functions covered in the order. They view its inclusion under the Freedom of Information Act positively and are in agreement with the Secretary of State about the scope of the draft order. Network Rail will handle requests submitted to it as if it were the single organisation that the public generally see it to be. We welcome the constructive way in which Network Rail has engaged with the Ministry of Justice in drawing up this order.

The Secretary of State has concluded that the three companies subject to this order exercise, in the ways I have described, functions of a public nature. As a result, I believe that it is appropriate for them to be subject to the same scrutiny as those performed by other public authorities so that they will become more open, transparent and accountable. Network Rail has taken very considerable steps to become more transparent in the last few years. It already publishes large amounts of information proactively and responds to information requests on a voluntary basis, as opposed to a statutory basis. This is highly commendable. This order builds on those solid foundations by providing a legally enforceable right to request information, so I hope that noble Lords will agree that this order is an important part of the journey towards greater transparency. I therefore commend this draft order to the Committee, and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the Minister has explained, this order designates the companies considered by the Secretary of State to carry out functions of a public nature within Network Rail as subject to the provisions of the Freedom of Information Act. As far as it goes, I welcome this order, but it has taken a long time getting here, and the Government should be going a lot further in respect of freedom of information. We have heard a lot about freedom of information from the Government. As the Minister said, it is mentioned in the coalition agreement, but progress has been slow in this area over the last five years.

Calls for the extension of FOI to cover Network Rail have been made for some considerable time. I am sure the Minister is aware that the Public Accounts Committee has called for it on a number of occasions. Will the Minister name the companies that are part of Network Rail that will not be subject to the provisions? Will he tell the Grand Committee why it has taken so long for the order to get here today? Who in Network Rail was opposed to the extension of these provisions? Was that part of the reason it has taken so long? It would be useful if he could tell the Committee whether this is a settled position or one that the Government intend to keep under review to see whether the scope of the coverage could be broadened in future. As a regular train user, being able to get further information on issues such as the shambles at London Bridge and how we arrived at such poor service for passengers is most welcome.

Will the Minister say something on the Government’s general thinking in respect of freedom of information? I know he said something earlier, but more would be helpful. Do the Government have a view about private sector companies that are delivering public services being subject to FOI, particularly about the public service they actually deliver? I am thinking of train operating companies, which in some cases are delivering such a poor service. I do not know how much train travel the Minister does in London, but my experience of travelling in from south London every day is of a generally poor service from companies who largely think that they are beyond any form of accountability.

I am also an elected councillor in the London Borough of Lewisham and the ward that I represent has dreadful problems with Crofton Park railway station, for example, and neighbouring stations. I have written to the Secretary of State for Transport and invited him to take a train with me from either Brockley or Crofton Park, but I am still waiting for a reply. If the Minister bumps into his right honourable friend, perhaps he could mention to him that I am still waiting for that reply. There is such an awful service at those stations that I would love to show him what goes on there. However, I am content with the order today and welcome it.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Monday 9th February 2015 Grand Committee

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

Noble Lords will be aware that the Rehabilitation of Offenders Act 1974 is the primary legislation concerning the disclosure of criminal convictions and cautions. It seeks to help the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified period, as “spent”. Once a conviction has become spent, an individual is not required to declare it when, for example, entering most employment or applying for insurance. The reforms we made to the Rehabilitation of Offenders Act, which allow many convictions to become spent sooner, were commenced in March last year and widely welcomed.

We are concerned today, however, with the exceptions order to the Act. This acts as a balance to the Act to maintain public protection. The exceptions order lists activities and posts which may present a particular risk of harm—for example, regular contact with particularly vulnerable groups, such as children—and exempts them from the protection of the primary legislation. This allows certain employers, bodies and proceedings to ask for the disclosure and to take into account certain spent cautions and convictions as well as any unspent convictions. In these sensitive areas, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their fuller criminal record.

I should explain that the Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates. Standard disclosures contain details of a person’s spent and unspent cautions and convictions, where there are any such convictions and cautions, with the exception of certain older and minor convictions which are protected from disclosure. Enhanced disclosures include, in addition, any locally held information which the chief officer of police considers is relevant to the purpose of the application. These criminal record certificates are issued by the Disclosure and Barring Service.

Having set out that background, I will now explain the two amendments which we propose to add to the exceptions order. The first deals with individuals seeking counterfraud, investigatory and security management posts in NHS Protect; the second concerns individuals seeking to engage in regulated activity relating to children and vulnerable adults.

As to counterfraud, investigation and security management in the NHS, staff in the NHS undertaking the investigation of fraud, bribery and corruption, and the safeguarding of patients, staff and NHS assets, will have access to confidential information and medicines. They may also have contact with vulnerable persons. In addition, those who are engaged in counterfraud investigations have responsibility for the preparation of prosecutions and can be called to give evidence in court proceedings. In these circumstances their character history is relevant to the issue of witness credibility, which can prove critical in obtaining successful prosecutions.

These activities clearly give rise to public protection considerations and justify the disclosure of certain spent cautions and convictions so as to determine the suitability of an individual applying to do this work. To date, this area of activity has been dealt with under a wider provision in the exceptions order, which covers working in health services more generally, including contact with patients. Investigations into fraud and other criminal activity in the health service may not involve patient contact but will nevertheless require access to sensitive material. Recent changes to counterfraud and security management in the health service mean that certain administrative staff may now assist in investigations. Consequently, they will have access to some sensitive material. In the light of these developments, we consider that there should be a distinct provision in the exceptions order which not only deals with the new administrative group of staff undertaking this work but covers the area of activity so that the exception is both precise and clear.

The second amendment in this order relates to regulated activity. While this area of work is, of course, already covered in the exceptions order, there have been changes made to the definitions of regulated activity relating to children and vulnerable adults. The Protection of Freedoms Act 2012 made changes to the definitions set out in the Safeguarding Vulnerable Groups Act 2006. We now need to reflect those changes in this instrument. The exceptions order currently covers all individuals engaged in regulated activity relating to children, and all individuals engaged in regulated activity relating to vulnerable adults as defined prior to the amendments made by the 2012 Act, which in the most part narrowed these definitions. The earlier definition of regulated activity was kept for the purposes of the exceptions order, as the Government had made a commitment to ensure that employers would still be able to obtain criminal record certificates for those individuals who no longer fell within the amended definition of regulated activity.

However, while the 2012 Act generally reduced the scope of regulated activity, its definition of relating to children was also expanded to a limited extent. This remains the case today. For example, a person who provides healthcare or personal care on an occasional basis now comes within the definition of regulated activity relating to children. These individuals would not previously have been covered because this activity would not have met the relevant frequency conditions for it to fall within the definition of regulated activity relating to children.

In addition, the Safeguarding Vulnerable Groups Act 2006 provides the Secretary of State with the power to amend the definitions of regulated activity in that Act by order, subject to the affirmative procedure. In the future, it is therefore possible that the definitions of regulated activity could be amended to cover new roles. These would not then be covered by the current provision in the exceptions order, which refers to the definitions of regulated activity as they were at a fixed point in the past.

This amendment will therefore ensure that all those engaged in regulated activity can be asked about unprotected cautions and convictions when their suitability for this work is being assessed and that that remains the case for any future changes to the definitions of regulated activity made by order under the Safeguarding Vulnerable Groups Act 2006.

I assure noble Lords that any such changes to the definition of regulated activity will be subject to debate in the House. I therefore believe it is unnecessary for an express amendment to made to the exceptions order for each new role added to that definition on the basis that any debate in respect of the order amending the definitions of regulated activity would provide the House in any event with the opportunity to consider the appropriateness of such changes, including the implication of those changes in respect of the ability of employers to seek information about certain spent convictions and cautions.

These amendments, while relatively minor in scope, are important for public protection purposes. They make sure that all those who are responsible for protecting the NHS and all those engaging in regulated activity are properly covered by the exceptions order. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I will not detain the Committee very long. As the Minister told the Grand Committee, this exceptions order makes amendments in relation to those concerned with counterfraud work, the investigation of offences and security management and to current regulated activities under the Safeguarding Vulnerable Groups Act 2006. I have read the order and the Explanatory Memorandum very carefully. I am content with this order which takes account of legislative changes and ensures that individuals in a position of trust, as defined in the order, can be asked about their unprotected spent convictions and cautions. This is a very good balance between helping individuals who have offended to return to meaningful work and the need to protect the public, as the Minister said. This is a very sensible move, and I am very happy to support the order before the Grand Committee today.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for his constructive and helpful observations. As he said, this is not a party-political issue. These are necessary and proportionate amendments endeavouring to strike the balance in a difficult area, and they form part of this Government’s—I dare say any Government’s—ongoing commitment to keep safeguarding measures in step with developments elsewhere. I commend the draft order to the Committee.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Thursday 29th January 2015 Grand Committee

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

My Lords, the regulations before us today are needed to accompany the commencement of Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO as it is commonly called. Section 85 has not yet been commenced. It provides for all fines and maximum fines in the magistrates’ courts of £5,000 or more to become unlimited. This includes the level 5 maximum on the standard scale of fines and all exceptional summary maxima for environmental and health and safety offences, which can be as high as £50,000. It means that magistrates will be able to impose, if they so choose, a higher fine than they previously could.

I should make it clear that the way in which magistrates calculate the appropriate fine to be imposed in each individual case will not change. Sentencing decisions in individual cases are a matter solely for our independent courts. Parliament sets the maximum penalty for an offence and the courts sentence within that maximum, taking account of all the circumstances of each case. Where the sentence is a fine, the courts are required to take account not only of seriousness, but the known financial means of the offender. How the amount of a fine relates to these factors is covered in some detail by the sentencing guidelines issued by the Sentencing Council, which is also independent of government. None of these things will change.

I should also make it clear that dangerous criminals will always belong in prison, and there are others who will need to be made subject to community penalties. However, it is important that magistrates, who sentence the majority of offenders who come through our courts, have the power to hand down the appropriate fine with the severity they see fit for the most serious cases that come before them. They include summary crimes such as making and selling realistic fake guns, assaulting a police officer, using threatening behaviour and not making a property safe before renting it out.

Other offences that will be liable to unlimited fines in the magistrates’ courts will be harassment without violence, the sale of alcohol to children, and the unauthorised sale of football tickets, an offence introduced to help prevent violence at matches. The Government believe that it is important that magistrates should not be limited in the amount they can fine for serious offences such as these. Where appropriate, the courts will of course continue to be able to impose custodial sentences.

These regulations do not amend the text of every piece of legislation that provides for an offence to be subject to a maximum fine expressed variously as level 5, “the statutory maximum” or “the prescribed sum”, all of which mean £5,000. When Section 85 comes into force all these offences will automatically become fines of an unlimited amount. However, these regulations were needed to amend the text of legislation governing fines expressed as numerical amounts of £5,000 or more. The noble Lord, Lord Kennedy, may have seen the considerable extent of the draft statutory instrument carrying myriad different offences. There was a considerable amount of work for parliamentary counsel to try to tie up these issues.

As well as removing the £5,000 cap, Section 85 allows the Secretary of State to specify any exceptions in regulations. These exceptions are included in the draft regulations that we are debating today. But not only do they exempt certain offences from the general provision removing the £5,000 cap, they need to make additional provision if Section 85 is to work properly in practice. For example, some penalties are currently expressed as a proportion of £5,000. If we commenced Section 85 without amending such provisions, they would become meaningless as we cannot have legislation specifying a proportion of an unlimited amount, so we need to make changes there too.

These regulations achieve a range of objectives that will allow us to commence the LASPO provision. In total they do the following. First, they disapply the removal of the £5,000 cap in some cases, mainly for customs and excise offences, and substitute alternative figures, generally £20,000. These can be found listed in Schedules 1 and 2.

Secondly, they deal with penalties that were previously expressed as a proportion of level 5. These are generally daily fines. The regulations deal with these by setting an alternative figure for them to be calculated against. So, for example, instead of being expressed as a fifth of level 5 they are changed for the time being to a fifth of £5,000, although the provisions are future-proofed so this amount could rise in line with increases to other fines. These changes can be found listed in Schedule 3.

Thirdly, as I have already mentioned, they make specific provision for fines currently expressed as a numerical amount of £5,000 or more by providing for these to become a fine of any amount. Similar provision is made for powers to create offences subject to such fines. These are listed in Schedule 4.

Fourthly, they deal with certain non-criminal penalty schemes which operate by reference to the amount of a fine on summary conviction. Changes here will make sure these continue to work once Section 85 is in force. These are listed in Schedule 5.

