Prosecutions: Defence Legal Costs

Lord Keen of Elie Excerpts

Wednesday 15th March 2017 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer to my register entry as a solicitor.

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

My Lords, in 2012 the Government limited reimbursement of the legal cost of defendants who had been convicted of a criminal offence. Where legal costs are still allowed—for example, where the defendant was not eligible for legal aid—the recoverable costs are limited to the equivalent of legal aid rates. A review will be conducted by April 2018.

[Lord Kirkhope of Harrogate]

My noble and learned friend the Minister will be aware I am sure of the recent case of an 83 year-old gentleman of good character who was acquitted of violence against an intruder on his property, but was not permitted under current rules to claim his reasonable defence costs. How can we reconcile the presumption of innocence and an acquittal with the fact that claiming legal costs incurred to maintain innocence is no longer normally possible? I know that a review of these rules is taking place; I am delighted to hear my noble and learned friend confirm that. I would be grateful if he ensured that these and similar circumstances are part of such a review, bearing in mind that the present situation is not only a deterrent to innocent parties defending themselves, but positive encouragement to sloppy preparation and decision-taking by the prosecuting authorities.

[Lord Keen of Elie]

My Lords, we are of course aware of the particular case to which my noble friend refers. I observe that the individual in question did apply for legal aid, was eligible for it and was offered it, but declined to accept it. Had he accepted that offer he would have been required to make a relatively modest contribution, which he would have been able to recover upon being acquitted. However, the individual in question decided not to accept the offer of legal aid and instead instructed lawyers privately. In those circumstances he was not eligible for recovery of costs. Of course, all these matters will be subject to the review that is to be completed by April 2018.

[Lord Beecham (Lab)]

My Lords, I refer to my interests as, effectively, a non-practising solicitor. It would appear—I am advised by leading counsel—that a change was effected to the 1985 Act via Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act, which precluded an award of costs from central funds after an acquittal in the Crown Court, or after a successful appeal to the Court of Appeal. But where the acquittal occurs in magistrates’ court or an appeal is allowed in the Supreme Court, costs apparently may be allowed. Should not the practice be the same in all relevant courts, with the judiciary able to exercise its discretion?

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[Lord Keen of Elie]

I am obliged to the noble Lord. The practice with regard to legal aid in magistrates’ court is different from that in the Crown Court. Of 126,000 cases that were committed to trial in the last year in the Crown Court, legal aid had been granted in more than 105,000. In those circumstances cost recovery can be made on acquittal. In the event that someone is not eligible for legal aid and is committed to the Crown Court, their costs are again recoverable, albeit they are limited to the legal aid rate.

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

My Lords, in all legal aid cases these regulations are straight out of Alice in Wonderland. If you are financially ineligible for legal aid, you must nevertheless apply for legal aid to get a determination that you are not eligible for it. Only then can you get your costs if you are acquitted, and then at only legal aid rates. If your solicitor does not have a legal aid contract you have to go to another solicitor who does, make the application, have it refused, and only then can you go back to your original solicitors. Will the noble and learned Lord assure us that there will be changes to this absurd regime under the review?

[Lord Keen of Elie]

I am obliged to the noble Lord. I can advise him that Alice would find it far more straightforward than he suggests. Clearly, it is not possible to determine your eligibility for legal aid unless you apply for it. In the event that you wish to apply for it you must go to a solicitor who is recognised for the purposes of the legal aid scheme. If, however, you decide thereafter that you are not eligible or are told you are not eligible and you decide to go to another lawyer, you may do so. It is a relatively straightforward scheme.

[Noble Lords]

Oh!

[Lord Keen of Elie]

My Lords, not only is it a well- ordered scheme, but I was advised of this at a recent tea party.

[Lord Deben (Con)]

Does my noble and learned friend accept that those of us who are not declaring an interest because we are not lawyers find all this ridiculous? That is because it is very hard to explain to people who have been prosecuted and who turn out to be entirely innocent, and are 82, that they cannot claim their costs. If people are innocent until proven guilty, not being able to claim their costs against people who have inconvenienced them—to say the least—does not sound to ordinary people like justice.

[Lord Keen of Elie]

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

[Lord Faulks (Con)]

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

[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock (Lab)]

My Lords, is it simpler in Scotland?

[Lord Keen of Elie]

My Lords, many things are simpler in Scotland. However, in Scotland there is an entirely distinct legal aid scheme which differs in a number of principal regards. Therefore, it is not comparable to the system in England and Wales.

Solicitors: Professional Qualifications

Lord Keen of Elie Excerpts

Monday 6th March 2017 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare my interest as chair of the University of Leeds School of Law advisory board.

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

My Lords, as the legal profession in England and Wales and the bodies that regulate it are independent from government, we have not made any assessment of the Solicitors Regulation Authority’s recent proposals. As set out in the Legal Services Act 2007, it will be for the Legal Services Board to determine whether to approve changes to the qualification arrangements for solicitors, should the Solicitors Regulation Authority seek to proceed with its proposals.

[Lord Low of Dalston]

My Lords, I thank the noble and learned Lord for his reply. However, is he not aware of the widespread concern that the Solicitors Regulation Authority’s proposals will mean that universities have to teach to the solicitors qualifying examination if they are to remain competitive, potentially constraining the breadth of the curriculum that can be taught as part of an academic law degree and stifling innovation in curriculum development?

[Lord Keen of Elie]

My Lords, we do not believe that if these proposals were taken forward it would have such a stultifying effect upon the university law schools to which the noble Lord refers. I observe that there are currently 110 qualifying law degree providers, 40 providers of the graduate diploma in law and 26 providers of the legal practice course, and no consistency of examination at the point of qualification.

[Lord Beecham (Lab)]

My Lords, given the massive cuts in legal aid, the rising costs of tribunal and court proceedings, and the difficulties resulting from the consequential growth in the number of unrepresented litigants, should not any qualification programme include a requirement to provide pro bono advice and representation?

[Lord Keen of Elie]

My Lords, as I have already indicated, the question of what qualification requirements there should be is a matter for the Solicitors Regulation Authority and for the Legal Services Board. However, of course they are concerned to pursue their statutory obligations, which include a requirement to have regard to the demands upon the profession.

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

My Lords, we are seeing something of a turf war between the SRA and the Law Society. One can of course see the case for separation, with the SRA as regulator and the Law Society governing the profession. There may even be a case for a single legal services regulator. But the position at the moment is that the SRA wants to control standards for entry into the profession and the Law Society’s concern is not to lower those standards. Do the Government have a view on how those issues can be resolved, given the public interest in maintaining standards of legal practice?

[Lord Keen of Elie]

My Lords, the Solicitors Regulation Authority has no desire to see any diminution in standards. Its concern is to increase access to the profession in order that we have a more effective and diverse profession. As regards the test of what would be appropriate for the regulation of access to the profession, the Legal Services Board will make a determination in light of the SRA’s submission.

[Baroness Deech (CB)]

Has the Minister noticed the distinct lack of guidance for the Legal Services Board? Barristers are taking this opportunity to upgrade the qualifications while solicitors are going in the other direction. Given that there are very few jobs for new solicitors, this ought to be the moment to upgrade their qualifications as well. Does he agree that it is high time for a review of the Legal Services Board, which seems to have failed to produce over the past 10 years any of the reforms and improvements that were promised at the outset?

[Lord Keen of Elie]

My Lords, we do not consider that there is a need for a further review at this time. As the noble Baroness will be aware, the Legal Education and Training Review was undertaken jointly by the Solicitors Regulation Authority, the Bar Standards Board and the Chartered Institute of Legal Executives, which resulted in a report that was published in June 2013. The review did find weaknesses in the current system of legal education, and the SRA is seeking to address them in its submissions to the Legal Services Board.

[Lord Blunkett (Lab)]

My Lords, I draw attention to my interests as set out in the register. Perhaps I could tempt the Minister to reflect on the question raised by the noble Lord, Lord Low, about the narrowing of the curriculum. I accept entirely that the SRA and the Legal Services Board are independent, but would it not be of national concern if family law, disability rights and social welfare law were to be squeezed out in the narrowing of that curriculum?

