Personal Statement

Lord Keen of Elie Excerpts

Tuesday 16th January 2018 Lords Chamber

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

My Lords, on 21 December 2017, in response to a Question asked by the noble Lord, Lord Beecham, I gave information to the House regarding expenditure at Her Majesty’s Prison Liverpool. I advised that there had been no expenditure on cell accommodation since 1994. Further inquiry has disclosed that this was incorrect and that money has been spent on the maintenance of cells at Her Majesty’s Prison Liverpool during this time. Although the information I provided was to the best of my knowledge accurate, I regret that it was not so, and I apologise to the House. I will write to the noble Lord, Lord Beecham, and all noble Lords who asked supplementary questions to clarify the position in more detail, and I will place a copy of that letter in the Library of the House.

Transparency of the Parole Board and Victim Support

Lord Keen of Elie Excerpts

Tuesday 9th January 2018 Lords Chamber

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

My Lords, with the leave of the House, I should like to repeat a Statement made in the other place by my right honourable friend the Secretary of State for Justice on the Parole Board’s decision to release John Worboys and the Government’s response to the issues raised by this case. The Statement is as follows:

“I should like to start by echoing the Statement made by my predecessor at the weekend and to express my unreserved sympathy to all the victims. They will never erase the emotional trauma of his crimes and the Parole Board’s decision to order his release must have brought back painful memories. These were horrific crimes, and I take the concerns raised, including by many colleagues in the House, very seriously.

John Worboys was convicted of 19 offences in 2009, and received an indeterminate sentence of imprisonment for public protection with a minimum tariff of eight years in custody. Following the expiry of the tariff, he was eligible for review by the Parole Board, which was required to consider whether to release him.

The board reviewed his case at a hearing on 8 November 2017, by which time he had served 10 years in custody, including a period on remand. A three-person panel considered a detailed dossier of evidence. Its subsequent decision to release him was communicated to my department on 3 January.

There are two main areas of concern that I think it essential to address today: whether the correct procedures were followed in this case; and whether those procedures are right or whether improvements are needed.

Turning first to whether procedures were followed in this case, all victims of the crimes for which he was convicted have a statutory right to receive information about parole hearings and decisions under the victim contact scheme. On the basis of the information I have received since arriving in the department yesterday, it appears that in relation to these victims, those who opted to remain in contact via the VCS were informed of the parole hearing by their preferred method of contact. Of the victims currently in contact with the scheme, those who chose to be informed of the Parole Board decision by phone or email were contacted immediately on 3 January, although the Secretary of State has recently learned that one did not receive the email.

Letters were sent immediately to those who chose to be informed that way, but of course these took longer to arrive. Some victims entitled to this contact chose not to opt in, which is of course their right. Any victims the crimes against whom were not prosecuted do not fall within the statutory remit of the victim contact scheme, so the arrangements are different. Discretionary contact can be considered, but in this instance the National Probation Service has no record of any requests for discretionary contact. However, while it appears that the correct procedures were followed, the fact that some victims learned of the decision from the media suggests that there is scope to review these procedures and examine whether lessons can be learned and improvements can be made. It is a priority for this Government that victims of rape and sexual assault have full confidence in the criminal justice system. Sentence lengths for these horrific crimes have increased by more than 30% since 2010 and more victims are coming forward, but there is still more to do.

I should be absolutely clear that I think the Parole Board should remain an independent body, responsible for making decisions about the ongoing risk that individuals pose after serving their tariff. But I agree with my predecessor’s assessment that there is a strong case for reviewing transparency in the process of parole decisions and how victims are appropriately engaged in that process, and for considering changes in policy, practice or the Parole Board Rules or other guidance or procedures, including the victims’ code. With that in mind, I can confirm that I have instructed my officials to establish a review to examine these questions and I will share more information on this shortly. I think it appropriate that the department leads this work but that it consults victims’ groups and others. I have spoken to the Victims’ Commissioner, the noble Baroness, Lady Newlove, and the chair of the Parole Board, Nick Hardwick, to discuss what changes we could make and how best to draw on their expertise and insight in this review.

Finally, I note that the Justice Select Committee has announced an evidence session. My department stands ready to provide the committee with any information it may require. I intend to prioritise this review so that decisions can be taken before Easter. I hope that this course of action reassures the House of the importance and priority I attach to this. As such, I commend this Statement to the House”.

--- Later in debate ---

[Lord German (LD)]

My Lords, I too express great gratitude from these Benches for the Statement from the Government today, which gives an absolute expression of sympathy for those who have been affected by this case. Because there has been an obvious breakdown in the structure and systems of criminal justice which we are talking about, I wonder whether an apology on behalf of the Government would have been more appropriate at this point.

The Statement we have just heard raises a significant number of issues, many of which link back to legislative processes and rules which have developed over recent decades. Therefore, an understanding of the scope of the review will be necessary to give confidence to the many people who are feeling pain, misery and disgust at what they have seen in recent days. If we are to assuage them and to bring appropriate satisfaction to much of our society, we need to look carefully at the scope of this review.

As the Statement itself expresses it, we are told that the review will answer issues in these two areas: first, transparency in the process for parole decisions and, secondly, how victims are appropriately engaged in that process. This is indeed a focus of public concern at present but behind it lies a set of deeper and wider issues which have been thrown up by this case. We need to ensure that we see a review that touches all these issues if we are to arrive at a satisfactory conclusion to a much deeper issue than that reflected in the Statement. An example which has been thrown up by this case is indeterminate sentences. Nine hundred people were expected to get indeterminate sentences, but by 2012, when they were abolished, 6,000 people had received such sentences. Will the Minister tell us whether there is pressure on the parole system to clear this backlog which has affected the way in which it has dealt with these cases? We need some reassurance on that, not just those of us in this Chamber but the public as well.

Public confidence in the justice system has already been alluded to, particularly in the CPS and the role it played in reducing the number of cases brought to prosecution. It is essential that the public know why that was the case and the impact it has had on the victims and alleged victims who have been so hurt in recent days.

Another area where the concerns of the public need to be assuaged is about the role of the Government and, particularly, of the Home Secretary at the time—she is currently Prime Minister—where two of the victims alleged that their cases were not taken seriously by the criminal system.

The two fundamental issues behind the Statement today are transparency and engagement with victims. The chair of the Parole Board has said that he has lots of plans for more transparency. We need to understand whether he made those views known to the Government and whether the Government took any notice of him in ensuring that openness and transparency occurred. Will the Minister tell us whether the chair of the Parole Board made those points to the Government and what the Government’s response to him was? That is fundamental to the understanding that victims will have.

The second fundamental issue is engagement with victims, which was mentioned in the Statement. We now know that as many as 100 victims did not have their cases taken to court, yet their names are known to the justice system. Will the review deal with those victims as well? This is fundamental. If the names of people who have come forward as being the most hurt—the people who turn to you and say, “I heard this on the television” or “I was asked by a reporter”—are known to reporters, are in the public domain and are well known, why has the penal justice system not brought these matters to their attention? It is clearly laid out in the Statement that at present that is not within the current rules and processes, so some quite significant change is needed to ensure that engagement with victims is properly executed.

The Government say that they are going to bring forward more information shortly. “Shortly” is frequently used in your Lordships’ House and it can mean anything: the next season, the next year, the next Government or whatever. It would be really helpful to know whether we are going to deal with this matter urgently. I know that the Government have said that they intend to bring this matter to a conclusion by March. That is the narrow review which I suspect is what is behind the two issues raised in the Statement, but we need to know a lot more about the processes. We need to understand what victims have gone through. We need to understand what the relationship between the criminal justice system and victims will be.

Fundamentally, there is difference of view as well on the role that the criminal justice system plays. The first stated aim of the criminal justice system is to increase public confidence in it—that appears in this Statement—yet the first aim of the Parole Board is to increase public confidence in its work as an independent body. Somehow or other there is a misconnection there between the one and the other, because having confidence in an independent body and having confidence in the criminal justice system, which is a responsibility of government, in some way do not actually fulfil the needs which this case has thrown up.

I share the anguish of many in this country in relation to the system which this case has thrown up. I share the anguish of many victims who have felt let down by the criminal justice system. I welcome the Statement in so far as it lays out the immediate action to be taken, but I suggest to the Minister that there is a much bigger case lying behind it for examining the whole structure of what happens in these matters.

[Lord Keen of Elie]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord German, for their contributions on this issue. It is clearly a matter of deep concern not only to the Government but to the public at large that these issues should have arisen in the way they did. I will seek to address some of the points that have been raised.

I am of course aware that there were a number of allegations directed against Worboys that were not the subject of prosecution. That matter of course falls with the Metropolitan Police and the Crown Prosecution Service, which has to apply its evidential test to the question of whether or not to proceed with a prosecution. The question remains whether there still could be a consideration of those cases that were not the subject of prosecution and which were not taken into account by any admission from Worboys himself. Therefore there is scope for other cases to be the subject of consideration by the police and the Crown Prosecution Service in due course.

As regards the question of how certain claims were dealt with, claims by two victims were of course taken to court, as alluded to by the noble Baroness and the noble Lord, Lord German. Those cases were taken against the Metropolitan Police, and by the Court of Appeal stage damages had been awarded and upheld. The Home Secretary was not engaged in that litigation process at that time. The damages that have been awarded will not be clawed back in any sense—those awards of damages will stand.

However, the decision of the Court of Appeal raised a point of law, and it is because of that point of law that the Home Office became engaged in the appeal process. The matter being taken to the Supreme Court concerns an interpretation of a legal issue and that alone—it is not addressing the merits or otherwise of the awards of damages that were made in those cases. I wish to make that clear. The Home Secretary was concerned that an important point of law should be addressed by the Supreme Court, and I am not going to comment further on that because it is an ongoing litigation.

As regards the observations that were made about the victim contact scheme, that will of course be the subject of the review which is to be undertaken. The Secretary of State is determined that the review should be undertaken as soon as possible, which is why I referred to Easter. At present, there is a process whereby victims can be informed of a parole hearing by their own preferred method of contact, but they are not obliged to accept that there should be such contact. The noble Baroness raised the question of whether there should be an opt-in or an opt-out, and that is a question that may properly be addressed in the context of an ongoing review.

Victims of crimes that were not prosecuted do not fall within the present statutory remit of the victim contact scheme, but there is a discretionary contact process which can be considered by the National Probation Service. In this instance, there is no record of any request for discretionary contact, but again the question of discretionary contact is one that may properly be addressed in the context of the review that is to be undertaken. The resources of the probation service are important in two respects. First, the National Probation Service prepares and submits a risk management plan to the Parole Board for the purposes of the board setting licence conditions if there is to be a release of an IPP prisoner. We have to remember that an IPP prisoner is being released under licence for life, albeit they may have the option to apply after 10 years for the removal of that licence, and they are subject to strict conditions which, if breached, may result in them being returned to prison. Again, it is not open to me to go into the detail of the particular licence conditions because the circumstances of the Parole Board’s decision are not something that it is open to me to comment upon; indeed, I am not aware of them. The Parole Board acts in an independent fashion.

