Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Keen of Elie Excerpts

Monday 11th March 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, mere words can hardly do justice to my feelings on being invited to close yet another debate on Brexit, particularly so shortly after a debate that covered the same territory and since when, it is acknowledged, so little has changed. If there is one element of this debate that will stand out for me, it is the suggestion from the noble Baroness, Lady Hayter, that I would still be able to play the boy. The noble and learned Lord, Lord Goldsmith, sought to draw an analogy between the role of my right honourable and learned friend the Attorney-General and that of Godot, but of course it will be obvious to all in this Chamber that my right honourable and learned friend had far greater presence and substance on the EU stage than Godot ever managed in a two-act play.

That continues; the noble and learned Lord asked whether those negotiations have stalled, and the answer is most certainly no. My right honourable friend the Prime Minister is, as some have already discerned from the media, traveling to Strasbourg, where it is proposed she will meet with Mr Juncker at 9 pm Strasbourg time, which is 8 pm our time. That meeting is being held with a purpose, and it is being held because there continues to be dialogue between us and the European Union over the withdrawal agreement. I am sure noble Lords will appreciate that it is not for me at this time to anticipate the outcome of those discussions; nor is it for me to disclose the scope of those discussions at this time. However, it is sufficient perhaps to observe that such discussions will take place, and we look forward to their outcome once it becomes clear.

My noble friend Lord Hodgson of Astley Abbots made the clear and well-established point that, in the context of negotiation—which, as my noble friend Lord Finkelstein observed, requires more than one party when you are doing a deal—the tough issues are always sorted out at the 11th hour. Indeed, I have no doubt that the noble and learned Lord, Lord Goldsmith, will recall from his own experience in commercial litigation that, at least in the past, the most intractable and difficult disputes were very often finally resolved at the door of the court. These agreements almost invariably occur at the 11th hour.

In that context, I turn to the questions raised by the noble Lord, Lord Newby. He enumerated seven, but I respectfully observe that they tend to merge with each other. It is true that the Prime Minister is going to Strasbourg—indeed, she may already be there—and it is certainly true that she is taking with her a willingness to listen and to discuss further the resolution of the issues surrounding the withdrawal agreement. She is proceeding in a mood of optimism, as one would in the context of any such discussion. That will lead on tomorrow to the meaningful vote in the other place. It may be that further news will become available before any Motion is moved tomorrow, but that is the nature of negotiation, and that will be accommodated as and when it is required.

The noble and learned Lord, Lord Hope of Craighead, referred to the issue of delay; I concur with his and other noble Lords’ observations about the dangers of delay in the context of the ongoing process. It may be that there will be an amendable Motion in respect of exit day. However, a statutory instrument would also be required in the event of further changes to the exit date, assuming there was consent from the European Union, because of the definition of that term already contained in the 2018 Act. But it could be done. As for Little Jim, I am beginning to feel some sympathy for his condition. Slow he may have been devoured, but at least it was the end.

The noble Lord, Lord Pearson of Rannoch, and my noble friend Lord Saatchi suggested that negotiations be carried on with other parties in some other manner but, with great respect, Article 50 provides that we negotiate with the European Union, and the European Union has appointed the Commission to negotiate on its behalf. That is where we stand.

[Lord Pearson of Rannoch]

My Lords, will the Minister therefore comment on the Written Answer received from the Government, which states that the United Kingdom has resiled unilaterally from 52 treaties since 1988 and answer why we cannot do that now in the interests of continuing free trade with the people of Europe, the disappearance of the Irish problem and the peace and prosperity in front of us?

[Lord Keen of Elie]

There is a very material distinction between being able to resign from a treaty which makes provision for such a move and denunciation of a treaty. We have no intention of denouncing our obligations. We have proceeded under the mechanisms provided for by the Lisbon treaty—namely, Article 50.

The noble Baroness, Lady Quin, alluded to her background and experience in Europe, which I acknowledge, but I notice that we have seen the European Economic Community transmogrify through Maastricht and Lisbon into something quite distinct from that ever anticipated by its founders.

The noble Lord, Lord Thomas of Gresford, wondered why the DUP could not see the economic benefits of the backstop. I have no doubt that the DUP can recognise such economic benefit as there may be, but it sees more clearly the constitutional challenges that could be presented. It is that which has caused it concern.

My noble friend Lady Noakes observed that there was really nothing to debate at this stage. It appears to me that noble Lords have raised several issues for debate here, but of course we are left in anticipation of what may occur during the course of negotiations that are still to come.

The noble Lord, Lord Wigley, made it quite clear that, in his mind, all roads lead to Rome—or perhaps not Rome but a second referendum. I acknowledge his desire to go in that direction.

My noble friend the Duke of Wellington made a plea to all parties to compromise, and that is indeed what we seek to do here. He underlined how important it was that we should leave on 29 March with a deal. It is the Prime Minister’s wish that we should leave on that date with a deal.

The noble Lord, Lord Kerr of Kinlochard, in his inimitable fashion, observed that there were no new facts and that it was therefore necessary to deal with fantasy. I respond: it is never necessary to deal with fantasy and I would not intend engage with it at this stage.

The noble Lord, Lord Dobbs, asked about the meaning of a hard border. That is a border that includes any physical infrastructure with related checks and controls. It is not something that anyone desires for the island of Ireland.

The noble Lord, Lord Rooker, in alluding to the proposition that 16 year-olds should have the vote in a second referendum, observed that it was their future. I say, albeit with a degree of optimism, that I also regard it as my future. Therefore, I claim an equal interest in the outcome of the present negotiation, albeit not for necessarily the same length of time.

The noble Lord, Lord Bethell, alluded to the difficulty and dangers that would face us if we were found to breach the trust that has been placed in Parliament as a consequence of the referendum. I say no more of that.

The noble Lords, Lord Horam, Lord Armstrong and Lord Inglewood, referred to the proposition that we find ourselves in a mess. We find ourselves in a very challenging position because we are engaged in a deep and difficult negotiation in which we should expect the EU 27 to represent properly their interests, not ours. I acknowledge that, but I would observe that the darkest hour is often just before the dawn. As dawn rises in Strasbourg, we hope to see the outcome of the further, potentially final, negotiations that will bring the withdrawal agreement before the other place tomorrow.

The noble Baroness, Lady Crawley, alluded to EU minimum standards in the context of workers’ rights. I would point out that the United Kingdom stands well above those minimum standards in many areas, particularly in relation to maternity benefits, paternity benefits and elsewhere. Indeed, it has been reported that we stand second only to Sweden in the standards we maintain, so we are not driven by Europe on such standards. Indeed, I suggest that we drive Europe forward in many instances.

[Baroness Crawley]

I remind the Minister that if we look at the maternity leave directive back in the early 1990s, I am afraid that this country was brought kicking and screaming up to the minimum standards required.

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[Lord Keen of Elie]

The birth of an idea often involves a degree of kicking and screaming. We arrived there.

The noble Lord, Lord Cavendish of Furness, asked about the claims by Sir Richard Dearlove and the noble and gallant Lord, Lord Guthrie, regarding defence and security. We challenge entirely their assertions in this area, which we suggest are neither correct nor well founded. The withdrawal agreement does not threaten the national security of the United Kingdom. It does not place control over aspects of our national security in foreign hands. The withdrawal agreement and political declaration in no way cut across our NATO membership, our bilateral relationships—including with the United States—or our Five Eyes intelligence co-operation. I hope that that will put his mind at rest.

I acknowledge the point made by the noble Lord, Lord Green of Deddington, that the control of our borders was a major issue in the referendum. I also note that concern over immigration has lessened in the recent past. That is to be commended but we are conscious of the position.

My noble friend Lord Cormack invited me to comment on his suggestion for a joint Grand Committee. I note his suggestion.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred to the observations of the noble Viscount, Lord Hailsham—I am sorry, the unnamed noble Lord—regarding the proposition to revoke Article 50 so that we could proceed to negotiate a different deal to withdraw. I concur entirely with the noble and learned Lord’s observations regarding the interpretation and application of the judgment in the Whiteman case. It does not appear to me—I believe I said this at the time of the previous debate—that we could proceed with that course of action.

In view of the time, I will conclude. The noble Baroness, Lady Ludford, began by saying that I am bereft of inspiration for novel thoughts. For once, we find ourselves in agreement. I am obliged to noble Lords for their contributions to the debate.

Motion agreed.

Islamic Ceremony: Civil Marriage Registration

Lord Keen of Elie Excerpts

Thursday 28th February 2019 Lords Chamber

[Baroness Cox]

To ask Her Majesty’s Government, following Resolution 2253 (2019) passed on 22 January by the Parliamentary Assembly of the Council of Europe, what plans they have to review the Marriage Act 1949 to make it a legal requirement for Muslim couples to civilly register their marriage before, or at the same time as, their Islamic ceremony.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we recognise that the noble Baroness, Lady Cox, has brought a number of proposals for reform to the House. We are aware of Resolution 2253 from the Parliamentary Assembly of the Council of Europe. We remain committed to exploring the legal and practical challenges of limited reform relating to the law on marriage and religious weddings, as outlined in the Government’s recently published Integrated Communities Action Plan.

[Baroness Cox (CB)]

My Lords, I thank the Minister for his reply and his reference to the fact that I have introduced Private Member’s Bills for eight consecutive years in an attempt to highlight the suffering from gender discrimination in the application of sharia law of many Muslim women, many of whom have come to me desperate, destitute and even suicidal, with no rights following asymmetrical divorce inflicted by their husbands. Therefore, while I welcome Her Majesty’s Government’s commitment to explore the legal and practical challenges of marriage reform, I ask the Minister for an assurance that this legislation will be introduced as a matter of great urgency, as so many women are now suffering in this country in ways that would make the suffragettes turn in their graves.

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[Lord Keen of Elie]

My Lords, we share the noble Baroness’s concern that some may feel compelled to accept decisions made informally, such as those made by religious councils. But marriage is a complex area of law and the issues will require careful consideration. We intend to explore those, as I indicated. Where sharia councils exist, for example, they must abide by the law. Where there is a conflict with national law and the court is asked to adjudicate, national law will always prevail.

