European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Blencathra]

The Magna Carta was imposed on King John by the Barons, as I understand it—the Barons being Members of this noble House. The House did not exist in that form, but it was imposed by the Lords and the Barons. The House of Commons passed the Bill of Rights 350 years ago and imposed it on the sovereign, guaranteeing our rights to free elections, no taxes without parliamentary approval and free speech. The Bill of Rights passed 350 years ago by this Parliament formed the basis of the United States Bill of Rights and Bills of rights of other countries around the world.

Then just 70 years ago, we used our unique experience to write the European Convention on Human Rights—largely written by British lawyers. We wrote that for countries which had no history of our fundamental freedoms and had suffered the evils and degradations of National Socialism. What I am saying is that the worst indictment I make of the EU is that it seems to have destroyed the belief among parliamentarians, noble Lords and Members of Parliament that we are capable of governing ourselves and writing our own law.

There is nothing of any value in the Charter of Fundamental Rights which is not already covered in UK law or the European convention. If we find some great new right in the future and decide that freedom of thought must become a law, are we incapable in this House, in the other place and as British parliamentarians of drafting that? Are we so enfeebled and incapable that we cannot do it? If the Barons could do it 800 years ago, Members of Parliament 350 years ago and the British Government and parliamentarians did it for Europe 70 years ago, are we so incapable that we cannot do it now?

The people of this country voted to bring back control of our laws because they believed that Parliament was capable of making better laws than the EU. They believed that we are better at deciding on our essential rights than an ECJ judge from Bulgaria who has a law degree in Marxist-Leninist law—I have checked on that, and he has got a degree from Sofia on Marxist-Leninist law.

I happen to agree with the British people. I see the incredible wealth of talent in this House, with noble and learned Lords and Law Lords, and I trust our courts. We do not need nor want this charter. Let us wear once gain the mantle of our predecessors in the Lords and Commons, who gave us every freedom that has been worth fighting and dying for for the last few hundred years. We need the courage of the electorate, who trusted us to make our own laws once again. We should not let them down.

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

My Lords—

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[Baroness Deech]

I will make a point that has not been made before. The charter has never been scrutinised by this House. If it had been, we would not have this lack of clarity. I have more confidence in the ability of our Supreme Court to protect us than I have in the ECJ. Bearing in mind what the noble Lord, Lord Cashman, said, what a failure the charter has been across Europe. The Roma are being persecuted, migrants are not getting proper treatment, the leaders of Catalonia are being locked up and extremist, right-wing parties are on the march. Freedom House is marking down European countries; they are sliding away from human rights. I am not proud of the charter; it has not worked in Europe. We are much better off with something home-grown and administered by our Supreme Court.

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

My Lords, if I appear faint in my defence of the Bill it is due to a lack of food rather than a lack of enthusiasm. I am grateful for the opportunity to respond to this important debate and set out the Government’s position. I will start by making it clear that we are listening carefully to the debates on this issue, and will continue to do so.

The Government agree that protecting our rights and liberties as we leave the EU is of critical importance and it is only right that every detail of our approach is scrutinised. This has been a wide-ranging debate about human rights after exit, but it is worth remembering that the amendments before us relate specifically to the charter and the question of what role, if any, it should have in domestic law when we are no longer a member of the EU.

I maintain that the approach in the Bill to the charter as a document is absolutely right, and that the Bill in this respect is in no need of improvement. However, as many noble Lords have pointed out, that approach cannot be separated from the Bill’s approach to the general principles of EU law, including fundamental rights. In response to the strength of feeling conveyed not just in this House but in the other place, the Government are looking again at these issues. These are highly technical issues in some respects but they are undoubtedly important, so we will look further at whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. Indeed, my noble friend Lord Lamont referred to an observation made by the Secretary of State himself that, if there were specific examples of rights which were not otherwise covered, we would examine them to ensure that the rights were not lost. However, that is not the case. On the specific question of whether the charter should be kept, our view remains that not incorporating the charter into UK law should not in itself affect the substantive rights from which individuals already benefit in the United Kingdom. This is because the charter was never the source of those rights.

The noble and learned Lord, Lord Goldsmith, anticipated that he might be reminded of his previous remarks on the matter, and I see no reason to disappoint him. In 2008, when this House debated the then European Union (Amendment) Bill, he was absolutely clear that,

“the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions … the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national”,—[Official Report, 9/6/08; cols. 426-27.]

laws.

The noble and learned Lord observed that he had nevertheless then encountered the incorporation of the charter into the Lisbon treaty in 2009. Perhaps that was a game changer. I remind him of his evidence to the European Scrutiny Committee in 2014. At that time he referred back to his previous statements and publications with regard to the charter and went on to say that, as he had there explained, the fundamental point was to provide a clear and accessible statement of existing rights and therefore constraints on the power of the EU to legislate.

As the noble and learned Lord’s previous remarks help to make clear, the charter is only one of the elements of the UK’s existing human rights architecture. It reaffirms rights and principles that exist elsewhere in the EU acquis, irrespective of the charter, and the Bill sets out how those rights and principles will continue to be protected in UK law after exit.

The noble and learned Lord referred to a number of issues, such as the case of Benkharbouche in 2017 in the Supreme Court. In that case the court found that there was a breach of Article 6 of the convention but it also referred to Article 47 of the charter in the context not of rights but of remedies. One has to bear in mind the distinction between rights and remedies.

The noble and learned Lord posed three questions in the context of previous observations about the charter. First, he talked about there being no loss of substantial protection. It is inevitable that leaving the EU will result in changes to the current arrangements, but certainly we do not accept that this in itself will result in a loss of substantive rights.

Secondly, he referred to the procedural protections that will be excluded. When we leave the EU, a person can still rely on sources that are reaffirmed in the charter. I emphasise “reaffirmed in the charter”, as he himself observed in 2008 and 2014. Procedurally there may be differences but we do not consider that that can be a basis for incorporating the charter into domestic law. Indeed, we absolutely stand by what has been said by the Prime Minister: it is not necessary to retain the charter to ensure that rights are protected.

The noble and learned Lord also referred to the body of the charter, beginning with Article 1, and suggested that these rights were contained only in the charter. I simply observe that on 5 December last year the Government published a very detailed paper setting out, as it were, a comparison of the rights in the charter and where they can be found elsewhere—in the convention, in the principles of EU law and in our own common law. The noble and learned Lord referred to Article 1, which concerns the right to human dignity. I remind him that there is a long series of case law both from the ECJ, as it then was, and from the European Court of Human Rights going back to 1995 in which, for example, the convention court emphasised that the very essence of the convention is respect for human dignity and human freedom. That has been repeated in a whole series of cases since then. These are well-established rights and they were well established when they were brought together into the charter.

I want to reassure noble Lords that substantive rights protected in the charter are, and will continue to be, protected elsewhere in UK law after we leave the EU, most notably in convention rights, in retained EU law, in the common law and via specific statutory protections such as those in our own equalities legislation. I have already mentioned that the Government published a detailed analysis providing guidance about how substantive rights found in the charter would be reflected in domestic law after exit.

Reference has been made to various legal opinions and that of Jason Coppel QC, who has had a number of name checks this evening. I can only implore noble Lords to look at the very detailed analysis the Government have produced. I also note that some of the references to Mr Coppel’s opinion involve references to his concern that Ministers might change rights, for example, or that the procedures will be affected. However, that is not to say that the fundamental rights underlying the charter are not found elsewhere.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord quite rightly draws our attention to the distinction between rights and remedies, but he will agree that rights are not helpful unless there are remedies. If we were scrutinising the charter and the source of its rights to establish whether we were satisfied that the rights and remedies could still apply, we might, for instance, have noted that the sources of Article 1 mentioned in the analysis would not confer an enforceable right on individuals after exit day. That is the JCHR’s analysis of the analysis.