The difficulty that has been underlined by this case is that under present legislative provision the decision-making process of the Parole Board cannot be disclosed. I am not aware at present of any prior requests for a change in that legislative provision but, as the noble Lord, Lord German, observed, the chairman of the Parole Board had come forward to say that perhaps the time had come to address that issue. That will of course be the subject of the review that is going to be undertaken. I appreciate the comment made by the noble Lord, Lord German, about the need for us to consider carefully the scope of that review and its terms. That is why the Secretary of State, having only just come in to office, is going to take a reasonable opportunity to address the process of the review that is to be undertaken in order that we can address that point. If it is necessary and appropriate to change the legislative provisions with regard to the transparency of the Parole Board, that can be done by way of secondary legislation so it would not be held up by the need to contemplate primary legislation in this context.

I hope I have addressed the majority of the concerns raised by noble Lords. In light of the time constraints, I will rest my present submission there.

[Viscount Hailsham (Con)]

My Lords, when I was a junior Minister at the Home Office I had to deal with the release of patients from special hospitals and of life prisoners on tariffs. Does my noble and learned friend agree that risk can never be wholly excluded, and that the question the Parole Board has to determine is whether, given proper and appropriate safeguarding provisions, the risk is an acceptable one? Does he also agree that while the principle of transparency is an important one, prisoners have a right to a degree of privacy? There will be many issues—relating, for example, to their mental or physical health—that cannot be properly put into the public domain.

[Lord Keen of Elie]

I acknowledge the observations made by my noble friend, and they are well founded. The test applied to release by the Parole Board in the case of an IPP prisoner is particularly high and has to be overcome by the prisoner himself addressing the onus. The onus rests on the prisoner to satisfy the Parole Board. However, I entirely accept that we can never exclude risk in this context. These are individuals who have been responsible for violent, and very often violent and sexual, crimes. They do pose a risk. It is a question of determining whether their incarceration should be indefinite or whether society has reached a point where it can decide that the risk is so diminished that they can be safely allowed back out into the community. We in this country do not believe in indefinite imprisonment, nor have we ever done so.

On the question of transparency, I acknowledge that the individual prisoner will have certain basic human rights that have to be respected, but it is necessary for us to take a proportionate approach to that issue, remembering that there are also victims here, not just the perpetrator.

[Lord Laming (CB)]

My Lords, I am sure the Minister will recognise that the House welcomes the review that is to be undertaken. However, would he agree that the review outlined by the Statement is rather narrow? One of the concerns that many of us—certainly the victims—will have is the quality of supervision that will be available on release. It is true, as the Minister has indicated, that the Parole Board will have had a plan based on assessment of risk. However, it is one thing to have a plan but quite another to ensure that it is operated effectively and reliably. Reports that we have had from the inspectorate about the level of supervision provided in some of these cases sometimes not going beyond an occasional telephone call do not give us much cause for comfort. I would be grateful if the Minister could assure the House that the review will look at the capacity of the National Probation Service to provide comfort and assurance to victims and to the wider community.

[Lord Keen of Elie]

I am obliged to the noble Lord. I am not going to close down the terms of a review that are yet to be determined. That will be looked at, it will come into the public domain and it will be open to your Lordships to consider whether to press for a wider review. It would not be appropriate for me at this stage to seek to set down the parameters of the review process.

As regards the level of care and supervision, an individual such as Worboys will be subject to a multiagency public protection arrangement supervised by the National Probation Service. I am conscious of the recent criticism made of the probation service, but in the context in which it was mentioned it was not directed at the National Probation Service, which deals with the most serious offenders in the circumstances.

[Lord Morris of Aberavon (Lab)]

My Lords, does the Director of Public Prosecutions still have regular and frequent meetings with the Attorney-General about the non-prosecution or prosecution of particularly important individual cases?

[Lord Keen of Elie]

My understanding is that the Director of Public Prosecutions and the Attorney-General meet on a regular basis.

[Baroness Brinton (LD)]

My Lords, in 2016 the Public Accounts Committee reported:

“The criminal justice system is not good enough at supporting victims and witnesses”.


Your Lordships’ House voted on 12 December 2016 to strengthen the victims’ code, and we held off having another vote in January 2017 only after an undertaking from the Minister at the Dispatch Box that a strategy would be published in the next 12 months. To be told that the review will be undertaken “as soon as possible and possibly by Easter”, as the Minister said in reply to my noble friend just now, is still throwing it into the long grass. What guarantee can the Minister undertake to give the House that there will be such a strategy and that the victims’ code will be strengthened to ensure that mistakes such as this do not happen again?

[Lord Keen of Elie]

My Lords, the matter of a victims’ strategy is very much at the forefront of our minds. Indeed, I believe that my right honourable friend the Secretary of State observed in the other place that it is in his present inbox. He has only just come into office, but I understand that he intends to address that very strategy.

[Baroness Newlove (Con)]

This weekend has been quite emotional. I have done a lot of media, speaking for victims, and this case has raised a lot of issues from a lot of agencies that victims do not get support. First and foremost, they do not have any legal rights. However, I welcome the Government’s commitment to the review on the transparency of the Parole Board. I have had meetings with Nick Hardwick, and that is something that we have been discussing. I have asked for transparency, so that, as in appeal courts, we get a judgment set down that people can see. That is an area that we can look at and which I shall push forward with my team.

In addition, I ask my noble and learned friend to agree that the victims’ contact scheme must be radically reformed, not just with guidance and persuasion. That raises another important issue mentioned in the Secretary of State’s Statement, where he says that,

“the National Probation Service has no record of any requests for discretionary contact”.

That gives me a red alert. Victims are constantly let down by not getting the right communication, so it does not give me any comfort to say that nobody even thought of these individuals as human beings. I ask my noble and learned friend to look at the victims’ contact scheme in a radical way, because there are victims in whose cases there was no conviction.

Is this about changing the law to ensure that we can stand up on stilts, or will it be about treating people with human decency and dignity? At the end of the day, for someone such as me, who found out that the media knew about a judgment in my husband’s case before my family and I did, I can tell your Lordships that that that leaves scars for ever. I want to ensure that all the victims, in this case especially, get that discretionary informing of the full facts so that they can get on with their lives and feel safe and secure, because only that gives us public protection standing up in bold letters for everybody in our community.

[Lord Keen of Elie]

I note what the noble Baroness has said, and I quite understand the basis on which she expresses these views. As I have already said, there is a question about the discretionary contact where a case has not actually been prosecuted. Clearly, we must have that in mind when we take the question of the VCS forward. As I observed earlier, it would not be appropriate for me at this stage to set out the parameters of a review that is under contemplation at present.

[Lord Beith (LD)]

When cases show a pattern of serial and prolific offending, ought it not to be considered by the prosecution service that how many cases to prosecute should not be unduly restrained by either CPS resources or court resources, because of the effect that may have on the sentencing?

[Lord Keen of Elie]

I do not understand that they are ever determined by reference to court resources at all. The CPS has to make an independent judgment on these matters. It applies its evidential tests to the complaints that are brought before it by the police, to determine whether or not the prosecution should appropriately be taken forward. One has to acknowledge that there are cases when victims come forward, and yet, because of the particular circumstances, it is not possible for the CPS to determine that the evidential test has been met.

[Lord Blair of Boughton (CB)]

My Lords, I ask the Minister to take away from this short discussion the view of the House that the terms of reference for this inquiry need to be pretty wide. In 1985 I wrote a book called Investigating Rape: A New Approach for Police. Since then, more than 30 years have passed, and we have seen in these last few months really difficult rape cases failing in the courts. It seems to me that the Worboys case is a perfect example from which we could learn in a wider sense how to both support victims and provide the accused with a proper defence. At the moment, the investigation of rape and serious sexual offences is in a mess.

[Lord Keen of Elie]

I hear what the noble Lord is saying, but if we are to make progress—and swiftly, which is what we are required to do in these circumstances —we have to ensure that the review process is focused on the matters immediately at issue. To broaden it in the way suggested would, I fear, take us into the swamp lands and result in no meaningful change in the foreseeable future, particularly on the issue of transparency. While I understand and hear the desire for as wide a review as possible, let us bear in mind the need to ensure a review process that leads to legislative change within a realistic and—for victims—an acceptable timeframe.

[Lord Elystan-Morgan (CB)]

My Lords, can the Minister tell the House whether a full, preliminary review at the time Worboys pleaded was held by a learned judge? Normally such a mechanism enables many of the issues arising in this case to be ironed out at that stage.

[Lord Keen of Elie]

I am obliged to the noble Lord, but I am not sure that that could address the sorts of issues that have arisen here as a result of the present process. We are looking at the situation of Worboys 10 years after his initial incarceration and the circumstances in which he has sought to persuade the Parole Board that he can be released, without danger to the public and against the background of a risk management plan submitted to the Parole Board by the National Probation Service itself. I do not believe that that could be brought forward.

[Lord Cormack (Con)]

Would my noble and learned friend agree with me that this is a very welcome review, but the very serious implications of this particular case should not impede progress on looking at the whole problem of indeterminate sentences for crimes committed by people which were entirely different? That has often been raised in your Lordships’ House by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and many of us have given him strong support. Can my noble and learned friend give that reassurance?

--- Later in debate ---

[Lord Keen of Elie]

I welcome my noble friend’s observation and seek to give that reassurance. The wider question of IPP sentences and how they are dealt with has to be addressed in all its spheres, and it would not be appropriate to allow one most unfortunate case to distract us from wider questions with regard to IPP sentences and their final disposal.

[Lord Harris of Haringey (Lab)]

My Lords, that brings us back to the question that the noble Lord, Lord German, asked, to which the Minister was not able to give an answer because of time. Has there been any pressure on the Parole Board to deal more speedily with the backlog of IPP cases? I think that we need to know. I understood that the principle of IPP sentences was to protect the public. Clearly, the view of many victims is that in this instance the public are not being protected. We need to know—and I would be grateful for the Minister’s answer—what pressure has been applied on the Parole Board to deal with that backlog.

While I am on my feet, could we pick up the point that the noble Viscount, Lord Hailsham, raised, which was the very interesting question that in the past Ministers took personal responsibility for some of these difficult cases? Is not there a value in what I believe is by and large sound political judgment being made by people, perhaps with a background of elective politics, looking at these cases and assessing whether in the mind of the wider public this is something that should be looked at, and that it is perhaps not in the public interest for such people to be released?

[Lord Keen of Elie]

With respect, I can perhaps answer both questions by reference to the same issue. As far as I am aware, no pressure is being brought to bear on the Parole Board with respect to inappropriate release of IPP prisoners. The statutory test is perfectly clear, and the Parole Board is an independent body applying that statutory test, which should continue to be the position. It would not be appropriate that we should depart from the situation in which there is an independent Parole Board making these decisions objectively, to somehow bring it back into the fold of political decision-making where you may find pressure from the electorate, the media and elsewhere that impacts directly on someone’s right of liberty.

