Justice: Private Sector

Lord Keen of Elie Excerpts

Tuesday 18th June 2019 Lords Chamber

[Lord Wallace of Saltaire]

To ask Her Majesty’s Government what plans they have to review the principles of government outsourcing to the private sector, particularly in regard to justice matters.

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

My Lords, the Ministry of Justice has supported the Cabinet Office-led review into outsourcing. In February 2019, the Government published three new documents: guidance on financial distress, a revised supplier code of conduct and The Outsourcing Playbook. The playbook applies to all outsourcing decisions, but with a focus on complex outsourcing.

[Lord Wallace of Saltaire (LD)]

I am sure the Minister will agree that the underlying drive for privatisation of public services was public choice economics, which said that the concept of public interest and public service was not a strong motivating factor and that the profit motive was the only one. Behavioural economics has now accepted that there are other psychological motivations, including, in the words of economists themselves, “inequity aversion”, “fairness” and even “altruism”. Therefore, is it not correct that, in dealing with probation or rehabilitation in prisons—two obvious areas where outsourcing has got into trouble—factors other than the profit motive need to be given a great deal more importance, and that this undermines some of the principles of outsourcing?

[Lord Keen of Elie]

The noble Lord makes a perfectly valid point. The Government are extending the requirement of the social value Act in central government to ensure that all major procurements explicitly evaluate social value, where appropriate.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, does the noble and learned Lord agree that, in state activity that involves the detention of citizens, such as prisons, policing and some mental institutions, public service should trump private profit?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, it is not simply a case of seeking to have profit trumped by public service. There are areas where it is entirely appropriate to involve the third sector in the provision of some of these services and those related to them. Examples include the work provided by the third sector in prison education and offender well-being programmes.

[Baroness Howe of Idlicote (CB)]

My Lords, recent research by the Guardian shows that private prisons are disproportionately more violent than public ones, with almost 50% more assaults. Official figures show that private prisons are also more likely to be overcrowded. The third piece in this puzzle is staffing; understaffing, combined with overcrowding, often leads to more violence. Regrettably, the Government apparently will not reveal staffing levels in private prisons. Why? Does the Minister agree that we need an independent inquiry into why private prisons are more violent?

[Lord Keen of Elie]

My Lords, violence in the prison system is extremely regrettable and the Government have been working very hard to address the issues that underpin it, in publicly or privately funded prisons. We continue to monitor some of the worst performing prisons in this context, to ensure that we can achieve improvements in that area as quickly as possible.

[Lord Watts (Lab)]

My Lords, is it not the case that the Civil Service and Ministers do not have the ability to let contracts in the public sector? What will the Government do to address this problem, which is causing billions of pounds of taxpayers’ money to be wasted?

[Lord Keen of Elie]

The noble Lord raises a pertinent point. One of the objectives of the recent publications is to ensure that there is sufficient expertise to review and consider such contracts. Examples are: the need for pilots when the Government are outsourcing a service for the first time; the production of assessments of should-be costs; the need to produce resolution planning information lest a private contractor fail; the need to publish key performance indicators so that we have an objective means of determining the delivery of these services; and the requirement for the Civil Service and the Government to understand financial distress guidance when entering into these contracts. These are all being addressed in the light of the recent work done in the Cabinet Office.

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

My Lords, can the noble and learned Lord assure us that in future contracts, in view of the failures there have been, far more attention will be given to specifying requirements for service providers in terms of the numbers and professional qualifications of the personnel involved in delivering those services?

[Lord Keen of Elie]

My Lords, of course we will carefully review the ability of any proposed private contractor to deliver the services they are being contracted to provide. I shall not go into the minute detail of that examination but, as I say, it will include the need, first of all, to identify key performance indicators and ensure that they are adhered to.

[Baroness Smith of Basildon (Lab)]

My Lords, when talking about privatisation, it is not just about the Prison Service; we also have to look at the probation service. The Question mentions “the principles of government”. Surely, a pragmatic, sensible approach is better than the expensive ideological approach taken by Chris Grayling to the probation service. May I ask the Government to look at what works rather than at what is in the Government’s best interest, which has clearly been dangerous to offenders and victims alike?

[Lord Keen of Elie]

We are concerned to secure the best interests of all those affected by the provision of services, whether public or private. Probation service delivery is driven not by ideology but by a recognition that often in these areas a mixed-economy approach works best, not just financially but more broadly terms in the quality of delivery.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Monday 17th June 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

Considered in Second Reading Committee on 12 June.

Bill read a second time and committed to a Special Public Bill Committee.

Probate: Delays

Lord Keen of Elie Excerpts

Wednesday 12th June 2019 Lords Chamber

[Baroness Browning]

To ask Her Majesty’s Government what action they are taking to reduce delays in probate being granted to non-professional claimants.

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

My Lords, urgent action has been taken to address the delays that have been experienced in the probate service. Staffing is being increased and the digital service further improved to help to reduce waiting times.

[Baroness Browning (Con)]

I wonder whether my noble friend can tell us exactly what the waiting time is as of today, and when he expects his department to meet the recommended waiting time of 10 working days. He will know of my opposition—and, I must say, that of the Law Society—to the policy of a change in the £215 flat-rate fee to apply for probate to a sliding scale amounting to many thousands of pounds, with money up-front on the table. When does he think the department is going to meet that target?

[Lord Keen of Elie]

My Lords, historically the time taken for a personal application for probate has been about four weeks. In the recent past, due to a number of factors, that period increased to about eight weeks. The department then applied additional staffing to the matter of processing probate applications, and on average present grants are being issued within six to eight weeks. We anticipate further improvements as we roll out the online system of probate applications, and by October this year we anticipate that all forms of probate application will be available online.

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

My Lords, delays in grants of probate are causing frustration and hardship, not only for bereaved families, but for many people caught in sale and purchase chains whose property purchases cannot proceed. Does the Minister accept that the current delays result from a rush of applications brought on by the threatened increases in probate fees to which the noble Baroness referred? What consideration has been given to abandoning those increases since this House passed the regret Motion last December?

[Lord Keen of Elie]

My Lords, there were essentially two features that impacted upon the timing of probate applications earlier this year. First, as the noble Lord alluded to, there was a marked increase in the number of applications—about 22%—in March of this year. It is perceived that that may have been in response to the anticipation of fee increases for probate. A second, more immediate, factor was the move over in respect of the digital probate service from three probate registries to the Courts & Tribunals Service centre in Birmingham towards the end of March. To facilitate that move, it was necessary to transfer cases, both digital and paper, from the legacy system on to a new single system called CDM. During the first few weeks after the changeover, there were difficulties with the CDM system, which have now been overcome. There was also the need to further train staff in that new system, resulting in pressures on the service during that period. We have now met those pressures, we have stopped the increase in time taken for the processing of probate applications and we now hope to see it reduce.