I hope that the Minister can answer the question asked, in particular, by the noble Lords, Lord Pannick and Lord Kerslake, about why we have combined the two debates—one about the charter, its rights and wrongs and whether it is good or bad, and the other about the mechanisms. We have heard so often from the Government Front Bench that this Bill is about mechanisms. Why are the Government not using the mechanism they have themselves designed to give them the opportunity, and to give the Committee the opportunity, to consider the substance calmly after the chimes of midnight?

[Lord Keen of Elie]

Quite simply because, as I indicated earlier to the Committee, the rights underpinning the charter exist elsewhere than in the charter and it is not necessary to incorporate the charter into domestic law in order to find those fundamental rights in our domestic law after we leave the EU.

[Baroness Lister of Burtersett]

I am sorry to interrupt, but the analysis by the Joint Committee on Human Rights to which the noble Baroness referred, which is an analysis of the Government’s analysis, identified a number of rights that are not there other than in the charter. Does the noble and learned Lord reject the JCHR’s analysis?

[Lord Keen of Elie]

We have considered that analysis, and that is why I indicated that we were still looking at this. As I said, if rights are identified which are not in fact going to be incorporated into our domestic law in the absence of the charter, we will look very carefully at ensuring that those are not lost.

Clause 5(5) makes it clear that, notwithstanding the non-incorporation of the charter, retained EU law will continue to be interpreted by UK courts in a way that is consistent with the underlying rights. I hope that addresses to some extent the issue raised by the noble and learned Lord, Lord Wallace, in that context. Interpretive provisions will retain a means by which we can look at these rights in the proper context.

With regard to those who have expressed concerns about this Bill resulting in a loss of substantive rights, I repeat—as the noble and learned Lord, Lord Goldsmith, has done, at least prior to his recent Pauline conversion—that it is not necessary to retain the charter to retain those fundamental rights. If we see that there is a potential loss of such fundamental rights, we will address that, and that is what we have indicated.

[Lord Pannick]

I put it to the noble and learned Lord that there is no other area of retained EU law where the Government have carried out this exercise or said that we do not need to read across a particular provision because it is already in domestic law. Why are they making an exception of the charter?

[Lord Keen of Elie]

Because this is the only case in which we have identified that situation. There is no other reason for proceeding in this way except for that.

[Lord Wallace of Tankerness]

If, as the noble and learned Lord said on numerous occasions in his reply, the rights established in the charter are already there in our domestic law, what is lost by keeping the charter? If those rights are already there, the Government cannot be worried about anything if they retain the charter.

[Lord Keen of Elie]

I must compliment the noble and learned Lord on his second sight. As I was about to say, the next argument put to us is that if we say that the charter is not adding anything, what is the problem with keeping it? I hope that is a fair summary of the noble and learned Lord’s intervention. With respect, this argument simply fails to take account of how the charter applies at present. The charter and the rights that it reaffirmed have a limited application. They apply to the EU institutions all of the time, but apply only to member states acting within the scope of EU law. We will no longer be a member state and so we will be no longer be acting within the scope of EU law. Simply retaining the charter would not reflect the realities of leaving the EU. It cannot be right that a document called the Charter of Fundamental Rights of the European Union could continue to be used as the justification to bring cases that would lead ultimately to the striking down of UK primary legislation after we leave the EU. Outside our membership of the EU, it is simply not appropriate to retain the charter.

There are also practical questions to consider. It would be no simple matter to say that we are keeping the charter. The amendments in this group all attempt, in various ways, to solve the riddle of how an instrument inherently linked to and constrained by our membership of the EU could apply purely domestically. They each highlight the complexity involved in such an exercise.

In Amendment 13A, the noble and learned Lord, Lord Goldsmith, requires the Government to lay a report on how the charter will continue to apply to retained EU law after we leave the EU. However, his other amendments are far from clear on precisely how he intends the charter to have effect domestically after exit. They would remove the exclusion of the charter provided for in Clause 5, presumably with the intention that it would now form part of retained EU law. I note that one of his amendments would excise the definition of what the charter is from the Bill, despite going on to say that this undefined, unclear thing will continue to have effect in relation to retained EU law under Clauses 2, 3 and 4. What would our courts make of that? Many articles of the charter set out principles, not rights, which can be relied on directly by individuals. How would these have effect after exit? Eight articles of the charter constitute rights intrinsically linked to EU citizenship—for example, the right to vote in an EU parliamentary election. Of course, they claw at the air—we appreciate that—but they do nothing.

Let us pause again on the fact that the charter applies to member states only when acting within the scope of EU law. Presumably, if retained under the Bill, the charter would then apply only when we were acting within the scope of retained EU law, which I believe is the elaboration that the noble and learned Lord made in response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Over time, our domestic law will evolve and new laws will be made by this sovereign Parliament and the devolved legislatures that will start to replace and supersede this category of retained EU law. We would be retaining the charter, in whatever capacity the noble and learned Lord intends, only for an ever-diminishing proportion of our law. This further risks incorporating complexity and confusion into our domestic statute book.

We should not overstate the accessibility of the current rights regime, which relies on citizens knowing—

[Lord Beith (LD)]

The noble and learned Lord is right in that assertion, but it does not follow that retained European law should not be read across in the form of the charter as well as its other features on exit day. Lots of things will change over time. Parliament will no doubt amend retained European law so that it ceases to be retained European law, but the Bill is about legal continuity and what the situation is on exit day. For this purpose, surely the Minister should accept what is being proposed.

[Lord Keen of Elie]

I entirely agree with the noble Lord as to what this Bill is about. With regard to the charter, the point is that it does not bring anything over on its own. We already have these rights and obligations, as established by the principles of EU law, convention law and the common law.

As to a concern that something is omitted at the end of the day, as I indicated, we would address that to ensure that all rights are brought across. However, with great respect to the noble Lord, Lord Cashman, I do not believe that you can never have too many belts and braces. If you have too many belts and braces, eventually you cannot stand up. It is therefore important that we approach this issue with a degree of proportionality, if I may use a European term.

Following on from the point I made earlier, retaining the charter for what will become a fluid and changing category of law risks legislatively binding us to a document that would bring the illusion of clarity in the short term but serve only to undermine it in the longer term. Indeed, the other amendments in this group raise similar issues to those put forward by the noble and learned Lord, Lord Goldsmith.

My noble friend Lord Hailsham has tabled amendments that seek to build on the amendments put forward by the noble and learned Lord, Lord Goldsmith. They seek to assign the status of primary legislation to the European Charter of Fundamental Rights. For reasons that we will go into in a later group, the Government believe that the question of assigning status to retained EU law is complex and should be approached with caution. I hope that we can come back to this question when we have concluded our debate on the approach to rights protection and to status more generally. I will not seek to take up time on that issue at this stage.

I suspect that the amendment tabled by the noble Lord, Lord Wigley, would also add to the confusion. Seeking to afford charter rights the same level of protection as convention rights under the Human Rights Act 1998 is fraught with difficulty. Charter rights do not correspond exactly to ECHR rights and apply in different ways. The charter also contains non-justiciable principles as well as rights, and it is unclear what status these would have in domestic law under his amendment. Moreover, it does not deal with how explanations to the charter articles should be treated or how certain sections of the Human Rights Act would apply to charter rights. I appreciate that we are in Committee and that the noble Lord is entitled to say that he will look more carefully at the form of the amendment and perhaps elaborate upon it in due course, but there are fundamental difficulties with the approach he is attempting to take in simply trying to incorporate the charter when, as indeed the noble and learned Lord, Lord Goldsmith, himself observed, the expression of rights in the charter does not coincide precisely with the expression of rights in the convention.

I would like to emphasise again that we remain committed to listening to this House and indeed to working constructively to ensure that we have a functioning statute book which maximises legal certainty. I understand the concerns expressed by some about whether some rights would somehow be left behind, but if we can and do identify a risk of such rights being left behind, we are entirely open to the proposition that we have to address that by way of amendment to the Bill, and we will seek to do that. I wish to reassure noble Lords on that point.

[Lord Adonis]

My Lords, can the noble and learned Lord give us any indication of when he thinks that that exercise will be completed?