[Lord Foulkes of Cumnock (Lab)]

From the Minister’s extensive experience north of the border, is there anything that can be learned from the procedures in Scotland?

[Lord Keen of Elie]

I am obliged to the noble Lord, but I have to confess that I have virtually no experience of criminal law north of the border.

[Baroness Hussein-Ece (LD)]

My Lords, John Worboys carried out violent sexual crimes against very many women—we will probably never know how many—and it has called into question whether women victims of domestic violence are getting justice. It has caused great unrest, not least to the victims, but the wider public have raised great concerns about this. A panel of three has been convinced by John Worboys that he is safe to be released but, at the same time and in contrast to that, the Parole Board has said that his release conditions will be rigorously monitored and enforced. If they need to be rigorously enforced, and the Parole Board is worried about that, is he really safe to be released? This is a fundamental question—whether he is that safe to be released and to be a free man who has put his life of crime behind him, when the risk assessment is that he needs to be very closely monitored by the probation services and other multi-agencies. The public rightly need some reassurance that he is either safe to be released or is not.

[Lord Keen of Elie]

He has, of course, to satisfy the Parole Board that, from the perspective of public safety, he can be released. However, he is released under licence so that monitoring can be maintained. For example, an individual may have been prompted to carry out the most violent, vicious crimes when under the influence of drugs or alcohol. Therefore, the licensing conditions may ensure that they do not revert to a life of drug dependency or alcoholism. Where there are indications that they have done so, it may be necessary to revoke the licence as they then present a danger that they would not otherwise have been seen to present when they were first released. This is an issue of proportionality and balance. To impose an absolute upon an individual in these circumstances would, I fear, impose upon him a lifetime of incarceration, in which case we would lose that balance altogether.

[The Lord Bishop of Gloucester]

I thank the Minister for bringing this issue to the House and for the pertinent points made on this important subject. What action are the Government taking to ensure that the Parole Board is adequately funded so that due diligence can be performed before decisions are made?

[Lord Keen of Elie]

I do not understand that any concern was expressed by the chairman of the Parole Board about resources or the standard of review that the board carried out before making this decision. The issue is whether or not it can disclose the reasoning behind its decision. As the law stands, it cannot do that, so the issue is one of transparency more than anything else. I reassure the right reverend Prelate that that is the position as I understand it.

[Lord Pannick (CB)]

My Lords, are not the Government making a bit of a meal of this? Is it not clear beyond argument that the decision of the Parole Board to release Worboys cannot command the confidence of the public, and certainly not that of the victims, without the Parole Board being able to tell the public why it has taken that decision? Do we really need a review to establish that?

[Lord Keen of Elie]

With respect to the noble Lord, few issues are ever clear beyond argument, as he knows from his experience in the courts. In this instance, it is appropriate that we should review the matter before we take further steps.

HMP Liverpool

Lord Keen of Elie Excerpts

Thursday 21st December 2017 Lords Chamber

[Lord Beecham]

To ask Her Majesty's Government whether, and if so when, they will publish the recent report by the Chief Inspector of Prisons on Her Majesty’s Prison Liverpool; and what steps they are taking to address the problems identified in that report in order to prevent serious harm to prisoners.

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

My Lords, the inspection report on Her Majesty’s Prison Liverpool will be published on 19 January 2018. A comprehensive action plan is being developed that will urgently address the inspector’s recommendations. Immediate action taken at Her Majesty’s Prison Liverpool since the inspection includes the appointment of a new governor, a review of prisoner accommodation to facilitate refurbishment and urgent work with the contractor to deal with the backlog of repairs.

[Lord Beecham (Lab)]

My Lords, the situation in Her Majesty’s Prison Liverpool is the latest manifestation of the crisis in our prisons. It is a shameful litany of squalor, sickness and apparently even death. Instead of initially refusing to comment on the chief inspector’s leaked report, the Government should already have published it, together with their response. Will they in particular examine the apparent failure of contractors over a long period to carry out major repair work in a way that did not threaten the well-being of inmates and staff? In addition, will they review the performance, in Liverpool and elsewhere, of an overstretched and underfunded NHS in protecting the health and well-being of our prison population?

[Lord Keen of Elie]

My Lords, very troubling matters were raised by the report, but I am not going to comment on the contents of a leaked report. What I can say is that the inspector debriefed the Prison Service immediately after and we have responded to that. Her Majesty’s Prison Liverpool was originally a Victorian prison, and there are indeed real issues with the standard of cell accommodation. It is worth noting that no expenditure—not one pound—has been spent on cell accommodation at Liverpool since 1994. In the intervening period, there was a Labour Government from 1997 to 2010.

[Lord Alton of Liverpool (CB)]

My Lords, is not one of the most disturbing aspects of this troubling report the failure to respond to the mental health needs of inmates? Given the reported suicides or deaths of perhaps as many as three prisoners in recent weeks, and the absence of secondary screening, is not this a national requirement? How do these squalid conditions, in a prison overrun with rats and cockroaches, meet Churchill’s famous dictum that the treatment of criminals is,

“one of the most unfailing tests of a civilisation of any country”?

How does it encourage fundamental reform of those we have incarcerated?

[Lord Keen of Elie]

My Lords, where the courts impose a custodial sentence, the punishment is deprivation of liberty. But where someone is kept in custody, the conditions should be decent, safe and secure. We accept that as a Government.

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

The MoJ may say that it does not comment on leaked reports and the Minister has repeated that, but there is no doubting the authenticity or content of this one. The prison was the worst that inspectors have seen, with prisoners spending 22 hours a day in filthy, vermin-infested cells with exposed electrical wiring and blocked and leaking lavatories. Within weeks of inspection, two inmates killed themselves. Yes, the governor has been sacked, but that is not enough. Will the MoJ please now act urgently to establish a crisis task force to work with the inspectorate’s recommendations, there and elsewhere, to turn around the dreadful conditions in our failing prisons?

[Lord Keen of Elie]

My Lords, we have replaced not only the governor but the deputy governor and the head of healthcare at the prison itself. We intend to establish a new unit in the Prison Service to enhance our response to the inspector’s recommendations, which will involve monitoring and auditing progress on the recommendations. This will commence in January 2018. In addition, on 30 November we announced the introduction of an urgent notification process. Unfortunately, the report took place in September and therefore did not trigger that notification process. Under that process, the inspector can go directly to the Secretary of State for Justice in cases where urgent reform is required, and the Secretary of State will undertake to respond publicly within 28 days of such notification.

[Lord Harris of Haringey (Lab)]

My Lords, the noble and learned Lord practises insouciance in response to these questions, particularly in saying that he cannot comment on a leaked report. Perhaps he could comment on last month’s report of the Chief Inspector of Prisons, which highlighted conditions in youth offender institutions. It said that it was routine for young boys to be confined to their cells for more than 22 hours a day and that in 40% of the youth offender institutions inspected, education and medical visits had to be cancelled. That was certainly my experience a year or so earlier when I was reviewing the conditions in prisons. Is not the real problem the continued understaffing of our prisons and the failure, therefore, to provide the care that common humanity suggests is necessary for those in the care of the state as prisoners?

[Lord Keen of Elie]

We are all concerned to ensure that where persons are placed in custody, whether youth custody or otherwise, their conditions should be decent, safe and secure and that they should have the opportunity for rehabilitation. We have taken steps over the past year or so to increase quite considerably the number of prison officers employed in our prisons. The goal is 2,500 prison officers and we are on course to achieve it.

[Lord Ramsbotham (CB)]

My Lords, one of the most shocking sentences in the Chief Inspector’s introduction to this report, which is a shocking indictment of the way prisons are run, reads:

“We saw clear evidence that local prison managers had sought help from regional and national management to improve conditions they knew to be unacceptable long before our arrival, but had met with little response”.


Will the Minister please tell the House who in Prison Service headquarters is responsible and accountable for the oversight of Her Majesty’s Prison Liverpool and how that oversight is exercised?

[Lord Keen of Elie]

My Lords, I am not going to name individuals—

[A noble Lord]

Oh!

[Lord Keen of Elie]

I am sorry—I was concerned that the noble Lord had become unwell. I will not name individuals; it would be most invidious to do so. The Prison Service is responsible for the conditions at Her Majesty’s Prison Liverpool. I will not comment on the terms of a leaked report, but in response to the briefing, we have already taken 182 cell spaces out of use immediately to facilitate refurbishment. We have determined the level of remedial work required on accommodation and we have instituted an increased and improved cleaning programme, with robust management checks.

Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Lord Keen of Elie Excerpts

Wednesday 20th December 2017 Lords Chamber

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

My Lords, on the noble Lord’s last point, it is not for me to anticipate the Uber decision but the hint might be in the existence of the motor vehicles.

I begin by congratulating the noble Baroness, Lady Kennedy of The Shaws, on securing this debate. The question of the EU’s departure from the European Union is well-trodden ground in this House by now, but the question of future civil judicial co-operation between the United Kingdom and the EU has perhaps not received as much attention. I commend her and her sub-committee for the work they have done to address this. I would also like to thank, through her, the witnesses who contributed to the inquiry and whose experience and expertise we value very highly. It is because of that expertise that this is such a commendable report.

The debate gives me the opportunity to set out to your Lordships the Government’s position on this technical but important subject, to the extent that I can while we are in the course of a negotiating process. Before addressing the specific issue of civil judicial co-operation, and dealing with the points made by your Lordships, it may be worth some scene-setting.

Since June, we have worked intensively with our European partners to settle the issues in the first phase of our negotiations to leave the EU. We have made good progress and reached agreement with the EU’s negotiators on some very difficult issues. Nearly two weeks ago, the United Kingdom and the EU negotiating teams issued a joint report on the progress they have made on the three areas covered in the first phase of the negotiations. It proposes a fair deal on citizens’ rights that allows for UK and EU citizens to get on with their lives broadly as now in the country in which they live; it agrees a financial settlement that honours the commitments we undertook as members of the EU, involving a fair delivery of our obligations; and it contains an agreement on the island of Ireland that preserves the territorial integrity of the United Kingdom and the stability that has been brought about by the Belfast agreement.

As your Lordships will know, last week, the European Council agreed that this report represents sufficient progress and that we should now move on to the talks about our future partnership. This allows the next stage of negotiations to proceed, and the Council has agreed that there should be quick progress on agreeing an implementation period.

On that implementation period, the United Kingdom Government’s proposal is to ensure that businesses and people have time to adjust, and to allow new systems to be put in place. We believe that any implementation period should be strictly time limited—to around two years, as noble Lords are aware. I emphasise that it should be based on the existing structure of EU rules and regulations, during which the UK and the EU would have access to one another’s markets on current terms, and the UK would take part in existing security and other measures. Of course we welcome that progress. It is in everyone’s interests that the talks now move on swiftly during the second phase.