I hope that noble Lords will appreciate that the Government needed to trawl all legislative provisions to check whether changes needed to be made before we could commence Section 85. This was, as is apparent, a significant task, which accounts for the time it has taken to compile the regulations and for their considerable length. I hope that the Committee will consider these regulations, which are necessary in order to commence the provision in LASPO that Parliament has already provided. I appreciate that they are lengthy and complex, but they are essential before we can give magistrates the increased powers that Parliament intended. I therefore commend these draft regulations to the Committee.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the Minister has explained to the Grand Committee, the regulations before us today will, when Section 85 of LASPO is enacted, remove the cap on fines imposed in magistrates’ courts on summary conviction. The regulations are to ensure the section works sensibly, and they provide for some exceptions.

I have a couple of points to raise with the Minister, but generally I am happy to offer our support to these regulations. I noted in paragraph 3.3 of the Explanatory Memorandum that an order was laid and then withdrawn in respect of levels 1 to 4 fines and that there are no plans to reintroduce it in the foreseeable future. It would be useful if the Minister could tell the Grand Committee a little bit more about that.

Paragraph 7.7 in the Explanatory Memorandum explains that magistrates are obliged to follow the sentencing guidelines, unless that would be contrary to the interests of justice. I know this is an aside to the regulations today, but I have recollections from my time as a magistrate sitting in Coventry. I used to do a lot of fines on Thursday mornings. We would spend a lot of time with people who had been fined by other magistrates’ courts and could not pay the fine. It was a ridiculous situation with fines often grossly disproportionate to the person’s means. It was not a proper punishment because they could not pay the fines. We all want to see punishments handed out that actually punish offenders on conviction, but they also have to be realistic to have the required effect. Does the department have any plans to ask the Sentencing Council to look at fines and their suitability as punishment in terms of their scope, size et cetera? With that, I am happy to support the regulations before us today.

[Lord Faulks]

I am grateful to the noble Lord, Lord Kennedy, for his observations in relation to these regulations and for his agreement on the part of the Opposition in relation to them. It is true that we were responsible for laying regulations in June 2014 and then withdrawing them. They would originally have uprated the amounts of levels 1 to 4 fines as well as level 5 fines. The Government took the view that further consideration was needed in relation to the appropriate amounts at levels 1 to 4, but the priority was to give magistrates the power to deal with the most serious level 5 offenders, which is why we have taken the most important step first in removing the £5,000 barrier. We are giving further consideration to levels 1 to 4 fines, which cover the less serious offences. We are also giving consideration, by way of a review, to driving offences and penalties, many of which would be within levels 1 to 4, although an offence such as driving without insurance is a level 5 offence. Any proposal to change these fine levels requires agreement from both Houses of Parliament. It does not mean—if that was the inference, and I am not suggesting it was—that we are taking a soft line on levels 1 to 4 offences, it is simply a question of prioritising level 5.

The noble Lord identified the dilemma that faces many sentencing tribunals in finding the right penalty and, in the case of repeat offenders, the unreality sometimes of having to impose fines that reflect both the seriousness of the offence and the sentencing guidelines. The problem is very often that those who commit these offences do not necessarily have the means to pay, the fines become unrealistic, and whether it is appropriate to continue imposing fines at that level becomes questionable.

Of course, the Government do not purport to tell sentencing tribunals what is appropriate in a particular case, and among the matters taken into consideration will be the means of the particular offender, not withstanding the guidelines, which are only guidelines. The courts will sometimes have other options, such as community penalties or even imprisonment, if the imposition of fines that are not being paid is becoming unrealistic. It is a matter for the individual tribunals. The Government respect the independence of the judiciary in this and any other field. I understand the dilemma the noble Lord identifies, but we feel that this change will give magistrates in appropriate cases the power to impose large fines, often on people who are, in fact, in a position to pay them.

The Secretary of State can ask the Sentencing Council to consider amending guidelines on specific matters if necessary, and the council is independent of the Government. Guidelines already cover in detail how fines are set in relation to income, and we like to follow carefully the way the Sentencing Council works and its sentencing guidelines. In fact, I am attending one of its meetings tomorrow, although not on this particular subject. It is important that the Government are at least aware of what it is doing. I hope that the noble Lord is satisfied with the answers to his questions.

Judicial Pensions Regulations 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Thursday 29th January 2015 Grand Committee

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

My Lords, the regulations before us today create the New Judicial Pension Scheme 2015—NJPS—establishing the pension scheme itself and also providing for its governance structure and the operation of its employer cost cap. The NJPS is a defined benefit scheme which provides a guaranteed pension based on average pay over a judge’s career. Each year, a percentage of a judge’s salary is notionally put aside. On retirement the cash value of all these annually calculated percentage pots is added up and that is the annual pension. To protect the accumulating pension against inflation, each individual’s notional pension is uprated each year. Employee contributions remain the same and there is transitional protection for those closest to retirement. Unlike previous judicial pension schemes this scheme will not have an automatic lump sum and will be registered for tax purposes in line with the practice elsewhere in the public sector.

The Government announced at the time of the emergency Budget in 2010 the establishment of an independent review of the provision of public service pensions. The judiciary was included in the scope of this review. The review by the Independent Public Service Pensions Commission, led by the noble Lord, Lord Hutton of Furness, made recommendations for reform to public service pensions in order to make them both affordable and sustainable in the long term as well as offering certainty and fairness to public service pension scheme members and taxpayers. The Government’s response adopted many of the review’s recommendations. This included a guarantee that benefits accrued before the date of the change would be protected. It also introduced protections for those within 10 years of retirement.

On 5 February 2013, the Lord Chancellor announced to Parliament the intention to reform judicial pension arrangements in the form of the NJPS under the statutory framework of the Public Service Pensions Act 2013. The reforms to judicial pension arrangements will apply to eligible members of the judiciary in Scotland and Northern Ireland, as well as those in England and Wales. There are a number of devolved judicial offices in Scotland and Northern Ireland to which these reforms will not apply. The NJPS will be open to eligible fee-paid and salaried judicial office holders. This will be set out in a separate instrument.

The principles of the Public Service Pension Act 2013 have already been approved by this House; these regulations apply those principles, introducing a new pension scheme for the judiciary. The Government believe that the reforms to judicial pensions constitute a fair balance of costs and benefits between judicial pension scheme members and other taxpayers. I therefore commend these draft regulations to the Committee and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the noble Lord, Lord Faulks, has explained to the Grand Committee, the regulations before us today establish a new and reformed pension scheme for the judiciary. They are one of a number of instruments which are coming before your Lordships’ House on the matter of pensions.

I should say that as a general rule I am always sorry to see the end of final salary pension schemes, but I accept that that has been the trend in recent years, and I fully understand that pension schemes have to be reformed in order to ensure that they are sustainable in the long term. That has involved a change in the distribution of costs between the employer and the members of the scheme, along with a move from final salary schemes to other types of scheme and equalising the normal pension age with the state pension age.

I have only a couple of brief points. On looking at the Explanatory Notes, I see that the Lord Chancellor, after consulting with the judiciary, announced the intention to establish a stand-alone reformed pension scheme open only to the judiciary, although initially he had talked about bringing it into the Civil Service scheme. Can the noble Lord tell us why in the end the other options were not proceeded with, in particular the decision not to include the judiciary within the scope of the reformed Civil Service pension scheme? Further, will there be any additional costs to the taxpayer as a consequence of that decision?

I would appreciate a little more information regarding the tax concerns which have been raised by a number of members of the judiciary here in terms of the sums of money involved and whether that will result in additional costs which will have to be borne by the scheme and/or the taxpayer. Also, looking at the scheme itself, can he tell us a little about the governance arrangements? Will they differ in any material way from the governance of the Civil Service scheme? It would also be helpful to the Grand Committee if the noble Lord could highlight where in particular the scheme differs from the new Civil Service pension scheme? With those points, I am content to support the regulations before the Committee.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for his observations. He will know that the judiciary had some concerns about the scheme, one of which turned on the importance of the independence of the judiciary and of attracting appropriate candidates to posts within the judiciary at whatever level. I am sure that Members of the Committee will understand both of those points. A particular concern that was expressed by many in the consultations was about the changes that were to take place to ensure that the judiciary came under the scheme which embraces all other senior civil servants. There was a particular provision which followed the judiciary’s own stand-alone scheme that is set out in paragraph 8.2 of the Explanatory Memorandum. It concerned in particular those whose existing arrangements for their pensions were unregistered so that when they came to accept a judicial appointment, they did so on the basis that their then pensions were unregistered, only to find that as a result of these provisions, the pension in their new post became registered. The result of that was a significant disadvantage to them, and therefore after some consideration, it was thought appropriate for there to be a special arrangement for the judges in that particular position.

The result of the special arrangement was that those who had previously had an unregistered pension could opt out of the government scheme and they would not receive the pension to which they would normally be entitled. However, during the time that they sit as judges, they will receive an increased salary to reflect the fact that their employer—the Government—would be paying a proportion of their income for pensions in the same way that they would in ordinary circumstances, and will be doing for judges in all other cases. This means that although there is an advantage to the individual, it is in fact neutral in terms of the effect on the tax take as a whole. That was the position.

Judges choose representatives to the pension board —I am talking now of governance—and make recommendations to the scheme manager on the question of discretion. The scheme was at the judiciary’s request. There is an increase in costs in the administration of that special scheme. On the scheme generally, the Government’s principle was to develop a scheme that is fair and sustainable for public sector workers and the taxpayer generally and, save for this fairly limited exception, the judicial scheme will bring the judiciary in line, for the first time, in fact, with the reformed Civil Service pension scheme Alpha, while there are some differences, which I have explained. There are also some slight differences in ill health provision, but any benefits to the department will be long term in nature due to the transitional protection provisions which apply to a considerable proportion of the judicial office holders in scope. However, there is a long-term financial benefit to the MoJ in the form of savings from the service award. This is a salary payment to judges upon retirement which compensates them for tax liabilities on their retirement lump sum. The cost to the department of the current annual service award is around £17 million per year. As the new scheme requirements will remove the need for service awards in the long term, this cost will be a saving to the department, and thus to the country in general. There is harmonisation. There are one or two exceptions.

We think judges have satisfactory pension arrangements. In the view of judges, they are not quite as satisfactory as they were before, but in view of the recommendations of the noble Lord, Lord Hutton, which were accepted by the Government, all public servants have had to accept some reductions in their entitlement in view of the overall financial situation, and judges are not considered an exception, but there is some reflection of their particular circumstances in those special arrangements. I hope that that is a satisfactory answer to the noble Lord’s questions.

Legal Services Act 2007 (The Law Society) (Modification of Functions) Order 2015

Debate between Lord Faulks and Lord Kennedy of Southwark

Thursday 29th January 2015 Grand Committee

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

My Lords, as noble Lords may know, and by way of background, the Law Society of England and Wales is an approved regulator under the 2007 Act. The Solicitors Regulation Authority, the SRA, is the independent regulatory arm of the Law Society, which regulates all forms of solicitors’ practices and alternative business structures—ABSs.

Recognised bodies and ABSs are subject to the same authorisation process by the SRA, which is a one-off authorisation followed by ongoing supervision. In contrast, because of the requirements of the Solicitors Act 1974, sole practitioner solicitors are required to have annual endorsement of their practising certificates. This difference results in regulatory inefficiencies and increased costs for both sole practitioner firms and the SRA. The current differences in regulation also make it more difficult for solicitors to move between one type of practice and another. There are also differences in the way in which the SRA can take regulatory action where difficulty arises with a sole practitioner firm as compared with other firms.

This order therefore removes the requirement in the Solicitors Act 1974 for a solicitor who is a sole practitioner to obtain an annual endorsement on their practising certificate. The order therefore establishes a single method of authorisation and regulation of all solicitors. The effect of the order is to remove the concept of a sole practitioner from both the Solicitors Act 1974 and the Administration of Justice Act 1985 and instead create the concept of a “recognised sole solicitor’s practice”.

Recognised sole solicitors’ practices will be subject to the same type of authorisation and ongoing supervision process as recognised bodies and alternative business structures. This order is therefore a welcome deregulatory measure. It comes before the Committee following a public consultation by the Legal Services Board. No objections were raised during this process. The order was welcomed by the Sole Practitioners Group, which advised that it welcomed efforts to reduce the current burden of regulation of sole practitioners and welcomed the harmonising effect of the order.

In conclusion, the Legal Services Board is satisfied that there will be no lessening of consumer protection as a result of this order which will make it easier for the SRA to regulate solicitors more effectively and proportionately. I commend the order to the Committee, and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I do not intend to detain the Grand Committee for long on any of the orders before us today.

As the noble Lord, Lord Faulks, has explained, this order removes the requirement on a solicitor who is a sole practitioner to obtain an annual endorsement on their practising certificate and so establishes a single method of authorisation and regulation for all solicitors. That is welcome and we are very happy to support it from these Benches.