[Lord Anderson of Swansea (Lab)]

My Lords, almost two-thirds of Muslim women married in the UK are not legally married and, as the Prime Minister has acknowledged, after divorce may be subject to penury, so what will the Government do? This is not discriminatory because the independent review suggests only that sharia courts also have a civil component, or at least there is a parallel civil ceremony, that puts Muslim women on the same basis as Jewish and Christian women. A year has passed since the independent review. Why will the Government not protect these very vulnerable Muslim women?

[Lord Keen of Elie]

My Lords, we are concerned that these people should be protected. The decision to go through with what is sometimes termed a nikah ceremony is widespread and unfortunately it does not give rise to a lawful marriage in England and Wales. But, as from April, we are taking forward detailed work to determine the best course of action to address such issues.

[Baroness Berridge (Con)]

My Lords, recent High Court decisions show that this is an issue that affects religious ceremonies generally, but such ceremonies are marriages under UK criminal law if they are forced marriages. However, a victim of a forced religious marriage can then be left destitute as there are no remedies that follow to get access to the matrimonial property—unfortunately, Parliament left that gap. So can my noble friend please outline when this injustice will be remedied, as it is certainly a barrier to victims of forced marriage coming forward if they face destitution because they cannot get hold of their rightful matrimonial property?

[Lord Keen of Elie]

My Lords, I must make it clear that the offence of forced marriage does not give legal recognition to marriages but is intended to protect victims from this abhorrent practice, regardless of the validity or otherwise of the marriage. Access to financial orders available on divorce depends on whether or not there has been a legally void or dissolved marriage and is governed by an entirely separate legal regime.

[Baroness Burt of Solihull (LD)]

My Lords, marriage is not just some romantic notion of happily ever after—after 25 years of marriage, I have learned that it is much more than that. It gives protections and rights that should be available to all couples regardless of whether or not they are religious. But these Muslim women, who believe that they are legally wed, may not find out that they do not have the protections of the law until far too late. That is why the requirement for a civil ceremony as well, as recommended by the Home Office’s own independent review last year, is so important. Is it not high time now for a fundamental review of the Marriage Act 1949 to recognise all forms of marriage in the 21st century?

[Lord Keen of Elie]

The general proposition that we should recognise all forms of marriage raises issues in itself. Our marriage law actually goes back to Lord Hardwicke’s Act of 1753 rather than just to 1949. It is a complex area that we will consider from the spring onwards and in which we will have to move with care. But we cannot simply recognise all informal types of marriage. We have a basic marriage law in this country based on the place in which it is celebrated and the fact that that place is open to the public and that it should be witnessed. We cannot move away from that. Indeed, to do so would create other issues and problems for ourselves.

[Lord Green of Deddington (CB)]

My Lords, we all recognise that this is a very complex issue, as the Minister has said. I pay tribute to the efforts of my noble friend Lady Cox, who has been on this case for years and years. Does the Minister not recognise that literally tens of thousands of women are in a very disadvantaged position? The Government produce one excuse after another but when will they actually take some effective action to end this outrageous situation?

[Lord Keen of Elie]

My Lords, there is a very real issue out there and it has to do with education and information as much as anything else. Many vulnerable people are not aware of what is required for a valid marriage ceremony in England and Wales. Therefore, we must address that issue—I accept that. But simply to move in the direction of recognising, for example, the nikah form of ceremony creates very real difficulties in itself. To take one example, how will you then police the issue of sham marriages?

[Lord Cormack (Con)]

My Lords, as one who has attended a number of meetings arranged by the noble Baroness and wishes to salute her courage and persistence, I ask my noble and learned friend on the Front Bench to try to inject a sense of urgency here. It is all very well saying, “We have considered it”, and “We will look at it”. We need action. It is a complicated subject but we need some real urgency here.

[Lord Keen of Elie]

My Lords, following the Government’s Integrated Communities Action Plan, we are going to take forward an analysis of policy objectives in this area and detailed work will be carried out.

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

Lord Keen of Elie Excerpts

Wednesday 20th February 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 7 January be approved.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the draft regulations before us today were laid on 7 January under the affirmative resolution procedure and relate to the contribution rates for members of two judicial pension schemes. The purpose of these draft regulations is to make provision to extend the current member contribution rates and earning thresholds in two different pension schemes until the next financial year. The two schemes are: the judicial pension scheme 2015, which was established by the Judicial Pensions Regulations 2015 following wider public service pension reforms; and the fee-paid judicial pension scheme 2017, which was established by the Judicial Pensions (Fee-Paid Judges) Regulations 2017, following the Supreme Court decision in 2013 in the case of O’Brien, and related court decisions.

The reason for extending the existing rates is that the current provision for member contribution rates will expire on 31 March 2019. Therefore, the draft regulations are needed to make an amendment to specify the member contribution rates which will apply for the next year: for the period from 1 April 2019 to 31 March 2020. The regulations will enable us to ensure the continuing operation of the schemes by deducting the appropriate member contributions for that year. Given that we propose to continue the same rates under the regulations, this amendment simply maintains the existing provision for a further year. This interim measure is required pending the completion of a broader process, which relates to the valuation of the judicial pension schemes. This process has been ongoing for a period of time, and the outcome of the valuation is yet to be determined.

Having referred to a link between the regulations and the broader valuations process, I should like to provide some brief background with regard to that matter. Following the reform of public service pension schemes in 2015, and as reflected in the current legislative framework, government departments are required to undertake valuations of their respective public service pension schemes every four years. This includes the Ministry of Justice in respect of the judicial pension schemes. The valuations of public service pension schemes do two things. One is to measure the cost of providing pension benefits to members of the schemes; and the second is to inform the future contribution rates paid into the schemes, by both the employer and members of the scheme.

Work has been under way on the first such valuations of public service pension schemes, and part of the initial stage is to analyse the provisional results produced for each respective scheme—which, as I mentioned, includes the judicial pension schemes. However, the current position is that the Government have recently announced a decision to pause part of the valuations of public service pension schemes. This is because the Government are seeking permission to appeal the Court of Appeal decision in the case of McCloud. Therefore, pausing the valuations is considered a prudent approach at this stage.

I now seek to explain the relevance of the Court of Appeal matter in McCloud. In December 2018, the Court of Appeal ruled that transitional protection offered to some individuals as part of the 2015 public service pension reforms amounted to unlawful discrimination—including the transitional protections in the judicial pension schemes. The issue relating to this transitional protection is that, as part of the 2015 reforms, most public servants and judges moved to a new career-average pension scheme. However, members within 10 years of their normal retirement age were protected and remained in the existing final salary schemes, together with members between 10 years and 13 years 6 months from their normal retirement age, who were given what was termed tapered protection, which is to remain in the existing scheme for a period of time before moving to the new scheme introduced by the reforms.

The Ministry of Justice has applied to the Supreme Court for permission to appeal the Court of Appeal’s ruling, and a decision on that application for permission is awaited. I understand that it is anticipated that it will be available in about July. As the legal process is ongoing and there is some uncertainty about the impact of the court ruling on wider pension reforms, it was considered prudent to pause that element of the valuation, which has the potential to affect member benefits and/or contribution rates in future. That element is referred to as the “cost control mechanism”, and is referred to in the Written Ministerial Statement issued by the Chief Secretary to the Treasury on 30 January this year.

I return to the draft regulations, which are the subject of this debate. There is a specific requirement to consult those affected by the draft regulations, as this proposal entails making a change to member contribution rates which are classed under the governing legislation as a protected element. Therefore, in accordance with the relevant requirements, we carried out a four-week consultation from 24 October to 21 November 2018. We consulted representative judicial organisations with a view to reaching agreement on the proposal. We received 23 responses to the consultation, of which the majority of respondents agreed with the proposal but two respondents did not. The two respondents who did not agree with the proposal also raised some points relating to wider pensions issues which were outside the scope of the consultation relating to the proposal for extending the current rates as an interim measure for a year. For example, they disagreed with the stepped approach for contribution rates and expressed preference for a flat rate to apply and for having a non-contributory scheme. We engaged further with the aim of reaching agreement, but unfortunately we were unable to secure the agreement of these two respondents.

In accordance with additional procedural requirements, we have also laid a report before Parliament setting out the rationale for this amendment. Furthermore, as the judicial pension schemes to which these regulations relate are UK wide, we have engaged with the devolved Administrations and kept them informed of progress. We will also continue to engage closely with them on further developments.

I conclude by reinforcing the point that the existing arrangements for member contribution rates will expire on 31 March 2019, in relation to the 2015 and 2017 judicial pension schemes. These draft regulations are therefore a necessary interim measure to continue the effective operation of these pension schemes, until a longer-term solution is put in place. Under this interim measure, the cost of accruing pension scheme benefits will remain the same for members of both schemes for the scheme year April 2019 to March 2020. If it is agreed that changes to member contribution rates—or other changes—are required in future, as a result of the valuation outcome, any changes that are agreed will be backdated until 1 April 2019, where it is appropriate to so do.

I hope noble Lords will agree that these regulations are an important and necessary interim measure to continue the arrangements for member contribution rates and for the effective operation of the judicial pension scheme. I beg to move.

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[Lord Judge (CB)]

My Lords, I had not intended to speak but perhaps I should. I declare an interest as having been Lord Chief Justice when the shocking new arrangements for the judicial pension were imposed on the judiciary unilaterally by the Government. There was consultation—of the kind that enables the Government to do exactly what they like—but it was imposed on the judiciary. There was a unilateral change to the pension arrangements under which a significant proportion of the judiciary were working if they were below a certain age and had not given so many years’ service. The basis on which they joined the judiciary, which was clearly understood, was changed. That represented a betrayal. It greatly damaged confidence in the whole idea of a successful practitioner—a barrister or solicitor—seeking judicial appointment. If the Government could unilaterally change the arrangements, there was no point. We still suffer the consequences of that. There is nothing wrong with the present measure we are considering, but the consequences of what happened between 2010 and 2014 are with us still.