On the subject of this debate, many noble Lords, particularly the noble Lord, Lord Cashman, used the term “certainty and predictability”. Let me be clear that there is consensus about that. Of course, we seek to secure certainty and predictability. But a third word was used by a number of noble Lords that I would also emphasise—reciprocity. Just as we look from the United Kingdom to the EU 27, with concern about how we will ensure suitable civil judicial co-operation following our exit from the European Union, so those 27 countries look to the United Kingdom in the same way, anxious as they are, just like us, to ensure certainty and predictability, because that is what reciprocity brings.

Of course, what we call civil judicial co-operation is the framework that governs a whole spectrum of legal systems work and cross-border situations and provides rules not only in the context of commercial cases, but in the context of family law. As has been noted, the current EU rules are contained in regulations such as the Brussels Ia—the revised regulation on jurisdiction recognition and enforcement of judgments—the Rome I regulation on choice of law in contracts, and the Brussels II regulation, which covers jurisdictional rules for recognition of divorces, and for recognition and enforcement of parental responsibility and other matters. It does not stop there. There is also the insolvency regulation, which is equally important to commerce across the whole of Europe and which covers jurisdictional rules on the recognition of insolvency proceedings, and there are others. There is a guide to them in the paper that was issued by the Government in August this year.

These instruments provide a legal route to resolving, with certainty and predictability, difficult cross-border situations that can arise whether in the context of commercial law or family law. Clearly, these various measures have over the years benefited many citizens of the United Kingdom. Equally, they have benefited many citizens of the EU 27. They have benefited small and large businesses throughout the United Kingdom and small and large businesses throughout Europe. I am obliged for the noble Lord’s encouragement on that.

It is against that background that I emphasise that we are all concerned to secure certainty and predictability. For example, we know that about 3 million EU citizens currently live in the United Kingdom. We wish to ensure that their rights can be certain and predictable going forward. Equally, about 1 million British citizens live in the other EU 27 countries and we wish the same for them. Again, I underline the point about reciprocity. It is not essentially in anyone’s interests to move backwards and wind down from such a position.

Indeed, that certainty is a key foundation of economic growth. Confidence in cross-border commercial contracts and investment relationships is underpinned and enhanced by clear rules governing each country’s jurisdiction, its courts’ responsibility for resolving disputes and its ability to avoid what the noble Earl, Lord Kinnoull, referred to as the Italian torpedo, which was a feature of commercial litigation in Europe until the revision of the Brussels I regulation some years ago. Everyone understands the need for an effective system of cross-border judicial recognition, if I can call it that, in the context of the choice of law, choice of jurisdiction and enforcement proceedings. That is not cut down by any red line. I will return to that in the context of something that was said by the noble Baroness, Lady Kennedy.

The Government are seeking a future agreement with the European Union that allows for close and comprehensive cross-border co-operation. I will return to the point raised by the noble and learned Lord, Lord Hope, about what we are seeking in that context. But what we want to do is reflect as closely as possible the substantive principles of the current framework. They work well for citizens in the United Kingdom and throughout Europe. In addition to other regulations, I mentioned such things as the insolvency regulations, the EU service regulations, the taking of evidence regulations and, in the context of Brussels II and family matters, the Maintenance Regulation. They are all-embracing.

To touch on one or two points, under the repeal Bill, we will incorporate into domestic law the Rome I and Rome II instruments on choice of law and applicable law in contractual and non-contractual matters. If we do that, and Rome I and Rome II already apply in the other EU 27 states, then essentially we will have achieved a level playing field in those matters. There is no need for us to do more than that in the context of Rome I and Rome II.

Of course, in other areas, it will be necessary for us to engage in negotiations with certain parties. The matter does not just stop at the stage of Brussels and the EU; there are countries beyond the European Union. We have signed up to agreements in civil judicial co-operation that apply well beyond the EU: reference was made to the council of the Hague Conference, which gives rise to a series of Hague Conventions in this area. There are also the UNCITRAL—United Nations Commission on International Trade Law—provisions as well, which apply beyond the EU. We will continue to embrace all of those.

The noble Lord, Lord Beecham, suggested that there were perhaps three Hague Conventions that we were interested in, but it goes much further than that. The UK is a signatory to the 1965 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters; the 1970 Convention on the Recognition of Divorces and Legal Separations, which I accept does not go as far as Brussels II; the 1980 Convention on the Civil Aspects of International Child Abduction; the 1993 Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption; and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. So, there is a great deal more to this subject than just Brussels I, Brussels Ia and Brussels II.

Reference was also made to the Lugano convention, which is the convention on judicial co-operation between the EU and the other EEA countries—Norway, Ireland and Liechtenstein. Denmark has a separate agreement, which I will not go into detail on at the moment. I want to make one point about the Lugano convention, which I accept has not caught up with Brussels Ia —although it is up to speed with Brussels I. It is wrong to suggest that any red line, as it is termed, with regard to the CJEU’s jurisdiction is a barrier. The Lugano convention is not subject to the direct jurisdiction of the CJEU, even though the EU is a party to the Lugano convention. So, there are instruments through which we can achieve judicial co-operation, outwith the direct jurisdiction of the CJEU. That reflects the steps that we are endeavouring to take in present negotiations, and indeed what drives them.

[Baroness Ludford (LD)]

The point that was made in our report, which I certainly tried to make, was that we were not sure how it would be possible for the UK to accede to the Lugano convention in practice, given that it is between the EU and three EEA countries. I did not mention the red line about the CJEU in the context of the Lugano convention; the question was more about how we could manage to insert ourselves into the Lugano convention.

[Lord Keen of Elie]

There is no legal barrier to us becoming a party to the Lugano convention, but that would be a subject of negotiation with the council to the Lugano convention. I believe it was the noble Baroness, Lady Kennedy, who suggested that the CJEU was somehow a red line in this respect. I emphasise that it is not a red line, but it is an issue that has to be addressed in the context of the present negotiations.

I will touch on one or two points made by noble Lords in the debate, beginning with the noble Baroness, Lady Kennedy of The Shaws. Again, I go back briefly to her suggestion that our rejection of the direct jurisdiction of the CJEU had a profound effect on civil judicial co-operation. I simply cannot accept that. It does not apply in the context of the UNCITRAL rules, the Hague convention or Lugano. Therefore, there are clearly areas where we can negotiate and determine judicial co-operation without accepting the direct jurisdiction of that court.

The noble Baroness also observed that Lugano had not been upgraded. I think she suggested it was essentially stuck in aspect, or something of that kind.

[Baroness Kennedy of The Shaws]

I said aspic. It is a sort of jelly.

[Lord Keen of Elie]

Indeed so. I am familiar with it—absolutely ghastly stuff.

It is not stuck; it so happens that the convention has moved more slowly than Brussels in this context. Lugano was essentially in parallel with Brussels I. When Brussels moved on to Brussels Ia Lugano did not accelerate at the same speed, but that is not to say that it is in aspic.

I may have misheard the noble Baroness, but she suggested, in the context of arbitration, that there was no allowance for enforcement of arbitral judgments. That is not the case, because the New York convention provides for enforcement of arbitral judgments. That applies right across the world. It is not limited in any sense to the EU. Again, it seems arbitration—and commercial arbitration, which is particularly important in the context of the City of London, for example—is not affected by these issues of reciprocal judicial agreement and enforcement.

The noble Baroness, Lady Shackleton of Belgravia, suggested that the Government’s response was disappointing. I hope we have moved on from that point. She suggested that the reference to things being wound down would not do, but with great respect, we have no desire to see any of this wound down. We seek certainty, predictability and an outcome that we can say is in parallel with Brussels Ia, Brussels II and the other regulations referred to.

The noble Lord, Lord Cashman, referred to the Brussels regulations having a significant role. He is absolutely correct about that and we acknowledge it. Indeed—I believe I can get this far—we certainly agree as to our goal. He may feel that we are a little less certain than others about how we get to it, but there is no suggestion or intention of us walking away from these regulations. We will have to address the question of the direct jurisdiction of the CJEU and we acknowledge that.

[Baroness Shackleton of Belgravia]

I apologise for interrupting, but I did not invent the phrase “wound down”. I can quote it directly back to the noble and learned Lord. The Government’s reaction to our report was,

“in the event that we do not agree an arrangement for future civil judicial cooperation with the EU, it will be important to have reached a common view on the general principles that would govern how ongoing cooperation in this area could be wound down”.

[Lord Keen of Elie]

That is absolutely correct, but the noble Earl, Lord Kinnoull, brought this out more fully when he distinguished between cases in the pipeline and those that arise post Brexit. As paragraph 91 of the joint report points out, there will essentially be agreement—or consensus; let me put it that way—on how we deal with existing cases at the point when we leave the European Union. But there is no desire to see us walk away or wind down the existing regulatory regime.

The noble and learned Lord, Lord Hope of Craighead, posed two questions in the context of the Government’s response, where we talk about a “close and comprehensive agreement”. It cannot be a mirror of what is already there, because of the jurisdiction of the CJEU, but “close and comprehensive” is what we seek.

The noble and learned Lord’s first question was whether we could give an assurance that the aim is to achieve the same degree of certainty and predictability. The answer, I would suggest, is yes. The aim is most certainly to achieve that. I assure him that there will be no cliff edge. We have no desire for there to be any cliff edge anywhere, but that will be the subject of negotiation because we are now entering the second phase. Perhaps it is more important to point out that the Government’s aim in this context is to ensure that we have certainty, predictability and continuity.

[Lord Hope of Craighead]

What would happen if at the end of the time-limited implementation period it had still not been possible to achieve what the noble and learned Lord said in answer to my first question?

[Lord Keen of Elie]

If at the end of the transition period there had been no agreement, there would be no basis for reciprocal enforcement pursuant to Brussels Ia, Brussels II and those regulations, because we would no longer be a member of the EU for those purposes. That would appear to follow. Nevertheless, there would still be recourse to the Hague convention, although I am the first to accept that the convention provisions do not replicate or achieve the level of predictability and certainty that is in the Brussels regulations.

[Lord Hope of Craighead]

Does that not just heighten the importance of achieving agreement during the implementation period as a matter of urgency?

[Lord Keen of Elie]

I absolutely concur, which is why we and the EU have expressed a desire to move forward to the second phase of negotiations as swiftly as possible. I emphasise that this is about reciprocity. It is about the interest not only of the United Kingdom but of the EU. It appears to me that those interests will eventually prevail.

I am afraid that I keep on getting a note saying that I have one minute to go and I keep on stretching that one minute. I have not expressly addressed all points raised by noble Lords, but perhaps I may touch on one or two. I entirely concur with the noble Lord, Lord Cromwell, that one cannot negotiate in public. We can express our intentions and our aims, but it is very difficult for us to give a running commentary about where we are on these issues any more than on other issues, but I underline our aims in this context.