I notice from the impact assessment that there is a small financial saving to solicitors as a consequence of this change. It is not huge and would not be the dominant consideration in making these changes. However, I see the benefits of making the change in the methods of authorisation and regulation.

I note from the impact assessment that the proposal was originally consulted on between December 2010 and March 2011, but nothing was taken forward. Three years later a policy statement was issued, which again attracted support. Here we are at the end of January 2015 with the measure finally being brought into effect. Can the noble Lord shed some light on why four years have passed since this measure was first suggested and subsequently enacted? However, I am content to support the order.

[Lord Faulks]

I am grateful to the noble Lord for his observations. On his second point, these measures were, as he said, first proposed in 2010. Following a detailed consultation, the SRA stopped work on these proposals as it had to concentrate on various other priorities, including preparing to be designated as the licensing authority for alternative business structures which was, as he will appreciate, a fairly major piece of work. The SRA took up this work again last year in conjunction with my officials, and this order has been brought before the House at the earliest opportunity. The delay was because of other priorities rather than for any sinister reason. As to the noble Lord’s question on cost, this measure will remove some costs and bureaucracy. One hopes that that will be passed on in due course in some way to the client. I am grateful for those observations and I beg to move.

Youth Justice Board for England and Wales (Amendment of Functions) Order 2014

Debate between Lord Faulks and Lord Kennedy of Southwark

Tuesday 13th January 2015 Grand Committee

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

My Lords, the order before us today amends the Youth Justice Board for England and Wales Order 2000, which was made under Section 41(6) of the Crime and Disorder Act 1998. The order gives the Youth Justice Board for England and Wales—the YJB, as it is customarily known—additional functions so that it can more effectively and efficiently fulfil its statutory role to oversee the operation of the youth justice system in England and Wales.

This draft order deals with four provisions. These relate to the YJB’s grant-making powers, its role in the temporary release of young people from secure training centres, its power to commission education provision in young offender institutions and its ability to assist in the development of IT systems underpinning the youth justice system. I will briefly describe for the Committee the effect of each provision and our reasons for making these changes.

The first provision, set out at Article 2(c), extends the scope of the YJB’s function to make grants to local authorities and other persons, allowing it to respond more effectively to the evolving needs of local youth justice services. The YJB’s current grant-making function dates from when the board was established by the Crime and Disorder Act 1998. At present, the board, subject to the approval of the Secretary of State, may provide grant funding to local authorities and other bodies for the purposes of developing good practice and commissioning research on issues affecting youth justice. One such example of a grant provided by the board is the annual youth justice good practice grant made to all youth offending teams in England and Wales.

At the time of the establishment of the YJB and local youth offending teams, the scope of the board’s grant-making powers was appropriate. However, the Government’s triennial review of the YJB, laid before Parliament in November 2013, concluded that the purpose of the grant-making power was now outdated and limited. This order acts on the review’s recommendation by widening the YJB’s powers so that it can make grants to local authorities and others for the purposes of the operation of the youth justice system and the provision of youth justice services. This will increase the scope of services for which the grant money can be used, thereby better responding to the evolving local priorities of youth justice and promoting improved front-line delivery.

Noble Lords may well be aware that at the same time as we are seeking to broaden the YJB’s powers to make grants to local authorities, we are also conducting a stocktake of youth offending teams, or YOTs. The aim of this stocktake is to establish a clear picture of how YOTs are operating and to make sure that we are providing the best support possible to young people and their communities. While the details of the stocktake are being finalised, we nevertheless believe that now is the right time to amend the board’s grant-making powers so that funding can be better targeted to the evolving needs of youth justice services locally and that there should be no delay in bringing about this important reform.

The second provision, set out at Article 3(3)(a) of the draft order, gives the YJB a new power, concurrent with the Secretary of State, to release young people temporarily from secure training centres—STCs—a form of youth custody. Where young people are risk-assessed as suitable for temporary release without compromising security or public protection, permission will be given for them to leave the establishment for an agreed period to undertake constructive activity with the aim of supporting their effective resettlement in the community after release. Temporary release from custody can be used to enable young people to attend interviews and training courses or to arrange accommodation ready for their release. Making more effective use of temporary release to support resettlement is an objective of the Government’s Transforming Youth Custody programme.

At present, the process of temporary release from STCs is overseen by a combination of the National Offender Management Service—NOMS—on behalf of the Secretary of State and the directors of STCs. As it is the YJB rather than NOMS that is responsible for commissioning and monitoring the delivery of youth custodial services in STCs, we believe that the board is better placed to oversee the temporary release process. This instrument will enable the board to release trainees from STCs temporarily. Under this proposal, STC directors, in conjunction with youth offending teams, will assess a young person’s suitability for temporary release and submit applications for the YJB to approve. The YJB’s expertise and knowledge will ensure that there is greater consistency in the use of temporary release and that activities properly balance the benefits to the young person with public protection considerations.

The third provision, set out at Article 3(3)(b) of the draft order, has also arisen from the Government’s Transforming Youth Custody programme. In line with our aim to put education at the heart of youth detention so that young offenders can equip themselves with the skills to lead productive, crime-free lives, the provision gives the YJB a concurrent power with the Secretary of State to contract for the provision of education in directly managed young offender institutions.

The YJB currently commissions custodial provision in YOIs from NOMS, while the education provision in these directly managed establishments is commissioned and managed by the Education Funding Agency, an executive agency of the Department for Education which manages funding to support all state-provided education for children and young people up to the age of 19. The result of having separate commissioners of custodial and education provision in YOIs is a lack of integration between the two services. As a consequence, young people in YOIs receive an average of only 12 hours’ education a week, with classes frequently disrupted to facilitate appointments and other interventions.

Giving the YJB the power to commission and manage the provision of education in directly managed YOIs will promote the more effective integration of custodial and education services by creating clearer and stronger accountability arrangements. The board has considerable experience in commissioning and managing contracts in the youth custodial estate, and this change will ensure that the new education contracts in YOIs, which we announced in December and which will more than double the number of hours that young people spend in education, will be robustly managed and better meet the needs of young people.

The final provision, set out at Article 2(c) of the draft order, is intended to enable the YJB to make the best use of its skills and knowledge of the information technology systems used in the youth justice system. The provision will enable the board to provide assistance to local authorities and others in relation to the development, management and maintenance of IT systems. Youth justice IT systems are in place to facilitate the flow and management of information between local authorities, youth custodial establishments, the YJB and others who work directly with children and young people. This exchange of information, and the IT systems that underpin it, are therefore vital.

The important role that the board plays in overseeing the operation of the youth justice system means that it is highly knowledgeable about the needs and requirements of these information technology systems and their users. The board ought therefore to be in a position to assist local authorities, the Secretary of State and others to make adjustments to these systems to fit the evolving requirements of the youth justice system. This draft order will give the board a clearer remit to assist local authorities and others, such as IT suppliers, in the development, management and maintenance of these systems. For example, the YJB would be able to help local authorities co-commission services from case management suppliers.

As a whole, the provisions in this draft order will enable the YJB to discharge its functions more effectively, thus improving the overall operation of the youth justice system. Our intention is to give the YJB the powers it needs to tackle offending and reoffending by young people. The challenges the board faces now are not identical to those it faced when it was established in 1998, and it is right that we amend its powers to reflect this. Fewer young people are entering the criminal justice system and fewer are ending up in custody, which I am sure is welcomed on all sides. These are significant achievements, and this draft order will ensure that the YJB is able to continue building on this success while supporting new approaches to tackling what can be stubbornly high reoffending rates. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Lord, Lord Faulks, for setting out the details of this order for the Grand Committee to consider this afternoon. As the noble Lord explained, the order both amends the functions of the Youth Justice Board for England and Wales and grants it new powers. Of course, we can look back to earlier in this Parliament when the Government were talking about the bonfire of the quangos and the Youth Justice Board was firmly in their sights. Thankfully, we on these Benches saw off that threat and now the noble Lord’s predecessor, the noble Lord, Lord McNally, is the chair of the Youth Justice Board—how things change!—and we wish him well.

I would like to put on record my thanks to the Youth Justice Board for the work it does in England and Wales and its many achievements. I have a number of points to make and a few questions for the noble Lord. First, I welcome the proposals to extend the ability of the Youth Justice Board to award grants to local authorities or other bodies working in the youth justice system. Will the Minister say something about the level of funds that are going to be available to make grants from? Is there any new money here or is it just new powers and grants from existing budgets, with no new money?

Secondly, the order gives the Youth Justice Board the new function of assisting other relevant bodies with IT support. Anything that involves IT always worries me as I have seen so many things go wrong due to poor planning, poor procedures and problems around IT. The words “overpromise” and “underdeliver” are usually in my mind when it comes to IT projects. Will the noble Lord tell the Grand Committee a bit more about what is planned here? What assurances can he give the Grand Committee about the protection of data? These are people’s data and, in this case, young people’s data. How can we be assured that these data will be protected and kept secure? Will the Youth Justice Board have the necessary funds to ensure that this important function is done properly?

I welcome the proposal to allow the Youth Justice Board to enter contracts for the provision of education in young offender institutions. Good quality education and purposeful activity for the young people held in these institutions is of paramount importance and more must be done in this area. Will the noble Lord tell the Grand Committee how he sees standards being improved in the coming period? There are lots of data and other pieces of evidence about the education level achieved and the number of people who suffer from some form of learning difficulties going through the criminal justice system. It is essential that educational achievement is improved as part of rehabilitating these young people—I am delighted to hear that fewer young people are going through the system now—so that they can return to make a proper contribution to society and not be in a revolving door in and out of these and similar establishments. With those points, I am happy from these Benches to support the order.

Transfer of Tribunal Functions (Transport Tribunal) Order 2014

Debate between Lord Faulks and Lord Kennedy of Southwark

Tuesday 13th January 2015 Grand Committee

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

My Lords, I will refer to this order as the transfer order. The purpose of the order is to transfer the quality contract scheme jurisdiction of the Transport Tribunal into the Upper Tribunal. The Transport Tribunal currently sits outside the unified tribunal structure. Most of the jurisdiction of the Transport Tribunal was transferred to the First-tier Tribunal and the Upper Tribunal in 2009. However, the Transport Tribunal could not be abolished at that time as it remained necessary to hear appeals resulting from proposed quality contract schemes, introduced by the Transport Act 2000, as amended, and to hear appeals under the Transport (Scotland) Act 2001 for bus timetabling.

Article 2 of the order transfers the functions of the Transport Tribunal that relate to quality contract schemes to the Upper Tribunal. Schedule 1 makes consequential amendments to the Transport Act 2000, and Schedule 2 contains transitional and saving provisions. Transitional provisions ensure that if any existing case were to start before this order is approved, it would start in the Transport Tribunal and would not be adversely affected by the transfer. A case that has begun but is incomplete will be determined by a panel comprised of the same judicial members. Directions and orders made by the Transport Tribunal prior to the order coming into force will continue in force as if they were directions or orders of the Upper Tribunal.

Under powers in the Transport Act 2000, local authorities are able to determine local bus services by establishing a quality contract scheme, which suspends the deregulated bus market in a defined area and specifies what bus services will run in that area. Other than specific exceptions, no other bus services are then permitted. Before doing so, the authority must undertake a consultation exercise with affected parties. If the local authority wishes to pursue a quality contract scheme after consultation, its final proposal must satisfy a public interest test that involves the proposal being examined by a quality contract scheme board chaired by a traffic commissioner, who determines whether the making of a quality contract scheme by the local authority is the only practical way of implementing its transport policy in the area in an economic and effective manner. Statutory consultees currently have a right of appeal to the Transport Tribunal, as does the local authority.

Why are the Government taking this action? Integrating the quality contract scheme jurisdiction into the unified tribunal structure will provide the flexibility to utilise the pool of Upper Tribunal judges and panel members who already have the necessary expertise in the law of their jurisdiction to hear transport-related appeals as the need arises. The Senior President of Tribunals could ticket appropriate judges to hear the quality contract scheme cases.

Although it would still be necessary to retain the Transport Tribunal to deal with any potential appeals under the Transport (Scotland) Act 2001 for bus timetabling, it is expected that these will be transferred to a suitable devolved tribunal in Scotland in due course via secondary legislation made under the Tribunals (Scotland) Act 2014, once the necessary structures are in place.

The Government are committed to the ongoing transformation of our tribunals, placing the user at the heart of the service. This order further implements the legislative changes enacted by the Tribunals, Courts and Enforcement Act 2007 by transferring the quality contract scheme jurisdiction of the Transport Tribunal into the Upper Tribunal. The Government believe that the transfer of the quality contract scheme jurisdictions to the unified tribunals structure will benefit all users of the jurisdiction who seek judicial redress and will provide access to a more coherent, swift and responsive system. I therefore commend this draft order to the Committee.