[Lord Keen of Elie]

My Lords, I understand the point made by the noble Lord and I agree that we should not see a narrowing of the curriculum, but, with respect, where people undertake to study at a university, whether it be for a law degree or another subject, they do not do so for the sole purpose of passing a professional examination; they study in order to broaden their understanding in general and to extend their education and their understanding of the law. For example, the study of jurisprudence may not be regarded as absolutely essential to passing examinations set by the Solicitors Regulation Authority, but nevertheless it is appropriate for anyone expecting to pursue a career in law.

Sky and 21st Century Fox: Proposed Merger

Lord Keen of Elie Excerpts

Monday 6th March 2017 Lords Chamber

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

My Lords, with your Lordships’ leave, I will repeat a Statement made in the other place by my right honourable friend the Secretary of State for Culture, Media and Sport.

“I promised to give the House an update about progress on the process for the bid by 21st Century Fox to acquire the 61% share of Sky which it does not already own. I can confirm that formal notification for the proposed merger of Sky and 21st Century Fox was lodged with the European Commission on Friday 3 March and that I, on Friday, wrote to the parties to inform them that I am minded to issue a European intervention notice on the basis that I believe there are public interest considerations, as set out in the Enterprise Act 2002, that may be relevant to this proposed merger that warrant further investigation. To be clear, I have not taken a final decision on intervention at this stage but have indicated what I am presently minded to do. In line with the guidance that applies to my quasi-judicial role, I will aim to come to a final decision on whether to intervene in the merger within 10 working days of Friday’s notification. Before I make my final decision, and in line with statutory guidance, I have invited further representations in writing from the parties and have given them until Wednesday 8 March to provide them.

In December, I made clear that I would make this quasi-judicial decision independently, following a process that is scrupulously fair and impartial, and as quickly as possible with all relevant information in front of me. To enable this, I instructed my officials to commence work to analyse the relevance of the public interest considerations to the merger and to consider the available evidence. Since the 9 December announcement, I have received representations from the parties to the merger, as well as representations made in writing to the department from a range of people and organisations. They include more than 8,700 responses made in connection with the department’s consultation on the Leveson inquiry and its implementation which referred to the merger. Given my quasi-judicial role, I can consider only evidence which is relevant to my decision.

On the basis of this preparatory work, I have issued a ‘minded to’ letter to the parties on two of the public interest grounds specified in Section 58 of the Enterprise Act 2002. The first public interest ground on which I am minded to intervene is media plurality. That is, specifically, the need for there to be a sufficient plurality of persons with control of the media enterprises serving audiences in the UK. My concern here is that the merger will bring under common or increased control a number of significant news sources, including Sky News and News Corporation’s newspaper titles. As a result, I have told the parties that I am minded to ask for a report from Ofcom on the impact of the merger on media plurality before considering the matter further.

The second public interest ground on which I am minded to intervene is commitment to broadcasting standards. This ground relates to the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to attaining broadcasting standards objectives. As I have indicated to the parties to the merger, I am concerned about the nature of a number of breaches of broadcasting standards by 21st Century Fox as well as the behaviour and corporate governance failures of News Corporation in the past. In light of those matters, I am minded to intervene on this ground and to ask Ofcom to investigate them further.

I also want to be clear on what this means in terms of the overall process. My decision on whether to intervene is not the end of the matter. Instead, it would recognise that these public interest considerations may be relevant to the merger and will trigger action by Ofcom to assess and report to me on them and the Competition and Markets Authority to report on jurisdiction. There would then be a further decision-making stage for me to undertake in light of those reports, but we are not at that stage yet. As I said at the outset, I will aim to take the final decision on whether to issue a European intervention notice within the 10 working days set out in the guidance and will return to this House to notify Parliament of this decision.

I am today, as I said I would, keeping this House appropriately informed of developments on this important matter, and it is right that I continue to do so. However, given this remains a quasi-judicial process in which I retain a decision-making role for the next 10 days, and potentially beyond, it would be inappropriate for me, or any other member of this Government, to comment on the substantive merits of the case. I hope this update is helpful to honourable Members and that this Statement gives an opportunity to debate this important issue, but at the same time I hope that honourable Members will respect the limits of what I can say given my ongoing decision-making role”.

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[Lord McNally (LD)]

My Lords, from these Benches, I welcome both the speed and tone of the Statement from the Secretary of State. She has been careful to keep to the legal niceties, although any reading of this would welcome what she considers the merits of the case, particularly, as has been said, her emphasis on media plurality and the commitment to broadcasting standards. These were at the heart of the debate we had over a decade ago—putting into legislation the right to intervene on public interest grounds—led by my noble friend Lord Puttnam, with the support of the noble Lord, Lord Lansley.

It is important to remember that, if anything, the arguments we had then which finally persuaded the then Government to accept the public interest test have got stronger over the last decade, in no small measure because of the behaviour of companies and organisations in which Rupert Murdoch has had an influence. We now face that problem again. Does the noble and learned Lord agree that this is still a major issue with the Murdoch empire in particular, and given the need to take on board how these companies change their structures without really ever changing the spider at the heart of the web?

The other, equally important point, as has been said, is the changes in broadcasting and media over the last decade. Mr Murdoch may play a big part in many ways, but he will soon be a small player compared to some of the giants wandering the media jungle. Does the Minister agree that the danger is that, if we get this wrong, we will set precedents which, when those big boys come along, will leave us in a very weak position in defending the very principles the Secretary of State so eloquently expressed in the Statement?

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their observations, and will seek to respond to some of the points they have raised. The noble Lord, Lord Stevenson, asked “whose court”, as he put it, deals with this quasi-judicial decision-making process. It will be for the Secretary of State to carry out that process, with the appropriate officials advising her. It will not involve other government departments or Ministers; it will be her decision and her decision alone that instructs this matter. I hope that reassures the noble Lord as to how the process will be carried on.

As for the corporate structures and the past involvement of News Corporation, as the Secretary of State indicated in the Statement, when we address the question of commitment to broadcasting standards, account will be taken of past breaches of those and of behaviour and corporate governance failures, including those relating to News Corporation.

Ofcom, of course, has a fit and proper person test, but that applies in respect of broadcasting licences rather than this issue. It is a different test to the one that will be considered with regard to the merger, but it is important to bear in mind that the same evidence may of course be relevant to both tests. As the Secretary of State set out in her letter, she considered that a number of relevant matters warranted further investigation, including facts that led to the Leveson inquiry, for example, and the question of corporate governance at the News of the World. It will be open to Ofcom to look at all relevant areas—none are being ruled out in this context. The ultimate question will be whether the bidder shows a genuine commitment to broadcasting standards, which will raise very real and relevant questions with regard to past behaviour.

The noble Lord, Lord McNally, asked whether we might be in danger of setting an unhealthy precedent, given the other tests that may be put before us in due course by other media outlets. With respect, I do not consider that this decision-making process involves the setting of precedents. Each of these proposals will be considered on its individual, stand-alone merits. I hope that provides some reassurance to noble Lords.

[Lord Stevenson of Balmacara]

Before the noble and learned Lord sits down, can I just quote back to him what he said only a few moments ago at the Dispatch Box?

“However, given this remains a quasi-judicial process in which I retain a decision-making role for the next 10 days, and potentially beyond, it would be inappropriate for me, or any other member of this government, to comment on the substantive merits of the case”.


Is there a slight variance with what he said there?

[Lord Keen of Elie]

There is no variance. It would not be appropriate for any member of the Government to comment on it, but the decision-making process will be by the Secretary of State.

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[Lord Puttnam (Lab)]

My Lords, first, I thank the noble and learned Lord for repeating the Statement, which is for the most part very welcome. Not frivolously at all, the two criteria the Secretary of State has chosen are precisely those for which all-party amendments have been put down for the Digital Economy Bill. I have a question relating to each of them.

The first is on media plurality. As the noble Lord, Lord McNally, has just said, it has been 14 years since we first raised this important issue. Everyone wants plurality and agrees that it is a very good idea, but at that time, we needed a framework. I apologise if the frustration is showing in my voice, but I and many others have sought agreement on that framework on repeated occasions. Ofcom was eventually asked to create a report on that, which was published as the Measurement Framework for Media Plurality on 5 November 2015, but there has been no response from the Government. Interestingly enough, the Secretary of State, in her long letter on Friday, said that one of her issues was that, before a decision could be made, there was a,

“need for qualitative assessment and perhaps further factual inquiries”.