[Lord Keen of Elie]

The potential answer is no, and the note says that my time is up. Nevertheless, and be that as it may, we will endeavour to address these issues as soon as we can. Clearly it will require us not only to consider the position we have adopted already in the document published in December last year but to take into consideration the concerns expressed by other lawyers and in this Committee in the course of the debate. We will look at those and we will want to address them at the next stage of the Bill; of that, I am confident.

At this stage I appreciate that there are some questions which I have not directly answered in the course of my response and it may be difficult to do so in the time remaining. Perhaps I may say that I endorse entirely the observations of the noble Baroness, Lady Deech, and of the noble and learned Lords, Lord Hope and Lord Brown of Eaton-Under-Heywood, with regard to the potential difficulties of simply drawing the charter over into domestic law. I am not going to elaborate on the consequences of doing that, but they can be summarised as confusion, uncertainty and difficulty, and ultimately could prove to be counterproductive. In these circumstances, I invite the noble and learned Lord to consider withdrawing his amendment.

[Lord Goldsmith]

My Lords, I am very grateful to all noble Lords and noble Baronesses who have taken part in the debate. It has been wide-ranging, as we anticipated it would be. I am grateful to the noble and learned Lord for his remarks. I shall obviously not spend long on what I say now, given the hour. As we approached midnight, I was looking around the corner to see whether a pumpkin would arrive with horses. I was not sure whether it would be for me or for the noble and learned Lord opposite.

Prisons

Lord Keen of Elie Excerpts

Thursday 22nd February 2018 Lords Chamber

[The Lord Bishop of Gloucester]

To ask Her Majesty’s Government what is their vision for the long-term future of the prison system.

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

My Lords, we shall seek to maintain a prison system that is sufficient for public protection and will provide opportunity for the rehabilitation of offenders. Where it is necessary for offenders to be deprived of their liberty, their detention should be decent and safe.

[The Lord Bishop of Gloucester]

My Lords, in 2015, the Justice Committee of the other place concluded that funding for women’s centres,

“appears to be a recurring problem”.

Ten years after the report of the noble Baroness, Lady Corston, can the Minister assure me that secure, long-term funding for women’s centres is now a high priority?

[Lord Keen of Elie]

Clearly, the matter of female offenders is one of the priorities that we are addressing. Indeed, we can note that the number of female offenders has dropped to the point where it is now in the region of 3,936 out of a total population of about 86,000. We are of course concerned with ensuring that there is funding in respect of female prisoners and offenders as they leave the prison system.

[Baroness Corston (Lab)]

My Lords, the numbers to which the noble and learned Lord refers have recently gone up. It is 12 years since I was requested by the previous Government to conduct a review of deaths of women in the criminal justice system, because of some very high numbers in the previous two years, and the numbers subsequently plummeted considerably. But, last year, we had exactly the same high shocking numbers of women who took their own lives in prison. Why?

[Lord Keen of Elie]

My Lords, any death in custody is a tragedy. What I can say is that, in the period of 12 months to September 2017, the number of self-inflicted deaths in the prison system dropped by about 30%.

[Lord Kirkhope of Harrogate (Con)]

My Lords, speaking as a former Mental Health Act commissioner, I am deeply disturbed by the high incidence of mental illness in our prison population. I would be very grateful if my noble and learned friend could inform us of how much attention has been given to this by the Government, working not only through his department but with other agencies to address what I believe to be quite a serious issue.

[Lord Keen of Elie]

My noble friend is quite right to highlight such a serious issue. There is a very large proportion of prisoners with mental health issues within the system. We are working with the Department of Health and NHS England to develop a new health and justice protocol that should ensure timely access to mental health and substance misuse services. In addition, we have been providing grant funding of £500,000 a year to the Samaritans for the last two years in order that they can support their Listener Scheme for those who require it.

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

My Lords, I believe that this House collectively shares a vision for our prisons to be not only secure, but clean, well maintained, humane, uncrowded, well staffed, safe places of education, training and purposeful activity, effective in addressing mental health and addiction issues and committed to rehabilitation and turning lives around—in short: civilising and civilised. Do the Government share this vision? If so, will they greatly increase investment now to realise it, incidentally reducing the estimated £13 billion annual cost of reoffending?

[Lord Keen of Elie]

My Lords, we, of course, have a vision of a prison system that is decent and safe for all those who have to be secured within it. We are proceeding with a programme of capital expenditure to replace Victorian and older prisons with prison accommodation more suited to present requirements. We have increased the number of prison officers within the prison estate in the last few years to the point where, up to December 2017, there were 19,925 prison officers, an increase of about 1,500 from the previous year. Of course we have aspirations for the prison system but we have to be realistic about those.

[Lord Laming (CB)]

My Lords, does the Minister agree that three things should be done immediately? First, we need to bear down on the avoidable use of prison by putting in place a robust system of non-custodial sentences. Secondly, we need to ensure that, particularly for short-term offenders, the regime is purposeful rather than just locking them up for hours? Thirdly, we need to ensure that the resettlement arrangements have substance.

[Lord Keen of Elie]

My Lords, I agree with all three of those points. Clearly, we want to develop reliable non-custodial sentences to maintain alternatives to custody where we can do that. We are seeking to develop our education programme and are developing further resettlement programmes. We recognise that offenders who secure employment on release from prison have a lower rate of reoffending.

[Lord Blunkett (Lab)]

My Lords, one of the most disturbing experiences I had as Home Secretary—at that time, the post incorporated the responsibilities of the Justice Department—was visiting Holloway prison and hearing the women speak about their fear of being released because of what might happen to them if they returned to the circumstances that had led to their incarceration in the first place. In his first Answer, the Minister mentioned the importance of what happens when women prisoners are released. What further steps does he think the Government might be able to take to ensure that people avoid becoming mules or being abused in circumstances that they experienced before they were sent to prison?

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[Lord Keen of Elie]

My Lords, we are concerned to ensure that suitable accommodation is available for all prisoners, particularly female prisoners, upon release. Indeed, under the Homelessness Reduction Act 2017, prisons and probation providers are subject to a new duty to refer to local housing authorities someone who might be at risk in those circumstances.

Prisons

Lord Keen of Elie Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Lee of Trafford]

To ask Her Majesty’s Government what assessment they have made of the size of the prison population and conditions within prisons.

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

My Lords, on Friday 2 February the prison population in England and Wales was 84,511. Work is under way to modernise the prison estate, closing some of the older prisons and creating in their place high-quality rehabilitative establishments.

[Lord Lee of Trafford (LD)]

My Lords, 75 of the 119 prisons in England and Wales have populations in excess of the certified normal accommodation standard. The latest figures show a 12% rise in both assaults and self-injury in prisons. The chief executive of the Howard League tells me that, in 30 years in the sector, she has never known conditions to be so bad. When is this Brexit-paralysed Government going to treat prisons and prison reform as a national priority? How bad does it have to get? Will the noble Earl tell us when he last visited a prison to see conditions for himself?

[Lord Keen of Elie]

The conferment of a hereditary title is welcomed. Mrs Keen will be very pleased.

This is of course a serious issue. The demands on our prisons are a long-term issue, not a short-term problem, and we intend to address it with a programme of new prisons. Perhaps I may say that the question of capacity in our prisons has been with us for well over 15 years: indeed, we are not quite at the same sort of ceiling of use as we were even 10 years ago. As regards crowding levels, I regret to say that, since 2004, they have remained persistently at about the same level on a measure in percentage terms of between 24% and 25%—but, as I say, we are seeking to address these issues with our programme of new establishments.

[Lord Beecham (Lab)]

My Lords, are the Government content that we have the fifth-highest incarceration rate in the EU—exceeded only by Poland, Hungary, the Czech Republic and Slovakia? If not, what do they propose to do about it?

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[Lord Keen of Elie]

The Government are not content with such a situation and we are addressing more widely the issue of how and when we can develop non-custodial sentences to a greater extent. One of the pressures on the existing prison population has been the development of sentencing with regard to historic sex abuse, where long-term sentences have been imposed on a large number of people. That has put further pressure on the prison population.