[Lord Kennedy of Southwark (Lab)]

My Lords, I have no wish to detain the Grand Committee any longer than necessary. I have no issues with the order. As the noble Lord said, the transfer of the functions of the Transport Tribunal which relate to the quality contract schemes to the Upper Tribunal is another step along the way to a unified tribunal service which, as the Minister said, came from the previous Government which put the Tribunals, Courts and Enforcement Act 2007 on the statute book.

Will the Minister tell the Grand Committee why the Government opted for the Upper Tribunal as the preferred outcome, which was suggested by a number of responders, including local authorities, rather than the First-tier Tribunal, which was the bus operators’ proposed option? The hybrid option was ruled out by the Government, which was sensible and right as it would not provide clarity but would have caused confusion. I note that two schemes are going to come forward. I will not make a joke about two coming at once on the day of the bus strike but will leave it there.

[Lord Faulks]

I am grateful to the noble Lord for his support for this proposal. As he rightly said, this is pursuant to the previous Government’s attempt to bring all the tribunals under one umbrella.

In answer to his question about why the Upper Tribunal of the unified tribunal system was chosen to hear quality contract scheme appeals rather than the First-tier Tribunal, the Upper Tribunal was considered the appropriate appeal designation to hear these appeals as it would avoid two rounds of appeal within the tribunal system, which could unduly delay the implementation of schemes where they are in the public interest.

Taken together, the quality contract scheme board and the other tribunal will provide two levels of independent scrutiny and will utilise the existing Upper Tribunal judges and panel members, who already have the necessary legal expertise, to hear these transport appeals. There will also of course be an onward right of appeal on a point of law and exercisable only with the permission of the Court of Appeal, which provides an additional safeguard.

This instrument supports the Government’s continuing commitment to implement the provisions of the 2000 Act and to provide a unified tribunal structure to meet the needs of users. In those circumstances, I commend this draft order to the Committee.

Compensation (Claims Management Services) (Amendment) Regulations 2014

Debate between Lord Faulks and Lord Kennedy of Southwark

Tuesday 25th November 2014 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, I say at the outset that the Opposition very much welcome what is proposed today. Since joining your Lordships’ House in June 2010, I have regularly raised the question of claims management companies and the end of the industry that indulges in bad practice. I also want to start by paying tribute to the work undertaken by the claims management unit at the MoJ, led by Kevin Roussell. It does a really good job with limited resources and the regulations will be another important tool in its box to deal with bad practitioners who rip off consumers and cause unnecessary costs for businesses to which they submit claims.

What is most reprehensible is submitting pointless, vexatious claims to financial services providers with which their client has no record of doing business. That is done as a fishing expedition on the off chance that they may get lucky, with no regard to the cost to the business, the clogging up of the processes in each business and the Financial Ombudsman Service, or to the genuine people who have been ripped off by bad practice in the financial services industry, who will have to wait even longer to have their claim settled.

I must say that I have no problem with the responsible claims management company, which can provide a valuable service to its clients. It can give advice on how to proceed, and as long as its client is aware of the charges to be incurred and is happy to pay them, and the company is properly processing and managing claims, that is fine. Nothing here will concern the responsible claims management company. In the consultation there was broad support for the proposals from all respondents, including the claims management industry, which wants to improve the image of its industry, raise standards and get rid of the rogues.

However, it is important to put on record that CMCs working in this field are dealing with bad practice in the financial services industry. There have been a number of cases in recent years where people have behaved very badly in that industry. I note in the Explanatory Memorandum that the Ministry of Justice does not see a case for consolidation at present. I think that that is probably right. I hope, however, that the department will keep this under review, as things change over time, sometimes very quickly. We may get to the point where the case for consolidation becomes more compelling. If that is the case, the Minister can be assured of support from these Benches. I have no wish to detain the Grand Committee any longer than necessary, and conclude my remarks by again welcoming the proposals.

[Lord Faulks]

I am grateful for the observations of the noble Lord, Lord Kennedy, who has indeed several times in your Lordships’ House raised questions about claims management and the more unattractive habits in which they have been prone to indulge. I am also grateful to him for specifically drawing the Committee's attention to the claims management unit and Kevin Roussell, who runs it. I have visited that unit in Burton-on-Trent. It is a small, efficient, extremely dedicated collection of employees who, I think, have made real progress in improving the industry. Although there are some who wonder why we need claims management companies at all, we are increasingly left with fewer, better regulated and better organised claims management companies who provide a service to clients.

I accept the noble Lord’s point that that there is a need to be nimble and alert, and possibly in due course to consolidate. This is an area where the market changes swiftly, and there has to be a swift response—if necessary, a legislative response—to make sure that changes in market do not bring about unacceptable practices. We feel that the changes embodied in the statutory instrument—the new power to impose financial penalties—which are similar to those of regulatory authorities such as the Financial Conduct Authority and the Information Commissioner’s Office, are an additional and useful adjunct to the existing powers. I hope the Committee will agree that they are proportionate and necessary measures, and in those circumstances, I commend the regulations to the Committee.

Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014

Debate between Lord Faulks and Lord Kennedy of Southwark

Tuesday 25th November 2014 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, the three orders that we are discussing today modify the functions of the Chartered Institute of Legal Executives, the Institute of Chartered Accountants in England and Wales, the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys in respect of regulatory matters to the extent necessary to modify their powers under the Legal Services Act 2007, and the one regulation extends the ban on the payment and receipt of referral fees in personal injury cases to include appropriately qualified practitioners who are members of the Charted Institute of Legal Executives.

CILEx is an approved body to award practice rights in the reserved legal activity area and this regulation will be undertaken by ILEX Professional Standards. It also has to have the ability to protect the interests of the public who use the services of its members, and this includes the power both to provide redress in the form of compensation to clients and to be able to intervene into legal practices. The order gives it the required powers to set up a compensation fund and collect the required fees and, secondly, to take appropriate enforcement action to protect the interests of consumers. I agree with my noble friend Lady Hayter of Kentish Town that this is good news for consumers in giving them a wider choice in the marketplace when looking for legal services and in providing the public with proper protection. It is a boost to legal executives seeking to widen the sphere of work that they undertake, particularly unsupervised work, as they can demonstrate that they have proper protections in place.

The order in respect of the Institute of Chartered Accountants in England and Wales provides for appeals to the First-tier Tribunal against decisions made by the institute as an approved regulator and as a licensing authority. It also changes its arrangements and increases its scope for using intervention powers. This again is a sensible measure, and the Opposition have no issues with what is proposed here. Giving consumers uniform protections and rights is in itself a sensible move and works towards improving the efficiency of the regulatory and protection framework for legal services.

The third order makes changes to the regulatory arrangements in respect of the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys acting as approved regulators and, if designated in the future, as licensing authorities. Again, the Opposition have no issue with what is proposed, but I have a few questions for the Minister. In respect of the order relating to CILEx, what work has the Ministry of Justice done to satisfy itself that the Legal Services Board has acted with due diligence in coming forward with this proposal and that CILEx has the range of competences required to undertake these new regulatory powers?

In respect of the order regarding the Institute of Chartered Accountants in England and Wales, what work has the MoJ done to satisfy itself that this order is appropriate and, again in respect of the third order, what specific work has been undertaken in the MoJ to satisfy itself that these measures are proportionate, they deliver the objectives being sought here and those objectives are right in practice?

I have no issues to raise in respect of the regulation adding CILEx-registered practitioners to those banned from the paying and receipt of referral fees.

[Lord Faulks]

My Lords, I am grateful for the contribution to this debate from the noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, who I know broadly welcome all these changes by statutory instrument. I shall deal first with what the noble Baroness said about CILEx. She accurately described this as the next step in rolling out CILEx so that its increased role and activities can be used by more people. She rightly pointed out that many people will go to legal executives rather than spend more money on lawyers. There is increasing confidence in the standard of advice that they are giving. I have been to a number of events of theirs, and it is a profession that is in good health. The noble Baroness is also right to point to the range of diversity among their number. Although my figures do not precisely coincide with hers, as there were some CILEx members who chose not to provide information, I confirm that on the figures that the MoJ has, 74% of CILEx members are women and there is a higher than usual percentage of members from black and minority ethnic backgrounds—certainly not less than 16%, which is encouraging.

The noble Lord, Lord Kennedy, asked whether the Government were satisfied that CILEx had put effective and appropriate arrangements in place generally for these arrangements. He will appreciate that under the Legal Services Act 2007 the Legal Services Board was set up as a super-regulator. It was his Government who brought in that legislation, and it is not for the Government to regulate the regulator who then regulates the regulator, so we have to be satisfied that the Legal Services Board is in fact doing its job. Of course, as with all arm’s-length bodies, it is regularly reviewed.

The Ministry of Justice analysed each application made to it by the Legal Services Board before the Lord Chancellor agreed to make the specific orders that are before the Committee today. That included looking at the underlying regulatory framework. I can assure the noble Lord that that additional step was taken. The Ministry of Justice has to be satisfied with the overall framework of regulation that exists in relation to all these professions, whether it is legal executives or trade mark and patent attorneys. The Government are satisfied that effective and appropriate arrangements have been made in respect of the regulation and authorisation of CILEx members, and indeed in relation to compliance with the Legal Ombudsman, although the noble Lord did not specifically ask me about that.

The intention, by setting up the compensation fund and giving rights to intervention, is clearly to put such professionals in the same, more established position applying elsewhere and to provide additional security for consumers. That has been done, in so far as one can ever be 100% sure of these things.

Divorce (Financial Provision) Bill [HL]

Debate between Lord Faulks and Lord Kennedy of Southwark

Friday 21st November 2014 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, this is an important technical group of amendments, which follow on from the previous group in clarifying that the provisions of Section 25(1) of the Matrimonial Causes Act remains in force and that we are referring only to subsection (2), for all the reasons that noble Lords gave in the previous debate, along with Amendment 3, which again makes it clear that we are referring to the Act in the amended form. The addition and clarification of the 2004 and 2013 Acts, as the noble Baroness advised the House, will clarify that the new law will apply to civil partnerships and same-sex couples, but not to cohabiting couples, who are the subject of a different Bill, to be introduced by the noble Lord, Lord Marks, which will have a Second Reading shortly.

The second part of the group removes subsections 5(1) and (2), which deal with the issue of periodical payments, discussed during the Second Reading debate in your Lordships’ House. They seek to address an issue that everyone recognises needs to be looked at; on these Benches we were concerned that there appeared to be a one-size-fits-all approach. In a later group, we will look at amendments that seek to take on board concerns expressed in the Second Reading debate and elsewhere.

Amendments 21, 22 and 26 make clear the divide between lump sum payments and ongoing periodical payments.

[Lord Faulks]

My Lords, I shall speak briefly to this group of amendments. As the noble Baroness said, a number of these are technical or drafting improvements on which I need not detain the House; I have only these brief comments of substance to make.

I acknowledge the noble Baroness’s intention to limit the potential for litigation under this Bill through her amendments. Amendment 20 is consequential to the removal of paragraphs (b) and (d) of Clause 4(7). It removes the provisions on the making of periodical payments and the duration of such periodical payments and the requirement for the court to consider whether a lump sum payment would be sufficient to meet the needs of the person concerned; it also removes the restrictions and duration limits on the court when making orders for periodical payments, for which the existing subsection (1) of Clause 4 provides.

Amendments 21 and 22 remove from Clause 5 references to lump sum payments as an alternative to periodical payments in Clause 5, and Amendment 26 removes a reference to a lump sum order as an alternative to an order for periodical payments. The Government welcome the greater flexibility for payment of periodical sums provided by these amendments.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, this amendment in the names of the noble Baronesses, Lady Deech and Lady Wilcox, my noble friend Lord Grantchester, and the noble and learned Lord, Lord Walker of Gestingthorpe, and the other amendments in the group—namely, Amendments 14, 15, 15A, 16, 18 and 19—deal with matrimonial property, an issue central to the Bill.

The new clause proposed by Amendment 6 is detailed and, as we have heard from the noble Baroness, Lady Deech, and the noble and learned Lord, makes it clear that the split of assets on divorce should be limited to property acquired after marriage by the couple. The family home will be treated as matrimonial but property, gifts and inheritances acquired before the marriage will not be matrimonial or available for sharing.

I very much see the point that without the certainty that the proposed new clause aims to give, couples run the risk of spending vast sums of money fighting over the division of assets and thereby reducing the assets that they are left with. As the noble Baroness, Lady Deech, said, to reduce costs we need to make things simpler and clearer for divorcing couples. These are welcome amendments that seek to do just that. I also associate myself with the comments of the noble Baroness, Lady Shackleton of Belgravia, in thanking the noble Baroness, Lady Deech, for bringing forward the Bill.