[Lord Beecham (Lab)]

My Lords, is it still the Government’s intention to make a profit out of the charges levied for probate, or will the fees simply reflect the cost of providing the service, as they should?

[Lord Keen of Elie]

My Lords, the term “profit” is not really appropriate in this context. As the noble Lord is well aware, any fees over and above cost in the court system are attributed to its other features so that, for example, victims of domestic violence can have their fees waived with regard to court applications. As regards the present state of the legislation, an approval Motion has not yet been laid in the other place.

[Lord Bassam of Brighton (Lab)]

My Lords, is it not the case that when the probate fees were brought before your Lordships’ House, part of the argument for increasing them by as much as 200% was that this money would be set aside to fund part of the MoJ’s primary service? Does the noble and learned Lord think that this represents good value for money given the delays now occurring in probate?

[Lord Keen of Elie]

My Lords, I have already explained the reasons for the delays in March of this year with regard to the processing of probate applications, which were not related to the fees or the proposed new fees in respect of probate. In so far as there is any cost plus fee being charged for probate, that cost would be attributed to other court services provided by this department.

[Lord Tomlinson (Lab)]

My Lords, as the noble and learned Lord does not appear to like the word profit, can he tell us how much of the surplus was made available for distribution to other aspects of the justice system?

[Lord Keen of Elie]

My Lords, I am very content with the word profit, but it should be used in the proper context—that was the point I was seeking to make. As we have not yet applied the fee increases, there is no issue of a surplus at the present time.

[Lord Forsyth of Drumlean (Con)]

My Lords, might it not be a good idea, in order to incentivise the department to be more efficient, to waive the fees where people have to wait more than 10 days for their probate?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am all in favour of incentivisation, but there is ultimately a cost for any service provided by this department.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

Moved by

[Lord Keen of Elie]

That the Committee do consider the Bill.

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

My Lords, this Bill makes mainly technical changes to existing legislation which will facilitate the enactment and operation of the Law Commission’s sentencing code—a consolidation of legislation governing sentencing procedure in England and Wales. I emphasise that it is concerned with sentencing procedure; it is not concerned with sentencing policy.

It is not a controversial proposition, I suggest, that one pillar of the rule of law is that the law should be intelligible, accessible, clear and predictable. It is equally uncontroversial to say that, in our criminal law, the law governing sentencing procedure has grown incredibly complex and disparate. We have seen numerous examples of even the most experienced legal minds in the country spending too much time trying to disentangle which law applies to particular offenders. This is exacerbated by the need to deal with multiple changes to the statute book, which may determine what sorts of disposals are available in a particular case. As a result, too much time is taken up by the Court of Appeal in appeals against unlawful sentences. That is not good for the victims of crime, who want closure on their cases, and certainly not good for confidence in our justice system.

Against this background, it was agreed in 2014 that the Law Commission should undertake a project designed to consolidate the law relating to sentencing procedure. The resulting sentencing code brings together the procedural provisions which a sentencing court would need to rely upon during the sentencing process into one Act, and structures them in an order which follows the chronology of a sentencing hearing. The aim of these improvements is to assist legal professionals in identifying and applying the law, thereby reducing the risk of error, appeals and delay in the sentencing process. The sentencing code will also enhance the transparency of the process for the general public.

The Law Commission consulted extensively over the four years of the project and published a concluding report in November last year. The sentencing code project has received a broad consensus of support from across the judiciary and the wider legal profession. Alongside the report, the Law Commission also published a draft version of this Bill and a draft sentencing code Bill. The enactment of both pieces of legislation is the core recommendation of the report. This Bill has therefore been deemed suitable to be considered by your Lordships under the special procedure for Law Commission-recommended Bills. Before the sentencing code can be taken forward, changes to existing legislation are needed to facilitate the consolidation of sentencing procedural law in the code. This is a common feature where consolidations take place, and this Bill will make those necessary changes.

One of the reasons behind the complexity of current sentencing law is the layering of changes to sentencing legislation over time. We are concerned, among other statutory enactments, with the Justices of the Peace Act 1361. Different provisions apply to different offences and offenders, depending on when the offence was committed. Sentencing courts often have to refer to historic versions of sentencing law to ensure that the sentence passed is in accordance with the applicable law at the time of the offence. Identifying and applying historic versions of sentencing law can be difficult and, indeed, time-consuming. When an offence has occurred several years ago—which is not uncommon—and new disposals have been introduced, others have been updated and some discontinued, it is not always clear what types of disposals are available in the case before the courts. On top of that, the precise details of how those changes to the law have been commenced or saved may be scattered across the statute book.

Let me give some examples. In one recent case, the offender was sentenced to a community order with a three-year supervision requirement, following a conviction for an offence committed between March 1981 and March 1983. The Court of Appeal substituted a sentence of 24 months’ imprisonment, suspended for 12 months, following an application by the Attorney-General. However, as the offence had been committed before 4 April 2005, a suspended sentence was not available to the court under the Criminal Justice Act 2003. Instead, the court could only impose a suspended sentence in line with historical sentencing provisions under the Powers of Criminal Courts (Sentencing) Act 2000. That meant that the court had to follow a different test concerning the availability of a suspended sentence, and no community requirements could be imposed as part of it.

Difficulties in identifying the applicable disposals available to the court can also lead to significant injustice. In another case, the offender was sentenced in August 2006 to a sentence of imprisonment for public protection under Section 225 of the Criminal Justice Act 2003 with a minimum term of six years, following a conviction for an offence committed between August 2004 and January 2005. However, Section 225 of the 2003 Act had been commenced prospectively, and only applied to offences committed on or after 4 April 2005. As a result, a sentence of imprisonment for public protection was not available for the offender. The sentence imposed was therefore unlawful. Perhaps incredibly, it was only two and a half years after the expiry of the minimum term that the offender appealed against the sentence and the imprisonment for public protection sentence was quashed and replaced with a sentence of 12 years’ imprisonment, with an extended licence of 10 years. This resulted in the offender’s immediate release.