The whole purpose of our current amendments is to help this Secretary of State and any future Secretary of State in making these judgments, based on evidence and on an agreed framework. Therefore, surely it is incumbent on the Government to make it clear that they will seek such a framework and, if necessary, wait until after these amendments have hopefully been approved by this House, and then accept them. That is what we are seeking.

The other issue, as the noble Lord, Lord Stevenson, said, is the fit and proper person test. I have looked carefully at this, because I believe we are making this unnecessarily difficult. Media companies are not football clubs, and in fact there is a very good definition set out by the Financial Conduct Authority, which covers,

“honesty (including openness with self-disclosures, integrity and reputation) … competence and capability … financial soundness”.

Can the noble Lord tell me whether there is any reason whatever why we should not adopt the Financial Conduct Authority’s definition in the Bill?

[Lord Keen of Elie]

I am obliged to noble Lords, and perhaps I may first respond to the noble Lord, Lord Birt, which I did not do before the noble Lord, Lord Puttnam, spoke.

At the end of the day, clearly, issues of demand and financial adversity will play a part in consideration of what is required, but that will ultimately be a matter for Ofcom in its report rather than for any decision of the Secretary of State.

With respect to the points made by the noble Lord, Lord Puttnam, again, media plurality changes not only over 14 years but year by year—indeed, more swiftly than that in the present environment. It will be for Ofcom to address matters in the present context, rather than trying to establish a framework which might limit the way in which it responds to these issues.

[Lord Puttnam]

That is exactly the answer that has been given for 14 years. Is it possible that for another 14 years we will use the changing environment of the media not to have a framework which can be applied by a Secretary of State when making these judgments?

[Lord Keen of Elie]

It respectfully appears to me that the reason that we may have had the same issue for the past 14 years is that it reflects the appropriate approach to take to these matters, rather than the straitjacket of some framework, as the noble Lord proposes. It may be that we differ on that point.

I come to the second matter of a fit and proper person. Of course, the fit and proper person test is applied by Ofcom in the context of a broadcasting licence, but we recognise that in looking to behaviour, which is relevant to this question, it would be appropriate to take into account fitness and past behaviour. Whether it is appropriate to adopt a test developed for the Financial Conduct Authority is another matter entirely, but it is clearly open to Ofcom, when approaching this matter, to have regard to how other regulatory bodies consider the questions of fitness and behaviour.

In a sense, the Financial Conduct Authority test is not peculiar to financial services: it reflects what most reasonable people would regard as the relevant litmus test to determine whether somebody is fit and proper for any post, let alone to control a broadcasting medium.

[Lord Deben (Con)]

I thank my noble and learned friend for the Statement. I raise again a point made by the noble Lord, Lord McNally. He pointed to the concern that one has when people say, “There are lots of other ways in which news is disseminated”, and therefore the comparison between one television channel and another is perhaps no longer as important as it once was. His point about it being an exemplar—although each case is judged on its own merits and never are other cases not referred to, at least in the mind of those making the decisions—was important.

It is also true that anyone who travels the world to those places where the media have become less and less plural realises the damage that that does to the free society. I hope that my noble and learned friend will pass on to his right honourable friend the concern of many of us that free speech and the free communication of ideas depend on multiplicity and plurality. If ever there were a case in which that has to be defended, it is this case.

[Lord Keen of Elie]

I am obliged to my noble friend Lord Deben. Of course, a vibrant free press and a plurality of press sources is a fundamental part of any democratic society. That is why the Enterprise Act provisions exist: to ensure that public interest considerations can be taken into account when looking at media mergers.

[Lord Wigley (PC)]

My Lords, perhaps the noble and learned Lord can help me with the question of potential implications of legislation going through the House. Clearly, every case has to be considered on its merits, but the Secretary of State has to undertake that consideration in the context of the legislative background. Can the fact that legislation is being passed influence the timing by which a decision is taken?

[Lord Keen of Elie]

It does not appear to me on the face of it that proposed legislation can properly impact in terms on the decision-making process which, in the first instance, will involve a decision in the next 10 days and, thereafter, a report from Ofcom, which I believe is normally, under ministerial guidance, to be produced within 40 days if a decision is made. It is very difficult to see how any proposed legislation can impact on that decision-making process.

[Lord Lansley (Con)]

My Lords, the second of the specified considerations to which my noble and learned friend referred under the Enterprise Act is for those carrying on media enterprises or controlling such enterprises,

“to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act”.

That relates to the standards code, which itself is related to television and radio services. In her review of this consideration, is the Secretary of State obliged to look only at issues related to television and radio services?

[Lord Keen of Elie]

I am obliged to the noble Lord. I do not understand that the commitment to broadcasting standards is limited simply to television and radio in that sense, but I will take further advice on that point and, if I am wrong, I will write to him and place a letter in the Library.

[Lord Razzall (LD)]

I wonder whether, when the Secretary of State considers this, the noble and learned Lord will ensure that she takes into account the remark that Mr Murdoch made to your Lordships’ Communications Committee some years ago when it visited New York and he gave evidence to it, when he said that he was very puzzled why Sky News could not be like Fox News.

[Lord Keen of Elie]

I am not aware of the remark, but no doubt it can properly be brought to the attention of the Secretary of State.

[Lord Elystan-Morgan (CB)]

My Lords, the fact that the Secretary of State has seen fit to issue this statutory notice will give great satisfaction to most—if not all—Members of the other House. We well understand that these two grounds are not luxuries, not dainty sympathies, at all. They are principles that are central to the concept of liberty and the conduct of a well-ordered society. It is on that basis that we heartily welcome the Secretary of State’s decision.

[Lord Keen of Elie]

I am obliged to the noble Lord. I should make it clear that what the Secretary of State issued is a letter that states that she is minded to intervene: no decision has yet been made and none will be made until she has had the opportunity to consider responses to it over the next 10 days.

[Lord Cormack (Con)]

Will the Secretary of State bear in mind that monopoly is always inimical to freedom?

[Lord Keen of Elie]

I have no doubt that the Secretary of State will have that point in mind in more than one context.

Assisted Dying

Lord Keen of Elie Excerpts

Monday 6th March 2017 Lords Chamber

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

My Lords, I am grateful to the noble Baroness, Lady Jay, for bringing before your Lordships’ House a matter which continues to be of great public interest and concern. As the noble Baroness herself observed in opening, the issue is complicated and difficult. Today is not the first occasion on which this House has debated this difficult and sensitive area of the law. Indeed, as today’s debate has illustrated, there are passionately and deeply held yet divided views on the issue. I certainly take issue with the suggestion by the noble and learned Lord, Lord Falconer of Thoroton, that this is “what everyone wants”. It clearly is not what everyone wants; indeed, I notice that the contributors to this debate are almost equally divided on this very complex and difficult issue. There is no arrogance to be attributed to those who take one side or other of this demanding debate.

It remains the Government’s view that any relaxation of the law in this area is an issue of individual conscience and a matter for Parliament to decide, rather than one for government policy. Of course, we are aware that assisted dying legislation has been introduced recently in some states of America and in Canada—very recently in four states of the United States—but since the Government have taken no policy position on the issue, we have made no assessment of such legislation in North America or elsewhere. I simply note that while five states in the United States have adopted such legislation, 45, of course, have not. Indeed, the only example that has been in place for some years is that of Oregon. As the noble Baronesses, Lady Howe and Lady O’Loan, and the noble Lords, Lord Alton and Lord Carlile of Berriew, observed, there are issues surrounding the attempted development of the law in Oregon. As the Supreme Court said in the case of Nicklinson and Lamb, information from the few jurisdictions where assisted suicide is lawful is,

“sensitive to underlying conditions such as standards of education, the existence of long-term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom”.

So it does not necessarily follow that a law which operates effectively—allegedly—in another jurisdiction would provide an appropriate basis for such legislation in England and Wales.

We should remember that “assisted dying” is not a term that exists in law. It is shorthand for two distinct things; namely, assisting suicide and euthanasia. However one interprets the term, assisted dying is a highly emotive issue. It polarises opinion among the public, in the media and across the political spectrum, even within groups which are generally supportive of or opposed to a change in the law, and it raises the most profound ethical, moral, religious and social issues. Of course, the Government are aware of opinion polls suggesting that there is strong public support for a change in the law. But even if one accepts that the law should change, there is no consensus—in Parliament or elsewhere—on where a line should be drawn and what safeguards should be in place and for whom.