If I may answer the point made by the noble Lord, Lord Adonis, about the arrangements that are currently before and have been before the courts, the judges trying those cases are not those who will have been affected by these dramatic changes. The various matters raised by the noble Lord, Lord Beith, and the noble Baroness, Lady Chakrabarti, are well known. There is no point using this opportunity to stand on a hobby-horse to repeat them, but they do not go away. That is an issue the ministry has to grapple with as soon as practicable.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions that have been made. I note the points made by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge, and I acknowledge that pension issues have created very real issues about recruitment, particularly to the High Court Bench. That is something of which we are conscious and have in mind and under consideration going forward. The whole question of the terms and conditions on which we seek to appoint the judiciary is critical, and I acknowledge the need to ensure that we maintain a judiciary whose expertise and integrity are regarded as pre-eminent. The noble Lord, Lord Beith, touched on the value—if you can put it that way—of legal services in an export sense. It is estimated to be in the region of £4.5 billion, so it is a significant matter in that context alone; but of course, it has a much wider resonance and importance than that.

As the noble and learned Lord, Lord Judge, observed, those hearing this matter in the Supreme Court are not impacted by the transitional provisions we are concerned with in the McCloud case and the related Miller case, which is still to be heard. In any event, I remind the noble Lord, Lord Adonis, of the judicial oath and the confidence maintained in the integrity of our judiciary, which is entirely justified.

Regarding the potential cost of the McCloud decision, it is a matter of speculation. It does not refer just to judicial pensions; it is also relevant to firefighters.

[Lord Adonis]

My Lords, I am an avid reader of the Law Society Gazette, which says that £750 million has been provided for in the department’s own accounts as an insurance against the loss of this case. Is that correct?

[Lord Keen of Elie]

I am not in a position to comment on that figure, but if the noble Lord is concerned about it, I will write to him after seeing what the position is in the accounts, as I do not have them to hand.

The issue of the age of retirement has been debated, and we are conscious of it. Many noble and learned Lords who find themselves retired from the Bench are able to make a convincing contribution to the affairs of this House for many years after their retirement, and it seems in one sense unfortunate that we cannot harness that expertise on the Bench as well as off it.

This is a purely interim measure, pending the final valuation which will follow the decision in McCloud, and we will therefore be taking forward the question of contributions as soon as that valuation process is completed. There is a wider interest—expressed, for example by the noble Lord, Lord Beith—in the whole question of these pension reforms, and it is underlined by the points made by the noble and learned Lord, Lord Judge. We have a scheme, we are implementing it and taking it forward, but this is an interim measure to maintain contributions, not to increase them.

Motion agreed.

Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Wednesday 20th February 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 21 January be approved.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, this draft instrument forms part of the ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively for our citizens. It is solely related to no-deal preparations. If Parliament approved the withdrawal agreement, which includes an implementation period, and passes the necessary legislation to implement that agreement, the Government would defer the coming into force of this instrument until the end of that implementation period. Once a deal on our future relationship with the EU had been reached, we would then review whether this instrument needed to be amended or revoked.

[Lord Beith (LD)]

Is it the Government’s policy, if they are negotiating in a transition period because they have got an agreement, to seek to continue the kind of provisions that are in these regulations when we come to the end of the transition period?

[Lord Keen of Elie]

The Government—in the event that we have a withdrawal agreement—will enter into negotiations on our future relationship with the EU, and that will include a desire to ensure that we have addressed the full panoply of judicial co-operation issues that exist at the present time. We cannot say unilaterally that we will secure all of those, but clearly we have an interest in carrying on that negotiation. That is why, at the end of any implementation period, it may be that we can simply revoke these instruments without them ever having to be applied.

The instrument relates to mediation, which is, as noble Lords will be aware, a structured process whereby the parties to a dispute attempt on a voluntary basis to reach an agreement to settle their dispute with the assistance of a mediator, but without a court needing to rule on the dispute. In the civil and commercial fields, such a dispute covers a wide range of contractual and other issues, but also touches on family issues such as access to children.

In 2008, the European Council agreed what it termed a “cross-border mediation directive” which sought to harmonise certain aspects of mediation in relation to EU member states’ cross-border disputes. I should note that the directive does not apply to Denmark, so when I refer to “member states” in this context, I am not including Denmark, which has an opt-out under Protocol 22 of the Lisbon treaty. The aim of the mediation directive is to promote the use of mediation in such cross-border disputes. An EU cross-border dispute can be one between parties who are domiciled, or habitually resident, in two or more different member states, or it can be a dispute where judicial or arbitration proceedings are started in a member state other than the one where the parties are living or domiciled.

The United Kingdom then enacted domestic legislation which gave effect to certain aspects of the mediation directive. I say “certain aspects” because, in many areas—such as ensuring the quality of mediation, and information about mediation for the public—our existing arrangements already met the requirements or standards set out in the 2008 directive. However, in order to implement the directive, the UK had to introduce some new rules for EU cross-border mediations involving UK parties. These new rules first specified that if a time limit, or limitation period, in domestic law during which a claim could be brought in a court or tribunal expires during the mediation process, the parties can still seek a remedy through the courts or tribunals should the mediation not be successful. Secondly, the new rules defined the rights of a mediator, or someone involved in the administration of mediation, to resist giving evidence in civil or judicial proceedings arising from information disclosed during mediation. Various changes were also made to court rules to supplement these changes and to implement the requirements of the mediation directive relating to the enforceability of agreements resulting from mediation.

Under the European Union (Withdrawal) Act 2018, the legislation implementing the mediation directive is retained EU law upon the United Kingdom’s exit from the EU. However, should the UK leave the EU without an agreement on civil judicial co-operation, the reciprocity on which the directive relies would be lost. So, even if we were to continue to apply the enhanced EU rules to EU cross-border disputes, we would be unable to ensure that the remaining EU member states applied the rules of the directive to cross-border disputes involving parties based in the United Kingdom, or to judicial proceedings or arbitration taking place in the United Kingdom.

Accordingly, and in line with the Government’s general approach to civil judicial co-operation in the event of no deal, this instrument will repeal, subject to transitional provisions, the legislation that gives effect to the mediation directive’s rules on confidentiality and extension of limitation periods. It amends the relevant retained EU law in England and Wales and Northern Ireland, and in Scotland in so far as it relates to reserved matters. Separate instruments will amend the related court rules in England and Wales and Northern Ireland. Other legislation implementing the directive is within the legislative competence of the Scottish Government, and I understand that they have decided to bring forward their own legislation in this area.

This instrument is necessary to fix the statute book in the event of a no-deal exit. We have assessed its impact and have published an impact assessment. By repealing the domestic legislation which gave effect to the mediation directive, we will ensure clarity in the law applying to mediations between UK parties and parties domiciled or habitually resident in EU member states. We will also avoid a situation where mediations of an EU cross-border dispute conducted in the UK are subject to different—and arguably more favourable—rules on confidentiality or limitation than other UK mediations.

As I indicated earlier, the instrument will change the rules applying only to what are currently EU cross-border mediations, and then only in two respects: time limits and confidentiality. On time limits, claimants involved in such mediations who no longer have the benefit of an extended limitation period would, if they wanted more time to allow for mediation to take place, have to make an application to the court to stay proceedings and would have to pay a fee. We are unable to assess how many cases this would affect. Limitation periods can extend from three years, to six years, to 10 years in some instances, and can either bar a case from being brought or extinguish the claim in its entirety. They are extensive periods in any event, but they may be impacted by these changes

Overall, the instrument will ensure that, post exit, UK-EU mediations are treated consistently under the law with mediations between UK domiciled or habitually resident parties, or UK parties and parties domiciled or habitually resident in non-EU third countries.

I have set out to deal with the issue of EU cross-border mediations because, without a deal in place on 29 March 2019, such mediations involving UK-domiciled parties would no longer be subject to the mediation directive rules in EU member states. The regulations now moved will fix deficiencies and ensure that both the courts and UK citizens have clear and effective rules to follow in such circumstances.

[Lord Adonis (Lab)]

One of the most difficult issues that we grappled with during the passage of the European Union (Withdrawal) Bill was child abductions and disputes about child custody. I assume that this affects that issue; can the Minister tell us how? The single most disturbing aspect that came out of that is that it might be harder to deal with cross-border issues of child abduction after Brexit. I am keen to understand whether this maintains the status quo as far as possible. Does this mean that effective remedies will be available to the court to deal rapidly with issues of child abduction?

[Lord Keen of Elie]

First, this instrument is not concerned with the role of the court: it is concerned with the role of mediation outside the court. Secondly, it is not usual to discover mediation as a form of resolving a child abduction case. The very nature of an abduction is such that the parties are not amenable to agreeing a voluntary mediation to resolve the matter. We have already made provision for civil orders in relation to child abduction.

With regard to criminal orders, it is impossible to replicate the existing provisions of EU law because, under the relevant provisions of EU law, an EU court would not recognise an order from a UK court in any event, and therefore it would give false hope to a party to grant them an order that was not enforceable. Overall, therefore, my answer to the noble Lord is that mediation does not impact directly on the sort of issue that has been raised. We recognise the importance of trying to ensure, as far as possible, that there are means of enforcing child abduction orders. The only qualification if we leave without a deal is that there would be no right of the originating court to make an order that trumps the order of the court in the country to which the child has been abducted. That is simply because in the absence of reciprocity, it is not possible to make such an order enforceable. Otherwise, my understanding is that we will be able to proceed.

[Lord Hope of Craighead (CB)]

I think I am right in saying that we are party to a treaty about child abduction that extends well beyond the EU. I have had experience of a case involving abduction where one of the parties was resident in Australia and the other one in Norway, which, of course, are outside the EU network. We have rules about the speed at which cases can be dealt with, but the basic treaty arrangements are unaffected.