Clause 1 seeks to remedy this sort of issue by giving effect to what the Law Commission calls a “clean sweep” of sentencing legislation. That will remove the need for sentencing courts to identify and apply historic versions of sentencing law. It does this by extending provisions which have been partially commenced and completely repealing provisions that have previously been repealed but partially saved. It deems that “transition time”—the point at which a given provision was commenced, repealed or amended—to have occurred at a notional point in time before what we might term a “trigger event”. The “trigger event” is the event which governs what sentencing procedure applies in a given case. The obvious example of that is the point when the offence was committed.

For example, let us say that an old rule about sentencing currently applies to offences committed before 1 January 2010. The Bill will deem that provision to have been repealed completely at a point in time before any pre-2010 offence was committed. Likewise, any successor provision will be deemed to have commenced before the offence was committed. As a result, the current law as enacted in the sentencing code will apply to all sentencing decisions when an offender is convicted after its commencement, irrespective of the date the offence was committed. The two important terms here, I suggest, are “transition time” and “trigger event”.

Importantly, the clean sweep is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available, or to a minimum or mandatory sentence that did not apply at the time the offence was committed. Those exceptions ensure that the clean sweep does not contravene the general common law presumption against retroactivity, and accords with human rights protections against retroactive criminalisation and retroactive punishment, as provided for by Article 7 of the European Convention on Human Rights. That is an important step, and a very neatly designed legal tool, which will help to minimise the risk of error caused by having to look through various historic layers of sentencing legislation, and one which the Law Commission considered very carefully during its considered and lengthy consultation.

Since a consolidation must operate on the current law, Clause 2 refers to the amendments and modifications of sentencing legislation contained in Schedule 2. Making changes to facilitate consolidation in this way is a standard measure that precedes consolidation Bills. These pre-consolidation amendments are generally limited to correcting minor errors and streamlining sentencing procedural law—for example, changing language to avoid inconsistency or updating existing statutory references, such as omitting references to local probation boards, which were abolished by Section 11 of the Offender Management Act 2007, or where there are amendments replacing references to the education and library boards, which were abolished by the Education Act (Northern Ireland) 2014, with references to their replacement, the Education Authority.

Other amendments come about as the process of consolidation itself creates the potential for anomalies that otherwise might not matter. For example, there are amendments in Schedule 2 that repeal provisions of the Powers of Criminal Courts (Sentencing) Act 2000 and the Crime and Disorder Act 1998, which provide express powers of appeal against restitution orders and parenting orders. These orders may be appealed anyway under the general powers available in Section 108 of the Magistrates’ Courts Act 1980 and Section 9 of the Criminal Appeal Act 1968. So removing the specific appeal rights provided for does not alter the legal position, but keeping them in the consolidation could put appeal rights against other sorts of disposal in some doubt.

Other amendments resolve unnecessary ambiguity. For example, Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 governs the minimum sentences for repeat drug trafficking offences, but in defining what is an “appropriate sentence” for those aged 18 to 20 the provision does not currently refer to the power of the courts to impose a sentence of custody for life. It is clearly not the intention that, where a minimum sentence applies to an offender aged 18 to 20, the courts cannot impose a sentence of custody for life where they consider that the seriousness of the offence and the danger the offender poses to the public justify it. The Bill therefore amends the 2000 Act so that it is clear that the court may impose a sentence of custody for life where the minimum sentence applies, the offender is aged 18 to 20 and the offence carries a maximum penalty of life imprisonment. All this applies already in current law, but the Bill simply makes the statute book clearer and, we hope, easier to use.

Finally, some amendments look to continue to give effect to the clean sweep approach relating to future amendments to the law. These amendments alter the Secretary of State’s power to amend things such as the maximum period of a conditional discharge, the limits for unpaid work requirements and alcohol abstinence and monitoring requirements, or the list of offences considered to have a terrorist connection for purposes of sentencing. The changes in the Bill mean that, if changes are made by order in the future, those can apply to any offender convicted after the change comes into force, not only for any offender whose offence was committed after that time. It should be emphasised that none of the amendments in the Bill makes changes to existing offences or penalties, nor do they introduce any new substantive law or sentencing disposals.

In summary, the Bill has two main objectives: first, to remove historic layers of legislation; and, secondly, to make changes to the existing law of sentencing procedure to facilitate the consolidation in the sentencing code. The sentencing code will be introduced to Parliament at a later date under the special procedure reserved for Law Commission consolidation Bills. I finish by acknowledging that the Government are very grateful indeed to the Law Commission, in particular the Law Commissioner for criminal law, Professor David Ormerod, and his staff for the work they have undertaken over the last few years. Indeed, I express my personal appreciation for the work he has done more recently to try to inform me as to the details of this proposed legislation. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am pleased that we have been able to find the parliamentary time to progress this Law Commission Bill. As has been acknowledged, the Bill paves the way for the sentencing code legislation which will address the need for clarity and accessibility in sentencing procedure. The noble Baroness, Lady Mallalieu, referred to the requirement for certainty and transparency, and that was echoed by many noble Lords in their contributions to this debate.

I will address how the Law Commission approached the clean sweep and the reasons behind the regulation-making powers in the Bill but before I do that I will pick up on a number of points. The noble and learned Lord, Lord Hope, referred to paragraphs 90 and 92 of Schedule 2 where there is a reference to the law of Scotland in the context of community orders and suspension orders. There is an anomaly in the present law which it is hoped will be addressed by means of the provisions in the Schedule. We have engaged with the officials of the Scottish Government on this matter. Indeed, we have indicated to them that an LCM may be required. We have not had an official response to that as yet, but we do not anticipate there being any difficulty in regard to this matter. If further regulatory powers were used to amend provisions in Scots law, we would, of course, follow the usual convention of engaging with officials of the Scottish Government on that matter.

On the clean sweep, I will attempt to elucidate a little further how it was approached because the noble Lord, Lord Davies, among others, raised whether there should be any concerns surrounding the clean sweep mechanism. The objective is to apply the codified law to all those convicted after the enactment, subject to the important caveat noted by the noble and learned Lord, Lord Hope, that no one can be sentenced to a heavier penalty than could have been imposed on the date of the commission of the offence. In approaching that, the Law Commission had regard to the jurisprudence of the European Court of Human Rights interpreting Article 7 of the convention and to domestic law, as reflected in cases such as Docherty in the Supreme Court, about non-retroactivity with regard to the imposition of maximum penalties in matters of crime. So how did the Law Commission approach the clean-sweep task? First, it identified the sentencing procedure provision in the present law in its most up-to-date form. Then it asked whether consolidating that most present form of the law into the code and making it apply to anyone convicted after enactment, irrespective of the date of the commission of the offence, would infringe Article 7 of the convention or the common law provisions to which I have referred.