As the law stands, there is no offence—or defence—of “mercy killing”; nor is there any statutory exception to the offence of encouraging or assisting suicide under Section 2 of the Suicide Act. That Act was amended in 2009. By amending the law, Parliament confirmed that an offence should remain in respect of assisted suicide. Whether the present general prohibition in Section 2 of that Act is incompatible with the right to a private life under Article 8 of the European convention was the central issue in the case of Nicklinson and Lamb, which the noble and learned Lord, Lord Falconer, referred to, in which the Supreme Court handed down judgment in 2014.

Like this House, the Supreme Court was divided on some of the issues before it. But the appeal in that case was dismissed by a majority of seven to two on the basis that it was not appropriate for the court to determine the issue of compatibility at that time. While not unanimous in its view, the court explicitly encouraged Parliament to consider the issue further, and Parliament has done so. Both Houses have subsequently had extensive debates on this issue. The Assisted Dying Bill, introduced by the noble and learned Lord, Lord Falconer, passed Second Reading without a vote on 18 July 2014, after almost 10 hours of debate, and was further debated on two full days in Committee, thereby indicating the level of interest and the division between Members over the fundamentally difficult issue that lay behind the Bill.

More recently, the other House debated the Assisted Dying (No.2) Bill in September 2015. That Bill was essentially the same as the Bill of the noble and learned Lord, Lord Falconer, as amended in Committee. It sought to legalise in England and Wales assisted suicide for terminally ill, mentally competent adults who are reasonably expected to die within six months. As the noble Lord, Lord Tunnicliffe, noted, following a lengthy debate, that Bill was voted down by a majority of 330 votes to 118. As things stand, therefore, the will of Parliament as a whole is that there should be no change in the law. Of course, that does not mean that the issue cannot be re-examined either in Parliament or in the courts. Indeed, today’s debate has again illustrated that the law in this sensitive area remains a matter of great concern to your Lordships. Reference was also made to further litigation that is ongoing in the courts. We are aware of that but it would not be appropriate at this stage to make any comment on such a case when it is still before the courts.

The debate on this issue is often characterised as being a choice between legalising assisted dying on the one hand and the provision of high-quality end-of-life care on the other, but the two are not mutually exclusive. Compassion for the dying person drives both sides of the debate. Wherever one stands on the desirability of legislative change, it is of the utmost importance that all dying people receive high-quality, compassionate care at the end of their lives. Equally, we are all as one, I am sure, in our desire to protect the rights of those who are vulnerable from direct or indirect pressure to take such a step. The central issue is then whether a blanket ban on assisting suicide is a necessary and proportionate way of achieving this.

Those opposed to change argue that any relaxation of the law would constitute too great a risk to sick and disabled people, and that safeguards would not necessarily give enough protection to vulnerable people who may feel pressure, whether real or imagined, to end their own lives. Those in favour of change argue that safeguards would protect vulnerable people from such pressure, while affording dying adults the choice of an assisted death if their suffering becomes too great. As the Supreme Court recognised in Nicklinson, there is a diversity of opinion about the degree of risk involved in relaxing the law in this area but not about the existence of the risk. It is unlikely that the risk of vulnerable people feeling pressure to end their lives can ever be wholly eliminated or that every person who thinks he or she has a legitimate right to assisted suicide can be assisted.

Whatever provisions may be proposed, therefore, the real question is: how much risk to the vulnerable is acceptable in order not to deny those who would genuinely wish to be assisted to commit suicide the opportunity of an assisted death? That is a very difficult balance to strike and there are no simple answers, especially when those who are vulnerable are not necessarily easy to identify. Whatever the arguments for and against change, it is important that the ongoing debate should not lead those whose lives are affected by illness or disability to feel less valued. If ever the law is changed, appropriate safeguards will need to be considered very carefully indeed.

The legal, administrative, practical and resource implications of any change to the law in this highly controversial area are considerable. We cannot in the very limited time available this evening do justice to them, although I would observe in response to the observations of the noble Earl, Lord Glasgow, that we of course take these issues seriously. I have no doubt that the debate will continue in one form or another, in Parliament and elsewhere. In the meantime, I thank all noble Lords for their contribution to this debate.

Personal Injury Claims: Motor Vehicle Incidents

Lord Keen of Elie Excerpts

Wednesday 1st March 2017 Lords Chamber

[Lord Hayward]

To ask Her Majesty’s Government what progress has been made in tackling the abuse of personal injury claims relating to incidents involving motor vehicles.

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

My Lords, reforms to address road traffic accident-related soft tissue or whiplash personal injury claims have been taken forward through the Prisons and Courts Bill, introduced on 23 February. These include a fixed tariff of compensation for whiplash claims and a prohibition on offers to settle such claims without medical evidence. A number of changes to the small claims limit for personal injury will also be made.

[Lord Hayward (Con)]

My noble friend will be aware that a year ago to the day I asked a Question in relation to John Elvin, who reported to his insurer, Sheilas’ Wheels, an accident that he was convinced would be the subject of a false whiplash claim. It was settled and we now have the figures. Sheilas’ Wheels paid £1,500 for damage to a car that was not inspected and the people concerned were given over £6,000 for personal injury, despite the fact that they were able to leap out of the car and protest about a non-existent injury. Is it not the case that the industry has enough to do in putting its position right, as well as dealing with other issues that apply in these cases?

[Lord Keen of Elie]

My Lords, I quite understand the point that has been made. That is why we have included in the proposed legislation a ban on insurers making offers to settle such claims without medical evidence. We have of course addressed the issue of medical reports through the MedCo scheme.

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant in the firm of solicitors in which I was senior partner. The increase in the small claims limit for whiplash cases is likely to lead to greater activity by claims management companies, which will take a substantial cut from any damages. Will the Government take steps to control this parasitic industry? This week, the Lord Chancellor announced changes to the way in which damages for personal injuries are calculated. Such damages are estimated to cost the National Health Service, which recovers the costs of treatment for motor accident claims, an estimated £1 billion a year, and they increase insurance premiums. Is this not a classic example of a ministerial car crash?

[Lord Keen of Elie]

No, my Lords, this is not a ministerial car crash. I remind the noble Lord that the increase to which he refers arises as a result of the application of the discount rate introduced by the Damages Act 1996, which was last reviewed in 2001. The object of the change in the discount rate is to ensure that those who suffer catastrophic and life-changing injuries are fully and properly compensated for those injuries by reference to the damages calculation for their future care and support.

[Lord Goddard of Stockport (LD)]

I have a copy of the report. Will the Minister comment on the following two simple statements? The report says that, once this is implemented, savings of £1 billion will be made and the average motor policy will come down by £40. Huw Evans, director-general of the Association of British Insurers, says that a 21 year-old’s policy will rise by £1,000 and 30 million other comprehensive policies will rise by £40 to £75 a year. Which is accurate, which is correct and which, in the long run, will prove to be right?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, there are two distinct issues to be addressed in this context. The reforms with regard to whiplash will, on the basis of completed impact assessments, result in very considerable savings in motor insurance premiums of the order of £1 billion. It is estimated by the industry that this will result in an average reduction in motor insurance premiums of about £40. The major operators within the motor insurance industry have undertaken to pass those savings on to the motorist, the consumer. However, the changes in the discount rate will inevitably impact on the cost of insurance, including motor insurance, and that will give rise to certain increases. One may offset the other, but I add that the Lord Chancellor indicated when announcing the change to the discount rate that this will be the subject of consideration and indeed a consultation, which is due to commence no later than Easter.

[Viscount Hailsham (Con)]

My Lords, I begin with a declaration of interest: I do not now practise as a personal injury lawyer but I have done in the past. Does my noble and learned friend recognise that the reduction in the Ogden tables to a discount rate of minus 0.75 will inflate the damages that are recoverable in personal injury cases to an extravagant and unconscionable extent, which is bound to inflate the numbers of fraudulent or unjustified personal injury cases in motor claims to the prejudice of all drivers? That being so, may I welcome the fact that these proposals are going to be looked at again, I hope constructively?