[Lord Bird (CB)]

Is the noble and learned Lord aware that the National Careers Service has been doing sterling work in our prisons to educate and prepare both young and older people leaving prison? The contract for this work is going to be terminated on 1 April and there does not seem to be any remedy in place. I would also like the Minister of State to reply to the letter from the Prisoner Learning Alliance, which has still not been answered, asking what will be done after 1 April for those people who are trying to get something out of prison so that they can leave prison with something.

[Lord Keen of Elie]

My Lords, the NCS is due to expire on 31 March 2018 and will do so on that day. There would have been an option to extend it for a further period of six months, but consideration of the variable delivery of services, and of in-custody services in particular, led to a determination that the contract should not be continued. Alternative means are now being considered.

[Earl Attlee (Con)]

My Lords, I understand that the Sentencing Guidelines Council takes no account of the prison population. What would happen if we changed the rules so that the council did take account of the population and had a duty to make sure that we do not exceed the certified normal accommodation of the prison system?

[Lord Keen of Elie]

My Lords, we have not exceeded the certified capacity of the prison population, even over the last 20 years. We came very close in 2007, at which time the Labour Government had to introduce an executive licensing system to take pressure off the prison population—but at present we remain below capacity.

[The Lord Bishop of St Albans]

My Lords, research by the Ministry of Justice shows that women’s centres have a statistically significant effect on decreasing reoffending rates, are substantially cheaper than keeping women in custody and often allow families to stay together. Will the Minister use his department’s evidence to invest in women’s centres that treat women holistically as the best way forward for many women?

[Lord Keen of Elie]

The right reverend Prelate makes a very good point. We will shortly be setting out our strategy for female offenders. At present there are about 3,900 female offenders in custody. The Government are investing about £1 million between 2016 and 2020 to support local areas to respond to the needs of female offenders and to adopt a multiagency approach to their particular issues and problems.

[Lord Richard (Lab)]

My Lords, when the noble and learned Lord answered the Question he said that, of the 84,000 people in prison, a large number were due to historical abuse convictions. Can he tell us how many of the 84,000 are due to historical abuse?

[Lord Keen of Elie]

No, it is not possible for me to give that figure. However, it is an indication of the pressures that have developed on the prison population.

[Lord Woolf (CB)]

My Lords, the Minister accepts that there are great problems within the Prison Service. They seem to correlate with the result we now have of constant changes in the Lord Chancellor or Minister of Justice—I say that seeing the noble and learned Lord, Lord Irvine, in his place—and the fact that Ministers have to learn about prisons, which is not an easy task. So we get a situation where good reforms are overlooked and mistaken reforms are implemented. Does he think that there is a solution to this?

[Lord Keen of Elie]

Speaking from a personal perspective, I hope that there is a solution in the form of some consistency and constancy of ministerial appointments in particular departments—but I quite understand the noble and learned Lord’s concern. Within the Ministry of Justice we are pursuing a consistent policy with regard to prison improvement.

Asylum Seekers: Legal Advice

Lord Keen of Elie Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Roberts of Llandudno]

To ask Her Majesty’s Government whether they intend to ensure that every failed asylum seeker, and anyone facing removal from the United Kingdom for whatever reason, has access to adequate legal advice.

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

My Lords, legal aid is available for individuals faced with deportation where they are claiming asylum or challenging their detention. The Government have commenced the post-implementation review of legal aid, which will include the scope of legal aid for immigration and asylum cases.

[Lord Roberts of Llandudno (LD)]

My Lords, the Minister will be aware that many asylum seekers are unable to access legal advice, for different reasons. Some are penniless and others just do not know the procedures. The result is that many of the decisions made by the Home Office are unsound and reversed on appeal. In 2005, 13,000 appeals were allowed. In 2010, 35,000 were allowed and, in 2015, 17,000 were allowed. Therefore, in 10 years 250,000 appeals were allowed—a quarter of a million wrong decisions by the Home Office. Will the Minister please tell me what he is doing to remedy that situation so that we have a procedure that is fair and equable?

[Lord Keen of Elie]

My Lords, all persons detained in immigration removal centres now have access to a duty solicitor and therefore have access to legal advice.

[Lord Beecham (Lab)]

My Lords, it should be axiomatic that legal assistance is available to people facing removal and the Minister has made it clear that that should be the case. However, surely the underlying problem is the shameful record of the Home Office in this area. We read regularly that people who have been living in this country for decades, often working and having led a successful life here, are now being ordered to depart. Will the Government review the performance of the Home Office and its policies in this very sensitive area?

[Lord Keen of Elie]

My Lords, the period for which a person has remained illegally in this country should not be and is not a determinant of their right to remain here. It is necessary to apply the relevant law both to the issue of asylum seekers and those who arrive here unlawfully, not even seeking asylum.

[Lord Thomas of Gresford (LD)]

My Lords, a Bar Council report published last November found that at any one time more than 3,000 people, mostly failed asylum seekers, are held in administrative detention without being convicted of a crime, at a cost of £34,000 each. More than half are ultimately released into the community when their appeals succeed. Last Friday, in the case of VC, an asylum seeker from Nigeria with mental problems, the Court of Appeal slammed the Home Office for misinterpreting its own policy and awarded damages. Will the Minister review the means and merits test applied by the Legal Aid Agency, which academic research shows operates to exclude detainees from legal aid by,

“seizing upon the tiniest thing”,

to declare their applications ineligible?

[Lord Keen of Elie]

My Lords, the Legal Aid Agency is of course independent of Government for very proper and good reasons. The application of LASPO—the legal aid Act—is the subject of internal review at present following an announcement by the then Lord Chancellor in October last year.

[The Lord Bishop of St Albans]

My Lords, research by the Children’s Society shows that unaccompanied and separated children are particularly vulnerable. Only 12 grants for exceptional case funding were made in 2015-16, fewer than 1% of the expected number of cases under the previous system. Hundreds of children are being left without a legal safety net. Can the Minister confirm that the situation of these children will be specifically considered within the review of the Legal Aid, Sentencing and Punishment of Offenders Act?

[Lord Keen of Elie]

My Lords, current figures show that 103 children were put into detention in immigration-related matters in 2016, of which 42 were under 12. Some of those may have been unaccompanied but, under the policy of the 2014 Act, unaccompanied children should not actually go into immigration removal centres; they should be held pending removal decisions. With regard to exceptional case funding, the figures for the first two quarters of 2017 indicate that the success rate for immigration-related applications was 73%. Some 652 applications were made during that period.

[Lord Kirkhope of Harrogate (Con)]

My Lords, we should remember the United Nations convention, which originally set out the criterion for granting asylum: to people in great need of protection. Does my noble and learned friend agree that it is terribly important for us to restate that, and to make sure that asylum is not used as a vehicle for immigration rather than giving the protection that the most extreme cases require?

[Lord Keen of Elie]

My Lords, it is clearly in the interests of genuine asylum seekers that the system for seeking asylum as permitted under the UN convention should not be abused and should not be seen to be abused.

[Lord Bassam of Brighton (Lab)]

My Lords, according to an Amnesty report published in 2017, over 2,000 young people seeking refuge in the UK were deported to Afghanistan between 2007 and 2015, the majority of them since the legal aid cuts were introduced. Does the Minister agree with Amnesty that the UK is in breach of its international obligations and law, and if so what steps do the Government intend to take to put this right?

[Lord Keen of Elie]

My Lords, we do not agree that we are in breach of our international law obligations, nor is it obvious that there is a connection between the figures given by the noble Lord and the availability of legal aid.

Prisons: Careers Guidance

Lord Keen of Elie Excerpts

Wednesday 31st January 2018 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government why they have cancelled the contract of the National Careers Service to provide careers guidance in prisons.

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

My Lords, the custodial element of the National Careers Service contract has not been cancelled; it will reach its expiry date on 31 March 2018. We are reviewing options for alternative provision as part of wider employment services. We are committed to providing training and advice to deliver effective rehabilitation for the needs of offenders.