[Lord Faulks]

My Lords, the amendments in this group would provide greater clarity about how the court is to approach the making of orders dividing matrimonial property on divorce. Clarity and a degree of certainty are clearly desirable. Against that, one has to weigh the need for flexibility, with the possibility that flexibility can sometimes bring fairness that certainty precludes. I am very grateful for the way in which the group was introduced by the noble Baroness, and indeed for the elaboration by the noble and learned Lord, Lord Walker of Gestingthorpe. He explained with great lucidity the attempt to improve upon the Scottish definition to deal with the problems of portfolios and the like, which may change and therefore change their character in legislative terms.

The proposed new clause seeks to define matrimonial property as property acquired “during the marriage”, rather than property owned before the marriage by either party, or property received as a gift during the marriage. Its intention is to clarify the definition of matrimonial property, which, under the terms of the Bill, will be the only property in respect of which financial orders can be made on divorce, except where there is a significant additional contribution by one party, or if the property has increased in value. The noble and learned Lord described what is meant by a significant additional contribution.

Matrimonial property would normally be divided equally between the parties. The Government have concerns over the definition of “matrimonial property” and the rigid equal division of matrimonial property, as the definition may be unfair in many cases: an equal division of property is rarely found in most ancillary relief cases, due to the lack of assets of the family, and the needs of the children and of the family. If the provisions of the Bill were to be taken forward we would need to define matrimonial property extremely carefully to ensure that any division was fair.

Existing provisions for division of property on divorce give the court a wider discretion to divide property and determine who should have which assets, in the context of the needs of the family. That enables the court to seek to achieve fairness in all the circumstances. The Government are not convinced that the certainty that the Bill and these amendments intend to provide would not come at too great a cost in rigidity. Therefore, the Government believe that the definition of matrimonial property in the Bill is problematic and, I fear, continue to have significant reservations about it.

Amendment 14 is in a different category. It would clarify the date on which the net value of the matrimonial property is to be valued. Instead of the “relevant date” described in Clause 4(4), the valuation is to be made on the date of the relevant financial order made by the court. This provides a clear and unequivocal date for the valuation: the date on which the property is divided. Consequentially, Amendment 15 removes the definition of the date at which the matrimonial property is valued in Clause 4(4). That is clearly desirable.

Amendment 17 would insert a new subsection into Clause 4, describing how a lump sum order is to be taken into account on the division of property on divorce. A lump sum payment is to be taken into account as part of the equal sharing of the matrimonial property, irrespective of the assets used to pay the lump sum. The amendment clarifies the position as to how lump sum payments are to be taken into account.

The Government welcome the greater clarity that would be introduced into the Bill, but as I have indicated remain concerned about the lack of flexibility for the court to determine how to divide property on divorce, and about the fact that the provisions in the Bill apply only to matrimonial property, allowing no flexibility for the court to consider what might be fair to the parties of a marriage in particular circumstances. I acknowledge the noble Baroness’s intention, through her amendments, to limit the potential for litigation under the Bill. The Government and all noble Lords are particularly aware of the unsatisfactory nature of the law, in the sense that it can so often lead to protracted disputes.

Amendments 18 and 19 concern Clause 4. They would remove paragraphs (b) and (d) from Clause 4(7), so that, under the Bill, the court would no longer have to take into account the source of funds not derived from the efforts of the parties during the marriage when making an unequal sharing of the matrimonial property—nor would the court have to take into account the nature and use of the matrimonial property in such circumstances.

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[Lord Kennedy of Southwark]

My Lords, this group of amendments starting with Amendment 7 in the names of the noble Baronesses, Lady Deech and Lady Wilcox, and my noble friend Lord Grantchester are all to Clause 3, which concerns prenuptial and post-nuptial agreements.

I see the arguments made that these agreements, which were not very common a few years ago, are on the increase and can provide certainty to both parties as to the division of assets in the result of a breakdown of the relationship. I recall the comments of the noble Lord, Lord St John of Bletso, when he told us at Second Reading that these agreements had in no way encouraged the breakdown of marriage. Also, the noble Baroness, Lady Wilcox, spoke about people who had been widowed or divorced and were afraid to marry again where there were assets they wished to protect and who were reluctant to commit again, fearing a potentially financially disadvantaged position at a time of life when starting again would be almost impossible. The noble Lord and other noble Lords spoke about this again today.

The amendments themselves seek to provide further clarity as to what this Bill seeks to do in respect of pre and post-nuptial agreements and build on the comments and points raised both inside and outside your Lordships’ House.

[Lord Faulks]

My Lords, this has been a useful and instructive debate on this interesting and significant area. There are those who retain great faith in the institution of marriage. The noble Baroness herself said that, and I for one see no tension between thinking that and nevertheless being of the view that it is important there should be some sensible provision about prenuptial agreements. Her student may have been anticipating a trend by suggesting going to a lawyer almost immediately, in the heady days of announcing her engagement. A number of popular songs that suggest going to see the preacher at that juncture may have to be amended to reflect this different approach.

These amendments all relate to this clause. Amendment 9 changes the threshold of the duty of disclosure placed on both parties for the prenuptial or post-nuptial agreement to be binding on both parties. The Bill currently requires that the parties fully disclose their assets before the agreement will be binding on them and this amendment would require only “proper disclosure”.

Amendment 7 corrects the omission of the requirement in the Bill for a prenuptial or post-nuptial agreement to be made in writing. I recall that that point was specifically drawn to the House’s attention by the noble and learned Lord, Lord Scott of Foscote, at Second Reading. As the noble Baroness said, this is an essential prerequisite and a key feature of the recommendations made by the Law Commission.

The intention is clearly to protect people entering into prenuptial agreements by imposing the formality of a written and signed agreement. However, the Government have already indicated that we have reservations about the lack of flexibility in the Bill for the court to override an agreement that is unfair or does not adequately provide for “needs”. This is especially so given that people often enter into a prenuptial agreement at a point when they are not as realistic about events, sadly, as they should be.

The Government has yet to consider the detailed proposals for binding matrimonial property agreements put forward by Law Commission in its report on Matrimonial Property, Needs and Agreements. We have informed the commission that a final decision on the proposals should be made by the new Government after the election. However, the Government would not seek to oppose this amendment to the Bill.

The requirement under the existing divorce process is for both parties to make,

“full, frank, clear and accurate”,

disclosure of their assets using form E. We have concerns that undefined “proper” disclosure would be open to interpretation and offer scope for possible hiding of assets in a way that the current requirement is designed to avoid.

Amendment 8 amends the formulation of subsection (1) of Clause 3 and, if I have understood it correctly, is intended only to tidy up the drafting and not to change its substantive effect. The amendment seeks to replace the words,

“binding on the parties and is to be given effect unless”,

with “binding on them unless”. However, I believe that normal legislative drafting convention means that the effect would be to omit the crucial word “unless”, which is necessary to apply the conditions set out in paragraphs (a) to (e) of subsection (1).

Amendment 11 inserts a new substantive provision into the clause which sets out the requirements for a prenuptial or post-nuptial agreement to be binding. It does not set a new condition for the agreement to be binding; rather, it provides that only the person who has been disadvantaged can rely upon failure to obtain legal advice or failure to disclose assets as a means to make the agreement non-binding. The Government remain generally concerned about the lack of protection for people entering into binding prenuptial or post-nuptial agreements under the terms proposed in the Bill. These amendments do not appear to improve significantly on the protection offered and are substantially different from the approach recommended by the Law Commission, which would preserve the ability of the court in appropriate cases to override an agreement made between the parties where in the view of the court its terms are manifestly unfair or where they fail to provide adequately for needs. The Government have yet to consider the Law Commission’s detailed proposals. In relation to the Bill we are concerned that leaving prenuptial agreements to be subject to the rules of contractual law around validity and enforceability, and post-nuptial agreements subject to review by the court under the provisions set out in Section 35 of the Matrimonial Causes Act 1973, does not amount to a coherent set of protections.

Amendment 12 would remove the possibility of the Lord Chancellor making rules to specify what constitutes the full disclosure of assets, which is one of the requirements in the Bill for the prenuptial or post-nuptial agreement to be binding. The noble Baroness said that she has been advised that the law in relation to disclosure is sufficiently clear not to need further elaboration. As already noted, the second amendment would alter “full disclosure”, which as she rightly says is well understood, to “proper disclosure”. The Government agree that there are already established principles around disclosure. I understand that the noble Baroness is really concerned with what might be regarded as de minimis omissions from the list, but I do not think that that would in fact cause a difficulty on the existing rules. We are concerned that the use of the term “proper disclosure” could open up some areas of concern.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Kennedy of Southwark

Monday 20th October 2014 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, I will be very quick. The amendment in the name of the noble Earl, Lord Lytton, seems very sensible. If a new offence applies to police officers, it should apply to those acting under the authority of a constable or performing a duty that would normally be provided by a constable and falls within the term “policing”. The House should be very grateful to the noble Earl for spotting the potential loophole that his amendment is an attempt to close. I hope that the noble Lord, Lord Faulks, is able to support the amendment—but, if he is not, I hope that he will be able to give us a detailed reasoning of why the Government do not think that it is necessary, as the noble Earl made a convincing case.

[Lord Faulks]

My Lords, I, too, am grateful to the noble Earl for bringing these matters to the attention of the House and for telling us specifically about the incidents to which he has drawn the attention of the Home Office—although he will, of course, understand, as I think he accepted during his remarks, that I cannot comment on specific cases. However, by using a specific case, he raises a wider concern about the fact that it is not specifically and exclusively police officers who may be involved in what might loosely be described as corruption.

Before dealing with the amendment in a little more detail, I will reassure the noble Earl that although the new offence in its current scope is not retrospective, existing laws will continue to apply to any behaviour before the commencement date of the Act. The question of corruption remains a considerable concern of police forces and prosecuting authorities—and the police, sadly, are used to dealing with it. In the next few weeks, Her Majesty’s Inspectorate of Constabulary will publish a report on anti-corruption capability—so there is an awareness of the need to ensure that this matter is well and truly a focus of its intention.

At Second Reading and in answer to the noble Lord, Lord Kennedy, in the context of the earlier amendment, I said that the offence in the Bill has been brought forward in response to particular issues of corruption that have occurred in the past among police officers—some of senior rank—not all of which are capable of being pursued under the common law. This offence would allow such cases to be addressed. It is something of an irony that senior police officers opposed the introduction of the offence on the basis that it was unnecessary. The noble Earl takes the opposite view: namely, that the offence should be extended beyond the scope which it currently has to include those who are enmeshed in the whole process of corruption. He is right that agencies do not act alone. They are best when they act together in a concerted way. It is very unfortunate if they act in a concerted way that is also corrupt.

Sadly, I am sure that there have been cases of police staff and other public officials corruptly accessing sensitive information or seeking to disrupt investigations by manipulating IT systems. However, the Government have taken the view that it is imperative at this time to address corruption among police officers. Other public officials, including police staff, remain subject to the common-law offence of misconduct in public office, to which I made reference earlier. There have been high-profile prosecutions for the common-law offence in recent months in connection with selling information to the press, including of prison officers, military personnel and police officers. I reassure the noble Earl that we are dealing with corruption across the board.

I should also point out that the Law Commission is starting a project to examine the broader issue of misconduct by public officials, including the misuse of sensitive official information. That, I suggest, is the proper place to look at misconduct and corruption in other areas of public service. I encourage the noble Earl to raise his concerns with the commission when it publishes its consultation document early next year. I also say to the noble Earl and to the House that the amendment would greatly extend the reach of the new offence to a group of individuals who may not have received any specific training of the type that one would expect and may not be clear that they fall within the definition he proposes, and for whom there is no public clamour for a specific anti-corruption offence in the same way that we believe there is for police officers.

I make no criticism of the noble Earl’s drafting. His intention is perfectly clear. But we believe that, notwithstanding the continued anxiety we all face to eradicate corruption wherever it is found, it would be unwise to agree such a broad amendment at such a late stage of a Bill without an opportunity to consult with police representative bodies or the wider public. Therefore, I thank the noble Earl but nevertheless ask him to withdraw his amendment.

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[Lord Kennedy of Southwark]

My Lords, the amendment in the name of the noble Lord, Lord Marks of Henley-on-Thames, seeks to take out 16 and 17 year-olds from the scope of a mandatory custodial sentence for possession of a knife in a public place. I have considerable respect for the noble Lord and a good deal of sympathy for what he is trying to achieve. However, if he pushes this to a vote today, I will not support him in the Division Lobby.