[Lord Keen of Elie]

My Lords, the way in which the discount rate is calculated will be examined with some degree of urgency. However, I do not accept that the discount rate will result in the inflation of the value of damages claims. It was designed originally to ensure that those claims would be properly calculated so that those who suffer life-changing injuries are properly compensated for the future.

[Lord Campbell-Savours (Lab)]

Does that mean that if the interest rate goes up, the discount rate goes up? I am only following the noble and learned Lord’s logic.

[Lord Keen of Elie]

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

[Lord Faulks (Con)]

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

[Lord Keen of Elie]

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

[Baroness Kramer (LD)]

My Lords, surely the review and the consultation should have come before the change in the discount rate, which is, as the Minister has heard from around the House, absolutely preposterous. As he knows, it is a fixed number based on three-year index-linked government securities, a commodity in which nobody who is investing funds for an injured claimant will put their money—it is less than you would earn by putting it into a local bank account. The fact that the number is preposterous means a big increase in premiums for motorists and a billion pound additional burden for the NHS, as well as an unnamed additional burden for the Ministry of Defence.

[Lord Keen of Elie]

My Lords, I am glad that the noble Baroness acknowledges that the basis of the calculation of the discount rate clearly requires review. However, the Lord Chancellor was under a legal obligation to deal with the discount rate and we are now concerned to ensure that we consult fully and address the question of how it should be calculated in future.

Prisons: Staff

Lord Keen of Elie Excerpts

Wednesday 22nd February 2017 Lords Chamber

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

My Lords, private providers are obliged to maintain sufficient staff to ensure that prisoners and staff are safe and secure. We monitor performance against measures specified in the contract. High application volumes are generally received for prison officer and other vacancies in prisons outside London and the south-east, most of which have relatively low levels of staff turnover.

[Lord Beecham (Lab)]

My Lords, there are prisons outside the south-east that have acute staffing difficulties, such as Manchester, Liverpool and Leeds, where the problems have been exacerbated for some years by staff being sent on detached duty to southern jails. Will the Minister assure the House that the Government are addressing that issue? What assessment have the Government made of the impact of the new terms being offered to London and the south on recruitment by private prisons such as Birmingham and Northumberland, where already the low numbers of staff have led to serious, indeed shocking, incidents?

[Lord Keen of Elie]

As the noble Lord acknowledged, we have taken steps to improve the rate of recruitment in the south-east, and London in particular, by introducing a range of financial incentives. That is because in these areas there is considerable employment competition. That does not apply to the same extent in the north-east and north-west. Indeed, application rates in that part of the country are considerably higher than they are in the other parts of the country. Accordingly, it is not anticipated that these incentives, directed to particular areas where there are difficulties of recruitment, will have an adverse impact elsewhere.

[Lord Cormack (Con)]

My Lords, should we not look again at the whole question of private prisons? There are many people who feel that the incarceration and looking after of prisoners is the duty of the state and should not be farmed out?

[Lord Keen of Elie]

I am obliged to my noble friend. The state has many duties and obligations, many of which are successfully contracted out to independent contractors, as they are in the case of prisons.

[Lord Wigley (PC)]

Will the Minister tell the House about the position of recruitment for the new prison, HM Prison Berwyn in Wrexham, north east Wales, which is not a private prison? Will he say how recruitment is progressing and to what extent that is being met by transfers from within the system and by recruitment from outside the system?

[Lord Keen of Elie]

As I understand it, recruitment at the new prison is progressing in a satisfactory way and will be done in a staged manner. We will not, of course, suddenly introduce a large number of prisoners into a new prison at one time. I do not understand that there has been any need to recruit from elsewhere within the prison establishment, but I recognise that there are difficulties across the prison establishment, not only with recruitment but with retention of experienced officers. Of course, we are always looking at ways to innovate and deal with that matter. Indeed, the noble Baroness, Lady Walmsley, mentioned the possibility of golden handcuffs—which might be particularly appropriate in the case of prison officers.

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

My Lords—

--- Later in debate ---

[Baroness McIntosh of Hudnall]

My Lords, can the Minister tell the House how long prison officers are trained for and what are the core skills and competences which they are expected to have at the end of that training?

[Lord Keen of Elie]

I am not in a position to give details on the scope of core skills, but I undertake to write to the noble Baroness setting them out. I understand that there is an initial training period of five weeks—but, again, I will seek to secure confirmation of that and, if I have to correct it, I will again write to her on that point. I will add that, once prison officers are trained, there is a process of mentoring once they begin full-time engagement as a prison officer.

[Lord Marks of Henley-on-Thames]

My Lords, in HMP Northumberland, which is run by Sodexo and was exposed recently by “Panorama”, there was a 40% drop in staff from 2010 to 2013, and numbers have continued to fall since Sodexo took over in 2013. What specific requirements does the department impose on contractors in relation to staffing levels and training in private prisons, and do the Government have any plans to make those requirements more rigorous?

[Lord Keen of Elie]

The position with regard to private prisons is, as I indicated before, that private providers are contractually obliged to maintain a sufficient level of staff to ensure safety and security within the prison, but particular numbers and ratios are not specified by the Government in those contracts. Those contracts are of course monitored.

[Lord Ramsbotham (CB)]

My Lords, can the Minister tell the House how many reserve prison officers have been recruited, from the proposal made by the previous Government’s Chief Secretary?

[Lord Keen of Elie]

My understanding is that the number is very low indeed—potentially in single figures.

[Lord Lexden (Con)]

Does my noble friend agree that the vital work of prison officers is powerfully reinforced by voluntary initiatives such as that recently launched by the SPCK to raise literacy significantly among prisoners?

--- Later in debate ---

[Lord Keen of Elie]

Clearly, the primary function of our prisons is education and reform, which is why we look at prisons not in isolation but in the context of a further social need to ensure through-the-gate services for prisoners.

IPP Prisoners

Lord Keen of Elie Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government what is their response to the recommendation of Michael Gove, the former Secretary of State for Justice, in his November 2016 Longford Lecture that the approximately 500 Imprisonment for Public Protection (IPP) prisoners “who have been in jail for far longer than the tariff for their offence” should be released.

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

My Lords, we estimate that there are approximately 200 IPP prisoners who have served longer than the maximum term available for their offence. Release of IPP prisoners is a decision for the Parole Board, made on the balance of risks the offender poses to the public. To improve the efficiency with which IPP cases pass through the parole system, a new unit has been established within the Ministry of Justice, working closely with the Parole Board.

[Lord Brown of Eaton-under-Heywood (CB)]

That is a disappointing if unsurprising Answer, and apparently an answer to an earlier question of mine about prisoners who had served beyond the maximum term. This refers to those who have served way beyond their tariff term. Would not the Minister agree that there comes a point in the life of an IPP prisoner, even if he cannot persuade the Parole Board that he will never reoffend, when he has served so many years—seven, eight, nine, 10—beyond his tariff term that simple justice demands his immediate release?

[Lord Keen of Elie]

The noble and learned Lord raises a complex and difficult problem. It was said previously that this sentencing policy was the legacy of a Labour Government. That is unfair. It was a wrong turning in sentencing policy undertaken with the best of intentions which fell victim to the law of unintended consequences. Successive Labour, coalition and Conservative Governments have wrestled with a simple solution to a complex question. If we were going to resolve this matter as simply as the noble and learned Lord suggests, we would not start from where are at present.

[Lord Morris of Aberavon (Lab)]

My Lords, is it the lack of political will that is virtually interning these prisoners or the lack of resources of the Parole Board? If it is resources, will the Minister seek the help of the Treasury in carrying out a cost-benefit analysis of the cost of incarcerating these prisoners?

[Lord Keen of Elie]

The noble and learned Lord raises a good point. The gateway for these prisoners is the Parole Board and, for the particular reason that we need to deal with this cohort of prisoners, we have provided further additional resources to the Parole Board. As a result, its numbers have increased recently by 49 members and the outstanding cases in this regard listed before it have reduced by about 40% in the period from January 2015 to December 2016.

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

My Lords, the Minister knows from this and questions from other noble and learned Lords that he has no sympathy from former judges in this House on this issue, and virtually none from the judiciary at large. He often says that sentencing is for the judges. Will the Government now listen to the judges on this, change the release test for the Parole Board, as he has power to do under the LASPO Act, and work to free the 3,000-plus IPP prisoners who have already served their tariff, thus both reducing the prison population by 4% and removing a manifest injustice?