[Lord Beecham (Lab)]

My Lords, job coaches, who are likely to replace the present people who deal with prisoners, are not people who visit just before release. Others coming into this position will not provide as good a service as the career advisers, who work with prisoners over a considerable time. Can the Minister say what consultations have taken place on this decision and whether the results will be published in due course? Why have the Government refused to provide information as to the likely number of advisers who will no longer be employed?

[Lord Keen of Elie]

My Lords, the contract for the in-custody National Careers Service element could have been extended by a further period of six months maximum from 31 March 2018. A decision was made not to extend it because an internal review of the service being provided indicated that custody contract performance showed significant inconsistencies of service between institutions. As regards its replacement going forward, I note, for example, that community rehabilitation companies already work with every prisoner 12 weeks prior to release to ensure a personalised plan with respect to employment, and Department for Work and Pensions prison work coaches also work in this field. Indeed, it has been noted, particularly in 2016 by Dame Sally Coates in her review of prison education, that there is overlap and duplication within the current arrangements for supporting prisoners.

[Lord Dholakia (LD)]

My Lords, I declare an interest as in the register. A number of organisations provide services which assist in the rehabilitation of offenders. Does the Minister agree that to remove the National Careers Service will add to the overcrowding problem, thus increasing reoffending rates, which are now at as much as 70% in young offender institutions?

[Lord Keen of Elie]

My Lords, we do not consider that this will contribute to reoffending rates. One of the issues we wish to address with regard to future education contracts is the development of greater autonomy and governor empowerment, which will lead to local commissioning of these services and which we believe will lead to an improvement in them.

[Lord Ramsbotham (CB)]

My Lords, will the internal review that the Minister has just mentioned include looking at organisations which offer the ability to search for jobs online? There is an organisation called Prosper 4, which at the moment has 3,000 jobs on offer to ex-prisoners but only 200 prisoner takers, because the Ministry of Justice and HMPPS seem to refuse to use online job-seeking.

[Lord Keen of Elie]

My Lords, perhaps I should clarify. I referred to an internal review that had been carried out to determine the standard of service being provided under the National Careers Service in-custody contract, and it was that which led to the decision to let the contract terminate at its natural point in March 2018. On the provision of alternative services, and indeed online services, we are of course open to submissions about such a matter, and it will be an aspect of the governor empowerment proposals that we are taking forward.

[Lord Watts (Lab)]

My Lords, can the Government indicate how many people they believe who were released from prison will be in full-time employment 12 months after release?

[Lord Keen of Elie]

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

[Lord Faulks (Con)]

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Hudnall (Lab)]

My Lords, does the Minister agree that one of the biggest barriers to employment is poor literacy skills? Can he say how many people going into prison are functionally illiterate, and how many fewer are not when they come out?

[Lord Keen of Elie]

My Lords, it is unfortunate but true that a very large proportion of those going into prison suffer mental health problems or literacy issues. We attempt to address those during their period in prison. Some improvement is achieved; it is not as great, perhaps, as we would hope, but within our prisons there is a difficult cohort as far as education and literacy are concerned.

Crown Prosecution Service: Disclosure Procedures

Lord Keen of Elie Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Morris of Aberavon]

To ask Her Majesty’s Government whether they intend to set up an independent inquiry into the role of the Crown Prosecution Service and its relationship with police authorities in respect of disclosure procedures in criminal cases.

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

My Lords, following a joint inspectorate report last year, the Attorney-General launched a review of disclosure procedures. This will report in the summer. Last week, the National Police Chiefs’ Council, the College of Policing and the CPS published a joint action plan for disclosure improvement. The House of Commons Justice Committee has now announced an inquiry into disclosure. We have no present intention to institute an additional inquiry.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome what is being done belatedly, but confidence in the criminal legal system in the Crown courts has been seeping away almost daily. Will the action proposed apply also to the magistrates’ court, where non-proceeding seems to be the norm? Since the DPP, who has made some very bold statements, is obviously struggling with the police, with their limited resources, to provide material for disclosure, will the Attorney-General join the Home Secretary in studying what was done in 1998? There was a failure to prosecute deaths in custody cases, so I appointed a senior ex-circuit judge to do an independent review, and he delivered a damning report in two or three months.

[Lord Keen of Elie]

My Lords, we recognise that compliance with disclosure requirements is vital if there is ever to be a fair trial. On a review of present policy, the Attorney-General’s review will take account of recent reports from judges and Her Majesty’s inspectors, as well as gathering additional evidence from bodies, including the judiciary, the Bar Council, the Law Society, police representatives, and prosecutors. In addition, last week the Attorney-General and the Home Secretary addressed a joint letter to both the CPS and the chief constable of the national policing lead on disclosure and the chief executive of the College of Policing, repeating their expectation that a full review is undertaken of all cases similar to those that have already been identified, to determine whether disclosure has been properly carried out.

[Lord Thomas of Gresford (LD)]

Does the Minister not agree that it would be quite disproportionate for the victim to be required to disclose all her emails and electronic messaging to her attacker and his lawyers to trawl through at considerable public expense? Will the Minister not pursue the suggestion I made in our debate a fortnight ago that there should be a protocol whereby a defendant is required to give key words, such as his name, his nickname, places, people and events, to the prosecution for it to carry out such an investigation and to disclose whatever material he has suggested is produced?

[Lord Keen of Elie]

My Lords, I certainly agree with the indication that it would be disproportionate for a victim or complainer to have to disclose the entirety of their social media communications. It would be intrusive and inappropriate, and would impact upon the willingness of complainers to come forward in particular circumstances, so there has to be a balance. It would also raise very real data protection issues, so we have to take account of that. As regards a protocol, we are reviewing protocols in the context of disclosure, and I noted what the noble Lord said about a keyword search.

[Lord Mackay of Clashfern (Con)]

My Lords, is it feasible for the police to ask the complainer whether they have commented on the relationship in question in any media? I do not mean that they should give any detail, but at least it would alert the police as to whether it was worth looking at. Secondly, it is over 32 years since I had responsibility for these matters in Scotland, but I wonder whether there is any suggestion that this problem exists there.

[Lord Keen of Elie]

I am obliged to my noble and learned friend for his observations. On the police inquiries, as I understand it there is no reason why the police should not make appropriate inquiries of a complainer with respect to her social media and other communications that might be relevant to a particular complaint. In addition, the defence have to submit a schedule outlining their own case, in which they will have the opportunity to identify from the police schedule of material that has been recovered that which should be disclosed for the purposes of trial. On whether a similar issue has arisen in Scotland, disclosure is an issue in all jurisdictions; it is a question of how it is handled. Here we are concerned with the handling issue, not a resource issue.

[Lord Blair of Boughton (CB)]

My Lords, I could not disagree more with the Minister. We are, quite simply, dealing with a resource issue. The law on disclosure is as clear as daylight, but it was written before iPhones and social media came into existence. Does the Minister agree that whatever guidance is issued to the police and their forensic IT investigators, there has to be some concern about whether they have the resources to do this in cases of rape when they also have cases of terrorism and organised crime to deal with?

[Lord Keen of Elie]

My Lords, clearly the development of digital media has increased the demands made on both the police and the prosecution service in the investigation of crime. Indeed, in their most recent report, National Disclosure Improvement Plan, the National Police Chiefs’ Council, the College of Policing and the Crown Prosecution Service indicated that they will develop a joint protocol by March 2018 for the examination of digital media.

[Baroness Chakrabarti (Lab)]

My Lords, on the one hand we have urgent crisis reviews of pending prosecutions for fear of potential non-disclosure and unsafe trials and, on the other hand, we have various women’s groups telling us that the existing law designed to protect women from degrading questioning about their sexual histories is not being applied, and that causes fear as well. To add insult to injury, a notorious sex offender will be released on parole without rhyme or reason and without a voice for the victims of crime. Will the Minister please agree that it is time for the Government to give urgent attention, if not resources, to restoring faith, trust and confidence in our criminal justice system?