As the noble Baroness, Lady Berridge, said, there is already provision in the Bill as it stands for the court to show some discretion if it is of the opinion that there are particular circumstances which relate to the offence and which would make it unjust to do so in all the circumstances. However, as the noble Lord, Lord Marks, said, this provision was put into the Bill during its passage through the Commons by the honourable Member for Enfield North, and technically it was not a government amendment. Perhaps that was not the easiest way to have done this. However, I see the deterrent effect of such provisions and I am not convinced that removing all 16 and 17 year-olds from the scope of this would be helpful.

I am well aware that knife crime is falling, and I want that to continue. However, there are also parts of London where this sort of crime is still far too high, and we have to take action to ensure that we reduce this type of offending. During Committee—and I have talked about this before—I explained to the House that I was born in Lambeth and grew up in Southwark. I am involved with a little charity there which works with some kids on the council estates. It is quite shocking when you go down there. There are kids living on the Wyndham estate who will not cross the Camberwell New Road into Lambeth because they are terrified that they will be attacked—knifed, and so on. That is what we have to deal with. We need the council to do things, but we also need strong deterrents from the courts as well.

This provision is for all young people—those 16 and over and those 18 and over—not for a first but for a second offence. So they will have previously been caught and convicted of an offence with a knife and can be under no illusion what the likely outcome is if they are caught for a second time. We must do everything we can to stop young people killing each other with knives on our streets, which is a tragedy. However well intentioned this amendment is, it will not help achieve that aim.

However, the Government should give a commitment to review this provision after a couple of years, maybe even bringing forward a sunset clause at Third Reading. That would enable us to evaluate exactly what happens over the next couple of years and to take any corrective action quickly.

[Lord Faulks]

As noble Lords will be aware from previous discussion on this matter in Committee, this clause was added to the Bill by a Back-Bench amendment in the other place and the principle agreed by your Lordships’ House. Noble Lords will also be aware that agreement has not been reached on the policy underlying this clause within the Government, so I hope that noble Lords will understand why I cannot speak to the detail of these clauses, much though I would like, for example, to have risen to the challenge posed by my noble friend Lord Carlile.

The only thing I can say is simply to assist the House in answer to a technical query about Section 44 of the Children and Young Persons Act 1933 and the welfare of the child and the young person. That is not—and I do not think my noble friend Lord Marks suggested it was—an impediment to actually passing a sentence of this sort. Otherwise, a child might not ever be sent into the secure children’s estate.

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[Lord Kennedy of Southwark]

My Lords, this group of amendments raises important issues, just as we saw with the previous group, concerning the possession of an offensive weapon or a bladed article.

I have the greatest respect for the noble Baronesses, Lady Browning and Lady Berridge. They make some very important points but I am not convinced by their arguments that what they seek is necessary. As I said previously, knife crime can have a devastating effect, not only on the person who is killed or seriously injured but on the life of the offender. In Committee, the noble Lord, Lord Blair of Boughton, told the House that he had to speak to many families whose loved ones had been murdered in such circumstances and saw at first hand the devastating effects of that. We have to get the balance right. For this group of amendments, my previous suggestion stands: we need to look at this whole area and review it after a couple of years. If the Government come back then and look at how the whole Act is operating, that is the best way forward.

I will listen very carefully to the reply by the noble Lord, Lord Faulks, especially with respect to increasing the scope to include people convicted of an offence under various military and Armed Forces Acts. Clearly the noble Baronesses have considered this very carefully. However, I am not convinced that to put in the Bill an amendment that a court must have regard to the duty under Section 44 is necessary. I am sure the Minister will respond to that as well.

[Lord Faulks]

I am sorry to disappoint the noble Lord, Lord Kennedy, and the House but I am unable to respond in detail because, as I said in response to the earlier amendment, the clause has been added by a Back-Bench amendment and the principle has been agreed by your Lordships’ House. However, agreement has not been reached within the Government on the policy underlying this clause. Therefore, I am unable to speak as to the detail of these clauses.

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[Lord Kennedy of Southwark]

I am delighted to be able to support the amendment of my noble friend Lord Foulkes of Cumnock; it seeks to protect shop workers from assault when they are doing their job and refusing to sell alcohol after the permitted time as required by law. The amendment has the support of the shop workers’ union, USDAW, which is a campaigning union standing up for its members. It also has a reputation as a hard-working professional organisation that works with employers and wants the businesses that its members are employed in to be a success. It is respected in the industry as a whole and the amendment is typical of the way USDAW works. The amendment has the support of not only the union but the organisations that represent the businesses in the sector and the staff who can find themselves at serious risk of assault for just doing their job, as many noble Lords have already said.

In Committee, I told the House that USDAW has run its Freedom from Fear campaign for many years. That campaign seeks to highlight the unacceptable situation that shop workers can find themselves in just for doing their job. Shop workers are among some of the lowest paid workers. They deserve the right to go to work without the risk of being verbally abused or even physically assaulted. People come into shops that sell alcohol, often late at night, usually the worse for wear having drunk far too much, and when they are told that they cannot buy any more alcohol as it is past the licensing hours, the poor shop workers can be subject to abuse and, in many cases, actual physical assault. We should also remember that these offences occur late at night, often when there are only one or two members of staff on duty in the shops concerned.

As my noble friend Lord Foulkes said, we recently met with the Minister and Mr John Hannett, the general secretary of USDAW. The Minister was very courteous and was concerned about what we heard from our friend John Hannett. Clearly the Government have not been prepared to move so far and that is somewhat regrettable. I hope that today when the Minister responds he can signal how unacceptable the situation is and that the Government take this matter really seriously and quite rightly expect people to be able to go to work and earn their living free from the fear of attack.

[Lord Faulks]

My Lords, this amendment in the name of the noble Lord, Lord Foulkes of Cumnock, would make it an offence to assault a worker who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.

The issue has been well described by the noble Lord, Lord Foulkes, and by other noble Lords during the debate: those who are in the position of selling alcohol can find themselves in a highly vulnerable position and can be the victims of serious assaults. The amendment was debated in some detail in Committee. As he told the House, the noble Lord, Lord Foulkes, and the noble Lord, Lord Kennedy, met with me—Lord Faulks—to discuss the issue further. We were joined by the general secretary of the Union of Shop, Distributive and Allied Workers, and I benefited greatly from their analysis of the problem and the need, as they saw it, for action. As the noble Lord, Lord Foulkes, said, I made it clear that the Government remain at the moment unconvinced of the need for a new offence of assaulting workers selling alcohol, although I said that I would consider any additional evidence and data on that point. I remain in that position and the Government remain aware that there is concern about this, but I must make it clear now, as I made it clear then, that I do not wish to accept this amendment or to return to the matter in the course of the Bill’s progression.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Kennedy of Southwark

Monday 28th July 2014 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, in moving Amendment 69B, I shall speak also to the other amendments in the group. I am not against allowing older people to serve on juries but I want to understand how the Government have come to the decision that it should be restricted to people under the age of 76. Over the last few decades, the qualifications and prohibitions determining who can serve on a jury have undergone significant changes. Before 1972, jurors were drawn only from those who owned property of a prescribed rateable value, which tended to ensure that all juries were white, male, middle-class affairs.

In 1972, eligibility was extended to anyone on the electoral register. In 1998, the lower age limit was reduced to 18 and the upper age limit was raised to 70. Older people serving on juries could be a very positive thing. It is a fact that we are all living much longer. Allowing older people to participate in the jury room will allow us to benefit from their experience. Will the noble Lord, Lord Faulks, tell the Committee whether he believes that a court will have to make any additional provisions to enable older people to serve on juries or does he believe that the extension to 76 will not need any additional provisions, which is why the Government have set that age limit?

Amendment 69D seeks to amend the Bill by giving the judge a power to limit the use of electronic communication devices for a period of time. Having people surrender their devices, as the Bill proposes, probably goes a little too far. If the average length of a jury trial is a week or two and a juror lost the use of their device for that time, it could cause considerable difficulties. We all know that smartphones are getting more advanced. Banks and companies are already talking about the elimination of plastic cards for credit and debit transactions that can be undertaken by mobile phones. Will the noble Lord tell the House what he believes is covered by the words “electronic communication devices”? Is that a mobile phone, an iPhone or similar device, a tablet or laptop? What devices is he talking about?

I very much agree that jurors have to understand their responsibilities and the important role that they play in the criminal justice system. Many years ago, I was a member of a jury in a serious criminal trial. I ended up being the foreman of the jury. It was not a “Twelve Angry Men” moment but I remain impressed at how the jury conducted itself during the trial and during the deliberations a couple of weeks after the commencement of the trial. That was 25 years ago and none of the devices we take for granted today was around.

The Government, the Courts Service and the judiciary have to do everything possible for the juror clearly to understand their responsibility in what they are undertaking. They must also make clear what they are not allowed to do. If they break the law in these matters, there are serious penalties. If the noble Lord cannot tell the Committee today, perhaps he will write to explain what happens when a juror arrives on the first day at the Crown Court. I hope that an officer of the court will explain in simple and clear terms the duties and responsibilities, and the restrictions—what can or cannot be done. That should follow information that they should have received in writing in advance. If necessary, the judge should reinforce that at the start of the trial.

Amendment 69J in my name and that of my noble friend Lord Beecham seeks to improve the information provided for jurors. It states that, “on the first day”, jurors will be required to,

“sign a declaration to say they will … not undertake their own research … base their verdict only on the evidence presented at court … not seek or disclose information about any case they try”.

That, along with the Courts Service, will make the jurors’ obligations very clear to juries.

We also include a requirement for the Department for Education to require all schools to deliver teaching about the role and importance of jury service. I think we are very well served by the jury system in this country and citizenship education is very important. I am a big supporter of our education system teaching people not only how to read and write and giving them a broad knowledge, but how to understand the practical things in the role that citizens play in our society. The role of a jury is an important part of that.

Amendment 69H makes very clear what I think is the case but does not appear to be very well known: namely, that disclosing information or deliberations in the jury room for the purposes of allowing approved academic research is not an offence. It is important to make that clear and our amendment seeks to do that. Being able to understand what goes on in the jury through academic research provides us with valuable information for the criminal justice system. I beg to move.

[Lord Faulks]

My Lords, Clause 53 amends the Juries Act 1974, raising the upper age limit for jury service from 70 to 75 years of age. Raising the age limit to 75 will mean that juries better reflect the current demographic make-up of the adult population and will allow juries to benefit from the experience and knowledge of those aged 70 to 75. The existing age limit for jury service was set by the Criminal Justice Act 1988, which raised the upper age limit from 65 to 70. However, that was more than 25 years ago, and it does not reflect the current healthy life expectancy of older people in England and Wales. On that basis, we believe that it is reasonable to expect people aged up to and including 75 to sit as jurors if summoned.

Amendments 69B and 69C would remove the upper age limit altogether. That would be a very different matter. Over the age of 75, there is an increasing risk that people would be unable to perform jury service and as a consequence would seek to be excused for that reason. We do not believe it would be right to put people in those circumstances to the trouble of having to apply for excusal, or indeed to burden the taxpayer with the additional cost of administering those excusals. Our view is that the appropriate age limit is 75. I will, in due course, ask the noble Lord to withdraw the amendment and will argue that Clause 53 should stand part of the Bill.

As to Amendment 69D, Clause 54 provides a judge with the power to order members of the jury to surrender their electronic communications devices for a period. The noble Lord, Lord Kennedy, asked me to define that. I respectfully refer him to Clause 55(2)(5), where it says that,

“‘electronic communications device’ means a device that is designed or adapted for a use which consists of or includes the sending or receiving of signals that are transmitted by means of an electronic communications network (as defined in section 32 of the Communications Act 2003)”.

I hope that clears things up for the noble Lord.

The Government do not believe that the term “limit the use of” is sufficiently clear. It would allow jurors to retain their devices in the jury room even when a judge thought it necessary in the interests of justice that the devices should not be available to the jury during their deliberations. The Law Commission recommended that devices should be surrendered and we believe that this is right. The provision provides judges with the discretion when making an order to take account of circumstances. They can only do so when the order is necessary or expedient in the interests of justice, and proportionate to that aim. With those assurances, I ask the noble Lord not to press that amendment. Usually, jurors will be able to use their devices and they may be required by the judge or the coroner in some circumstances when they are deliberating to surrender their electronic communication device, but it is not a blanket ban on the use of devices at other times or a blanket ban for the duration of the jury service.

Clause 55 also provides powers for a judge to order court security officers to conduct a search of a member of the jury so as to determine whether the juror has failed to surrender a device in accordance with an order made under Clause 54. We have aimed to ensure that the power to search is not an overly intrusive one, and goes no further than is necessary to ensure that a judge’s order, made in the interests of justice, is complied with.