[Lord Keen of Elie]

The noble and learned Lord is quite right. The Brussels convention on these matters reflects the terms of the Hague convention to a large extent. The one qualification is the element to which I referred about the trumping order, which is not available under the Hague convention. However, it works very effectively in respect of non-EU states and there is no reason it should not continue to operate. I believe that a week or so ago, I addressed these matters in this House when moving other regulations relating to exit, so I hope I have not contradicted myself since then.

Finally, although the confidentiality provisions in the EU directive will no longer be law in the context of mediation in England and Wales, it is usual for parties, when agreeing to mediation, to have an agreement on confidentiality as well. Indeed, even in the absence of such agreement, there is a provision from the High Court in the case Farm Assist Ltd in 2009, which says that such a confidentiality obligation would be implied in any event. It would, of course, be subject to the interests of justice, but we are not going to lose entirely the benefit of the confidentiality provisions if we leave without a deal. In these circumstances, therefore, I beg to move.

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[Baroness Chakrabarti (Lab)]

My Lords, as we have heard, this instrument sits against a backdrop of completely inadequate planning for justice co-operation after Brexit. The danger is that that inadequate planning could put vulnerable people in our society at risk. Across Parliament, including from the Justice Select Committee, there has been concern that the Ministry of Justice has failed to provide sufficient detail or certainty about how co-operation on justice will be managed after we exit the European Union.

As we all know, we currently benefit from well-established, frequently updated and comprehensive reciprocal justice arrangements within the EU. Without an agreement with our European partners on what the future of those reciprocal arrangements looks like, people forced to go to court or mediation to protect their rights can face extremely damaging consequences.

We on this side of the House have consistently said that Brexit must not be used to lower standards or reduce rights. There is a fear of that. I know that the noble Lord, Lord Beith, is a little sanguine about how significant that is in this instrument, but I am a bit less so. It nevertheless breaches that principle about a reduction in standards and rights.

Noble Lords will recall that the instrument was laid for sifting by the Secondary Legislation Scrutiny Committee on 16 November last year. The European Statutory Instruments Committee recommended that it be upgraded to the affirmative procedure because of its large volume of amendments to primary and secondary legislation, but also because it could diminish rights by disengaging from European Union obligations.

I may have misheard the Minister. He referred to an impact assessment. I do not know whether that included a consultation or whether he is instead relying on the Government’s general civil judicial co-operation framework. If it is the latter, the European Union Sub-Committee on Justice found that the framework contained little detail on how the Government’s aims for co-operation would be achieved.

This statutory instrument will repeal legislation enshrining the mediation directive. The directive extends time limits for bringing some civil claims—including child maintenance claims and employment tribunals—to enable mediation. I am sure we all agree that this is a very good thing. The directive is one of many examples whereby we have raised legal standards and protections across Europe through co-operation with our European partners.

The European Statutory Instruments Committee considered whether this instrument could diminish rights and found that it repeals legislation that extends the time limit for bringing certain claims in civil courts and employment tribunals to enable mediation. Shortening time limits in that regard can have significant consequences, prohibiting parties from reaching mediated solutions in child contact cases, for example. This statutory instrument clearly breaches the principle that standards should not be lowered; it lowers the standards for enabling cross-border mediation from the higher EU standard to a lower international one.

The Government accept that the UK could unilaterally continue to apply the mediation directive post exit but have decided not to do so. The noble and learned Lord will correct me, but my understanding of the Government’s position is that, if someone wants to stop a time limit running in mediation, they should issue proceedings before a court and apply to stay or stop those proceedings. That is unfair and unrealistic for so many people in their current financial circumstances, let alone in the context of the obliteration of civil legal aid, which we have discussed in your Lordships’ House so many times.

Put simply, this statutory instrument does what Ministers promised—in this House and elsewhere—would not happen: it breaches the principle of not reducing standards in people’s access to justice. That is very disappointing.

[Lord Keen of Elie]

On that last issue, I am somewhat puzzled by the points that the noble Baroness, Lady Chakrabarti, is endeavouring to make in this context. The time limits we are talking about are measured in years—three, four, six or 10 years. If a party is intent on mediation before they raise proceedings, it is unlikely that they will be so disinclined or uninterested in the issue that they will wait years before even attempting to go forward with mediation. Let us be realistic and practical. However, where they have already commenced proceedings, they may then be directed by their lawyers or others to consider mediation as an alternative means of resolving the dispute. In those circumstances, they have already dealt with the time limit by raising the legal proceedings. Pending mediation, all they need to do, if necessary, is stay those proceedings—or sist them, in Scottish terms—putting them on hold while the mediation process is carried on. I do not see that this is a diminution of rights at all.

I come to the points raised by the noble Lord, Lord Beith. On the question of no deal, I understand his point entirely. If no deal occurs—which nobody wants—it will not be a case of switching off the lights and leaving the building. Clearly, we will want to continue discussing with our immediate European neighbours how we can best resolve any differences between us on judicial co-operation. One would hope that that would happen in any event, but I note the noble Lord’s point and cannot disagree. It might be more difficult in a no-deal scenario than during an implementation period, when we are negotiating a future agreement between ourselves and the EU 27.

On another point, it is not an issue only of preferential treatment—that is, the idea that parties from the EU would somehow have preference over those in the UK. There is a danger that we might mislead people if we do not deal with the directive provisions in this way. People may continue to believe that they are protected from having to raise proceedings beyond a limitation period because of the EU directive. We will have to make it clear to people that this will not be the case.

There is not the same issue with regard to confidentiality. The absolute confidentiality imposed by the directive is not immediately replicated in the law of England and Wales, but there is the usual provision for contractual agreement of confidentiality of the mediation process. In any event, as I sought to indicate, there is at least one High Court decision from 2009 that says that, even in the absence of an express contractual term, the court would readily imply an issue of confidence with regard to mediation.

In a way, then, the impact will be minimal, but I do not dismiss it out of hand. We are conscious that we are moving away from an EU-wide provision on mediation and we have to accommodate that at present. Our hope is that we will move into an implementation period when we continue to enjoy this reciprocity. We hope that, in due course and in the course of such an implementation period, we will agree future judicial co-operation, but that will require reciprocity. In these circumstances, I beg to move.

Motion agreed.

Assisted Suicide

Lord Keen of Elie Excerpts

Thursday 14th February 2019 Lords Chamber

[Baroness Blackstone]

To ask Her Majesty’s Government, in the light of Geoffrey Whaley’s case, what assessment they have made of the Crown Prosecution Service’s Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, CPS policy on assisted suicide provides guidance to prosecutors on assessing the evidential and public interest stages in reaching decisions in cases of encouraging or assisting suicide. The policy sets out the public interest factors that must be applied in reaching decisions in these cases and balances the various important factors that need to be considered. There are no plans to reassess the CPS policy in relation to such cases.

[Baroness Blackstone (Ind Lab)]

I thank the Minister for his reply, but does he really think that it is a good use of police time to interview, under caution, the wife of a dying man who wishes to choose how he dies? In the light of the Whaley story and loving families being treated like criminals, does the Minister think that the law on assisted dying is working well?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, it is for the CPS to apply the law, not to make the law. Every case has to turn on its own facts and circumstances. Where matters are drawn to the attention of the police relating to an assisted suicide or potential assisted suicide, they will investigate. They are bound to investigate what is potentially criminal conduct in terms of Section 2 of the Suicide Act 1961. I therefore see no reason why they should pause those investigations, given the current state of the law.

[Lord Pannick (CB)]

Does the Minister recall that the CPS policy was adopted after the decision of the Appellate Committee of this House in 2009 in the Debbie Purdy case—I declare an interest as her counsel. The Appellate Committee required a policy because of the uncertainty of the law. Does the Minister accept that there continues to be considerable uncertainty in this area, as indicated by the Question of the noble Baroness, Lady Blackstone, which is causing enormous distress to those at the end of their lives and their families?

[Lord Keen of Elie]

The noble Lord is quite right that a consultation was prompted by a decision of the courts in England and Wales. That led to a consultation exercise that commenced in September 2009, to which there were more than 5,000 responses, and resulted in the publication of the CPS policy document in 2010. I consider that that policy is working well at the present time.

[Lord Sherbourne of Didsbury (Con)]

My Lords, does my noble and learned friend understand—I am sure he does—that, for people with a terminal illness who have no hope of recovery and are suffering great distress, the current law, which prevents them being able to end their own lives in dignity, is condemning them to great and unnecessary suffering?

[Lord Keen of Elie]

We are of course conscious of the difficulties and challenges facing people in the situation that the noble Lord has outlined, but I emphasise again that it is for the CPS to apply the law, not to make the law. In doing so, it follows a policy that addresses not only an evidential test but a public interest test with regard to such cases. The consequence is that, of the 140-odd cases referred in the last nine years to the CPS, there were prosecutions in respect of Section 2 of the Suicide Act 1961 in only four of them, resulting in one acquittal and three convictions.

[Lord Low of Dalston (CB)]

My Lords, as the noble and learned Lord has implied, the police are only enforcing the law, so it is really the law that is the problem rather than the police. When will the Government bring in a new law to free the police from having to treat loving families like criminals?

[Lord Keen of Elie]

My Lords, it is not a case of having to treat loving families like criminals. It is a matter of having to look at the facts and circumstances of every case, in situations where the victim may be extremely vulnerable. As the Government have said before, it is therefore a matter for Parliament because it is a matter of conscience. It is not a matter for government to bring forward such legislation. The noble Lord will be aware that such legislation was proposed in 2015 and did not succeed.

[Baroness Barker (LD)]

My Lords, given the statistics which the noble and learned Lord has just quoted, does he not consider that that in itself is an indication that the law is not working properly?

[Lord Keen of Elie]

No, I do not. As I say, only in a small minority of cases has there been a successful prosecution. I should also add, however, that there have been a number of instances in which the case taken forward involved prosecution for homicide, not assisted suicide.