In approaching that matter, the Law Commission asked itself a series of questions. First, will this impose a heavier penalty than could have been imposed at the date of the commission of the offence? In deciding what is a heavier penalty, it had of course regard to the jurisprudence of the European Court of Human Rights, to the domestic law—such as Docherty, which I referred to—and to whether the penalty is heavier than the maximum available at the time, given that that is the relevant test in convention law and domestic law. If there was no risk of a heavier penalty than could have been imposed, it could then consolidate the present law.

The Bill achieves that by deeming the date of commencement for the most up-to-date form of the law being consolidated, and/or the partial repeal of versions of the law that were also applicable for historic cases, to have occurred before the trigger event, which, as I noted earlier, is the commission of the offence. If I may say so, that is a neat means of addressing what is otherwise a potentially quite complex issue on retroactivity. If to impose the current law would risk imposing a heavier penalty, then an exception is created within the Bill to preserve the previous forms of the law by specifying the dates to which they would apply. That is the purpose of what are perhaps, on the face of it, these rather lengthy Schedules.

As the noble Lord, Lord Bassam, observed, a regulatory-making power is there to enable the Secretary of State to address a number of issues that could arise. First, in this complex area of law—I believe everyone acknowledged that it is a somewhat complex, layered area—there may have been some oversight. It is therefore to deal with that issue. Secondly, there may be circumstances in which an exception should have been made to prevent a heavier penalty and was not made; it is to deal with that as well. Thirdly, there may be some change in sentencing policy, between Royal Assent being granted to the present Bill and the introduction of the sentencing code, with regard to a particular offence. That, too, would have to be addressed. It is for those purposes that the regulatory-making power is there.

The noble Lord, Lord Bassam, raised a pertinent point about the Armed Forces. It is intended that the code should extend to the Armed Forces. Work is still ongoing with regard to that; we hope that that work will not hold up the passage of the sentencing code Bill itself. There might, in the course of its passage, be some further amendment to ensure that that is done. One or two complexities about incorporating the Armed Forces are being addressed at present.

As to a guarantee on when the sentencing code Bill will be brought forward, I regret to say that, like the noble Lord, Lord Bassam, when in his ministerial position at the Home Office, I am not in a position to offer guarantees. Clearly, though, we are anxious that once we have laid the groundwork for the sentencing code it should be brought forward as soon as practicable. It is in those circumstances that we will seek to address this.

Noble Lords also referred to the other work of the Law Commission. We commend that work and are conscious of the need to address the Commission’s work, and to look at law reform in light of its findings. We engage on a regular basis with the Law Commission and it presents an annual report to Parliament. Parliament has an opportunity to see the work that is ongoing and the work completed by the Law Commission. Again, I cannot give any commitment about particular areas of its work at present. I notice that the noble Lord, Lord Davies, took the window of opportunity to advertise his wares to the Law Commission. No doubt when the commission reads Hansard, it will be conscious of his concerns.

With that, I thank all noble Lords for their contributions to this debate and commend the Bill to the Committee.

Motion agreed.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Keen of Elie Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I am reminded that these provisions will apply to family law procedures. Of course, it may improve the resolution of family issues, which will benefit the children involved, but there is a concern that it may make resolution more difficult and thus adversely affect the children in those families. Has the family test been applied to the Bill? I do not see that in the accompanying notes and perhaps it is not appropriate to apply the family test to it. I would be grateful if the Minister could tell me whether the family test has been applied.

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

My Lords, I will speak to Amendments 1, 3, 4, 6, 10 and 11, which relate to the operation of the online procedure and how we can ensure that people using it are not disadvantaged. I intend to turn first to Amendment 3, which covers whether a user can choose between digital and paper channels. Then I will move on to Amendments 1, 4, 6, 10 and 11, pertaining to the online procedure and the matter of choice.

Amendment 3 suggests that claimants and respondents should have the choice of whether to use paper or digital channels when engaged in the simplified online procedure. I can confirm that the Government agree with this point, and indeed there is provision for this already. Essentially, where the online procedure comes into place, it will be possible to access it either by way of the digital portal or by way of a written document of claim. Other written documents may also be used when employing the simplified online procedure. The intention, which already applies to some of the digital procedures we have in place for small debt, is that the document will be scanned into the system and will therefore be part of the process. The idea is to ensure that parties are not excluded from the simplified procedure that will be brought in under this online procedure simply because they feel unable to employ, or are incapable of employing, the digital process itself. However, there is a distinction between that and the situation in which, when dealing with debt claims of under £25,000 for example, a claimant or any other party would be allowed to opt either for the simplified procedure that will be promulgated under the online procedure or to have recourse to the existing Civil Procedure Rules and the more complex procedure that pertains there. It is not intended under the Bill that claimants should have an option between the simplified procedure and the more complex procedure. I shall come on to develop that a little more in a moment.

Perhaps I may take this opportunity to confirm that we have no plans to remove the availability of paper channels for citizens under the remit of the Online Procedure Rule Committee. Of course, it is our intention to create a digital service that will be easy to access and use—indeed, so easy to access and use that it becomes the default choice for the majority of users. We recognise, however, that not everyone will be able to use it, or wish to proceed with that digital choice without support. For that reason, a paper route will remain open.

We want to be clear that users can expect an equity of service, regardless of whether they proceed with a digital approach or a written claim. Where different parties choose different channels, we will seamlessly join them together by means of a scanning and printing service, so users who want to send and receive papers will still have that choice—they will not need to resort to the online portal. To that extent, I offer my assurance that paper channels are still available and will be available under the Online Procedure Rules. The Bill will do nothing to remove them.

[Lord Pannick]

Does the Minister accept that nothing in the Bill guarantees that? He gives us an assurance, but surely it would be better to write that into the Bill.

[Lord Keen of Elie]

If every time we legislated we decided to guarantee everything from A to Z, we would end up with very long Bills. The position is this: there is the ability to proceed by way of the paper process. Nothing prohibits it, there is no inhibition on that process, and there is no intention to introduce such an inhibition.

Turning to Amendments 10 and 11—

[Lord Mackay of Clashfern]

Before my noble and learned friend leaves Amendment 3, I understood him to say he would accept it, so that it would go into the Bill—although without, I hope, the choice of the combination.

[Lord Keen of Elie]

No, I do not accept the amendment. What I say is that there are existing means by which we can assure people that they can proceed by way of a digital portal or by way of a written claim, which will be scanned and taken into the online procedure process once it is up and running.