[Lord Keen of Elie]

I note what the noble Lord says. Clearly we have a duty of care to this cohort of prisoners, who are deemed to be at high risk of committing further serious violent or sexual offences. That is one of the issues we have to deal with. However, our duty of care extends beyond this cohort of prisoners. It is also owed to those members of the public who would potentially be the victims of these persons if they were simply released without adequate determination and supervision.

[The Lord Bishop of Southwark]

My Lords, as an alternative, will the Government consider releasing those inmates on indeterminate sentences, a provision that no longer applies, if they have served longer than a determinate sentence for the same offence? The backlog has to be tackled in some form.

[Lord Keen of Elie]

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

[Lord Faulks (Con)]

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

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

My Lords, last September the Chief Inspector of Prisons reported that there were 3,200 prisoners over tariff, 42% of whom—1,400—were five years or more over their tariff. The chief inspector called for decisive action to,

“ensure adequate resources and timely support are available to work with IPP prisoners to reduce their risk of harm to others and to help them progress through the custodial system towards consideration for release”.

How many of those 1,400 prisoners have since been released and what is the likelihood that they will be released over the next year or two?

[Lord Keen of Elie]

As regards the figures, the maximum term of imprisonment available to the courts for the offences that the vast majority of IPP prisoners were convicted for was and remains life imprisonment. Therefore the significant majority of IPP prisoners will never reach the point of serving more than the statutorily available maximum penalty. I do not know how many of the 1,400 cited by the noble Lord have been released but I will undertake to write to him if those figures are available. Their prospects for release must depend on an assessment by the Parole Board, but I would add that the ministry is addressing the question of whether the onus that lies with regard to those Parole Board hearings should be reconsidered.

Lay Magistrates

Lord Keen of Elie Excerpts

Monday 20th February 2017 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist]

To ask Her Majesty’s Government what steps they are taking to encourage more people to come forward to train as lay magistrates.

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

My Lords, while magistrates’ recruitment is the responsibility of the Lord Chief Justice, the department is supporting the judiciary in endeavouring to improve the application process to make it more accessible and suitable for a wide range of applicants. There is generally no shortage of applicants for the vacancies that arise.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I thank my noble and learned friend for his reply. As he will be aware, the number of lay magistrates has plummeted in the past 10 years, from 30,000 to 17,000 today, and is predicted to fall to 11,000 in 2020. Can the Minister assure me that the drive for diversity, which I strongly support, is not compromising the principle of merit that should apply to all public appointments? Does he agree that the solution lies in more prominent and proactive recruitment drives?

[Lord Keen of Elie]

While the number of serving magistrates has reduced significantly in the past decade, it is important to make it clear that this is not indicative of any difficulties with recruitment. The reduction in the number of magistrates is due primarily to changes in workload. Recruitment is undertaken in each local justice area, with 44 advisory committees responsible for recruiting and selecting magistrates. Of course, the aim is to recruit on the basis of talent but to ensure that talented people represent all backgrounds and communities they serve.

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

My Lords, we have made no progress on diversity in the lay magistracy. At least gender diversity is not a problem, with a roughly equal number of men and women, although ethnic diversity has hardly moved. However, younger people are woefully and increasingly underrepresented. In 2000, about a third of lay magistrates were over 60. Now that figure is 55%. How will the Government address this? Currently, employers must allow staff time off to serve. Will the Government consider offering employers modest incentives as well to encourage recruitment of working-age magistrates?

[Lord Keen of Elie]

Magistrate remains a sought after role, and competition for vacancies tends to be strong. Advisory committees employ a range of techniques to reach out into their communities for applications to the Bench. This can and does include advertising in public places such as libraries, community centres and the local press. At present, there are no plans to put forward further financial incentives.

[Lord Pannick (CB)]

My Lords, in light of the concern about the age of magistrates, will the Minister look again at the unreasonably low retirement age of 70 for magistrates?

[Lord Keen of Elie]

I remind the noble Lord that the unreasonably low retirement age of 70 applies also to justices of the Supreme Court.

[Baroness Berridge (Con)]

Statistics from the Ministry of Justice show that 10% of magistrates are from a black and minority ethnic background, but can my noble and learned friend the Minister outline whether there is a specific recruitment drive that also addresses the need for young people from those communities? When black and minority ethnic young people come before a youth justice panel, it is very important that it is representative of their communities in a way that unfortunately the police force that arrested them might not have been.

[Lord Keen of Elie]

It is of course important that the magistrates’ Bench should be representative of the communities they serve, but it is equally important that we have regard to the skills, experience and talent required of those who sit on it. That tends to come with age and experience.

[Lord Beecham (Lab)]

My Lords, some 7,000 magistrates will reach retirement age in the next five years. That is something like eight times the membership of your Lordships’ House. Fifteen per cent of cases are heard by Benches of two magistrates, yet district judges are still being recruited at salaries of around £100,000 a year. Is not the increasing reliance on district judges, alongside the failure to extend the recruitment of lay justices beyond the middle and upper classes and the impact of court closures, eroding the concept of local justice rooted in a sense of local community?

[Lord Keen of Elie]

The noble Lord draws attention to a number of issues concerning the disposal of cases between the district court and the magistrates’ court. That will be further addressed in detail as we proceed with the prison and courts reform Bill, which is presently under consideration. I reassure the noble Lord that there is no attempt to direct recruitment towards particular social classes or backgrounds. The 44 advisory committees responsible for recruiting magistrates in England and Wales are concerned to ensure that they recruit talented people from all backgrounds and all communities.

[Lord Foulkes of Cumnock (Lab)]

Has the Minister noticed, as I have, that in response to powerful pleas from Peers on all sides he and his noble friend Lord Nash have merely read out extracts from the brief provided by their civil servants? Are Ministers in the House of Lords no longer allowed to say, “I’ll take that back and discuss it with my colleagues”?

[Lord Keen of Elie]

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

[Lord Faulks (Con)]

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

[Lord Keen of Elie]

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

[Noble Lords]

Oh!

[Lord Keen of Elie]

—it might be noted that of course they take on an increasing burden but against the background of a decreasing rate of criminal activity.

[Lord West of Spithead (Lab)]

My Lords, the captains of RN ships are trained, to an extent, as lay magistrates to conduct summary trial, and they must form a nice pool, when they retire, to go into this area. Does the Minister agree that if we had more ships and more people, this would help?

[Lord Keen of Elie]

The noble Lord raises an interesting cross-departmental issue. One downside to his proposal would be its negative impact on our concern to ensure the age spectrum of those sitting on the magistrates’ Bench.

Digital Economy Bill

Lord Keen of Elie Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, I am not a lawyer—I feel a bit uncomfortable joining this debate; I am sure there are issues it is much beyond my abilities to deal with. But I say to the Minister before he responds, the point made about the degree of concern in the industry is important. This is a big and complicated Bill with many different aspects. It reaches far into aspects of our digital world. This clause, however, is the one that has generated the largest number of responses and—to judge from the meetings I have had with people—the most anger.

In a sense, so what? If it is the right decision, it should go ahead. However, it is clear that there is a lot of support for the current situation, even though there are arguments against it. The point was made time and again that the existing arrangements seem to work well, so why are we changing them? The industry, as I said, is pretty well united against it. One or two are speaking up for it but they do not represent the majority of voices we have heard.

There is also a real danger that—particularly at a time of uncertainty over technological change and regulatory positioning—having a period when we deliberately create confusion and delay until the new guidelines, or baselines, are established, is probably not the best way of making progress. Uncertainty over a long period will affect investment, which is not what we want. So there are reasons for asking the Government to be very clear that this is the right way forward.

We all share the same wish: we want an efficient and trusted regulator that can deal with this complicated, fast-moving and complex area. But it would be quite improper to have a situation in which there was a very limited right of appeal on any case determined not to have been carried out correctly—not so much about the judicial aspects, but on the merits of the case; in other words, where the evidence does not support the decision that has been taken.