[Baroness Meacher (CB)]

My Lords, indeed Geoff Whaley did die a dignified death in Switzerland last Thursday, but most people cannot afford to take their family to Switzerland for such a death, or they cannot get the medical report from their doctor to enable them to have such a death. Does the Minister agree that, in a civilised society, someone in Geoff Whaley’s position should be able to avoid months of being unable to swallow, eat, drink, speak or move—totally, therefore, cut off from communication? Will the Minister discuss with his colleagues what can be done to change the law?

[Lord Keen of Elie]

It is not the intention of the Government to seek to change the law in this area. I emphasise that every case has to be considered according to its own particular facts and circumstances. I readily acknowledge that many of these cases are extremely tragic.

[Baroness Chakrabarti (Lab)]

My Lords, whatever the conflicting views—and there are many—on public and prosecutorial policy in this area, I hope we can all agree that the current situation presents loved ones of people with motor neurone disease and similar conditions at the end of their lives with an emotional, ethical and legal minefield. Is the Minister confident that these people, at a very difficult time, are getting the advice and support they need to navigate that?

[Lord Keen of Elie]

I am not in a position to say where such people seek advice on these matters, but such advice is available, and the policy of the CPS with regard to this matter is publicly available.

Prisoners: Acquired Brain Injuries

Lord Keen of Elie Excerpts

Tuesday 12th February 2019 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and declare an interest as chairman of the Criminal Justice and Acquired Brain Injury Interest Group.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, all children and young people within the secure estate are screened for brain injury through the comprehensive health assessment tool. If an adult prisoner presents with a significant brain injury, a specialist neurological referral is made. We have formed a cross-government group to develop a more strategic picture of ABI within the criminal justice system.

[Lord Ramsbotham]

My Lords, I thank the Minister for that somewhat disappointing reply. This is not new; indeed, I have been campaigning for assessment of head injuries for 20 years. In addition to the horrifying figures for women prisoners that the Disabilities Trust has just produced, it has proved that 40% of males and 47% of young offenders are suffering from acquired brain injury. The point about an assessment is that, if you know which part of the head has been hit or damaged, you can predict behavioural outcomes. Unfortunately, the Prime Minister dropped the prisons part of the Prisons and Courts Bill, in which we hoped to have made the assessment of head injuries compulsory. I ask the Minister whether he will make it so.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the NHS England prison healthcare national standards service specification requires providers to screen individuals where it is suspected that they may have an acquired brain injury. Clearly, we want to take this further in light of the recent report from the Disabilities Trust. We have now formed a cross-government group with the Department of Health and Social Care, NHS England and the Prison Service to develop a more strategic picture of acquired brain injury within the criminal justice system. We hope to be able to report to the group chaired by the noble Lord by the end of March.

[Baroness Burt of Solihull (LD)]

My Lords, I am very heartened by the Minister’s response. This shocking finding explains the possible source of many difficult and counterproductive behaviours one sees in the prison population, which can seriously hamper the ability of prisoners to cope inside and outside prison and of professionals to help them. The brain injury screening index provided by the trust is freely available, and its use and effectiveness among prisoners at Drake Hall is tremendously encouraging. Will the Minister agree to add his voice to the Disabilities Trust’s demand that all prisons should adopt it?

[Lord Keen of Elie]

Clearly, we are reviewing this matter with a degree of urgency, and to that extent I add my voice. There is an issue about the extent to which we can apply particular test criteria in the context of prisoners. These cannot be over-complex because of the nature of the people we are dealing with, so this has to be a matter for further consideration. However, we are looking not just at those already in prison but those who come into contact with the criminal justice system. It is equally important that they, too, should, where possible, be assessed for the sort of vulnerabilities referred to by the noble Baroness.

[Baroness Corston (Lab)]

My Lords, as I understand this survey, 62% of the women reported that their brain injury was sustained as a result of domestic violence, so these women are not only domestic violence survivors, they are brain-damaged and are locked up for ridiculously short periods. Does that not beg the question of whether they should be there at all?

[Lord Keen of Elie]

I cannot say that it begs the question of whether they should be there at all, given that the nature of their offences may vary quite widely. But clearly, the findings of the Disabilities Trust are extremely disturbing and give cause for concern. That is why we have made them the subject of a review.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interest as chair of the National Mental Capacity Forum. Do the Government recognise that many people have had head injuries in their pre-offending behaviour? They are in touch with social workers, yet poor social work training does not include functional assessment of them. Ordinary assessments of capacity do not pick up the functional impairment that results in their later offending behaviour.

--- Later in debate ---

[Lord Keen of Elie]

I am not in a position to say what the scope of social work training is with regard to that point, but I quite accept the observation made by the noble Baroness. However, where it is anticipated that someone will be subject to imprisonment, or where they have come into contact with the criminal justice system, NHS England has commissioned liaison and diversion services aimed at identifying those who are vulnerable. It is anticipated that by 2020-21, that service will cover the whole of England.

[Lord McColl of Dulwich (Con)]

Does the Minister agree that much more serious than head injuries is the high incidence in these prisons of obesity? Obesity cannot be blamed on poverty: it is due to prison authorities feeding prisoners too many calories. Will the Government look into that?

[Lord Keen of Elie]

I am not aware of any serious issue of obesity within our prisons, but there may be some limitations on exercise, including cross-country running.

Cairncross Review

Lord Keen of Elie Excerpts

Tuesday 12th February 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I see that the noble Lord, Lord Foulkes of Cumnock, has decided to take flight. With the leave of the House, I will repeat a Statement made in the other place by my right honourable friend Jeremy Wright, the Secretary of State for DCMS:

“With your permission, I would like to make a Statement about the publication of the Cairncross review. I would like to thank Dame Frances Cairncross for leading the review, along with the expert panel and officials who have worked with her to develop it.

This review comes at an important time. In her report, Dame Frances paints a vivid picture of the threat to high quality journalism in this country. There are now around 6,000 fewer journalists than there were in 2007. Print circulation of daily national papers fell from 11.5 million in 2008 to 5.8 million in 2018.

In this same time period, circulation for local newspapers has halved. As the review makes clear, there are many reasons for this, but the main driver is a rapid change in how we consume content. The majority of people now read news online, including 91% of 18 to 24 year-olds. As this shift takes place, publishers have struggled to find ways to create sustainable business models in the digital age. As the review sets out, between them, Google and Facebook capture the largest share of online advertising revenue and are an increasingly important channel for the distribution of news content online. Not only this but they hold an array of data on their users that news publishers cannot possibly hope to replicate, which further strengthens their position in the digital advertising market.

This combination of market conditions threatens to undermine the future financial sustainability of journalism. Even publications that have only ever been online are struggling, and this should concern us all. Dame Frances notes that, while high-quality journalism is desirable, there is one type of journalism that society and democracy cannot do without, and that is public interest journalism. This is the type of journalism that can hold the powerful to account and is an essential component of our democracy. It helps us to shine a light on important issues—in communities, in courtrooms in council chambers and in this Chamber. This type of journalism is under threat, especially at the local level. The review cites numerous examples of what happens to communities when a local paper disappears. So Dame Frances’ report comes at a vital time, and I welcome her focus on public interest journalism.

This is clearly an important issue and I wanted to set out to the House today how the Government intend to respond. There are many substantial recommendations in this review. There are some areas where we can take them forward immediately, and other more long-term recommendations on which we will be consulting with stakeholders about the best way forward.

First, I will deal with the recommendations we are able to progress immediately. Online advertising now represents a growing part of the economy and forms an important revenue stream for many publishers. But this burgeoning market is largely opaque and extremely complex, so it is at present impossible to know whether the revenue shares received by news publishers are fair. The review proposes that the Competition and Markets Authority conduct a market study into the digital advertising market. The purpose of this study would be to examine whether the online marketplace is operating effectively, and whether it enables or prevents fair competition. It is right that policymakers and regulators have an accurate understanding of how the market operates and check that it is enabling fair competition, and I have today written to the CMA in support of this study. I will urge Professor Jason Furman to treat the review as additional evidence as part of his ongoing inquiry into digital competition in the UK, which is due to be published in the spring. I also recognise that online advertising has given rise to a wider set of social and economic challenges. My department will therefore conduct a review of how online advertising is regulated, starting in the coming months.

The Cairncross review also cites concerns from publishers about the potential market impact of the BBC on their sustainability. They argue that the BBC’s free-to-access online content makes it harder for publishers to attract subscribers. The review also questions whether the BBC is straying too far into the provision of softer news content, traditionally the preserve of commercial publishers, and suggests this might benefit from the scrutiny of Ofcom. Let me be clear that the Government recognise the strong and central role of the BBC here. As the review states,

“the BBC offers the very thing that this Review aims to encourage: a source of reliable and high quality news, with a focus on objectivity and impartiality, and independent from government”.

However, it is right that the role of the BBC, as a public service broadcaster, be appropriately transparent and clear. The review recommended that:

“Ofcom should assess whether BBC News Online is striking the right balance, between aiming for the widest reach for its own content, and driving traffic from its online site to commercial publishers, particularly local ones”.


Of course, some of these questions were addressed as part of the charter review process, but I have written today to ask Ofcom to look carefully at the review’s recommendations and identify if there are any new concerns deserving attention. For instance, there may be ways in which the BBC could do more to drive traffic to commercial sites, particularly the local press.

Another recommendation from the review was a proposal for two separate forms of tax relief for news publications, one of which is intended to bolster the supply of local and investigative journalism by enabling it to benefit from charitable status. The review noted that in the USA, philanthropic donations provide, on average, 90% of the total revenues of non-profit news publishers. Although we have a different media landscape, as the review sets out, charitable status could reduce the costs for those producing this essential public interest reporting, and pave the way for a new revenue stream through philanthropic donations. I recognise that this avenue has been explored previously and that some hurdles will have to be cleared, but I believe we should pursue it, so I have written to the Charity Commission and look forward to hearing how it can help move this forward.