[Lord Pannick]

I am very grateful to the Minister for giving way again, but I must press him. We are dealing here with fundamental issues of access to justice. Surely if the Minister recognises that paper procedures must always be available to litigants, it is absolutely vital that the Bill says so.

[Lord Keen of Elie]

I am afraid I cannot accept that. There is nothing in the Bill that would prohibit the employment of such a paper process once the online procedure is up and running. Indeed, the noble Lord will appreciate that, when it comes to the making of rules by the relevant committee, the process will involve the judiciary as well as the Executive.

We have heard reference already to the idea of consultation, and we will in due course look at amendments to the Bill that seek to shift the question of consultation to one of concurrence. Therefore, we will be in a position to rely on not only any decision-making on the part of the Executive but also the contribution of the judiciary to how it sees that these processes should best be applied in the interest of all litigants. I emphasise “all litigants” because, when we seek to simplify the court process and reduce its potential cost, we are doing so for the benefit of litigants in general. We will come to concurrence and consultation later.

We must bear in mind that this is not a case of Ministers dictating what the relevant rules will be. It is a case of the Executive setting out the machinery by which a rule committee can come into place and set out appropriate rules and regulations for the online procedure, in consultation with the judiciary and with its input, and potentially with its concurrence.

[Lord Marks of Henley-on-Thames]

I am sorry to press the point, but does the Minister accept that without the guarantee in the Bill of his intention, we could lose this procedure at some stage in the future, and that this House may well wish to see that guarantee entrenched in the Bill, so that primary legislation would be necessary to remove the procedure?

[Lord Keen of Elie]

I quite see that this House might wish to see it in primary legislation, but the position is this: a committee will be formed to put forward appropriate rules and regulations for the online procedure, under the essential supervision not only of the Executive but of the judiciary. There may come a point, at some unforeseeable time in the future, where the judiciary is of the view that it is no longer necessary to employ paper as a form of application or entry into the judicial process. I do not anticipate that happening—there is nothing here to suggest it will happen—and I do not see that there is a requirement for such a guarantee in the form of primary legislation. We intend to form an Online Procedure Rule Committee that will be well qualified to determine the appropriate routes into the online procedure for all parties concerned, including those perhaps not digitally competent or confident. That remains the position.

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may press the Minister on one point. It is easy to see that there is a distinction between an online procedure and the way the court works. If it was made clear that the online procedure is largely geared to ensuring that the systems that lie behind it operate efficiently across the system but that, in using that procedure, if people did not want to go online the court would undertake to scan the documents in—if that distinction was made—would the Minister accept that what really is needed, because these amendments do not grapple with the problem, is a guarantee to the litigant that he can go to court, hand in a piece of paper and it will be scanned into the system? That is all.

If that is the effect of these amendments—and it is limited to that—would that not achieve everything and give an opportunity to increase access to justice? In the current system access to justice is a figment of the imagination, but the use of an online procedure would enable this to happen. Will the Minister look at this issue again in the light of my suggestion to him?

[Lord Keen of Elie]

I hear what the noble and learned Lord has said and I will take account of those observations in going forward to the next stage of the Bill. However, at present it is not my intention to accept any of the amendments so far laid in respect of this matter. If there is a way through by which we can underline the right of a party to make an application on paper to the relevant online procedure once it is up and running, that would essentially achieve the objective that we have and I believe the House has. However, I do not accept that it will be achieved by means of the present amendments.

[Baroness Corston (Lab)]

The Minister will know that in a recent Constitution Committee meeting we discussed the Bill with him at length. If there is to be no indication in the Bill that there is a possibility of making a paper application to the court, what advice or direction will be given to this Committee to make it plain that there will be that advice? We know that a significant proportion of the population of this country might be able to use email but cannot use on online form.

[Lord Keen of Elie]

We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular.

[Baroness Drake]

Does the Minister accept that Clause 7 gives the Minister powers to override or disallow the views of the Online Procedure Rule Committee? However meritorious its views, the Minister would have the power to override them.

[Lord Keen of Elie]

There are circumstances in which the Minister may give directions to the committee—I accept that—and that reflects the current position with regard to the other rule committees already in existence, including the tribunal rules, the civil rules and the criminal rules. It exists by way of an executive direction and is there for good reason as a fallback. I understand that the power has been used only once with regard to the existing committees, to address a potential anomaly in the existing rules. It is an exceptional power but it is there because it reflects the existing power in the provisions for the other rule committees.

[Lord Woolf (CB)]

I apologise for not being at Second Reading but perhaps the Minister will indulge me by helping me with the purpose of Clause 1(1)(a), which states:

“For proceedings of a specified kind, there are to be procedural rules which … must require that kind of proceedings, or one or more aspects of that kind of proceedings, to be initiated by electronic means”.

[Lord Keen of Elie]

It is to ensure that where, for example, there are debt actions below a certain level—let us take a figure of £25,000—they must be initiated by way of the Online Procedure Rules, the simplified procedural rules, rather than by way of the existing Civil Procedure Rules. It is for that purpose that the paragraph is there. In other words, it will not be open to a party who wants to make a small debt claim to decide they want to use the more complex and potentially more expensive Civil Procedure Rules as distinct from the Online Procedure Rules and the simplified procedure that goes with them.

I shall address Amendments 10 and 11, tabled by the noble Lord, Lord Beecham, alongside Amendment 4, which I believe was tabled by the noble Lords, Lord Marks and Lord Beith, and the noble and learned Lord, Lord Judge, as well as Amendments 1 and 6, tabled by the noble Lord, Lord Ponsonby.

Amendments 1 and 6 concern the continued availability of physical proceedings rather than online proceedings. Amendment 4 seeks to allow the parties to proceedings to choose whether to engage with the online procedure or the current procedural rules. This is a point that I just sought to touch upon. Amendments 10 and 11 are intended to deal with those cases where one party wishes to leave the online procedure, but another does not.