I do not understand quite what the difficulties are. I have looked back over comments made by the noble and learned Lord when he was Advocate-General for Scotland. He is on the record in a number of places and a quick search with an algorithm of some complexity, which I could not possibly describe, reveals him to have said several things about judicial oversight. As it has developed, he says, it has,

“provided us with a flexible standard of oversight, which in many senses is wide-ranging”.

However, judicial oversight is the issue and that is what we have to emphasise. He might like to reflect on that in relation to what has been said. There are other things—I will not quote them as I am sure he is embarrassed enough already, or perhaps not. But the issue needs bottoming out—there is a serious point at its heart. There are issues that will affect the whole nature of the business we are regulating in this manner which need to be resolved.

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

My Lords, I am obliged to the noble Lord, Lord Clement-Jones, for raising this matter because it has generated a great deal of heat and debate in the context of the Bill. I appreciate the point made by the noble Lord, Lord Stevenson, with respect to the number of responses there have been. I just emphasise that judicial review is a form of judicial oversight, and a very effective one, but I will elaborate on that in a moment.

We are aware that the major telecoms operators in particular, and their agents, have lobbied vigorously and in detail on this point. Indeed, the noble Lord, Lord Clement-Jones, brought out many of the points that have been made by their agents in the course of that vigorous and detailed lobbying. I shall not go into the detail of Ofcom’s position on this. It has expressed its position very clearly and we understand it. What I would say is that there is no single position for all utility sectors, and both judicial review and appeals on the merits may be used in the same sector for different kinds of appeals. It is not a black and white situation.

The Government’s case is not that this change is needed to ensure consistency with other utility sectors but that the public interest will be best served in the communications sector by an appeals regime that focuses on errors which Ofcom is alleged to have made, rather than asking the court to reach a different conclusion. Let us remember that Ofcom is a qualified regulator and its decisions are entitled to respect. They are informed decisions and they are not irrational. They are not determined on the toss of a coin. That is why judicial review is an appropriate approach.

The noble Lord, Lord Clement-Jones, also talked about consumers. I find that interesting. Perhaps I may refer briefly to the Which? response to Clause 75. It sees this measure as one of the most important currently contained in the Digital Economy Bill, saying that it will give the regulator the power and confidence to take the necessary actions to protect consumer interests without fear of costly and lengthy litigation procedures. Introducing a judicial review standard for appeals in telecoms will mean that decisions made by Ofcom in the interest of consumers should be easier to implement and quicker to take effect. That is a reflection of Ofcom’s own view of the matter. This is not necessarily about coming to the aid of Ofcom but about recognising these matters from the perspective of the consumer. That is extremely important.

Currently, appeals brought under Sections 192 to 196 of the Communications Act against Ofcom’s regulatory decisions are decided “on the merits” by the Competition Appeal Tribunal. That exceeds and, as the noble Lord, Lord Clement-Jones, acknowledged, effectively gold-plates Article 4 of the EU framework directive, which requires that the merits of the case are duly taken into account in any appeal. That is not quite the wording of the proposed amendment.

The result of this over-implementation is an unnecessarily intensive and burdensome standard of review that can result in very lengthy and costly appeals litigation, which in turn can hinder timely and effective regulation. Some of the appeals that have taken place have done so over extraordinarily lengthy periods. Of course, the very large communications operators are in a position to fund that sort of appeal process. Clause 75 will change the standard of review so that the Competition Appeal Tribunal will decide appeals against Ofcom’s decisions by applying the same principles as would be applied by a court on an application for judicial review and, in particular, judicial review of other administrative actions. This will focus appeals on the key questions of the legality and reasonableness of Ofcom’s decision-making.

The noble Lord, Lord Stevenson, suggested that there might be cases in which there was simply no merit in a decision. If that was so, and if Ofcom proceeded without reliance on the facts of a particular case, that would be amenable to review under a judicial review standard.

[Lord Lester of Herne Hill]

Judicial review itself varies according to whether or not there is a European element. If the review is about a case where free speech under the convention is concerned or an EU directive is concerned, then judicial review embraces the principle of proportionality. However, if it is not about a case where European law can be involved—either system of European law—under the deciding case law, judicial review does not apply the principle of proportionality. In other words, it still—in my view, wrongly—does not look at whether the means employed to pursue a legitimate aim are necessary to achieve that aim. Is not what I have just said an indication of the unsatisfactory nature of relying on judicial review as the solution?

[Lord Keen of Elie]

With respect to the noble Lord, Lord Lester, I have to say no, because here we are dealing with judicial review in the context of the EU framework directive, which requires that the merits of the case are duly taken into account in any appeal, therefore effectively introducing the issue of proportionality into that process. Therefore, even if there are cases which some might criticise as involving too narrow an approach to judicial review, that does not apply here. This is an incidence in which the issues of proportionality will arise in the context of judicial review. By taking this route, we are applying an appropriate standard to Ofcom’s decision-making.

As has been acknowledged by noble Lords, this is a fast-moving sector, and regulation needs to be able to keep pace with technological and market changes. This is rather difficult when appeals can drag out for a year after a regulatory decision has been made. As the UK’s expert regulator in the telecommunications sector, it is right that Ofcom itself should be given an appropriate margin of appreciation by the tribunals. That is why we have an expert regulator there—so that it can make an informed decision that should be given an appropriate margin of appreciation by the Competition Appeals Tribunal.

A judicial review basis for appeals is intended to be a flexible process that will ensure that those affected by Ofcom’s regulatory decisions can still challenge those decisions effectively within the framework of Article 4 of the EU framework directive. A number of Ofcom’s regulatory decisions are already appealable only on a judicial review basis. I made the point earlier that, with regard to individual regulators, you can find instances in which there is a merits-based appeal for some matters and a judicial review standard in respect of others.

By changing the standard of review to reduce over-lengthy and costly litigation, this clause will enable consumers to benefit sooner from the outcome of decisions made by Ofcom in pursuit of its statutory duty to further the interests of consumers. I emphasise that: one of Ofcom’s statutory duties is to further the interests of consumers. The clause will also remove a significant potential barrier to the participation of smaller communications providers in the appeals process, benefiting smaller, “challenger” communications providers. Again, they are inhibited by the prospect of massive merits-based appeals going before the Competition Appeal Tribunal.

The noble Lord, Lord Clement-Jones, has tabled two alternative approaches. Amendment 215 would replace the existing “on the merits” standard with a requirement for the tribunal to take,

“due account of the merits of the case”.

I acknowledge that the amendment essentially replicates the wording of Article 4 of the EU framework directive, albeit it is not identical to it. While this would in one view remove the gold-plating of the existing standard in a technical sense, the Government consider that it would not lead to any substantive change in approach. That might be why this proposal is being pushed so hard by the major operators in the telecoms sector. It would not, therefore, result in quicker appeals, timelier implementation of regulatory decisions or resultant consumer benefits.

Amendment 216 would alternatively replace the existing “on the merits” standard of appeal with a list of specified grounds. The tribunal would be able to uphold an appeal only where it was satisfied that Ofcom’s decision was wrong on one or more of these grounds. However, as noble Lords may be aware, the previous Government consulted on a similar approach in 2013 and we do not consider that this approach has merit. On balance, we consider that such an approach would risk significant satellite litigation if it were to be introduced—about the nature of the new standard of appeal, for example, which could lead to longer appeals and further regulatory delay. A standard of review based on judicial review principles, including the principles of proportionality in the context of the application of the European directive, which is well understood and used in many other sectors, will minimise this kind of uncertainty. In these circumstances, I invite the noble Lord to withdraw his amendment.

Digital Economy Bill

Lord Keen of Elie Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Lord Foster of Bath (LD)]

My Lords, it is four years after the Leveson inquiry, and I certainly believe that Section 40 of the Crime and Courts Act 2013 should be implemented, and should be implemented now. I voted for it in your Lordships’ House last October and I certainly support the amendments today, which have much the same effect. I also support the fail-safe amendment moved by the noble Lord, Lord Stevenson, although I hope that it is not necessary and that Section 40 will be brought in.

Some incredibly misleading statements have been made about the impact of Section 40. Most of the newspapers, as we know, do not support its implementation and have featured some quite amazing one-sided editorials. To the best of my knowledge, none of them has permitted a right of reply. I am the former Member of Parliament for the wonderful city of Bath, which is included in my title, so I am sure that noble Lords will not be surprised that I take a particular interest and am an avid online reader of the Bath Chronicle. Three weeks ago it published one of these anti-Section 40 diatribes. I wrote a rebuttal and asked the Bath Chronicle to publish it. I have not even had an acknowledgement so far—so much for a free press.