As I set out earlier, there are also areas where we will need to consult further and respond in further detail. First, Dame Frances recommended the establishment of an institute for public interest news to promote investigative and local journalism. The review proposes that this institute would act as a convener for those organisations with the means to support public interest news, including the BBC and online platforms. It would also be tasked with generating additional finance for the sector, driving innovation through a proposed new fund, and supporting an expansion of the BBC’s Local Democracy Reporting Service. This BBC-funded scheme is a shining example of what can be done. The first of its kind in the industry, it has embedded 150 journalists within local publishers to produce local democracy reporting, particularly relating to local councils. I met some of these reporters last week and they have produced 50,000 stories so far between them—all stories that may not otherwise have been heard. The Government will explore, with others, what more can be done here.

The review also calls upon the Government to do more to incentivise the publishing industry’s transition to digital. It proposes extending the current scope of VAT exemptions so that they apply to online payments for all news content and not simply print news content, and new tax relief for public interest news providers. I am aware that there is passionate support for this within the publishing sector, and we share its ambition for a healthy and sustainable industry. As this House knows, the Government always keep taxes under review, and any decision to amend the UK tax regime is, of course, a matter for the Chancellor of the Exchequer as part of the annual fiscal cycle. I will be discussing this matter further with industry and my colleagues at the Treasury.

I want to highlight two recommendations in the review that cover similar ground to work already taking place within government. One is the review’s sensible proposal that the Government develop a media literacy strategy, working with the range of organisations already active in this space. Evidence suggests that there is also a correlation between media literacy and greater propensity to pay for news, so improving media literacy will also have an impact on the sustainability of the press. Making sure people have the skills they need to separate fact from fiction is the key to long-term success in tackling this issue, and I welcome the focus that Dame Frances has placed on it. We welcome this recommendation, which relates closely to the Government’s ongoing work to combat disinformation. Last month, my honourable friend the Minister for Digital and the Creative Industries hosted a round table on media literacy, and the Government are actively looking at what more we can do to support industry efforts in this area.

The other recommendation is the review’s call for the creation of new codes of conduct between publishers and the online platforms which distribute their content. These would cover issues relating to the indexing of content on platforms and its presentation, as well as the need for advanced warning about algorithm changes likely to affect a publisher. The development of these codes would be overseen by a regulator.

The review also proposes that regulatory oversight be introduced as part of a ‘news quality obligation’ upon platforms. This would require that platforms improve how their users understand the origin of an article of news and the trustworthiness of its source. Dame Frances recognises that platforms are already starting to accept responsibility in this regard. These two proposals deserve the Government’s full consideration and we will examine how they can inform our approach. This includes our work as part of the online harms White Paper, due to be published shortly.

This report sets out a path to help us put our media on a stronger and more sustainable footing. However, Dame Frances is clear that her review is just one contribution to the debate. We cannot turn back the clock and there is no magic formula to address the systemic changes the industry faces, but it is the role of any responsible Government to play an active part in supporting public interest journalism. We will consider this review’s contents carefully and engage with press publishers, online platforms, regulators, academics, the public and Members of this House as we consider the way forward. I remain open to further proposals that may go beyond the recommendations or scope of this review.

I know that this issue is of great concern to Members across the House, and today’s review is an important milestone. At the heart of any thriving civil society is a free and vibrant press. The Government—and, I have no doubt, the House—are committed to supporting it through changing times and ensuring that it can continue to do its job. I commend this Statement to the House”.

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[Lord McNally (LD)]

My Lords, the noble Lord, Lord Griffiths, paints a romantic and nostalgic picture of the local press, and he is right to do so. But, in trying to solve the problems that face us in somehow helping the Burry Port Star, we must beware. The press owners have come with a begging bowl. They earlier proclaimed their resistance to any government interference, but quite ready to dip their hands into the public purse are very large and rich companies, many of which have delivered redundancy after redundancy to local papers in favour of their shareholders.

That is one of the reasons why local journalism is in the state that it is in. I also suggest that the National Union of Journalists might be added to the list of people to consult that the Minister read out. There is a serious challenge to local media. Dame Frances set it out very bleakly in her report and the Minister repeated it. There is massive technological change and that impacts on how news is received and—particularly with the under-25s—how it is digested.

I welcome some of the actions announced by the Minister to refer some of the recommendations to relevant bodies. However, the ambitions of the Government and newspaper proprietors would be more credible if they had not been so eager to bury the Leveson report and ignore its call for the establishment of a regulator set up by royal charter which could do many of the tasks called for in this report.

As I said, freedom from Government does not seem to stop the press barons from dipping into the public purse. Therefore, although I welcome the recommendations on digital and media literacy, online advertising and news quality obligations, we should be hard-nosed about how and where tax relief and innovation fund money is spent. It is not there simply to line the pockets of Newsquest, JPI Media and Reach, which are all big, profitable companies that have taken the lion’s share of the existing Local Democracy Reporting Service, which costs the BBC £8 million.

Some of the powers advocated in this report could be taken on by the Press Recognition Panel, the independent body established by Parliament under royal charter. The recommendations on how to bring the FANGs within the rule of law go wider than the issues covered by this report but its recommendations on new codes of conduct for online platforms are to be welcomed.

But what do we find in the report? As usual, it is a quick dive to try to weaken the BBC. In almost 40 years of being involved in this I have explained to various media proprietors that 90 years ago a Conservative Government had the common sense to nationalise the BBC as a public service broadcaster with a mandate that consciously distorted the market in favour of public service broadcasting. They want to have a go at the BBC online because it carries the same credibility and weight as the broadcast BBC. I hope that although the Minister has asked Ofcom to look at this, Ofcom will be very sceptical about trying to weaken one of the strongest public service journalism outlets in this country, one which should be defended.

I hope also that the Minster will use his good influence to secure a full day’s debate in this House. This is an important report; so is the one published today by the Press Recognition Panel. This is an ongoing debate and the knowledge that exists in this House would be of benefit in taking a very wide agenda forward.

[Lord Keen of Elie]

I thank the noble Lords. I entirely concur with the observations of the noble Lord, Lord Griffiths of Burry Port, and the emphasis that he laid on local journalism and its impact on and importance to local democracy and indeed to wider societal issues that arise at a local level. To that extent, I believe that we are all pleased with the steps taken by the BBC with regard to the Local Democracy Reporting Service, which has been effective. The conundrum now is how to redress the balance. I believe that a starting point is for the CMA, which has experience and expertise in this area, to look at how the market is working. That will not be a solution in itself but it will give us a starting point from which we can work. As regards a regulator, that is a medium-term or longer-term ambition. Again, we will have to look at how we can develop that, but we are conscious of its importance.

The noble Lord, Lord McNally, made the perfectly valid point that many of our printed press corporations remain profitable. The difficulty is the disparity between the profitability in some areas and the poverty in others, as illustrated recently by the demise of one of the largest publishers of local newspapers in the country. In so far as the press industry seeks to, as the noble Lord put it, put its fingers into the tax pot, it is fair to say that he can anticipate that the Treasury will be pretty hard-nosed about that. We will seek to ensure that any benefits that can be provided go to the right place for the development of public-interest journalism.

I do not see this as an attempt to weaken the BBC, although there might be issues there that we will look at. I appreciate the importance of the BBC as a source of reliable journalism, but perhaps there are areas where it goes where it would not have gone before. I am not sure that it is necessarily in the public interest to have “Love Island” news online—although I may be corrected by some. It seems to me that these are areas where, for example, more commercial enterprises might be allowed into the market. I will just raise that as an issue.

I welcome the comments that have been made. We will want to review matters. The noble Lord raised the question of a debate. Of course, we have the forthcoming White Paper as well, and it may be that, in the light of that, a wider debate will be appropriate.

--- Later in debate ---

[Lord Keen of Elie]

I thank the noble Lord for his contribution. As I have already indicated, I understand why this House is asking for further time to consider the detail of this report. It appears to me that that might be appropriate once we have the White Paper that I referred to earlier and when we have made progress on the initial stages of implementing the recommendations of the report, perhaps setting out a plan for how we intend to take forward its longer-term recommendations. However, I am sure that those responsible for the time of this House will have heard the observations. It is beyond my pay grade but I am confident that they will have listened.

[Lord Black of Brentwood (Con)]

My Lords, I join my noble and learned friend in congratulating Dame Frances on producing a compelling report, which sets out both starkly and boldly the real commercial pressures which are facing all publishers. I declare my interest as deputy chairman of the Telegraph Media Group. Given the scale of the challenges and the punishing pace of change in the industry, which come over so clearly in this report, does my noble and learned friend agree with me that speed is now of the essence and that the most important thing is to move urgently to implement, where possible, some of the review’s major recommendations, particularly in areas such as VAT and taxation, which could bring immediate commercial benefit and allow publishers to invest in the quality investigative journalism that the report highlights?

In other areas, there is much for the CMA and Ofcom to undertake. Does my noble and learned friend believe that the CMA has the capacity to deal swiftly with issues surrounding the advertising market in view of its post-Brexit responsibilities, and does Ofcom have the powers needed to review the BBC online without the need for further legislative change?

[Lord Keen of Elie]

My Lords, I can advise that my right honourable friend the Secretary of State has written today to the chair of the CMA, inviting him to respond as quickly as possible as to whether it is the view of the CMA that it can take on these issues, and he has also written today to the chair of the Charity Commission—so we are intent on taking these issues forward as swiftly as we can.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Thursday 7th February 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 10 and 12 December 2018 be approved. Considered or debated in Grand Committee on 29 January.

Motions agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Lord Keen of Elie Excerpts

Thursday 7th February 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, with the leave of the House I shall repeat a Statement made in the other place by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:

“I should like to make a Statement to inform the House that we have concluded our post-implementation reviews of Parts 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—better known as LASPO—as well as the outcome of our inquests review. Earlier today I laid all three reviews for consideration by both Houses, alongside a new legal support action plan, which sets out how we will build on those findings.