This is not what the Bill is intended to achieve. The Bill provides the flexibility for a case to progress via the online rules, or via the traditional rules of the civil procedure if necessary. Where a case is so complex that that the online procedure is clearly inappropriate, it will be for the judge to determine, and he will have the discretion to do so, whether a case should remain within the online procedure or should proceed by way of the traditional civil rules instead. Where both parties make a representation that the case should not proceed by way of the online procedure, then of course the court will hear those representations and take them into account, but ultimately it will be for the court to decide the appropriate procedure for the disposal of any claim. That is as it should be and is as it is with regard to our existing civil procedures. Ultimately, it is for the court to make these procedural decisions, not for the parties to dictate them, but of course their views will be taken into account. Equally, where parties, or one party, are of the view that an oral hearing will be required in circumstances where it might not ordinarily have been anticipated, it will be open to that party, or the parties if they are agreed, to make those representations to the court in order that the court can make the final decision about the appropriate procedure to be employed. Again, that is as it should be. It is ultimately for the court to decide the most appropriate process and procedure for the disposal of individual claims.

Under Amendment 4, users would in effect have the right to choose whether to use the Online Procedure Rules or the traditional rules. Similar points are made in the other amendments. We do not consider that that is the appropriate way to proceed. Users will have sufficient control over proceedings to ensure that they have access to justice, which will not be limited in any way, and certainly not in a way that would intrude upon any rights under Article 6 of the convention.

The online procedure system is simply designed to offer the ordinary user an easier way to access justice, while giving parties the choice to remain in a position to make paper applications to the online simplified procedure rather than engage with the digital portal. I reassure noble Lords that we are not seeking to impinge in any way upon the parties’ right of access to justice, but ultimately we must leave it to the court to determine procedural questions brought before it, albeit that it will make those decisions subject to the representations by or on behalf of the parties to the proceedings.

As I mentioned in passing and in response to the noble Lord, Lord Beith, where a physical hearing arises, it will be for the parties to make representations. Ultimately, it will be for the court to determine on the material before it whether such a physical, oral hearing is required for the disposal of a case. That, I suggest, is as it should be.

I hope that that also reassures the noble Lord, Lord Ponsonby, with regard to judicial discretion. That, ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice and for the benefit of the parties. With that, I hope that the noble Lord will consider whether at this stage it is appropriate to withdraw the amendment.

[The Earl of Listowel]

My Lords, before that happens, I express my apologies for not being able to take part at Second Reading. I thank the Minister for asking his office to contact me and I am sorry that I delayed replying until Friday. I just want to comment on the family test. This was introduced in 2014 to be applied to Bills and involved a number of questions such as, “What kind of impact might the policy have on family formation?” and “What kind of impact might it have on stability in the family?” Although the test is not mandatory, this seems an appropriate Bill to have had it applied to, and I simply express the wish that in the future it might be applied to Bills similar to this one.

[Lord Mackay of Clashfern]

My Lords, I have some difficulty with Amendment 1 and the answer that my noble and learned friend has given. As I understand it, the amendment deals with rules. It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that. He will say that he is sorry to whoever comes along with a bit of paper and explain that they are not able to do that because the rules dictate that it has to be done by electronic means, so they will have to get themselves a computer.

[Lord Keen of Elie]

With respect to my noble and learned friend, my understanding of the position is that the rules will require that certain forms of action—for example, small debt action—should be commenced under the simplified Online Procedure Rules by way of the digital portal, whether you go through electronically or, as I mentioned before, by way of a paper application. However, once that process is in train, there will be a retained judicial discretion to decide whether the case should remain under the simplified online procedure or whether it would be more appropriate for it to be removed from that procedure and to proceed under the ordinary Civil Procedure Rules to an oral hearing.

[Lord Ponsonby of Shulbrede]

My Lords, I thank all noble Lords who took part in this short debate, which has covered quite a wide area. I understand the point made by the Minister about these being civil actions for relatively small amounts of money, and not having the discretion as regards initiating proceedings on paper if that were the case. Although this is the main focus of the Bill now, it has wider connotations—a point made by the noble Earl, Lord Listowel. Some of us, including myself, are thinking about this from other perspectives such as the family jurisdiction.

When addressing Amendment 4, the noble Lord, Lord Marks, made an interesting point, asking what happens when both parties agree to proceed with online proceedings. I thought he intimated that there should be an expectation that they would indeed go ahead with online proceedings. Certainly, from the perspective of somebody who sits in the family jurisdiction, I would say that that would not be appropriate. Whether matters go ahead either online or otherwise should be retained as a judicial decision because it is not unusual for parties to agree to something that is inappropriate in the family courts; the court needs to take a separate view.

Having said that, I thank the Minister for addressing the points; I suspect we will return to them at a later stage. I beg leave to withdraw my amendment.

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[Lord Keen of Elie]

My Lords, I begin by responding to the observations made by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Thomas of Cwmgiedd. This is a piece of enabling legislation—a very welcome one, I suggest—it is not a case of us bringing in powers without limits or regulation. It will establish an expert committee, including judicial representatives, legal representatives and others, that will be able to call upon the expertise of others in particular areas as and when it comes to address them. I will come on to that in a moment in the context of family law. It will operate under the umbrella of not only the Lord Chancellor—or, in the case of employment tribunals, the Secretary of State for BEIS—but the Lord Chief Justice. It does not give free rein to some individual in the Executive to determine how court cases will be determined, but I emphasised that it is concerned only with civil procedure. As the noble Lord, Lord Beecham, acknowledged, the reference in his amendment to criminal procedure is otiose and unnecessary.

Over and above that, I seek to anticipate something that will arise repeatedly in the debate—the position of the Lord Chief Justice regarding the operation of this matter overall, a point we touched on at Second Reading. I am conscious of the desire in some quarters that certain of the Bill’s provisions should provide not simply for consultation with the Lord Chief Justice, which, let us be clear, is a formidable requirement: if you consult with the Lord Chief Justice you consult with him, and if you do so you do not ignore his advice or opinion. Indeed, if you did, it would be open to him to make a report to Parliament under Section 5 of the Constitutional Reform Act 2005, which I think one of my officials referred to as the nuclear option. It is not one that anybody would want to encourage.

I am conscious of the suggestion that, in some areas, we should move from the idea of consultation with the Lord Chief Justice to one of concurrence. That, in a way, touches on many of the issues that arise in the Bill. I can go no further at this stage than say that I have that under active consideration and would anticipate returning to the point on Report. I do not give any unequivocal undertaking, but I indicate that I appreciate how and why certain aspects of the Bill, if moved from consultation to concurrence, would meet some of the concerns, particularly those expressed by the Constitution Committee, regarding this matter. I make that general observation at this stage, because it is a point that we may well return to with regard to certain further amendments.

As I set out at Second Reading, the intention is, as far as possible, to make online procedure the preferred procedure for the commencement and defending of cases that fall within its remit. Of course, our ambition is to develop services that are easier to access and to use, so that over time, digital channels become the default choice for at least the majority of users. I emphasise “majority of users”, for the reasons which we have already touched upon.