The noble Earl, Lord Kinnoull, referred to the delay in the Government’s response to the report. I apologise for that. The report was followed by the general election and then by the Summer Recess. The government paper was issued on 22 August, when I believe that the noble Baroness, Lady Kennedy, was invited to take part in a briefing on the matter, but I accept that it took until the beginning of December for the response to be published.

The noble Lord, Lord Beecham, asked about progress in “discussions”. These are not discussions; these are negotiations. The noble Lord is a very experienced lawyer and knows perfectly well that one cannot have or maintain a running commentary on such matters when one is hoping to achieve consensus at the end of the day. However, we verily believe that we will achieve certainty and predictability, which, I emphasise again, is our aim.

I again thank the noble Baroness, Lady Kennedy of The Shaws, and her sub-committee for the report.

CPS: Disclosure of Evidence

Lord Keen of Elie Excerpts

Monday 18th December 2017 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice.

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

My Lords, prosecutors are obliged to disclose relevant material that could assist the defence case. That obligation is not determined by issues of cost. The Crown Prosecution Service is considering with the police a recent independent review by Her Majesty’s Chief Inspector of the CPS of disclosure policies and practice.

[Lord Morris of Aberavon]

My Lords, the then chairman of the Bar Council, Ms Heather Hallett QC, complained as far back as 1998 about non-disclosure. I believe I took steps to put matters right. Matters seem to have gone backwards since then. In the light of recent events, will the Attorney-General set up an independent inquiry, headed by a judge, to examine whether disclosure rules are being complied with, to ensure the timely delivery of justice?

[Lord Keen of Elie]

My Lords, disclosure in the context of criminal cases has not gone backwards since 1998. There is no present intention to set up an inquiry of the type referred to by the noble and learned Lord.

[Baroness Chakrabarti (Lab)]

My Lords, I think we can all agree that early and adequate disclosure is at the heart of a fair criminal justice system. Given that the senior independent prosecutor at the Bar who averted a recent miscarriage of justice, in addition to being a senior and experienced prosecutor, is a former Conservative MP, who described a system “creaking” for lack of resources, will the Minister please consider my noble and learned friend’s request and, in any event, return to this House with a Statement after more full and adequate consideration of what happened here?

[Lord Keen of Elie]

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

[Lord Faulks (Con)]

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

[Lord Keen of Elie]

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

[Lord Judge (CB)]

Could the review also look into this simple question? It is reported that it took 14 months for this young man to be charged, which means that he was on bail uncharged for 14 months. What on earth is the reason for that?

[Lord Keen of Elie]

My Lords, I am not able to determine why the charge took as long as it did in that case. I appreciate that investigations take longer in some cases than they do in others, but I cannot—

[Noble Lords]

Oh!

[Lord Keen of Elie]

I wonder whether noble Lords wish me to continue. I am obliged to the Opposition Benches. To give an example, there are instances in which a considerable amount of digital data relevant to a particular complaint have to be considered.

[Lord Paddick (LD)]

My Lords, in the case of Liam Allan, it was fairly obvious that this material should have been looked at, and what happened was either the result of lack of resources in the police service or in the Crown Prosecution Service or a deliberate attempt to pervert the course of justice. Can the Minister estimate how many people are unlawfully imprisoned as a result of similar mistakes having occurred in the past?

[Lord Keen of Elie]

I believe that the noble Lord probably knows the answer to his own question. Nevertheless, the alternatives that he advances do not exhaust the issue of why, if it occurred, disclosure was not made at an appropriate time, and that will be the subject of a joint high-level review by the CPS and the police. It is not for me, in this place, to anticipate the outcome of that review.

[Lord Anderson of Swansea (Lab)]

My Lords, will the conclusions of the proposed internal review be published?

[Lord Keen of Elie]

I do not anticipate that the review itself will be published, but I am confident that its conclusions will be.

[Lord Cormack (Con)]

My Lords, would not my noble and learned friend acknowledge that there is very widespread concern about this clear near miscarriage of justice? Could he at least say that he understands why people’s confidence in the police service has been significantly undermined?

[Lord Keen of Elie]

My Lords, again, I am not going to anticipate the outcome of the review that will be undertaken jointly by the CPS and the police in respect of this case.

[Lord Pannick (CB)]

My Lords, why is it that the full detail of the internal review should not be published, given the public interest in the matter?

[Lord Keen of Elie]

My Lords, at this stage it is anticipated that the conclusions of any review will be published, but it is not usual or normal for the full terms of an internal review to be put into the public domain.

[Viscount Ridley (Con)]

My Lords, will the review look at the culture of “sales targets” within the police—as it was described by the person in this case—as an issue?

[Lord Keen of Elie]

My Lords, I am not familiar with the term “sales targets” in this context. Clearly, a balancing exercise has to be carried out to ensure that, particularly in cases of this kind, complainants are able to come forward uninhibitedly and, equally, that anyone complained against is given a full and fair opportunity to put forward their defence. However, I reiterate that I am not familiar with the term “sales targets” in this context.

[Lord Dholakia (LD)]

My Lords, will the review take into account past cases in which injustice may have been done because of the failure to disclose information to the defence solicitors?

[Lord Keen of Elie]

My Lords, the terms of any review are yet to be determined, but it will be an internal review into the particulars of this case.

[Lord Campbell-Savours (Lab)]

But that is where the problem lies. The noble Lord’s question is relevant: what about all the other cases? I have handled a lot of cases over the years in which people have been accused of rape. What about those cases in which a mistake or error of judgment was made?

[Lord Keen of Elie]

My Lords, here is a criminal cases review board, which was set up to address the sorts of issue to which the noble Lord refers.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, would the Minister concede that the reason this case has much wider relevance than the particulars of the individual concerned, however dreadful his circumstances may have been, is that it allows credence to be attached to the notion that there are more examples of injustice against people who are accused of rape than against those who have suffered rape? The review really ought to take that into account.

[Lord Keen of Elie]

I note what the noble Baroness says on that matter. I reiterate that it is fundamental that justice is fair to both the accuser and the accused.

[Baroness Berridge (Con)]

My Lords, as I understand it, a recent change in the Crown Prosecution Service is the demise of the disclosure offices, and those duties have been passed back to the police. Barristers are expressing concern about whether the police are adequately resourced or trained to do that. Will my noble and learned friend outline whether that is indeed the case and that there will be a time at which we will review whether that is also having an effect on disclosure?

[Lord Keen of Elie]

I am not in a position to say whether that is having an effect on disclosure, but that is why, at the highest levels, the CPS is looking at the outcome of the inspector’s review of the CPS disclosure policies and practice. No doubt that is an aspect of the review that will be taken into account.

Probation Service

Lord Keen of Elie Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Laming (CB)]

My Lords, I beg leave to ask a Question of which I have given private notice.

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

My Lords, the Government are committed to delivering a probation service that strictly enforces sentences, reduces reoffending and protects the public. It is reassuring that the National Probation Service, which supervises high-risk offenders, is doing a good job overall, and we will use this incisive report to continue improving it. We have changed community rehabilitation companies’ contracts to better reflect their costs and are clear that CRCs must deliver a higher standard of probation services.

[Lord Laming]

My Lords, I thank the noble and learned Lord. However, does he agree that this well-researched report, which I commend to the House as of interest to us all, presents a thoroughly dispiriting account of just how great has been the deterioration and the effectiveness of the probation service in the past three years? It is now clear that the so-called innovative programme has resulted in a disjointed and incoherent system despite the hard work of the staff. I hope the Minister will agree that the victims of crime, the courts of this country and local communities deserve better, and I hope urgent action will now be taken to recover what has been lost in these recent changes.

[Lord Keen of Elie]

My Lords, we recognise the concerns identified by the inspectorate and are working hard to address these problems. Many of the performance issues with CRCs stem from the financial challenges that providers are facing, which has meant that we have addressed those contractual terms. However, I observe that nearly two-thirds of CRCs have reduced the number of people reoffending.

[Lord Beecham (Lab)]

My Lords, this report is another legacy of the unlamented tenure as Lord Chancellor of Chris Grayling. The chief inspector states:

“Regrettably, none of government’s stated aspirations for Transforming Rehabilitation have been met in any meaningful way … I question whether the current model for probation can deliver sufficiently well”.


She identifies a number of deep-rooted organisational and commercial problems and says:

“We find the quality of CRC work to protect the public is generally poor and needs to improve in many respects”.


She adds that,

“unanticipated changes in sentencing and the nature of work coming to CRCs have seriously affected their … commercial viability, causing them to curtail or change their transformation plans”.

They have reduced staff numbers, some to a worrying extent. Is it not time for the Government to review their ideological commitment to private sector organisations playing a major role in criminal justice, with results often as disastrous as these?

[Lord Keen of Elie]

My Lords, this is not an issue of ideology. Many of the CRCs’ performance issues stem, as I say, from the financial changes they have faced because of the limited number of referrals they have received, and that has impacted on their performance. We hold CRCs to account for their performance through robust contract management. Where that performance is not good enough, we require improvement plans to be put in place.

[Lord Paddick (LD)]

My Lords, one of the important issues that the chief inspector raises in her report is the fact that low-risk people, who are supposed to be supervised by the probation service, can become high-risk. She gave the example of someone convicted of driving while disqualified, who was receiving telephone supervision—one call every six weeks—and who eventually assaulted a previous partner. Does the noble and learned Lord accept that a phone call every six weeks is no way to supervise people who are supposed to be under the supervision of the probation service?

[Lord Keen of Elie]

My Lords, supervision of offenders needs to be proportionate to the risk they present. In some cases, remote contact may be appropriate for lower-risk offenders who are complying with their orders. However, we recognise that best practice is for probation officers to work with offenders face to face.

[Lord Ramsbotham (CB)]

My Lords, can the Minister please tell the House what the case loads are for individuals in the National Probation Service and in the community rehabilitation companies? A case load of 200 is simply unacceptable, and it is unbelievable that anyone can exercise any form of supervision of that number of people.

[Lord Keen of Elie]

My Lords, I do not have the current figures in respect of case loads for the service but I undertake to write to the noble Lord and will place a copy of that letter in the Library.

[Lord Rooker (Lab)]

My Lords, the Minister has been meticulous in not thanking or supporting the inspector for her report. I invite him to do so. During my 12 years in government I came across Dame Glenys Stacey, and she is one of the finest public servants I had contact with during my time as a Minister. She deserves incredible support and the thanks of the House for the report, and I should like to hear it from the Minister.

[Lord Keen of Elie]

My Lords, I am perfectly happy to endorse the observations made by the noble Lord. Had I been asked about that point earlier, I would have responded in the same way.