After an extended period of expansion that resulted in an annual spend at the time of over £2 billion, the coalition Government brought in Part 1 of LASPO to make significant changes to the scope of, eligibility for, and fees paid under, legal aid. This was essential to bring spending under control and target limited resources available at the most vulnerable and highest-priority cases. The extent of the changes LASPO introduced meant that the Government committed to carrying out the comprehensive review I have published today.

Throughout a year-long process of extensive evidence-gathering and analysis, we have engaged with more than 100 different stakeholders, professionals, providers and, of course, many in this House and in the other place, drawing together a wealth of research and evidence to inform this detailed review. We have heard that the legal aid system has for too long focused solely on delivering publicly funded advice and representation, at the expense of understanding how we can help people find early resolutions and avoid court disputes. Legal aid is, and will remain, a core element of the support on offer, and last year the Government spent £1.6 billion on legal aid funding.

We want to move forward with a new vision, focusing on the individual and their needs—be that through legal aid or otherwise. We will provide a breadth of support that is tailored to people and increases our ability to intervene earlier and catch their problems sooner, before they escalate. We must deliver a system that enables people to receive the type of legal support that is right for them, at the right time.

I am therefore delighted to publish, alongside this review, our new legal support action plan. The action plan responds to the evidence heard and includes immediate action to ensure that vulnerable people, particularly children, can access legal aid when it is needed. We will launch a review of the legal aid means-testing framework, specifically focused on the thresholds and criteria in place for someone to qualify for legal aid. We will simplify the exceptional case funding scheme to ensure it works effectively. We will expand the scope of legal aid to include immigration matters for unaccompanied and separated migrant children, and to cover all special guardianship orders in private family law cases. And we will reinstate immediate access to face-to-face legal advice in discrimination, debt and special educational needs cases.

But we also need to collect further evidence on what works and at what stage. We will invest up to £5 million of funding to encourage and support providers to develop new and innovative services; double support for litigants in person to £3 million for the next two years; launch several support pilots that will test how effective legal support at an early stage can help people avoid the escalation of problems; and test and evaluate the benefits of early advice in an area of social welfare law. Elsewhere, I am also announcing today that we will continue to support dedicated criminal legal aid practitioners by completing a comprehensive evaluation of the criminal legal aid fee schemes and structures.

Separately, I want to make the House aware that I have published the Government’s review of the changes made by Part 2 of the LASPO Act. Part 2 introduced a number of changes recommended by Sir Rupert Jackson, aimed at reducing costs in civil litigation. The evidence gathered indicates that these objectives have been met. Fewer unmeritorious cases are being taken forward, and access to justice at proportionate cost is generally being met.

Lastly, today I have also published the outcome of a separate year-long review of the provision of legal aid for inquests. The review was commissioned in response to a number of key independent reports and their recommendations. The final report is the culmination of this thorough review, undertaken with senior coroners, the legal profession and other key stakeholders, as well as—most importantly—bereaved families themselves. It considers a number of specific concerns, and looks at where we can make further improvements, including improving guidance and advice and ensuring that the inquest process is more sympathetic to the needs of bereaved families, looking into further options for the funding of legal support at inquests where the state has state-funded representation, and working closely with other government departments.

The publications that I launch today mark not only the completion of hard work already undertaken, but the beginning of more to do to meet our challenges. I place on record my thanks to everyone who has contributed evidence and expertise to these three reviews. It is essential to me that this engagement continues and that we collect more evidence, exploring with our partners and stakeholders innovative ways to support people to access the justice system and placing early intervention firmly at the heart of legal support”.

I commend the Statement to the House.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, after a delayed process that took an entire year, we now have the post-implementation review of LASPO. I will focus on legal aid.

Of its four stated objectives, the MoJ claims success in just one: significant savings have been made. Well, we know that. As the noble Baroness, Lady Chakrabarti, pointed out, the savings wildly exceeded what was expected. However, on each of the other three objectives—discouraging unnecessary and adversarial litigation at public expense; targeting legal aid at those who need it most; and delivering better overall value for money for the taxpayer—the answer is an unimpressive “Don’t know”, dressed up in weasel words such as, “It is impossible to say with certainty”. I suspect that an independent review would have come to clearer conclusions.

The review identifies six themes echoing the experiences of all of us involved in the justice system. First, these changes in the scope of legal aid undermine value for money, particularly by preventing early intervention. Secondly, financial eligibility and operational requirements limit access to legal aid too harshly. Thirdly, the exceptional case funding scheme is not working well. Fourthly, legal aid fees are now so low that future provision by practitioners is at risk. Fifthly, increasing numbers of litigants in person increase costs and risk the perception of a two-tier justice system. Finally, advice deserts across our country threaten access to justice.

The legal support action plan seeks to address those issues, at least in part. I am more hopeful than the noble Baroness in saying that the action plan is welcome. Among the Government’s pledges, some of which were mentioned in the Statement, they promised to review eligibility requirements, increase public awareness of how to access legal aid, broaden the scope of legal aid in some immigration and family cases—that will not go nearly far enough—improve the exceptional case funding scheme, review criminal legal aid, widen access to the telephone gateway, increase support for litigants in person and examine complementary ways of providing legal support. Both those pledges and the others made must be kept and implemented soon. We will have further demands for improved support. We will hold the Government’s feet to the fire.

Can the Minister do two things today on this vital topic? Together, the four documents represent a massive report. Will he please use his influence to secure a debate, with adequate time and soon, on the reports and the action plan? Secondly, will he reassure us that where the promises in the action plan are not backed up by implementation dates—and some are—the MoJ will treat them with urgency?

Notwithstanding the warnings in the paper and in the Statement that all this cannot be delivered overnight and is the first step in the process, the rescue of our legal aid system and the improvement of our legal support system needs more urgency than was ever accorded to this review.

[Lord Keen of Elie]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Marks, for their contributions. I am a little disappointed by the response of the noble Baroness. These reports have been welcomed in many quarters, although not universally and not without qualification. However, that is hardly a surprise because, let us be clear, this is a difficult and controversial area.

Let us look for a moment to the background. We had a financial crash in 2008. It is easy to say that austerity is a political choice but essentially it is not; austerity is a consequence. Furthermore, after that financial crash, which impacted right across our society, we had the party manifestos for the election in 2010. The Labour manifesto said explicitly that it would be necessary to address the cost of legal aid provision, and that was its intent—the cost was too high. That was recognised by other parties and indeed by the coalition Government themselves, who brought forward the LASPO Act to try to bring some degree of control over the ever-spiralling actual financial cost of legal aid. The noble Lord, Lord Marks, acknowledged this.

We not talking just about the immediate cost of legal aid but about the wider issue of access to justice and the means by which we can ensure that there is legal assistance as well as legal aid for all in our society, but particularly for the most vulnerable, who truly require it. That is why I am thankful that the noble Lord has welcomed the action plan which is designed to look not only at the provision of financial resources for legal advice and assistance but the manner in which we can deliver legal support for people at the right time and in the right place. To do that, we want to see the development of web-based products, for example. We want to see proper signposting and advice for people. Moreover, we want to encourage that sort of advice and signposting at an early stage because there is a belief that if we can do that, we can help resolve people’s issues before they develop into major and costly litigation. All of that is to be considered.

In addition, we are going to test the impact of early legal advice by promoting certain pilots, particularly in the area of social welfare law, to see what results can be secured. I note the observation of the noble Lord, Lord Marks, about the need for implementation at pace, and indeed we are committed to the implementation of all of these recommendations as soon as we can. For example, we will be looking at the financial levels for qualification for legal aid and we intend to bring that to a conclusion by summer 2020 so that these matters can be addressed as soon as possible.

There are areas where we face difficulties with regard to the provision of legal advice. The noble Lord referred to legal advice deserts. In fact, in the areas of housing and debt, we are generally well covered across England and Wales so far as advice is concerned, but I accept that there are still gaps which have to be filled by, for example, telephone advice, which is not the ideal. Indeed, one of the reasons we want to roll out the web-based access that I mentioned earlier is to address the demand for legal advice and assistance in rural areas and other areas outside urban centres where that is more readily to hand. That is certainly part of our proposed action plan,

On the assurances the noble Lord sought, he readily appreciates that it is not in my power to secure a debate in this House, but no doubt the usual channels will have heard his observations. I concur with his reference to the depth and breadth of these reports, and perhaps the need to look at them in more detail to figure out just where we are going forward and how quickly we should go forward on these issues. As I sought to reassure him earlier, we are concerned to ensure that there is implementation of these proposals as soon as it is possible to secure it.

[Lord Low of Dalston (CB)]

My Lords, the Minister referred to early advice in the area of social welfare law. He will understand my interest in this area, given the review of advice and legal support in the area of social welfare law that I chaired. Could he tell us more about what is envisaged from the pilots in this area and perhaps say something about the Government’s thinking about public support for sustainable advice services generally?

[Lord Keen of Elie]

I am obliged to the noble Lord. Looking more generally at advice and assistance, we want and propose to look at how we can engage with people at a very early stage, so that we can evaluate their legal problems—and, indeed, sometimes problems that are not entirely legal but that lead on to legal issues if not addressed quickly enough.

In the specific area of social welfare law, we will seek pilots that evaluate various technological solutions and look at the cost benefits of trying to approach matters in that way. I mentioned earlier the idea of web-based material and the development we have seen in digital access to legal advice. For example, we have already instituted such digital access in the areas of uncontested divorce and debt, so that people can, without the need for legal advice, be guided through what should be a relatively straightforward process for the resolution of certain legal issues.

[Lord Garnier (Con)]

My Lords, in thanking my noble and learned friend the Minister for repeating the Lord Chancellor’s Statement, I declare an interest as a member of the private Bar, albeit I do not do any legal aid work.