As we have set out, our initial intention is that this procedure would consider civil money claims up to a value of £25,000 before widening its remit to cover other proceedings, so it is a question of taking it step by step to see how these procedures will work. It is not our intention that the OPRC would start to remake rules across other jurisdictions immediately. We want to complement and build upon the work of the existing committees in this area, to see whether this incremental approach to the extension of the OPRC’s remit can be successful. But no proceedings will be brought into the Online Procedure Rules without the views of the judiciary, of the committee and, in particular, of the Lord Chief Justice being taken into account—whether by consultation or by way of his concurrence.

Amendment 2, moved by the noble Lord, Lord Ponsonby, appears to be intended to transfer the regulation-making power set out in the Bill from the Lord Chancellor to the existing procedure rules committees—or at least make it subject to that. In effect, it would be for those existing rules committees to decide when proceedings may be subject to the Online Procedure Rules. We consider that this would pose a number of serious practical difficulties.

First, it would place the legislation required to bring proceedings under the remit of the Online Procedure Rule Committee on an entirely different footing from that for the existing rules committees for civil, criminal and tribunal. It would be on the basis of a negative resolution statutory instrument developed by an independent rules committee, as opposed to an affirmative instrument laid by the Government, and that, in itself, would not allow for the appropriate degree of parliamentary scrutiny which should be applied here.

The second difficulty is, I am sure, entirely unintentional. Under the existing civil procedure rules committees, there is a means by which—for example, with regard to employment tribunals and employment appeal tribunals—the Secretary of State in the case of the employment tribunal or the Lord Chancellor in the case of the employment appeal tribunal, can direct the making of regulations or rule-making powers. I do not believe that that would be a consequence one would seek in the present context.

Thirdly, the three existing rules committees cover three entirely independent jurisdictions, and it is unclear how they might decide among themselves which proceedings should be extended to the Online Procedure Rule Committee and which should not. We anticipate that in itself creating very real practical difficulties over the administration of the future Online Procedure Rule Committee. This is why we do not consider that this amendment would have an acceptable outcome.

The noble Lord, Lord Beecham, touched on housing. At present there is no intention to proceed with the simplified Online Procedure Rules in respect of housing cases. However, housing cases are governed by the Civil Procedure Act 1997, and are therefore subject to the Civil Procedure Rules, meaning that they would potentially be subject to the OPRC in the future. If and when that were to occur, it would be after consultation or concurrence with the Lord Chief Justice. It would occur because the committee had determined to proceed in that way—a committee which at that stage could be joined by suitable experts in housing law, and other related experts. Only at that stage would it be contemplated.

I notice, however, that although that is not presently anticipated, it is currently possible to initiate some housing enforcement claims online, through the Possession Claim Online website. That has been operational for almost a decade. There have been no difficulties—certainly no reported difficulties—over access to justice because of the use of that Possession Claim Online website. So I accept the potential width of the Bill.

This brings me to Amendment 8, in the name of the noble Lord, Lord Ponsonby, the issue of family proceedings and the concern that has been expressed there. There may well be situations, such as those posited by the noble Lord, Lord Pannick, where one would never anticipate online procedure or digital process being appropriate for types of family law cases, such as those concerned with children and their welfare. Nobody is suggesting otherwise, but it is not necessary for us to list particular exclusions, because in doing so one is liable to overlook something. It is far better for us to ensure there are appropriate safeguards in place, such as by judicial input, whether by consultation or concurrence; by having an appropriately qualified committee with the ability to bring in experts, particularly on areas such as family law or child welfare; and by ensuring that we proceed incrementally only where the introduction of these simplified procedures is in the interest of litigants. There are circumstances in which it may be in the interest of litigants, in family law cases, to have access to a simple, inexpensive online procedure for the resolution of some types of dispute.

[Lord Beith]

To support that approach, perhaps the Government should be using different language from that used in the Explanatory Notes in paragraph 1, which says:

“We expect the Committee to focus on the civil and family jurisdictions in the first instance”.


That is pretty broad.

[Lord Keen of Elie]

It is intentionally broad. Again, this is not going to proceed without the input of the judiciary, in particular the Lord Chief Justice, and without application to the formulation of rules of a committee with expertise in all these areas. I suggest it would be counterproductive to introduce at the outset statutory limitations on the operation of these simplified procedures. That is an unnecessary straitjacket, given the way the legislation is formulated and how the simplified Online Procedure Rules will be introduced, not only by the Executive but by the judiciary and relevant committee. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Beecham]

Did the Minister imply that it would be possible to bring forward provision to include housing, presumably by secondary legislation? Is that what he has in mind? If so, would it be an affirmative or negative resolution?

[Lord Keen of Elie]

To clarify, I believe I said that many housing issues are currently governed by the Civil Procedure Act 1997. They are therefore subject to civil procedural rules and could, in turn, be subject to rules introduced by the OPRC for digital access. There is no present intention to address that in the context of housing. I went on to add that, at present, there is an online procedure for some forms of housing claim, such as possession claims, which can be made through the relevant website. I emphasise that housing cases fall within the wide remit of this legislation, but there is no present intention to embrace them within the OPRC.

[Lord Ponsonby of Shulbrede]

My Lords, I thank noble Lords who have spoken in this short debate. I understand the central point made by the Minister: that he does not want any statutory limitations on the relationship between the various committees. My Amendment 2 gave one model of a relationship between the two committees. I shall withdraw the amendment, but there is no statutory relationship between any of the committees at the moment. That may have to be developed over time. It may not be for this Bill, but all the committees will have to have a close working relationship which will have to be developed one way or the other. Nevertheless, I beg leave to withdraw the amendment.

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[Lord Garnier (Con)]

My Lords, before my noble and learned friend replies, I gently support the amendment and the way in which it was proposed by the noble Lord, Lord Marks. The policy behind the Bill is clear and sensible: it is to provide easier access, cheaper access and cheaper administration of litigation in certain types of cases. It seems from Clause 2 that the ambit of those cases is broad at the moment. For the reasons given by the noble Lord, Lord Marks, if we do not provide appropriate assistance—if not in the terms expressly set out in his and his supporters’ amendments, at least in some form—I fear that the good intentions behind the policy and the Bill will lead to the unintended consequence, again spelled out by the noble Lord, of a breakdown of the smooth operation of the system because people either do not understand the system or, having got into it, do not understand the technicalities behind internet access. As others have mentioned, that will lead to delay, expense and frustration within the justice system, which the Bill is surely designed to do away with.