[Lord Keen of Elie]

My Lords, what is necessary is that a responsible Government should not arm wave but, instead, respect the rule of law.

Prisons: Action Plans and Special Measures

Lord Keen of Elie Excerpts

Wednesday 24th January 2018 Lords Chamber

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

My Lords, all prisons are required to develop comprehensive action plans following Her Majesty’s Inspectorate of Prisons’ inspections. Special measures is a separate internal performance and assurance process for identifying, managing and improving underperforming prisons through agreed and time-bound performance improvement plans. There are currently 10 prisons subject to special measure arrangements.

[Lord Ramsbotham (CB)]

My Lords, I thank the Minister for that very disturbing Answer. I have two further questions. First, in view of the dreadful situation that the Minister has outlined—the chief executive of the Prison and Probation Service has blamed it on his budget being cut by 40% since 2010, despite the increase in the numbers of prisoners—the dropping of the prisons part of the Prisons and Courts Bill and the recent appointment of the fourth Justice Secretary and third Prisons Minister since the 2015 election, how high does prison reform feature in the Prime Minister’s list of priorities?

Secondly, when the noble Lord, Lord Beecham, asked a Question about Liverpool prison before Christmas, I asked the Minister who in Prison Service headquarters was responsible and accountable for the prison. Understandably, he refused to name names. I now ask the question that I have been asking since 1995: is there anyone in Prison Service headquarters who is responsible for any prison or group of prisons, with the exception of high-security prisons, to whom governors who have either special measures or action plans can go to for advice and help?

[Lord Keen of Elie]

Clearly, our prisons remain a priority for this Government. There have been challenging issues, which we need to address and we will address. As regards special measures, when prisons go into special measures, they are provided with central support, which can potentially cover a number of areas, including expert advice, provision—in some instances—of further capital, and direction to the governor and staff of the individual prison.

[Lord Beecham (Lab)]

My Lords, one of the most disturbing features of the crisis in the Prison Service, highlighted at HMP Liverpool, has been shockingly inadequate healthcare. What discussions have taken place between the Ministry of Justice and the Department of Health to improve this situation? Will the Government encourage local authorities, which have responsibility for scrutinising health services, to exercise that function in relation to the provision of healthcare within custodial institutions in their area? I refer to my interest as a member of Newcastle City Council’s Health Scrutiny Committee.

[Lord Keen of Elie]

My Lords, the provision of healthcare within prisons is generally carried out by way of partnership between the prison and the health service. It is on that basis that it is continued. There are ongoing issues over the review of such partnerships.

[Viscount Hailsham (Con)]

My Lords, while endorsing the remarks made by the noble Lord, Lord Ramsbotham, may I suggest that the Ministry of Justice formulates its own action plan to address the continuing incarceration of prisoners held on IPP? Part of that action plan should include releasing those prisoners who have served their minimum term, unless there is some overarching concern about public safety.

[Lord Keen of Elie]

I am obliged to my noble friend. The matter of IPP prisoners is under consideration by the Ministry at the present time. It has of course been highlighted by the recent case of Worboys, which should not be seen, I would suggest, as an indication that we have dropped this matter. We are concerned with the issue of IPP prisoners.

[Lord Lee of Trafford (LD)]

My Lords, all parliamentarians should be sent a copy of the chief inspector’s devastating report on HM Prison Liverpool, showing that half the prisoners were locked in cells during the working day and 37% were drug-positive. The prison had hundreds of broken windows, with cockroach infestation and piles of rubbish, and over 2,000 maintenance tasks were outstanding. How many local, regional and national managers have been dismissed following this shocking indictment?

[Lord Keen of Elie]

My Lords, the conditions the inspectors found at Liverpool prison were unacceptable. Effective measures should have been taken to deal with the issues at a much earlier stage. A full review of all cell accommodation is under way. A programme of window replacement has been approved and in the region of £100,000 worth of toilets and sinks have been ordered for installation. The governor, deputy governor and the director of health services of Liverpool prison have been replaced. We are taking steps to address the situation, but I do not seek to suggest that it should not have been done earlier.

[Baroness Corston (Lab)]

My Lords, during the coalition and up to 2016, 7,000 full-time prison officer posts were abolished. As a result of my freedom of information request, the Government have revealed that the cost of riots since then—due, no doubt, to inadequate staffing—runs to £9,363,964. The contract was with Carillion. Would it not have been better to have kept those prison staff on?

[Lord Keen of Elie]

My Lords, we are halfway to the target of recruiting 2,500 extra prison officers. Reference is made to the past. We, as a Government, learn from the past but we plan for the future.

[The Lord Bishop of Chester]

My Lords, bishops go into prison more often than most Members of your Lordships’ House. There are two prisons in my diocese. The Liverpool prison report is an absolute scandal, so far as I can judge. However, does the Minister agree that many prisons are functioning rather well in the circumstances they face and that there is a good deal that can be celebrated alongside the horror stories, which are indeed dreadful?

[Lord Keen of Elie]

I accept that there have been horror stories and we cannot but be concerned by that. As I indicated, 10 prisons are subject to special measures and receive support but others are functioning effectively. We are taking urgent steps to improve the prison estate.

Sky-Fox Update

Lord Keen of Elie Excerpts

Tuesday 23rd January 2018 Lords Chamber

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

My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable friend Matt Hancock, the Secretary of State for DCMS. The Statement is as follows:

“Mr Speaker, I am here in my new capacity as the quasi-judicial decision-maker in relation to the proposed merger between 21st Century Fox and Sky Plc to update the House regarding the CMA’s interim report that it has issued today. The decision-making role is one that my right honourable friend the Member for Staffordshire Moorlands discharged, having met her commitment—given many times on the Floor of this House—to the greatest possible transparency and openness the process allows. And while I come to this fresh, I intend to follow the process of being as open as possible while respecting the quasi-judicial nature of the decision.

As this House well knows, after the proposed acquisition was formally notified to the competition authorities last year, my right honourable friend the Member for Staffordshire Moorlands issued an intervention notice on media public interest grounds; namely, of media plurality and genuine commitment to broadcasting standards. This triggered a phase 1 investigation of the merger, requiring Ofcom to report on the specified public interest grounds and the CMA on jurisdiction. Having received advice from Ofcom and the CMA, in September she referred the proposed Sky-Fox merger to the CMA for a phase 2 investigation on both grounds.

The original statutory deadline for the final report was 6 March, but the CMA has today confirmed that this will be extended by a further eight weeks and that the revised deadline is 1 May. Once I have received that final report, I must come to a decision on whether, taking into account the specified public interest considerations of media plurality and genuine commitment to broadcasting standards, the merger operates or may be expected to operate against the public interest. Following receipt of the final report, I will have 30 working days in which to publish my decision on the merger, so if I receive the CMA’s report on 1 May that would be 14 June.

To be clear, the publication today is the CMA’s provisional findings. I have placed a copy in the House Library. With regards to the need for a genuine commitment to broadcasting standards, the CMA provisionally finds that the merger is not expected to operate against the public interest. On media plurality grounds, the CMA’s provisional finding is that the merger may be against the public interest. It cites concerns that the transaction could reduce the independence of Sky News and would reduce the diversity of viewpoints available to, and consumed by, the public. It also raised concerns that the Murdoch Family Trust would have increased influence over public opinion and the political agenda.

The CMA has identified three remedy approaches and seeks views from interested parties on them. These remedy approaches are: first, to prohibit the transaction; secondly, to undertake structural remedies either to recommend the spin-off of Sky News into a new company, or to recommend the divestiture of Sky News; and thirdly, behavioural remedies that could, for example, include enhanced requirements around the editorial independence of Sky News.

The CMA also recognises that the proposed acquisition of Fox by Disney could address concerns set out in the provisional findings. However, the uncertainty about whether, when, or how that transaction will complete means the CMA has also set out potential approaches, which include introducing remedies which would fall away subject to the Disney-Fox transaction completing.