[Lord Birt (CB)]

My Lords, I declare an interest as the spouse of the founding director-general of the National Probation Service. This is a devastating report and the Minister will find some of the statistics that he is unaware of in it. These reforms were ill framed and speedily and poorly implemented. Does the Minister accept that it is time to go back to the drawing board?

[Lord Keen of Elie]

We do not accept that it is necessary to go back to the drawing board. It is, however, necessary to address the shortcomings in the delivery by CRCs. That is what we are in the course of doing.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, is the Minister satisfied that the CRCs are properly breaching people, given that they are not fulfilling the requirement of their orders? Does he accept that it is extremely important that the judiciary and the magistracy retain their faith in community sentences? If the orders are not properly administered and people are not properly breached, it will undermine faith in those sentences.

[Lord Keen of Elie]

My Lords, I endorse entirely the observations made by the noble Lord. It is for the courts to impose programme requirements as part of the community or suspended sentences orders that they make. Clearly, we have to ensure that they continue to have faith in the system when they are making those orders.

[Lord Beith (LD)]

My Lords, surely the case is overwhelming for a careful review of what the Government were warned about by the House of Commons Justice Committee and others: not providing the resources for Through the Gate supervision of prisoners, which was the purpose of the reform, would ensure that it would fail. Given that the structure has not worked either because, as the Minister has indicated, far more people have been referred to the National Probation Service because of the level of their offence, it is surely time to review the operation of the scheme.

[Lord Keen of Elie]

My Lords, we do not consider that a root-and-branch analysis or going back to the drawing board is required at this time. However, we are taking active steps to address the very point that the noble Lord raises. Indeed, we are paying CRCs significantly more in the way of funding to ensure that they can deliver the services required, including, critically, Through the Gate services.

[Lord Cormack (Con)]

My Lords, if the whole purpose of prison and the probation service is rehabilitation, which it must be, is it not essential that whether you live in Lincoln or Bootle or Bognor or Bath, you get the same service? Will my noble friend reflect on that and on the wisdom, or lack of it, in farming out responsibilities of the state to private concerns?

[Lord Keen of Elie]

My Lords, responsibilities have not been farmed out. Contracts have been entered into and they are properly supervised.

[Baroness Butler-Sloss (CB)]

Is the noble and learned Lord really saying that the Government are satisfied with a telephone form of probation, because I do not believe anybody in this House is?

[Lord Keen of Elie]

My Lords, we are not satisfied with the telephone form of probation but, as I said, contact with offenders has to be proportionate to the risk they present.

[Lord McNally (LD)]

My Lords, I assure the Minister that when these proposals were put through by the coalition Government they were ideologically driven, and some of the flaws that have emerged reveal the kind of compromises that were created in the probation service. Before these reforms, the probation service had an excellent report; we now have this disastrous report. If the Minister is approaching this ideologically, I put it to him that there is now a strong case for handing probation over wholly to the National Probation Service.

[Lord Keen of Elie]

My Lords, I am not approaching this matter as an ideologue. I am approaching it as a Minister with responsibility for the implementation of the existing system of probation, in which we continue to have faith.

Bach Commission: The Right to Justice

Lord Keen of Elie Excerpts

Thursday 14th December 2017 Lords Chamber

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

My Lords, I, too, thank the noble Lord, Lord Bach, for securing this debate. The ability of individuals to secure access to justice is of paramount importance to society and to the rule of law. Ensuring access to justice is a responsibility that every Government take seriously. I thank the noble Lord and his fellow commissioners and advisers for the work of the commission, including the final report, and for his comments in the House today. I am also grateful to other noble Lords who have contributed to the debate for their considered and diligent scrutiny of government policy on access to justice.

This Government fully agree on the importance of access to justice, to which legal aid makes a valuable contribution, and our commitment to the principle of legal aid is unwavering. Yet it is important to remember that it is only one element of access to justice. In addition to the £1.6 billion we currently spend on legal aid, which is more than a fifth of the department’s budget, we are looking to the future by investing more than £1 billion to reform our courts and tribunals. That, too, is important to ensure that access to justice remains robust and at the centre of our modern justice system. The noble and learned Lord, Lord Thomas, referred to the courts Bill. It is certainly the intention of the department that that Bill should be brought forward in order to implement these important changes.

We have also invested some £5 million to support litigants in person and we have committed to changing the Lord Chancellor’s guidance on inquests to make the inquest process easier for bereaved families by seeking to make the process less adversarial. We have announced changes that will make it easier for the victims of domestic violence to apply for legal aid, something that the noble Lord, Lord Marks, referred to in his observations. On that point, I shall pause to say that while there is a suggestion that solicitors might certify such cases, concern has been expressed in some quarters that this could give rise to a perception at least of conflict of interest. It is a matter that has to be approached with some considerable care.

As the noble Baroness, Lady Chakrabarti, mentioned, the Lord Chancellor has announced the start of the post-implementation review of the LASPO Act, thereby fulfilling the commitment made by Ministers during the Bill’s passage through Parliament in 2012. I hope that noble Lords will recognise that a modern justice system demands that all of these elements, not only legal aid, have to be brought together; essentially, what we are looking at is a jigsaw. When put together, it does seek to ensure access to justice.

The most recent reforms made to legal aid under and since LASPO were founded on the principle of ensuring that legal aid continues to be available for the highest-priority cases. It was important to take a balanced approach to legal aid, which is why the reforms within LASPO were founded on delivering better value for money for taxpayers by reducing the cost of the scheme and discouraging unnecessary adversarial litigation. It was important that some cases were removed from the scope of funding where alternative routes of resolution were or were to become available. It was also important that legal aid was focused on those in our society least able to pay for their representation.

The changes were of course subject to a significant amount of scrutiny during the passage of the LASPO Bill and they were debated extensively, with amendments being made, before they were approved by Parliament. Now, several years since the implementation of those landmark reforms, we are fulfilling our commitment to Parliament to conduct a review of the changes to legal aid. That is why we recently laid before Parliament a detailed post-legislative memorandum summarising how LASPO was implemented and making a preliminary assessment of its impact. In addition, the Lord Chancellor’s detailed post-implementation review of these changes will cover each issue that has been subject to a previous parliamentary commitment by Ministers. In that respect, we are listening to interested parties. Moreover, as indicated by the noble Baroness, we hope to publish our findings by the 2018 Summer Recess.

The noble Lord, Lord Bach, both in his commission’s report and in his remarks today, has raised the idea of a right to justice. A constitutional right to justice is, of course, not a new concept. The noble Lord, Lord Marks, referred to the speech of Lord Reed in the recent Supreme Court judgment in the UNISON case. I shall quote only a short passage, which says that,

“the right of access to justice … has long been deeply embedded in our constitutional law”.

We would all acknowledge that. Sometimes it takes an exceptional Scottish lawyer to explain to the English the scope and impact of the English common law, and Lord Reed has done that yet again. The essence of the issue and our focus should not be to mull over a right which already exists, but rather how this right of access to justice manifests itself in a modern justice system, a point touched on by the noble and learned Lord, Lord Thomas. We are focused on ensuring that it is correctly supported by an effective framework of legal aid, a well-funded, modern court system, and alternative methods of dispute resolution, which were alluded to by several noble Lords. We want to give individuals the power to address their legal issues in a way that is right for them.

Ensuring that access to justice is supported by an effective framework of legal aid guided our latest step to protect and support victims of domestic abuse. I note the point that was made about ensuring that parties are aware of their rights and their ability to secure legal advice in such cases. I am sure that that will be looked at in the LASPO review. It is not enough to have the rights—we must ensure that people are aware of the existence of those rights and of how they can be accessed. We have laid a statutory instrument enabling victims of domestic violence to secure more support in taking an abusive former partner to court. In that context, the current five-year time limit on abuse evidence in the family courts will be scrapped, while the range of documents accepted as evidence of abuse will be widened. However, as I indicated to the noble Lord, Lord Marks, we have some reservations about the idea of certification by the solicitor involved in the case. That is an area where we have worked other parties—including Rights of Women, Resolution, Women’s Aid and the Law Society—to ensure that we are doing all that we can to protect and support victims. I am grateful for the discussions on this point today, and I share the views and passion of your Lordships’ House for ensuring that victims have access to justice.

Another point that was touched on was the importance of early legal advice and being able to engage with people at a point in time when it may be feasible to resolve a dispute or issue without resorting to litigation. We talk about individuals exercising their right of access to justice, but it is important to remember that the court is not always the right solution. It is not just a financial consideration; there are other reasons why early legal advice may be appropriate. Access to such advice or information can help individuals to understand their options and it may dissuade them from pursuing court proceedings in circumstances where it is not the appropriate step to take to resolve their issues. That is why we have protected legal help in many cases and why we spent almost £100 million on legal help last year.

Where an alternative route is more appropriate, people should be empowered to pursue it without having to find a lawyer at a great cost to them or to the state. For instance, in cases involving separating couples, mediation or other forms of out-of-court dispute resolution can be less stressful and quicker than going to court—and it is certainly often cheaper than employing lawyers. It can help to reduce conflict after separation, which we know can lead to poor outcomes for children. So we continue to aim for greater use of alternative dispute resolution in such cases, such as when separating parents wish to resolve issues of child arrangements or finances. I note the observations made about where some difficulties may be encountered because, for example, there may be issues with the availability of expert evidence.

We have recently launched an online child arrangement information tool, which is intended to provide clear and concise information on the dispute resolution services that can help parents agree child arrangements, including mediation. I fully accept the importance of ensuring that such services are made available and that people become aware of them. We have also introduced a telephone helpline to provide legal advice in certain categories of law. Last year, there were more than 20,000 instances of advice being provided by that means. In addition, and in reflection of today’s society, we have also developed a user-friendly digital tool that makes it clear to people when legal aid is available to them. For people who are not eligible, the tool signposts them to alternative sources of free or commercial advice.

The matter of litigants in person was touched on and I appreciate the points that were made about their impact, or potential impact, on the court process. Since 2015, the Government have invested £5 million of funding to support litigants in person through the litigants in person support strategy—although I accept that that will not necessarily lead to the production of a single bundle, as alluded to by the noble and learned Lord, Lord Judge. However, it will hopefully improve the ability of litigants in person to pursue matters, particularly in the higher courts.

In some circumstances where publicly funded representation is clearly necessary but matters are generally out of scope of LASPO, funding can be provided through the exceptional case funding scheme. I hear the criticisms that have been made of that scheme, but I will make one point about it in so far as it relates to inquests, where more than half of the applications made in the last two years have been granted. The inquest process is of course important. It can be incredibly traumatic for those involved and it is important that we give as much assistance as we can where the bereaved have to consider the circumstances of the death of a relative. There again, early legal advice can be helpful in allowing families to understand what the process is and will be.

There are additional issues concerning deaths in custody. Noble Lords may be aware of the recent report on deaths in custody by Dame Elish Angiolini, which highlighted some of the issues regarding public participation at inquests in cases of that kind. We are working closely with the joint Ministerial Council on Deaths in Custody, and we have committed to update the Lord Chancellor’s guidance for these cases by the end of the year because they are clearly important.