Perhaps to explain why I support these amendments, and to ensure it is published—albeit in Hansard rather than in the Bath Chronicle—I will read what I wrote, because it sums up exactly where I stand:

“I am a strong supporter of local newspapers and the Bath Chronicle in particular. But I was surprised by your recent editorial suggesting that measures being considered by parliament will mean that ‘Any investigation in the public interest could be silenced by anyone with a vested interest’. This is a complete misreading of the proposals made by Lord Justice Leveson after the Public Inquiry which followed the appalling phone hacking scandal.


Few could deny that in the past the press had a shocking track record of setting up its own toothless regulators which failed to protect the public. Leveson has proposed that the press should now establish a truly independent regulator whose independence is checked and then ‘recognised’ by a body which is itself impartial and independent from government or the press.


This is what the public want as shown by a YouGov poll just last week. When asked ‘Do you think it is important that any newspaper self-regulator undergoes an audit to ensure it is effective and that it is genuinely independent of both politicians and the press?’ nearly three-quarters (72%) said yes and just 6% said no.


The ‘regulator’ under which the Bath Chronicle operates—called IPSO—doesn’t meet this test. It is not only funded but controlled by the newspapers it regulates.


Were the Chronicle to join a ‘recognised’ regulator, or were IPSO to demonstrate through getting recognised that it met proper standards of independence and effectiveness, the funding issues you describe would not happen. Moreover, the public would be protected and you”—


that is, the Chronicle—

“would receive protection from wealthy and powerful local figures if they tried to bully you into withholding stories about them by threatening you with unaffordable court costs”.

My article ended:

“I hope Parliament will agree to support the public and back Leveson’s proposals”.


I certainly hope the Government will accept the amendments before us today.

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

My Lords, I am obliged to the noble Lord, Lord Stevenson, for expressing this amendment and also to the observations of the noble Lord, Lord Foster of Bath. I would say, with respect to his most recent comments, that the test of a free press is not whether or not they publish a letter. Indeed, the fact that they do not publish your letter is itself an expression of freedom.

Amendment 229ZC would require the Government to report to Parliament about the arrangements that would need to be made should Ofcom assume the responsibilities of an independent regulator of digital publications. I acknowledge the care with which the noble Lord, Lord Stevenson, has drafted this amendment. He was quite candid in saying that his real concern is the regulation of the press, but he was equally candid in indicating that, in order to come within scope for the purposes of this Bill, he was not really concerned with all publications by the press but only digital publications.

I see in his amendment an expression of concern—and, indeed, of frustration—over the lack of progress being made towards a viable avenue for press regulation. I am sure that in a sense that, in part, has prompted this amendment. However, he said himself that it might be slightly premature. With respect, I would concur with that observation. It is perhaps too soon—and people will say in response, “Four years after Leveson, is anything too soon?”—but we have to remember that the press landscape has altered quite dramatically over the last four or five years. That is reflected in the fact that certain matters have gone out for consultation—particularly with regard to Section 40, which is going to be raised in a later amendment—albeit that the consultation process has been somewhat stymied by an application for judicial review.

I move on to the core of the present amendment, which is the idea that we should move towards—and this was a backstop of Lord Leveson’s report—Ofcom as a regulator. The idea that Ofcom should regulate digital publications—albeit with “digital publications” not being a defined term, and I make nothing of that—has behind it the real push that Ofcom should become the regulator for the press. As I understand it, that is essentially what lies behind the amendment.

Let us remember that Ofcom already has huge responsibilities as a regulator, many of which we have debated over the last week. Among other things, it has to ensure that we have fast broadband connections, competition decisions, such as the current consideration of the future of Openreach, which has been referred to, and spectrum management, including forthcoming auctions. We have also discussed today its new role in respect of the BBC and its function in managing listed events, and we have heard from my noble friend Lord Borwick in respect of Ofcom’s regulatory functions and in respect of subtitles and the accessibility of on-demand services. There is plenty more, over and above that, that Ofcom does, and that is without even going into the question of postal regulatory functions.

We have the greatest respect for Ofcom as a regulator, but the question arises about how much more we can put on its plate. This amendment seeks to pile on more. For the first time, it would be setting a regulatory requirement on Ofcom, in statute, in relation to internet content, which is not TV-like, if I may use that rather crude term. As my noble friend Lady Buscombe has already made clear, moving to a situation in which Ofcom is a regulator of a broad range of online content would be an enormous undertaking for Ofcom, or indeed for any other regulatory body.

--- Later in debate ---

[Baroness Jones of Whitchurch]

My Lords, again, given the lateness of the hour, I simply say that our views are well known, that we have supported the implementation of Section 40 in a number of previous debates in this Chamber, and on that basis we support the amendment.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Baroness, Lady Hollins. I will address Amendments 233F and 234A together. The amendments, of course, mirror Section 40 of the Crime and Courts Act 2013 but would apply to digitally published news-related material only, as we know. The House has debated the issue of Section 40 on various recent occasions, including during passage of the Investigatory Powers Act and the Policing and Crime Act. There was also a stand-alone debate just before the Christmas Recess.

There is obviously a great strength of feeling about this matter. I realise that some Members of this House are frustrated by what they see as a lack of progress by government on Section 40. However, the Committee should also recall the strength of feeling on the other side of the debate. Many noble Lords have argued passionately in this House against Section 40 and are concerned about its commencement and its impact upon freedom of the press. That is why the Government ran a consultation to consider the matter further.

The press self-regulatory landscape has changed significantly in the past four years since the Leveson inquiry reported. It is right that the Government take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established can never happen again.

A consultation was the most appropriate way to ensure that the Government were listening to all views when considering options for the next step in respect of Section 40. Indeed, the consultation closed on 10 January, and it is estimated that we have received more than 140,000 responses. I know that many Members of this House responded to the consultation, and of course we are grateful that they took the time to do that, but many others have responded as well. It will be necessary to consider the many and diverse views that have been expressed with regard to this matter.

As many Members of the Committee will know, and as the noble Lord, Lord Prescott, mentioned, the consultation is now subject to a legal challenge. While I cannot comment on the ongoing legal proceedings, the Government have committed not to take any final decisions on the matters to which the consultation relates until the judicial review application has been determined. As such, it is not possible for me to set out a timetable for when the Government will respond to the consultation. But of course we hope that that judicial review application will be determined much sooner than later.

That brings me on to the amendments from the noble Baroness, Lady Hollins. The issues that she has raised are of critical importance. I appreciate that she and her family were themselves the subject of press abuse, as were other Members of this House. I also recognise the strength of feeling that parties have on the commencement of Section 40. However, with respect, now is not the right time for this House to consider the present amendment.

News consumption is becoming increasingly global and more and more people are reading their news online from a multitude of sources from around the world. Bringing in a law that effectively mirrors Section 40 but for relevant digital publications only would create an incoherent regime applying different rules depending on the mechanism by which an article has been published.

Noble Lords who have supported these amendments have raised the profile of this issue and given a clear signal of their intent—and of their continuing intent. This has not gone unnoticed in government. But we must ensure that we consider this matter properly. As I said before, a free press is an essential component of a fully functioning democracy and we must ensure that we protect that. I note what the noble Lord, Lord Prescott, said about the position in Ireland. I am not in a position to express a view as to the manner in which that operates but I am perfectly content to indicate that we will look at that going forward as well. I hope that that will satisfy the noble Lord. At this stage, however, I urge the noble Baroness, Lady Hollins, to withdraw her amendment.

[Baroness Hollins]

My Lords, I thank the Minister for his reply. My hope is for a free and responsible press. However, what is most disappointing for the public is that over the last four years of inertia and of the press’s failure to establish a proper regulator, countless more individuals have been affected by press abuse and have no access to redress. They include victims from the Paris Bataclan attack, the Shoreham air disaster, and many more. This issue is still live and is still troubling. All these individuals have been let down by the Government’s decision to renege on their promises and to prevent access to justice for ordinary victims of press abuse. I am disappointed by the Minister’s response and I intend to return to this on Report. I beg leave to withdraw my amendment.