Clause 55 also provides powers for security officers to retain articles surrendered or seized. If it is not possible to enforce the judge’s order, there will be a much greater risk that devices would be retained and potentially used during deliberations, thus bringing a risk of an offence being committed. It would also be harder to bring a successful prosecution and thus would reduce the effectiveness of the measures we are taking to deal with juror misconduct. I therefore argue that the clause should stand part of the Bill.

Amendments 69E and 69F would remove the requirement that proceedings for the new offences of researching a case and sharing that research with other jurors should be brought only by or with the consent of the Attorney-General. These offences concern damage to the administration of justice and public confidence in it. The Attorney-General is well established as the guardian of the public interest in the administration of justice. This is evident in, for example, his responsibility for bringing or consenting to proceedings in the case of contempt.

We believe that the Attorney-General should continue to maintain oversight of the public interest where such juror misconduct arises. Proceedings are very rare and we believe that the close involvement of the Attorney-General in cases of juror contempt should continue when such misconduct is prosecuted as an offence. I fear that I cannot support this amendment and urge the noble Lord not to press it.

Amendment 69G would change the scope of the offence in Clause 58, which inserts a new Section 20C into the Juries Act 1974. The proposed offence stems from a case before the Divisional Court in 2013 where a juror had posted on Facebook the fact that he was trying a defendant charged with a sexual offence on a child, and suggested an intention on the juror’s part not to try the case fairly. We want to ensure that proper criminal sanctions and procedures apply where a juror engages in behaviour that can give rise to a suggestion that they will not try the case fairly. Such behaviour brings the jury system into disrepute, leads to the perception of unfair trials and potentially causes trials to collapse.

We committed to and have given very careful consideration to the amendment proposed. The effect of the amendment would be to change the offence from an objective test to one that was more subjective. It would therefore be difficult to prosecute and prove and there is a risk that it would need to be proved that the juror did have that intention. Our view is that it should be a criminal offence where a juror intentionally posts material on the internet and that material allows someone reasonably to conclude that the juror is, for example, biased for or against the defendant. This conduct could throw doubt on the fairness of the trial and lead to it being stopped or result in an appeal. There is also an additional precaution in the use of the offence that any prosecution requires the consent of the Attorney-General. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

Amendment 69H would add an exception to the offence in new Section 20D to provide that it is not an offence to disclose information for the purpose of allowing approved academic research into jury deliberations—the matter specifically referred to by the noble Lord, Lord Kennedy. We believe that it is of the utmost importance that the confidentiality of jury deliberations is protected and that disclosure is permitted only where absolutely necessary. If the amendment were made, it would mean that approved academic research into substantive jury deliberations would be allowed.

The Law Commission recommended that research should be allowed into the substantive content of jury deliberations. It suggested that this type of research could be used to inform and undertake reform to improve the jury system, while enhancing public understanding of trial by jury. However, as noted by noble Lords at Second Reading, research into juries currently does take place. Academics are currently able to undertake meaningful and important research without infringing Section 8. Indeed, during the Bill’s public evidence session, Professor Cheryl Thomas, the leading academic regarding jurors and jury trials, commented that she had,

“never been hampered by section 8 of the Contempt of Court Act 1981”.

Personally, I have sympathy with the amendment, in the sense that a fundamental system of trying the most serious criminal offences should not be beyond examination by academic research. Any restrictions need justification. However, the Government will be responding shortly to the Law Commission’s recommendations on this matter. I therefore cannot agree to this amendment and ask the noble Lord not to press it.

As to Amendment 69J, the objective of the new clause is to ensure that jurors understand their responsibilities. That is something on which all noble Lords can agree and much is already done to that end. A video about the role of the juror, which is shown to all jurors, makes clear that only evidence adduced in court should be considered. It explains that jurors should not carry out research into the case or disclose information about it and that doing so could amount to contempt of court. The Criminal Practice Directions require trial judges to give similar instructions to jury members.

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[Lord Faulks]

I am grateful for that contribution. My noble and learned friend states the difficult issue very well.

[Lord Kennedy of Southwark]

My Lords, the noble Lord, Lord Stoddart, makes an important point about the age of jurors. Of course, many noble Lords are over the age of 75 and make an important contribution to our deliberations. The noble Lord is absolutely right: many people over that age are able to make a contribution to the courts on jury service.

I thank the noble Lord for making the point about communication devices in the Bill. I wanted to be clear about the importance and use of these devices. They are used more and more and I wanted to be clear if they were to be taken away or if it was just a matter of a stern instruction from the trial judge. My noble friend Lord Ponsonby talked about magistrates retiring at 70. I hear the point he makes but if we are to get rid of jurors and others at 75, perhaps the time has come to consider whether the age for magistrates should be 75 as well. With that, I beg leave to withdraw the amendment.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Kennedy of Southwark

Wednesday 23rd July 2014 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I will speak briefly from the Back Benches. I agree very much with the comments made by the noble Lord, Lord Marks, and my noble friend Lord Ponsonby. I was a magistrate many years ago. I do not sit any more, but when I lived in the Midlands I used to sit on the Coventry Bench. Again, like my noble friend Lord Ponsonby, there were times when people came in front of me who had absolutely nothing. In particular, I used to sit in the fines court, to which people were brought back because they had not paid their fines. When you looked at their circumstances, the only way they could pay those fines was to go out and commit more crime; it was impossible otherwise. Now we have an additional charge here. It is important that we take into account people’s circumstances: not to allow the court to have that discretion is a bad move. To have loads of fines when there is no possibility of their ever being paid back is a complete waste of time. It makes a mockery of justice, and we should not do it.

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

My Lords, the criminal courts charge scheme has been designed to be clear and transparent, with charge levels that reflect the costs reasonably attributable to a particular type of case, and offenders expected to pay at a rate they can afford. The changes proposed by these amendments make the scheme far more difficult to understand and apply.

Amendments 63AA, 63AD, 63AG, 63AJ to 63AL and 63ABA would provide the court with significant discretion over whether to impose the criminal courts charge. As the court is the main beneficiary of the charge, there is a risk that this would be perceived as providing the ability directly to influence the funding of the criminal courts. The judiciary is an integral part of the courts system, and it has a vested interest in its success. Furthermore, where there is no clear indication as to what the court should base its decision on, other than the broad definition of the imposition being “just and reasonable”, accepting these amendments risks offenders being treated unequally.

If what lies behind these amendments is to protect poorer offenders, this is unnecessary. The offender has the opportunity to provide means information that the court can take into account when setting the rate of repayment for the charge, as it does with court-ordered financial impositions. Offenders can manage their repayments so that they pay the charge at a rate they can afford. For instance, they can apply to pay by instalment, and if necessary request subsequently to vary the rate of repayment. Also, those offenders who make their best efforts to comply with payment terms and do not reoffend will be able to apply to have the charge cancelled after a specified period of time.

Amendment 63AB proposes to limit the charge imposed to no more than 50% of the total cost they have imposed on the courts.

Amendment 63AM enables the court to impose a charge up to the amount specified by the Lord Chancellor. If an offender has committed a crime and imposed a cost on our criminal justice system, the Government believe it is right that they should be liable to pay back up to the full amount of costs reasonably attributable to that particular class of case. I have already outlined the protections in place to avoid placing an offender in hardship as a result of the charge.

Amendments 63AC and 63AF seek to limit the circumstances in which the criminal courts charge would be imposed. Specifying that an order imposing the courts charge should not be made if doing so would, in the opinion of the court, affect a decision on plea is unnecessary. I can assure noble Lords that the courts charge will come into play only once a verdict has been reached—long after the defendant makes a decision about plea.

Amendment 63AF also provides that the courts charge must not be imposed where the enforcement costs are likely to amount to more than the value of the charge. The charge will be enforced in the same way as existing financial impositions, so it is unlikely that the costs would exceed the level of the charge. Furthermore, it would not be possible for the court to anticipate how much enforcement activity will be required in a particular case.

We believe that excluding from the charge any costs associated with part of the hearing for which the defendant was not responsible would be unworkable. Charge levels will be set up to the cost reasonably attributable to that type of case, not based on a costs calculation of each individual case. Attempting to cost each individual case and then determine whether or not the offender was responsible for each element would be extremely time-consuming and totally impracticable.

Amendment 63AF also seeks to prevent the courts charge being imposed in relation to any appeal. The principle behind our courts charging policy is that offenders should bear some of the costs that have been incurred by the criminal courts as a result of their actions. It is appropriate to charge offenders a contribution towards the cost of an unsuccessful appeal. Finally, the amendment inserts a condition that the courts charge cannot be imposed before a written means assessment has been carried out. Amendment 63AE also prevents it from being collected before an assessment of the defendant’s finances has been made. The criminal courts already impose a number of financial impositions and established systems are in place to ensure that the court is provided with an offender’s means information. For these reasons Amendments 63AF and 63AE are unnecessary.

Amendment 63AFA would allow the court to consider the court charge imposed when sentencing or dealing with breach of a community order, community requirement, suspended sentence order or supervision requirement. The scheme is designed so that the charge reflects the cost an offender imposes on the courts system. It is not a punishment that relates to the severity of the offence committed. It should not therefore be taken into account when deciding on the appropriate sentence.

Amendment 63AH would divide the payment of criminal court costs between defendants where two or more defendants are convicted during a single hearing. The Bill currently makes each offender liable to pay the criminal courts charge as prescribed in secondary legislation. We expect that each offender will pay the full amount, although the power will exist to charge multiple defendants less when they are convicted at the same time as others. The amendment creates unnecessary complexity and is likely to result in one offender, who has been tried with one or more co-defendants, paying less then an offender who has been tried on their own, despite the fact that they may have committed identical offences. This raises questions of fairness. Our approach is the fairest approach and should be both simpler to operate and simpler for offenders and the public to understand.

Amendments 63B, 63C, 63D and 63E seek to withdraw the conditions that must be met for the courts charge to be remitted and give the courts a wide discretion about doing so. As previously mentioned, the clause currently allows a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This provides a powerful incentive for offenders to repay the charge and refrain from reoffending, while also ensuring that those who meet these conditions are not necessarily required to make payments over an excessively long period.

Amendment 63AN specifies that, where the charge can be remitted, it includes the remission of interest. The purpose of the provisions to remit the charge is to relieve the offender of the debt where they have paid accordingly and not reoffended. It is therefore logical that any remission of the charge should include the whole debt—both the principal amount and the interest. The amendment is therefore unnecessary.

Amendment 63EA has the effect that offenders aged 18 to 21 who are sentenced to detention or imprisonment would be eligible to have their charge remitted earlier. The current proposal is that a court may remit the charge after a specified period that begins either when an offender is convicted or, if they have received a custodial sentence, released from detention or imprisonment. In practice it is unrealistic to expect many offenders to pay the charge while they are being detained. By setting the period after which the charge may be remitted to run from conviction rather than release for 18 to 21 year-olds, the amendment would mean that more serious offenders are likely to end up paying less than offenders who are not sentenced to custody. That would not be fair.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Kennedy of Southwark

Wednesday 23rd July 2014 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

I am delighted to support the amendment in the name of the noble Lords, Lord Low of Dalston, Lord Blair and Lord Hodgson of Astley Abbotts. With their wide range of experience they have correctly identified that, despite the best of intentions, the support of the Courts Service and of charities, in too many cases courts are not making sufficient checks with regard to the immediate welfare needs of children and dependent adults. The amendment seeks to put in the Bill what should happen at present but has clearly not been delivered in many cases, and that is a matter of much regret. I agree with the noble Lord, Lord Blair, that this is a fairly small measure but it deals with an important issue that needs to be addressed.

My noble friend Lord Touhig told the House of a number of young people and children who were put into difficult situations because simple provisions were not in place. I agree also with many noble Lords when they said that the children of prisoners were a highly vulnerable group of people who need to be looked after.

As the noble Lord, Lord Low of Dalston, explained to the Committee, the amendment will require the courts to inquire of a defendant who has been sentenced or remanded to prison whether they have dependants and whether arrangements have been made for them. If they have not, they would be allowed to make a phone call to make arrangements or, where that is not possible, the court could direct someone to take action before the defendant leaves court.

People sometimes need to be sent to prison. All this amendment does is to seek to ensure that adequate immediate provision is made for dependants. As the noble Baroness, Lady Benjamin, said, all we are requesting is for two simple questions to be asked. I do not think this amendment in any way places a burden on the courts that could not be handled. If the noble Lord, Lord Faulks, is going to say that, I hope he will explain very carefully why he thinks that is the case and answer the point that I and other noble Lords have made in this debate, which is that the voluntary provision has failed and that continued failure is likely to cost far more to dependants and to their welfare.