I appreciate that this is an important debate, no matter when it comes in the House’s calendar, and I am glad of the opportunity to address this matter. As we go forward, I reaffirm our commitment to the post-implementation review of LASPO that is now under way and which I hope will address many of the questions raised in your Lordships’ House.

We are committed to looking forward to ensure access to justice for future generations. We are continuing to ensure that legal aid is made available to the most vulnerable. We are investing more than £1 billion to transform our courts and tribunals, and we are committed to delivering a modern justice system, today and into the future, that maintains its standing in the world.

I will very briefly touch on one or two of the particular points raised during the debate. The noble Lord, Lord Bach, raised early advice as an essential element in any legal assistance process. We accept that. Indeed, we have been seeking to develop mediation and advice as being appropriate in this context.

Regarding statutory recognition of a right to justice, we suggest that that is already embedded into our common law. We have reservations about whether such statutory recognition could improve matters. Therefore, I express reservations about that.

My noble friend Lord Faulks indicated that it perhaps would not be appropriate—I believe this reflected observations by the noble and learned Lord, Lord Thomas—to take the matter of spending for legal aid away from Parliament and government and essentially to subcontract it to a quango. There are very real political issues about these matters. They should ultimately rest with Parliament and government.

The noble and learned Lord, Lord Falconer of Thoroton, referred to the need for an agency, an independent body, that was not subject to ministerial interference in the context of legal aid. I observe that the Legal Aid Agency operates free from ministerial interference. Indeed, there is a statutory prohibition on Ministers interfering in respect of any legal aid application. Therefore, there is that degree of independence already in the system.

The noble Lord, Lord Dholakia, alluded to the issue of those in custody and prisoners. I indicate first of all that spending in respect of legal aid for those in custody has increased recently. On the particular point he raised in the context of the recent Court of Appeal judgment, an amending statutory instrument is being drafted to reinstate legal aid in the three categories of cases highlighted in that judgment. Indeed, I reassure him that we hope to have that statutory instrument going forward in the near future.

The noble and learned Lord, Lord Phillips of Worth Matravers, raised the interesting point that we have to address not just the issues of legal aid and access to justice but the issue of how we provide justice in this country. It may be that in some areas—inquests are a particular example—we will see further moves towards a more rigid, inquisitorial system that would benefit parties going forward. After all, the inquest was originally intended to be an inquisition, an inquisitorial system, and over the years it has rather grown arms and legs. I am certainly not suggesting a movement towards a civilian code or anything of that kind, but I do believe that the noble and learned Lord’s contribution underlines the fact that we are dealing with a rather broad and delicate ecosystem. We cannot just take legal aid out and put it back in; we have to look at the overall system to see how it is going to work.

If I do not mention noble Lords specifically, it is not because I am unconscious of their contributions but because I am slightly more conscious of the time, and of the fact that I hope I have addressed some of their points already. The noble and learned Lord, Lord Woolf, spoke of the distinction between the Rolls-Royce and the bicycle. Clearly, there are those who require the Rolls-Royce, but most of us are content with a bicycle and have been during our professional careers.

The noble Lord, Lord Wigley, raised certain issues about the provision of legal aid in Wales. I understand that there is intended to be a commission in Wales looking at the provision of justice—albeit we are talking about a single jurisdiction between England and Wales, there are certain specialities that are developing, particularly from statutory law.

I hope that I have covered the majority of the points that noble Lords raised. A number of noble Lords raised questions about early intervention, advice centres and the ability to seek advice before the need for court litigation. The noble Lord, Lord Howarth, alluded to observations made in Westminster Hall by a fellow Minister. I note the observations that were made in that regard. Of course, the Ministry of Justice is undertaking a review of LASPO, and we will take into account all the interested parties’ submissions on that matter.

I hope that I have been able to address some of the points raised in what I acknowledge is an important debate, which had as its foundation the report of the commission undertaken by the noble Lord, Lord Bach, and which we will take away and give consideration to. I am obliged to noble Lords.

Brexit: Human Rights

Lord Keen of Elie Excerpts

Tuesday 12th December 2017 Lords Chamber

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

My Lords, I congratulate the noble Lord, Lord Cashman, on securing this important debate. The noble Baroness, Lady Kennedy, said that human rights matter. I would go further: human rights are central to the way we live now and to the way we wish to live in the future. They are an integral part of the society of which we wish to be a part. It is not only that they matter but that they are there and will be retained.

Protection of human rights remains a priority for this Government. The principles that underpin our legal and justice framework have developed over many centuries, with the evolution of human rights at its heart. As the noble Lord, Lord Cashman, pointed out, history is important because it has taken time for these rights to develop, emerge, be recognised and upheld without qualification. We look back upon a long-standing tradition of liberty and human rights.

The noble Lord mentioned Magna Carta, which was rediscovered in the 17th century but nevertheless is a critical foundation of the rights we enjoy today. The 1689 Bill of Rights and the common law underpin much of what we have, including—as was pointed out in the recent Unison decision of the Supreme Court—the right of access to justice, which is essential to the maintenance of human rights. We also have the Human Rights Act 1998, which this Government are committed to retaining in the present Parliament.

Reference was made to the role that the United Kingdom has played in developing the international human rights framework—including in the Council of Europe—the European convention and the United Nations. We have recently been re-elected to the United Nations Human Rights Council and will be a part of that until at least 2019. That is an important step and position for the United Kingdom.

The United Kingdom’s human rights framework is multi-layered and has developed over many years. Our departure from the European Union does not change our commitment to human rights, nor is there any reason why it should. The European Union began to recognise what it termed fundamental rights many decades ago. This initially occurred through the case law of the European Court of Justice and subsequently through EU legislation. The EU decided to reaffirm the rights and principles that it recognised in what became the European Union Charter of Fundamental Rights—the charter, as it has been referred to by noble Lords. That was first proclaimed in 2000 and became legally binding in 2009 with the introduction of the Lisbon treaty.

It is important to stress that the charter did not create rights. It brought existing European Union and international rights and principles together into a single document—the charter—but it did not create them. EU fundamental rights in the charter then applied to member states only when they were acting within the scope of EU law. Now the United Kingdom has, despite the misgivings of many in this House and elsewhere, voted to leave the European Union, and the withdrawal Bill currently being discussed in the other place is designed to ensure that the United Kingdom exits the European Union with certainty, control and continuity. That is essential in the national interest. The Bill will save EU-derived domestic legislation, including UK legislation that has been passed to implement EU directives, and incorporate direct EU legislation and directly effective rights that arise from treaty articles into domestic law.

The substantive rights that provide the source law of the charter will be retained or converted into domestic law. Although the charter will not be retained after exit, non-incorporation of the charter into domestic law will not in itself affect the substantive rights that individuals already benefit from in the United Kingdom, as the charter was never the source of those rights. The Government remain fully committed to ensuring that there are strong human rights protections once we leave the European Union; we do not consider that those are in any way undermined by our decision not to incorporate the charter into domestic law.

The Government are committed to furthering the United Kingdom’s status as a global, outward-looking nation, contrary to the suggestion of the noble Baroness, Lady Chakrabarti. We are playing an active, leading role in the world in that regard; I mentioned our position on the UN Human Rights Council. We will continue to support an international order in which rules govern state conduct, and be champions of British values of freedom, tolerance, democracy and the rule of law. We will continue to comply with our international human rights obligations and take action to tackle any abuse of those rights where we can.

Of course, as far as the United Kingdom is concerned, the principal international treaty in this regard is the European Convention on Human Rights, which is given further effect domestically by the Human Rights Act. The Government have made clear their commitment to respecting and remaining a party to the convention. We will also continue to work with our European partners to improve the functioning and efficiency of the Strasbourg Court—particularly in the light of its enormous backlog of pending cases, which disrupts its ability to maintain the jurisprudence of the convention. Our commitment to European co-operation in this area and pan-European standards is as firm as ever. Of course, we remain members of the Council of Europe. In addition, as I believe the noble Lord, Lord Cashman, noted in his opening speech, we are signatories to the Council of Europe Convention On Preventing And Combating Violence Against Women And Domestic Violence—the Istanbul convention—and we are working towards meeting our commitment to ratifying it.

I turn to some other specific areas of rights where the UK is taking action. I hope the noble Lord, Lord Cashman, would agree that the United Kingdom is now recognised as a world leader on LGBT rights. We can take some comfort from our record but we cannot be complacent. We have made significant progress over the past 50 years, tackling some of the historic prejudices that existed in our laws and ensuring that LGBT people are involved in the issues that affect them. We are also seeking to tackle discrimination in wider society. Homophobic, biphobic and transphobic bullying in schools is clearly unacceptable, as is the disability-based bullying that was alluded to by the noble Baroness. We have invested some £3 million in a programme to tackle this bullying in primary and secondary schools in England. The programme is aimed at schools that currently have no or few effective measures in place to address the issue.

We are also looking to the future. In July this year, we launched a national online survey to gain the views of LGBT people living in the United Kingdom on what they think about public services. There are questions on health, education, safety, the workplace and more general questions about what it is to be an LGBT person in the United Kingdom. The survey received quite unprecedented feedback, with over 100,000 responses, making it the largest LGBT survey in the world. We will analyse those results closely and set out further steps to promote LGBT equality next year.

We are also committed to achieving gender equality—I noted, as has been mentioned, that more than half of the contributions in this important debate were from women; I certainly welcome that. We will be doing that through the 2015 UN sustainable development goals, which consist of 17 goals, one of which specifically focuses on achieving gender equality and women’s empowerment. Indeed, our Foreign Secretary wants our foreign policy consciously and consistently to deliver for women and girls, and he appointed the first FCO special envoy for gender equality in February. The Foreign and Commonwealth Office works closely with other departments to achieve our gender equality goals.

If I stray a little beyond my time I hope noble Lords will forgive me. Defending the right to freedom of religion or belief—a point touched on by the noble Lord, Lord Alton—remains a high priority for the Government. Freedom of religion or belief is a human right enshrined under the universal declaration and one that we respect. Indeed, in February the Prime Minister reiterated her commitment to,

“stand up for the freedom of people of all religions to practise their beliefs in peace and safety”.

Domestic violence again is a matter that has to be addressed in this context. We are committed to introducing a draft domestic violence and abuse Bill to demonstrate our commitment to, among other things, ratifying the Istanbul convention, which I mentioned before. There is a further ambitious package of non-legislative measures to be funded in that regard.