The CMA has invited written representations on the provisional report’s findings and the potential remedy approaches with 21st Century Fox and Sky—as well as other interested parties—before producing a final report. As such, and given the quasi-judicial nature of this process, I hope the House will understand that I cannot comment substantively on the provisional report before us and I must wait for the final report before I comment. I am, however, aware of the keen interest of the House in this important matter. I know that right honourable and honourable Members will be closely scrutinising the CMA’s provisional findings and will have views on them.

The CMA’s investigation will continue over the coming weeks. It has set out the process for making representations on the remedy options outlined and on the provisional findings, with deadlines of 6 February and 13 February respectively. I feel sure that today’s debate will provide helpful context for that work.

What I am able to confirm today is that I will undertake to keep the House fully informed and follow the right and proper process, considering all the evidence carefully when the time comes to make my decision on receipt of the CMA’s final report. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord McNally (LD)]

My Lords, I associate myself with the points made by the noble Lord, Lord Stevenson, about the second stage of Leveson and also the remedies that have already been put forward on media regulation. I welcome this Statement and the ongoing commitment of the Secretary of State to keep both Houses informed. I also appreciate the continuing interest of the Minister in this House, the noble and learned Lord, Lord Keen, in the matter. Like the noble Lord, Lord Stevenson, I would welcome a continuation of that informal dialogue. We welcome the interim findings concerning the public interest not being served in terms either of diversity or the influence of the Murdoch Family Trust.

On the commitment to broadcasting standards, I share the concern and puzzlement of the noble Lord, Lord Stevenson. I find it odd that in terms of commitment to broadcasting standards, the proposed merger does not operate against the public interest, echoing an earlier and very disappointing finding by Ofcom. In three continents over 60 years—in Australia, the UK and the USA—Mr Murdoch has been a major factor in lowering standards in both print and broadcast media. I am pleased that the Secretary of State is taking his time to think and consider. Frankly, he has been a little too eager to shoot from the hip in his first few days in office, so this more considered response is welcome.

I still believe that a healthy media ecology rests on a mantra of quality, diversity and choice. All three are threatened by an extension of Murdoch power. It is important to defend the integrity of Sky News, where the lack of 100% control has mitigated against the Murdoch effect. But the Secretary of State needs to go further and consider carefully how we protect our public service broadcast news on the BBC, ITV and Sky News. We need to review the protection of news sources in the light of the impact of new technologies. Here again, Ofcom needs to be proactive in reviewing and bringing advice on these matters.

We must also keep an eye on the implications of the Disney takeover of Fox. Does the Minister have a timetable or guesstimate about how soon the US authorities will come to their conclusions? For we must make sure that any remedies to protect the public interest are real and effective, not simply fig leaves to cover up a surrender to big media power. This is a welcome Statement but it is not the end of the matter. We need a robust Secretary of State to defend the public interest but, on that, I am afraid the jury is still out.

[Lord Keen of Elie]

I am obliged to the noble Lords for their observations. I note that the noble Lords, Lord Stevenson and Lord McNally, would both like to see a continuation of the informal all-party meetings that have taken place. I will of course pass that to the new Secretary of State for his consideration.

I cannot comment upon the terms of the provisional report and I know that Members of this House would not expect me to do so. The final decision will be a quasi-judicial decision for the Secretary of State, one which he will make in the light of the final report and in respect of which he will give reasons. With regard to the Fox-Disney transaction, both Disney and 21st Century Fox have stated clearly that the intention is for 21st Century Fox to continue with its bid of December 2016 before the Disney acquisition is completed. But I am not in a position, any more than any other of your Lordships, to determine when that final process will be completed. It will be subject to procedural issues in the United States of America, quite apart from anything else.

Non-Disclosure Provisions

Lord Keen of Elie Excerpts

Monday 22nd January 2018 Lords Chamber

[Baroness Stowell of Beeston]

To ask Her Majesty's Government whether they intend to review the legality of non-disclosure provisions in settlement agreements.

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

My Lords, non-disclosure provisions in settlement agreements are allowed by law and can have a legitimate purpose. They cannot prevent any disclosure that is required or protected by law. The Government have committed to look at the structures around non-disclosure agreements and the evidence that is coming forward about how they are being used.

[Baroness Stowell of Beeston (Con)]

My Lords, I am grateful to my noble and learned friend for his commitment to look at this complex area of the law. Although he is right that there are protections for certain kinds of disclosure, we still hear about powerful individuals and institutions using non-disclosure agreements—or “gagging orders”—to cover up wrongdoing or serious management failure. I have two questions for my noble and learned friend. As part of his review into this area, could he also look at the roles and responsibility of the lawyers involved in drawing up these agreements, especially when allegations of unlawful behaviour are made? Secondly, what are the Government doing to satisfy themselves that, in the public sector, taxpayers and licence fee payers are not paying for things to be covered up which they have a right to see exposed?

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes any non-disclosure provisions between any employer and employee unenforceable unless the employee has had independent legal advice. The position of the legal profession, to that extent, is monitored. ACAS has a statutory code and practical guidance on settlement agreements which make it clear that no settlement agreement can include clauses that attempt to prevent or restrict an individual from making a protected disclosure. That applies to the public sector as well as elsewhere.

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

My Lords, the noble Baroness raises an important point, because it is wrong that confidentiality, or gagging, clauses in settlements should be used to conceal wrongdoing. But confidentiality clauses do play an important part in encouraging ADR—particularly mediation or arbitration—and in encouraging parties to settle cases rather than fight them in public, all of which we are keen to promote. Will the Government consider further how we might restrict the improper use of such clauses, particularly in employment and sexual cases, without undermining their legitimate use?

--- Later in debate ---

[Lord Keen of Elie]

The Government are conscious of the importance of confidentiality clauses, particularly between employers and departing employees. It may, for example, be important to protect confidential information material to a business. But we are equally concerned to ensure that the limitations are legitimate and that it is not possible to exploit such clauses in order to turn them into what are sometimes termed gagging clauses.

[Baroness Chakrabarti (Lab)]

My Lords, I think all of us, including the Minister, can agree that there are certain clear examples of cases where no court or tribunal should attempt to enforce one of these clauses, because it would be contrary to public policy. For example, the victim of a sex offence should be able to go to the police without anyone enforcing a clause against her. But it gets more complex beyond that. Does the Minister agree that if there are victims who are, de facto, chilled from coming forward, the Government have a role in clarifying and possibly legislating in this area?

[Lord Keen of Elie]

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

[Lord Faulks (Con)]

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

[Lord Keen of Elie]

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

Legal System: Prosecutorial Policy

Lord Keen of Elie Excerpts

Thursday 18th January 2018 Lords Chamber

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

My Lords, I join other noble Lords in congratulating the noble and learned Lord, Lord Morris, on securing this debate.

Justice is at the heart of any democratic society, and providing protection to the public from wrongdoers, while also ensuring that everyone has a right to a fair trial, is at the centre of the rule of law. Fairness means fairness to all—equality of arms—and so, just as the prosecution should have ample opportunity to present its case before an impartial court, so too should the accused have access to relevant evidence and material that might assist them challenge or rebut the prosecution case. The court should provide an environment that encourages complainants and witnesses, sometimes vulnerable or in distressing circumstances, to give their best evidence to aid the court in determining what happened and to reach its verdict fairly. This is clearly an important debate and one of heightened public interest at present in the light of some of the cases that have come to the fore in the media.

Under the Code of Practice for Victims of Crime, complainants are entitled to a range of services throughout the criminal justice process before, during and after the prosecution of the accused. I shall not enumerate them. The noble Lord, Lord Beecham, alluded to them and to the need for us to ensure that the code is properly applied, and I note his observations in that regard. Complainants are also entitled to be informed on whether the suspect is to be prosecuted and, if dissatisfied with a decision not to prosecute, to seek a review of the police or prosecutor’s decision not to prosecute.