The Minister said he was disappointed by the reaction of the noble Baroness and the noble Lord to the Lord Chancellor’s Statement. I was the Opposition spokesman in the Lord Chancellor’s Department from 1997 to 1998, and then variously shadow Attorney-General throughout the Blair and Brown Governments. I can assure my noble and learned friend that I made exactly the same sort of speeches as the two opposition Peers made just now. This is a continuing and almost intractable problem, and it is of course a question of judgment and priorities when resources are scarce. But there is much to commend in what my noble and learned friend has said, albeit I would like to see plenty more done.

I welcome the £3 million support for litigants in person. However, it is fair to say—I agree with the noble Lord, Lord Marks—that the increasing presence in our courts of litigants in person not only makes our court system more sclerotic but feeds into the lessening of morale in the judiciary. Although not immediately germane to the post-implementation review, that is a factor that needs to be thought of within and outside its scope.

Finally, and most gently, I urge my noble and learned friend to see whether the Secretary of State and the Treasury can do something more—I know they have been doing some things—to assist in the funding of the criminal legal aid system. If there is one aspect of the criminal justice system that most worries me, it is the underremuneration of criminal legal aid lawyers, both solicitors and barristers.

I daresay that many will say, “Here’s one fat lawyer seeking to protect other fat lawyers”, but it really is not like that. I urge my noble and learned friend to do what he can to enhance the remuneration of legal aid lawyers in the criminal justice system. They have taken a pay cut of 10% or 20% over the last few years. Until that is recovered, our criminal justice system will be much hampered and hindered.

[Lord Keen of Elie]

My Lords, we recognise the importance of a viable, properly trained and effective criminal Bar in order to maintain suitable access to justice for all. That is demanding in the present circumstances. Quite recently, as my noble and learned friend Lord Garnier will know, we have increased the level of fees for criminal justice work. That was done in discussion with the Bar Council in order that it could be suitably targeted to the areas where it was most needed. But I will not suggest that no more needs to be done. I quite understand the observations made about the need to maintain a viable, effective criminal Bar in that respect.

We are conscious of the issue of litigants in person, particularly of the need to avoid the simple matter of cost transferring: in other words, you relieve one area of costs by reducing legal aid provision only to find that you increase costs elsewhere because of the demands on the court system and the judiciary, because with an increasing number of litigants in person, we may find that court hearings take longer and are more demanding. We are conscious of that when looking at this overall. I reiterate that legal aid provision as such is only one aspect of a wider ecosystem that is designed to ensure access to justice.

[Lord Judd (Lab)]

My Lords, it is not so long ago in history that Mr Nabarro claimed to the nation, after a rather sensational motoring case, that British justice was unequalled in the world so long as you could afford to pay for it. We have come a long way since then, or we had. We can summarise the exchanges that have already taken place by saying that the quality of justice is essentially related to access to justice. Therefore, the priority for all Governments must be ensuring that access is equal and it is not just the administration endeavouring to be equal.

There has been reference to criminal law, and I am very glad that the noble and learned Lord opposite made the point about the dedicated work done in this sphere by insufficiently recognised lawyers. We also ought to bear in mind the tremendous amount of work done in this area by voluntary organisations and the rest, which strive to cover the gaps that are there. We should not have this exchange without recognising that work—by people who are really dedicated to the cause of equality in justice. It is rather important that we get this right as urgently as possible, at a time when we are parading around the world the concept that we cannot possibly operate with the European Court of Justice because our entire system is so perfect. I do not see our system as perfect at all while this problem remains.

[Lord Keen of Elie]

I thank the noble Lord, Lord Judd, for his observations. I certainly acknowledge the point he made about the contribution of the voluntary sector in this area. Citizens Advice and other bodies make a very material contribution and we seek to support them in that endeavour. In addition, we are expanding the funding available for advice to litigants in person. Again, I hope that that will help some of the more vulnerable.

The design of legal aid is to ensure that it is targeted at the most vulnerable in our society. That is essential. Indeed, very often we hear complaints not from the most vulnerable but from those who would be perceived to have a relatively comfortable income who find that they are called upon to make payment in respect of legal support—legal defence in some circumstances—where 10 or 20 years ago that would not have been the case. I refer in that context to, for example, the recovery of defence costs in the context of criminal trials, which are now the subject of limitations that did not exist many years ago. The intent here is to target legal advice, legal assistance and legal cost at the most vulnerable in our society. We have sought to expand that by improving access to legal aid, and by seeking to improve the exceptional case funding system and to simplify it for parties seeking to use it.

House adjourned at 2.35 pm.

Female Offender Strategy

Lord Keen of Elie Excerpts

Thursday 31st January 2019 Lords Chamber

[The Lord Bishop of Gloucester]

To ask Her Majesty’s Government what progress they have made in implementing the female offenders’ strategy.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Female Offender Strategy, published in June 2018, outlines the Government’s long-term vision for improving outcomes for female offenders in custody and in the community. The strategy sets out a programme of work that contains a number of commitments that will take some years to implement. A new women’s policy framework was published last December, and my noble friend Lord Farmer’s review of family ties for female offenders is expected to report in the coming weeks.

[The Lord Bishop of Gloucester]

My Lords, I welcome that information from the Minister, which follows many positive commitments to the female offender strategy. However, we are still awaiting news of residential pilots, action to strengthen links between probation services and women’s centres, the report from the noble Lord, Lord Farmer, and a national concordat. Given that many of the strategy’s commitments have no clear timescales—indeed, in some cases the suggested deadline has already passed—how does the Minister plan to effectively monitor progress and stay on track?

[Lord Keen of Elie]

My Lords, we are concerned to ensure that these recommendations are implemented as soon as practicable; indeed, the women’s policy framework was implemented as of 21 December 2018. We are taking forward further work in partnership with other groups and parties. I note the work of the Nelson Trust, which I know the right reverend Prelate is directly involved in, which recently put in a bid for additional funding from the ministry to further its community work. We are encouraged by the strength of that and similar bids, and want to take that forward as soon as possible.

[Lord Blunkett (Lab)]

My Lords, if my noble friend Lady Corston were here, she would be enthusiastically supporting the right reverend Prelate in pressing for the review to be implemented as quickly as possible, not just on moral grounds but because the additional investment that the Minister has referred to is “spend to save”. We could save an enormous amount of money by diverting into prevention and early intervention, rather than having women prisoners in the kind of conditions that I saw when I was Home Secretary.

[Lord Keen of Elie]

My Lords, I entirely concur with the noble Lord’s observations. Indeed, our Female Offender Strategy seeks to build on the seminal report of the noble Baroness, Lady Corston, which of course goes back to 2007.

[Baroness Burt of Solihull (LD)]

My Lords, the extension of mandatory post-custody supervision has disproportionately affected women. Recall numbers for men have risen by 22% since the changes were introduced but for women they have grown by 131%. Women are trapped in the justice system rather than being enabled to rebuild their lives. The Prison Reform Trust has called for mandatory post-custody supervision to be abolished. Does the Minister agree that the present system is not working, and does he have plans to review it?

[Lord Keen of Elie]

My Lords, the idea of mandatory supervision for those serving a sentence of less than 12 months was introduced only quite recently. There is a disproportion between male and female offenders in that context—I quite accept that. Indeed, that manifests itself in various other parts of the prison and custodial system. At the moment, we are seeking to extend community centre services, to help to accommodate those released after short sentences, and to combine community services with treatment requirement protocols.

That is extremely important, particularly for female offenders, where we see a vast proportion who have reported elements of mental health difficulty or who suffer from alcohol issues and, very often, drug abuse issues as well. Over and above that, an enormous proportion of these female offenders have at times been subject to domestic violence. We are trying to direct these services at these issues and will continue to do so.

[Lord Selkirk of Douglas (Con)]

Does my noble friend accept that in recent years there have been a considerable number of pregnant women in prisons? Can he assure us that in every case the person concerned will be treated with sensitivity?

[Lord Keen of Elie]

This is a very important issue for us. In all cases where a female offender is in custody, we endeavour to ensure that birth does not take place within the prison system, but sometimes that cannot be avoided. We have extensive services for mothers and children up to the age of 18 months when it is necessary for them to be in custody—I emphasise the word “necessary”. When an offender is reaching the end of a short sentence, steps are taken to try to ensure that mother and child are kept together. However, of course this cannot be done in circumstances where there has been a serious offence that results in a mother being in custody for a lengthy period.

[Lord Beecham (Lab)]

The right reverend Prelate referred to the strategy envisaging greater use of residential and community services instead of custodial sentences. To what extent is that occurring? Are the Government still adhering to their policy of limiting funding of the strategy to £5 million over two years, replacing their previous plan to spend £50 million on five new prisons? If so, what is happening to the other £45 million?

[Lord Keen of Elie]

My Lords, there is an important shift in policy away from custody as a means of trying to resolve these issues. That is why we moved away from the proposal for five community prisons; we hope they will not be required. Instead, we have shifted the balance in the direction of community services. We will pilot such community residential services in five areas to see how they work. For that purpose, we have committed funding of up to £5 million over the next two years, but of course that will not be the end of the matter. We will address the consequences of the pilot in these five areas and see how we can take things forward from there.

[Lord Reid of Cardowan (Lab)]

Does the Minister recall that 15 years ago, during my noble friend Lord Blunkett’s custodianship of the Home Office, the Sentencing Guidelines Council approved indeterminate sentences for more serious crimes, on condition that there should be a significant reduction at the lower end for less serious crimes, particularly for women and women with debt? Unfortunately, from the judiciary’s point of view, that has never been fully implemented. May I congratulate the Government on moving away from custodial sentences and ask them to look to this long-standing recommendation that has never been fully implemented?

[Lord Keen of Elie]

I agree with the force of the noble Lord’s point. In fact, Section 152 of the Criminal Justice Act 2003 clearly requires the courts to consider imposing non-custodial sentences unless otherwise justified. The Sentencing Council guidelines from 2016 reinforce this move. In addition to that, we have a judgment from the criminal Court of Appeal in the case of Petherick in 2012, which set out the criteria for sentencing in cases involving, for example, a female offender with dependent children. We have been moving in the right direction, but I accept that we have not moved far enough and we are determined to see if we can do that.