I turn to the particular comments made by noble Lords. Much was said by the noble Lord, Lord Cashman, that I hope I have touched on already. I hope that I have, in a sense, been able to put some of his doubts to rest. While the general principles underpinning the charter are of critical importance, the law we retain after Brexit will ensure that the rights of individuals will be respected. In so far as the charter distinguishes between rights and principles—a point touched on by a noble Lord—we can of course enforce the rights, but we cannot enforce principles. However, they will remain relevant and material to the interpretation of the jurisprudence going forward in so far as it applies to the construction and applicability of rights relating to equality and other human rights. There was also the issue of EU case law post Brexit, which is addressed by Clause 6 of the Brexit Bill.

My noble friend Lord Faulks observed that the charter contains a fine statement of general principle. I hope I have addressed that point. Those principles of course are important, but they do not operate in the same way as rights.

The noble Baroness, Lady Drake, referred to concern about a lack of confidence and a need for the Government to set out a clear vision that there will be no dilution of human rights post Brexit. There is no intention that there should be a dilution of human rights post Brexit. The intention is that those rights that we enjoy and which underpin the charter—they are not created by the charter—should continue and be maintained.

On the contribution of the noble Lord, Lord Alton, I noticed that he proposes to put forward the genocide Bill. I will of course look at it and consider its terms. We have debated this on previous occasions. I understand his concern and his deep interest in this area.

My noble friend Lord Shinkwin had very particular points to make about the position of a commissioner in the context of disability. He added that he would ask me nothing. I am obliged to him for that, because it is beyond my brief to address the points that he raised, but I noted what he had to say.

The noble Lord, Lord Judd, opined that human rights are not an option and I hope that what I have said will reassure him that this Government do not regard them as anything like an option. We certainly do not regard them as a form of negotiating point. I wish to make that clear.

The noble Baroness, Lady Campbell of Surbiton, indicated that there should be no regression. Again, I emphasise that there is no intention that there should be. She touched on some specific questions about how we will maintain protections post Brexit if there is no charter. Again I emphasise that the charter itself is not the source of rights; it is an expression of principles and rights that already exists, and already existed, in our domestic law. As to the issue of how one vindicates those rights, as the Solicitor-General observed in the other place, in so far as there is a question about that, the Government will consider and address it, if there are issues about whether certain rights have to be implemented in a different way after Brexit.

On the matter of immigration, one has to emphasise that there will not be an absolute bar on immigration. They are talking about free movement, and the two things are quite distinct. The immigration process is yet to be worked out and, as noble Lords are aware, there will be an immigration Bill which will address some of these issues.

My noble friend Lady Warsi suggested that human rights are not a priority for this Government, but I would dispute that. They remain central to this Government’s vision of a society. Whether it is the society that exists within the European Union or without it, it is a society that exists in Europe and exists internationally, and that has as one of its motivations a respect for the rule of law and respect for human rights, and in particular for equality.

The noble Baroness, Lady Grey-Thompson, spoke about the issue of disabled people’s rights. Again, I simply underline that those rights will be retained and protected. As regards hate crime, of course it is an important issue. I hope that I have been able to give some reassurance about the Government’s recognition of it as an issue and the steps we are attempting to take to deal with it.

The noble Baroness, Lady Whitaker, alluded to the position of the Roma population in the United Kingdom. This Government are concerned about the inequalities experienced by the Roma and Traveller communities, particularly in the context of health and education, but there are other areas as well where issues arise. There has been a race disparity audit showing that these communities are among the most disadvantaged in British society and we agree that more needs to be done to ensure that these people are not excluded and not left behind.

The noble Baroness, Lady Meacher, asked whether there are plans to water down employment and other rights by means of the powers given to Ministers under the EU Bill. That is not the intention. It is quite clear what the purpose of these powers is—it is to ensure that there is a smooth transition at the point when we leave the European Union with regard to the workability of our existing legislation. That is the aim of those particular powers.

I think I have touched on the observations from the noble Baroness, Lady Kennedy, and I hope I have responded to her concerns. But I would make one observation. She suggested—I might have misheard her—that people who want to leave the European Union, people who want a hard Brexit, do not have human rights values. I would dispute that, and I would reject it.

[Baroness Kennedy of The Shaws]

I was referring to the sections of the Minister’s own party, the Conservative Party, that are driving for a hard Brexit and have led on it. They are not people who have been proud exponents of human rights. They have been great critics of the Human Rights Act and wanted to see its abolition. They have often spoken of withdrawing us from the European Convention on Human Rights. It is reasonable to make the connection between the desire to rid ourselves of Europe and the desire to rid ourselves of the human rights connections that we have with Europe. I think that is regrettable.

--- Later in debate ---

[Lord Keen of Elie]

I am not going to debate this at length, but I wholly reject the proposition that the noble Baroness advances. I simply do not accept it at all.

A series of questions were posed by the noble Baroness, Lady Barker. Is equality before the law part of the United Kingdom’s law? Yes, of course; it is fundamental to our law. Is equality protected by United Kingdom law? Yes, of course it is. We do not have to rely on the EU charter for these rights; they already exist. The charter is an expression of rights and principles that already exist. I noted some specific questions and if the noble Baroness wishes, I will write to her to respond to those questions—I shall not attempt to address them now.

The noble Baroness, Lady Chakrabarti, sought to turn this into a party-political broadcast rather than a debate. I am not sure that is the way forward for a determination of these issues. I believe that we have fundamental beliefs in common on equality and human rights, and I reject the suggestions of xenophobia, or that there will be any loss of rights because we are losing the charter.

[Lord Judd]

The Minister suggests that my noble friend was turning this into a party-political broadcast. Does he recall that only yesterday afternoon at Question Time we were challenged from that side of the House on what our policy was? This afternoon my noble friend was giving it.

[Lord Keen of Elie]

I was not here yesterday afternoon but I am obliged to the noble Lord for his intervention.

[Baroness Kennedy of The Shaws]

My Lords—

[Viscount Younger of Leckie]

Order!

[Lord Keen of Elie]

I was very happy to allow the noble Baroness to speak in the gap and to take her earlier intervention, but there is a question of time and I am not going to take a further intervention. I have to come back to the noble Baroness, Lady Chakrabarti, and say that I am pleased that the Labour Party has decided to put human rights at the centre of its policies—I thought they were always there. I certainly hope so. Human rights have always been at the centre of our policies. It is important that we recognise that and that we reject those intrusions on human rights that can come from any number of directions, be it on the grounds of disability, nationality or religion, including anti-Semitism.

I thank noble Lords for contributing to this debate and the noble Lord, Lord Cashman, for raising this issue in the House.

House adjourned at 7.28 pm.

Selection of the President of Welsh Tribunals Regulations 2017

Lord Keen of Elie Excerpts

Monday 4th December 2017 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 14 September be approved.

Considered in Grand Committee on 29 November

Motion agreed.

Criminal Justice: Interpretation and Translation Services

Lord Keen of Elie Excerpts

Wednesday 29th November 2017 Lords Chamber

[Baroness Coussins (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and declare my interest as vice-president of the Chartered Institute of Linguists.

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

My Lords, the ministry’s suite of language service contracts was designed to ensure value for money and affordability of the services provided by its suppliers. Given the importance that the ministry attaches to the provision of court interpretation, we have not felt it appropriate to set a target figure for cost savings for the provision, which is a demand-led service. Fulfilment of interpreter bookings is currently around 98%.

[Baroness Coussins]

My Lords, that sounds encouraging, but there has been a long-standing concern that the quality and qualifications of some of the interpreters sent to our courts do not match up to the demands of the job, which results in cases needing to be rescheduled. Is the Minister satisfied that the new contract for quality assurance can provide much useful information when it scrutinises only 1% of assignments, and can he say whether interpreters’ pay and conditions have improved under thebigword contract? Poor employment practice was one of the reasons why large numbers of high-level interpreters boycotted the service previously.

[Lord Keen of Elie]

My Lords, the new contracts came into place on 31 October 2016. They include a contract in respect of quality assurance, which has proved extremely effective. Indeed, the number of complaints about the service provided has dropped quarter by quarter. As regards the numbers of interpreters available, 4,660 have now registered with the new contractors. We are proceeding on that basis; it is at present a success.

[Viscount Hailsham (Con)]

My Lords, may I support the noble Baroness in her remarks? Does my noble and learned friend agree that the provision of honest and professional interpretation in criminal courts is absolutely central to the proper construction of many cases? Does he also agree that that applies to many civil cases as well, particularly family work and immigration? What public provision is now made for those classes of case, and if none, would he consider the position further?

[Lord Keen of Elie]

I agree with both the propositions advanced by my noble friend. We have no difficulty at present with the provision of interpretation services in respect of these matters.

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

My Lords, this month there have been at least six reported instances of cases being adjourned for lack of an interpreter, and there may be more. This is part of a continuing pattern which disrupts court business and wastes resources. Does the MoJ have any new proposals to ensure that needs for interpreters are identified and arrangements made for their attendance earlier and more efficiently?

[Lord Keen of Elie]

We have no proposals to alter the present system, which works effectively. I point out that there are around 500 to 550 bookings for interpreters each day, so the number he refers to—six—is a very small proportion of the overall interpretation service.

[Lord Suri (Con)]

My Lords, will we be able to see that justice is being done without providing proper translation services, either in criminal or other proceedings?

[Lord Keen of Elie]

It is clearly critical to the administration of justice and to the issue of access to justice that full and adequate interpretation services should be available to the courts and to those who have recourse to them.

[The Lord Bishop of Leeds]

My Lords, there is clearly a difference between interpretation and translation. I speak as a former professional linguist. What about quality control? Will the Minister comment on that? Being able to deal with a language is not the same as being a competent interpreter, sometimes of very delicate matters.

[Lord Keen of Elie]

I entirely agree with the observation made by the right reverend Prelate. That is why the present contract provision includes a quality assurance provision by the Language Shop, to ensure that not only are the appropriate levels of qualification available but also the appropriate skills.

[Lord Judd (Lab)]

Does the noble and learned Lord agree that there is a great deal of anxiety about people’s experiences with interpretation? It is not just a matter of making sure that an interpreter is there—the quality of the interpretation is essential. Surely with the whole principle of the quality of justice, and of justice being seen and felt to be done, one cannot overestimate the importance of interpretation and its quality. That must apply to civil law as well as criminal law and certainly to the immigration sector.

[Lord Keen of Elie]

We are confident about the quality of the translation and interpretation services provided to the courts at present, which have been provided under the present contractual regime since 31 October 2016.

[Baroness Ludford (LD)]

My Lords, the Minster will know that this is an obligation of an EU directive. I was a rapporteur in the European Parliament; the UK Government chose to opt into this. Not only do we maintain standards that help standards across the whole EU but, if we Brexit, we will obviously want to keep up those standards so that we can operate such things as the European arrest warrant without our operation of it being called into question.

[Lord Keen of Elie]

Of course, that is one of the objectives of the withdrawal Bill, which noble Lords will have the opportunity to pass in the near future to ensure that we maintain our legal obligations in that context. Over and above the European regulation—I believe it is a regulation and not a directive—there is of course the convention right under Article 6 and the common-law right of access to justice.