Coming to disclosure, let us be absolutely clear that we are at one on this. Compliance with disclosure requirements is vital if there is to be a fair trial, which is in the interests of the complainant, the accused and indeed the whole community. All evidence upon which the prosecution intends to rely must be disclosed to the defendant. Furthermore, the prosecution must disclose any relevant undisclosed material which it is not using as evidence but undermines their case or strengthens the defence case.

Prior to recent events, the Attorney-General had launched a wide review of disclosure procedures in the criminal justice system. His review will consider how processes and policies are implemented by prosecution and defence practitioners, police officers and investigators. This was commissioned following the comprehensive joint inspection of disclosure by Her Majesty’s inspectorates referred to earlier, which concluded earlier in 2017. The scope of the review is wide, covering cases in the magistrates’ courts as well as more complex Crown Court cases and specialist types of cases, including economic crime and sexual offences. The review will examine existing codes of practice, protocols, guidelines and legislation as well as case management initiatives and capabilities across the criminal justice system, including how digital technology is used.

The noble and learned Lord, Lord Morris, alluded to the massive increase in material that has now become available—for example, in the context of sexual cases where social media may play such a significant part. Of course, social media does not just reflect messaging between a complainant and a defendant; there may be social media involved in communication with third parties. There is a massive amount of material there that is potentially relevant to any complaint.

Over and above that, I make one short observation: very often, the defendant will know or not know whether there should exist social media of that kind. We had a recent example of a case where someone complained that photographs on his phone were only produced at a very late hour. What I find somewhat surprising about that case is that the defendant must have known all along whether he had taken such photographs on his phone and whether or not they were there. If there had been timely disclosure of that, it might well have been possible to recover them much earlier than was done.

We know that we have to address the new digital age in this context. Technological developments and the way investigations are conducted are leading to new and emerging issues. The Attorney-General’s review will look at this as well as building on the recent reports on disclosure which have been referred to and identify a number of issues that have arisen with regard to knowledge, skills and training.

The noble Baroness, Lady Brinton, referred to victims’ support. We are increasing expenditure on that. The noble Lord, Lord Beecham, referred to Section 28 provisions on pre-recorded cross-examination special measures in that context. We are addressing this: we want to reduce the stress of court and make sure that vulnerable and intimidated witnesses can give their best evidence. We are rolling out a pre-recorded cross-examination system for vulnerable witnesses in Crown Court centres in England and Wales. This will also be tested in the context of not only vulnerable witnesses but witnesses who are complainants who may be the subject of intimidation, for example.

Helping witnesses and victims give their best evidence is of course a core part of the Crown Prosecution Service’s role, and the CPS aims to do everything it can to help them with the difficult and sometimes traumatic experience of appearing in court. Prosecutors can apply for special measures to allow vulnerable, intimidated or child victims and witnesses to give evidence in court unseen by the defendant. This can be achieved also by using videolinks. Vulnerable people—complainants and witnesses—can receive assistance in giving their evidence through an intermediary in appropriate circumstances.

The noble Baroness, Lady Brinton, touched upon the question of the victims strategy and the extent to which there was room for RIs—registered intermediaries—to be available. We are pursuing that. In 2015-16, we recruited 100 new RIs, doubling the size of the scheme. We are currently running a regional recruitment drive, which we hope will increase the numbers further by about 15% nationally. We appreciate the need to ensure that this is rolled out nationally and is not simply to be found in a few regional hot spots, if I can put it that way.

Mention was made of recent cases of failure of disclosure, in particular the Liam Allan case. The Crown Prosecution Service and Metropolitan Police are jointly conducting an urgent review into the Liam Allan case, which collapsed at trial. Clearly, it is crucial that the circumstances of the case are examined, any wider issues identified and appropriate lessons learned. The findings of that review will be published before the end of this month. It would not be appropriate for me to pre-empt that review and speculate further at this stage. The CPS and the Metropolitan Police are also looking at all live rape and serious sexual offence cases to check that disclosure is being handled appropriately.

The Crown Prosecution Service is committed to working effectively with the police in the context of issues such as disclosure, and indeed doing so from an early stage of any investigation in order to build the strongest possible prosecution case for trial where the case meets the test for charge and to bring to an early conclusion those cases which do not. It is necessary in this context to be fair to the complainant and to the defendant in these circumstances.

The Director of Public Prosecutions has a good relationship with the chair of the National Police Chiefs’ Council, the Metropolitan Police Commissioner and the lead officers for criminal justice on this and other topics. There is regular communication with chief constables in that context.

I note the point made by the noble Lord, Lord Beith, with regard to other systems of prosecution, in particular the position under the Crown Office and Procurator Fiscal Service in Scotland, where of course a distinct jurisdiction is exercised because there the Crown and the procurator fiscal are in a position to direct the police on the conduct of any investigation. I would not like to suggest that one system is better than another at this stage. Clearly, the DPP’s guidance on charging sets out arrangements in England and Wales for the joint working of police officers and prosecutors during the investigation and prosecution of criminal cases. Prosecutors may provide early investigative advice in serious, sensitive or complex cases, and in any case where a police supervisor considers it would be of assistance in helping to determine the evidence, the supervisor will be able to seek advice in that context. I accept that the system in other jurisdictions is different.

The CPS and the police have agreed a joint approach across England and Wales to monitoring and improving the quality of files submitted by the police to the CPS. There may be instances where a police file is submitted to the CPS and then returned in order that further investigation or further inquiry can be made in a particular case.

I touched upon the matter of the progress of the victims strategy that the noble Baroness, Lady Brinton, asked about. The Government have made a commitment to publish a victims strategy in 2018. The new Secretary of State for Justice, sworn in as Lord Chancellor this morning, has not yet had the chance to look at the work done so far in detail, but he clearly regards this as an important part of his agenda, underlined by recent events.

Reference was made to the case of Worboys. The Government believe that there is a strong argument for reviewing the case for transparency and the process for parole decisions and how victims are appropriately engaged in that process. As I mentioned on a previous occasion, there is a distinction between those who are the victims of complaints that have been the subject of successful prosecution and those who have been the victims of complaints that were not proceeded with. In the latter case, the matter of intimation is discretionary rather than obligatory. The Secretary of State made a Statement to the other place on this matter on 9 January. He has spoken to the chair of the Parole Board and the Victims’ Commissioner about what changes might be made in the present circumstances, and the Ministry of Justice will lead the review with the view that decisions can be taken on this by Easter.

Very briefly—as I am living on borrowed time at this point—I shall respond to some points. The noble and learned Lord, Lord Morris, asked me two questions. First, the Attorney-General last discussed non-disclosure with the DPP on Monday 15 January; it is a current issue. The Attorney-General’s review of disclosure was triggered in part as a result of the joint inspectorate report that has been referred to. Progress by the CPS against the recommendations in that report is the subject of regular discussion at the superintendents’ meetings.

I am not going to go into the details of the Worboys case and what was and was not prosecuted. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that perhaps not all appropriate cases had been prosecuted. It would not be appropriate to speculate on that; the CPS has an evidential test to apply, and I would not seek to second-guess the process in that context. However, I would say that Worboys was a case of an IPP sentence but I see no reason why that particular incident should impact directly upon our consideration of how we are going to proceed in the context of IPP sentences in future. That is a matter that has been the subject of ongoing debate and discussion and will no doubt continue to be.

I hope that I have reassured noble Lords that we are concerned about the issues raised here relating to victims, disclosure and the need to keep vulnerable victims and complainants fully informed of the outcome of a prosecution and, indeed, the outcome of any sentence, including issues of parole. I will not go into the details of particular cases that have been mentioned, but I will underline a point made by the noble Lord, Lord Thomas of Gresford: disclosure is central to our system of criminal justice, but it must be proportionate. When we come to deal with these issues, we must respect the rights and interests of the complainant and of the defendant. They are challenging issues; we are addressing them; and we shall address them further in the light of recent events.

I am obliged to noble Lords, and I thank the noble and learned Lord, Lord Morris, again for this debate.