I see the provision working fairly simply. When I sat in court as a magistrate, although that was some time ago, courts adjourned for all sorts of reasons. It is very easy for questions to be asked and action taken. It is also true that in many cases, especially if the defendant fully expects to receive a custodial sentence, arrangements for dependants will have already been made.

All we are looking for is a clear set of proportionate responses to come into play with the welfare of the dependants of someone who has received a custodial sentence at their heart. I hope that the Government can either accept this amendment or at least look at this issue again and the problems that have been identified before we come back to it on Report.

[Lord Faulks]

My Lords, the amendment from the noble Lords, Lord Low and Lord Blair, and my noble friend Lord Hodgson, seeks to place a statutory duty on a court to inquire into the arrangements for care of dependants of those being sent into custody. I recognise that the proposed new clause is a revised version of one debated by this House during the passage of the Anti-social Behaviour, Crime and Policing Bill 2013. I welcome the contribution of the noble Lord, Lord Touhig, and the interest that he continues to show in this important issue, just as I welcome the contribution of the noble Baroness, Lady Benjamin, with her connections with Barnardo’s. I should also reiterate that I was grateful, too, for the opportunity to discuss some of the details of the previous version of this new clause, not the one that finds its way into the amendment, with the noble Lords whose names appear on the amendment, together with some staff from Barnardo’s.

As my noble friend and predecessor in this position, my noble friend Lord McNally, said last year, the Government completely understand the concern behind this proposed new clause. We should all be concerned with the welfare of children and other dependants of those who are about to be sent into custody. I do not disagree with anything noble Lords have said about the importance of protecting these children and vulnerable adults. We should all recognise that the children of those sent into custody can be subject to immediate risks to their welfare, and there is the risk that they themselves will fall into crime.

The Government support the desire to identify and ensure that children of offenders are cared for. Unfortunately, the Government cannot accept this new clause, even in its revised form, for the reasons that I will explain. The new amendment seeks, via an amendment to the Criminal Justice Act 2003, to require the Lord Chief Justice to issue a practice direction under his powers in the Constitutional Reform Act 2005. In this way, Parliament is being asked to approve a provision which would require the Lord Chief Justice to issue a practice direction and require the Lord Chief Justice to issue a direction with the particular content set out in this proposed new clause. This, noble Lords will appreciate, would amount to an inappropriate restriction on the Lord Chief Justice’s powers and discretion to issue practice directions which the Constitutional Reform Act is designed to protect. However, I understand the thinking behind this amendment and the Government agree that it would be better to approach this problem not by a statutory duty, but by more practical measures. This might include, via the independent bodies that are responsible for these things, guidance, practice directions or procedure rules.

We welcome the changes that noble Lords have made to the clause, which goes some way to addressing the concerns expressed in regard to the earlier version. We remain concerned, however, by the focus on post-sentence or post-remand consideration.

The proposed new clause applies only to the post-sentence process, or the process following the decision to withhold bail, but the existence of dependants is also of vital importance to the decision to remand or sentence to custody—in other words, pre-sentence. As for the Sentencing Council, the current sentencing guidelines already specifically mention care of dependants in relation to the approach to the sentencing decision. There is a clear process for making representations to the court with regard to sentence. Information supplied post-sentence, although it may help with making care arrangements once a person is sent into custody, is simply too late to enable the court to consider the full circumstances of the offender.

--- Later in debate ---

[Lord Faulks]

I am grateful for that clarification. Perhaps reissuing the guidance will bring it home to those who see it. Perhaps for the first time it will remind them of the pre-existing obligation.

I started my response with a list of reasons why the Government could not accept the proposed new clause, but we believe that the issue should be addressed. It is a difficult area but we are now making progress in developing consensus on the best approach. I hope we can continue to work with noble Lords who have consistently shown an interest in this matter, with Barnardo’s, with the judiciary and with the legal profession to develop the best way to tackle this issue. Although I cannot accept the amendment, we are very much concerned to ensure that nobody should slip through the net in the way that the amendment is directed. I hope that, with the reassurance I have given, the noble Lord will feel able to withdraw the amendment.

[Lord Kennedy of Southwark]

The amendment identifies a problem. The Government refer to guidance and advice. The noble Lord, Lord Ponsonby, said that in his court there is not a problem. What worries me is that there will be best practice in lots of courts but there will be one or two cases where that is not the case. That is why we want this duty on the face of the Bill. I am worried that guidance will not be enough. That is my main problem.

[Lord Faulks]

In fact, the amendment places a statutory duty on the Lord Chief Justice. Of course, whatever one does in terms of guidance, not all courts are necessarily going to be as good as each other, but we hope that, by taking various different steps, we can ensure, in so far as it is possible, that the problem that can exist is unlikely to arise in practice.

[Lord Kennedy of Southwark]

Is the noble Lord saying that if the amendment was worded to put a duty on the courts and not on the Lord Chief Justice, the Government would look at that?

[Lord Faulks]

No, I am saying that I do not think that a statutory duty is the answer.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Kennedy of Southwark

Monday 14th July 2014 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, like other noble Lords, I want to speak to both Clauses 23 and 24 to aid your Lordships’ House.

The Opposition cannot support the noble Lords, Lord Blair, Lord Dear, Lord Condon and Lord Paddick, in opposing Clause 23. I have heard very clearly the points that they have made concerning police officers being public servants with special provisions being made for them. They are obviously highly respected individuals and public servants but, with that, they carry great responsibility and great power. Where those officers exercise that power or privilege improperly, there can be tremendous consequences for the individuals concerned. That is the concern that we have on these Benches and it is why we will support the clause as it stands.

Moving on to Clause 24, the murder of a police officer is of course a most serious crime, and it is right that anyone killing a police officer in the course of their duty should receive a substantial jail term. This clause would make that a whole life term. My colleagues in the other place supported the Government, as we do today on the Opposition Front Bench. The noble Lords, Lord Blair, Lord Condon and Lord Dear, have all been senior police officers and have all expressed grave reservations about this provision, saying that it is unnecessary. Like the noble Lord, Lord Paddick, I very much hope that the Minister will meet the noble Lords and other representatives and look at this issue very carefully. The last thing that anyone wants to do is to agree to a Bill that puts more people’s lives at risk. I am very worried about that. We must look carefully at what they have said and talk to them about this issue because it would be madness to do anything else.

These are very difficult issues. Obviously everyone wants to root out corruption at any level. Regarding Clause 23, the consequences for the victims of police corruption are very serious.

[Lord Faulks]

My Lords, this has been an excellent debate, distinguished by the contribution of four very senior and experienced police officers. Also, the helpful contribution of the noble Lord, Lord Kennedy, added to the debate. The noble Lord, Lord Paddick, is quite right: the Government should plainly listen to what police officers with such experience and who are so respected in your Lordships’ House have to say.

The noble Lord, Lord Condon, ranged over a number of issues in respect of the police. He stressed that the police were in something of a crisis at the moment but, at the same time, he said, absolutely correctly, that they need to be properly resourced and that there ought to be a competent Independent Police Complaints Commission. So far as that is concerned, the Government have given the IPCC a range of new powers. It has already received £2.4 million to strengthen its capabilities. In addition, from this financial year, we will transfer £18 million from police forces to the IPCC to enable it to do all serious and sensitive cases, including corruption work.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1: injunctions to prevent gang-related violence) Order 2014

Debate between Lord Faulks and Lord Kennedy of Southwark

Monday 7th July 2014 Grand Committee

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

My Lords, the order before us today amends Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act to allow for advocacy in a youth court to be funded by civil legal aid for under-18s in respect of injunctions to prevent gang-related violence. The purpose of this draft order is to maintain the existing availability of civil legal aid for under-18s in respect of advocacy related to injunctions to prevent gang-related violence. An amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is necessary to reflect the change of venue for such injunctions made by the Crime and Courts Act 2013 from the county court to the youth court, which is a specialist type of magistrates’ court.

Before setting out further details about the order and why the Government are taking this action, I will briefly explain some background. Civil legal aid is currently available for injunctions to prevent gang-related violence under Part 4 of the Policing and Crime Act 2009 by virtue of paragraph 38 of Part 1 of Schedule 1 to LASPO. These proceedings are currently heard in a High Court or county court, and Part 3 of Schedule 1 to LASPO, which sets out when advocacy may or may not be funded by civil legal aid, allows for this, subject to a means and merits test. Section 18 of the Crime and Courts Act 2013 amends Part 4 of the Police and Crime Act 2009 to provide that, where a respondent is aged under 18, a youth court will have jurisdiction to grant gang-related injunctions. This reflects the Government’s view that a youth court is a more suitable venue for such proceedings involving a child. The youth court is a type of magistrates’ court, designed in a child and youth-sensitive way. However, legal aid for advocacy for proceedings before a magistrates’ court is generally excluded from the scope of the civil legal aid scheme by virtue of Part 3 of Schedule 1 to LASPO.

With that background in mind, I will turn to the reason for the order before us today. The Government recognise that restrictions may be placed upon a person’s liberty as the result of an injunction to prevent gang-related violence. Breach of an injunction can lead to contempt of court proceedings which, for 14 to 17 year-olds, can result in a supervision order or a detention order being made under the Crime and Security Act 2010. The Government therefore consider that legal aid should remain available for advocacy in proceedings in respect of injunctions to prevent gang-related violence for under-18s, notwithstanding the change of venue for these proceedings as a result of the Crime and Courts Act 2013. To maintain the existing availability of civil legal aid, it is necessary to make an order specifying that advocacy for such proceedings is in scope of the civil legal aid scheme set out in LASPO. That is achieved by the order before this Committee today.

I hope that noble Lords will welcome the order. It makes a relatively minor but important change to the civil legal aid scheme which complements the wider changes made by the Crime and Courts Act 2013. I therefore commend the draft order to the Committee and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the noble Lord, Lord Faulks, has outlined, Schedule 1 to the LASPO Act sets out the scope of the civil legal aid scheme. It is well documented that the Labour Party, along with many other organisations, opposed what the Government did in respect of civil legal aid when they brought this Act into law. Having said that, from the autumn of this year, proceedings related to gang-related injunctions concerning people under the age of 18 will move to the youth court from the county court. We in the Opposition think that is a sensible move and support the transfer, along with the provision for civil legal aid to be available when the proceedings move, which is what this order seeks to do.

I note from the papers that, as this is regarded as a relatively minor change, no specific consultation was undertaken and no guidance is provided. This is not a policy change and the impact is regarded as minimal, with no major impact on regulating small businesses. However, it is said that the operation and expenditure on legal aid is continually monitored by the department, so perhaps the noble Lord could shed some light on what has happened to date, for the benefit of the Grand Committee. Would he also agree that the effect of these injunctions was extremely important and serious for individuals, both those who are the subject of them and those whom they seek to protect? Does he have information on how effective the injunctions have been to date? If he is not able to provide that information today, will he write to me with further details including any case studies that can highlight the effect to date?

With that, I should say that I am very happy with the order.

[Lord Faulks]

I am grateful to the noble Lord for his comments. Although it is perfectly true that the party opposite has been opposed to legal aid changes, it does not oppose this order because it does not change the eligibility of legal aid but is concerned only with the venue of these hearings.

The description of the change as “minor” simply refers to the effect in terms of substance, rather than suggesting that the injunctions related to minor matters. They do not. They are a relatively new weapon in the hands of local authorities and the police to try to control gang activity, and particularly to discourage youths from joining gangs. That is sometimes to those particular youths’ benefit. Say older brothers or other members of the community put pressure on them to join a gang; an injunction preventing your doing so is a very good answer, so in a sense it protects individuals from themselves.

There has not as yet been an enormous take-up of the orders. However, they have been operational, particularly in London, the West Midlands, Birmingham, Merseyside and Manchester. As I said, it is very much those on the periphery of gangs whom we are talking about; those at the centre of the gangs tend to attract the attention of the police and may end up being prosecuted for specific offences. The injunctions are important, and although they are not yet widely used we hope that their use will increase, particularly in London, where gangs are so much of a problem, as your Lordships’ House will be well aware.

Although the noble Lord did not specifically ask, I should say that if an injunction is breached it can result in an order for contempt of court, which can conceivably result in a sentence of imprisonment of an individual. I reassure the House that there will then be legal aid in those circumstances, although that will be criminal legal aid rather than civil legal aid, which covers these circumstances.

The change of venue reflects the Government’s view that the youth court is a more suitable place for proceedings that involve a child to be conducted. We therefore believe that this is a reasonable and sensible amendment, which aims to ensure that civil legal aid remains available for advocacy for under-18s in respect of the injunctions to prevent gang-related violence. I hope that noble Lords agree that this is a proportionate and sensible measure.