I, for one, am certainly not wedded to any particular wording—like the noble Lord, Lord Marks, I am much more interested in outcomes—but the Government need to apply their mind to providing cost-saving and effective forms of assistance. It is not just to the elderly or people with language difficulties, whom the noble Earl mentioned a moment ago, that we need to offer our help: we need to make the system work well and efficiently and be genuinely part of the justice system.

[Lord Keen of Elie]

My Lords, I begin by saying that I entirely agree with noble Lords that digital support for those who want to access online services will be paramount to the effectiveness of the proposed changes in civil procedure. We are of course conscious that not all court and tribunal users have the confidence or ability to use digital channels unaided.

On the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, HMCTS already has an assisted digital strategy in place quite independent of the Bill. For simple support needs, HMCTS staff will talk users through queries over the telephone. In cases of more complex needs, there is provision for face-to-face support, currently being piloted by the Good Things Foundation, which is a charity that specialises in digital inclusion. That means that people can be taken through a digital process step by step. As the noble Lord, Lord Beith, noted, that support is being piloted in 18 locations throughout England and Wales, and in fact will now be rolled out across the country, in order that there is general access to it. We have that digital assistance in place and want to see it developed. We understand the need to ensure that such assistance is available.

We are also seeking to simplify some online forms, essentially by way of a “save and return” process. One frustration encountered by some users of online forms has been that, when they find themselves half way through a form, they decide to consult an appropriate oracle about how to complete the second half of the form but, by that time, the first half has disappeared. Simple steps like that can enable people to use these systems far more easily. We are entirely conscious of the need for such assistance.

I hear what noble Lords say about wanting to see some expression of willingness or intent in the Bill; I would be happy to discuss that further with them before Report. I cannot accept the proposed amendments in their present form—I will not seek to detail why at this stage—but we are willing to discuss an expression of intent that may appear in the Bill. I will leave the matter there at this stage.

Amendment 14, in the name of the noble and learned Lord, Lord Mackay of Clashfern, concerns fraudulent activity from persons perhaps pretending to act on behalf of the court. Of course, we take cybersecurity and online fraud extremely serious across all government services. We have cybersecurity professionals involved in the development of all our systems, including new digital services. Those are assessed by the Government Digital Service before they are ever rolled out for public access, so we have a means of ensuring that these systems are fit for purpose. Of course, we understand the importance of building appropriate data security and privacy measures into all such technological systems. Indeed, our systems are subjected to regular checks to ensure that there is no improper access or misuse. HMCTS has developed a risk assessment framework aligned to Government Digital Service standards. My understanding is that, on the basis of the present offerings online, it is unaware of any fraudulent websites claiming to offer access to such sites. Of course, we will maintain vigilance in that regard.

There is perhaps a distinction to be drawn here between some scams and the sort of online scam where somebody claims to be from Her Majesty’s Revenue & Customs and invites you to send them your bank account details so that you may be the happy recipient of a tax rebate, but you then discover that your bank has inadvertently been emptied rather than credited. In the context of the court process, we are vigilant against fraud but there is no scope there for that sort of fraud. As I said, we have not encountered fraudulent use, or attempts at fraudulent use, of the websites in so far as we already have certain online channels with HMCTS, so we would not consider it appropriate to accept the noble and learned Lord’s amendment at this stage. That said, I would be happy to discuss further the other amendments in the group. In the meantime, I invite the noble Lord, Lord Marks, to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to all noble Lords who have spoken in the debate. It appears that we are all committed to seeing a modernised and simple online procedure that enhances, rather than damages, access to justice. We regard it as essential that there should be a statutory commitment to designated assistance for the parties. For that reason, I am extremely gratified to hear the Minister say that he will discuss such a commitment in some form with myself and other noble Lords between now and Report. Of course, we welcome that invitation and will accept it.

I will just say one further thing in answer to the point made by the noble and learned Lord, Lord Mackay, about the providers of such assistance. As the Minister said and as the noble Earl, Lord Listowel, pointed out, we have in place not only the service provided currently by HM Courts & Tribunals Service but also by such law centres as still exist and by charities such as the Good Things Foundation and the charity mentioned by the noble Earl. I am wary of being too dogmatic about the providers that could by agreement with HM Courts & Tribunals Service provide designated assistance in the future. I hope that, when the Bill leaves this House, we have an acceptable commitment to designated assistance to help litigants in the future. With that, I beg leave to withdraw the amendment.

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[Lord Beecham]

My Lords, I simply add that the crowded Benches behind me will support the amendment. We are entirely in sympathy with all that has been said.

[Lord Keen of Elie]

My Lords, I begin with a simple point of clarification, although it may be that confusion reigns only in my mind. Where the Bill refers to the Secretary of State, it refers to the Secretary of State for BEIS, because of his responsibilities with regard to employment tribunals. Where it refers to the Lord Chancellor, that reference includes of course the Lord Chancellor’s appointment as Secretary of State for Justice. I say this lest there be any confusion about the two references in the Bill.

As I indicated at Second Reading, we have a number of concerns about the implications of these amendments. The Bill has been drafted precisely to ensure that the existing constitutional balance is protected. I will elaborate on that in light of some observations made by the noble and learned Lord, Lord Woolf, with reference to Amendment 28, which concerns the Minister’s power to direct the committee to include provision in the online procedure rules to give effect to a specified purpose.

I stress that this is not a novel power, nor would it apply only to the Online Procedure Rule Committee. The same power already features in the legislation which underpins the committees for the Civil Procedure Rules, Family Procedure Rules and Tribunal Procedure Rules. That is because Clause 8 reflects similar provisions in Section 3A of the Civil Procedure Act 1997, Section 79A of the Courts Act 2003 and Part 3 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. That power was one agreed by the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. The safety valve within the 2005 Act is Section 5, which confers upon the Lord Chief Justice the statutory right to make a report to Parliament if he is concerned about an issue relating to the administration of justice. I emphasise that this is not a novelty. The provisions of the Bill were drafted to reflect the existing statutory underpinning of the other civil rules committees with regard to civil jurisdiction, family jurisdiction and tribunal procedure.

In turn, Amendments 29 and 30 seek to ensure that the Lord Chief Justice concurs before the Lord Chancellor can make regulations under Clause 9. Clause 9 requires consultation with both the Lord Chief Justice and the Senior President of Tribunals, the latter in the context of tribunal procedure. Again, we suggest that this is as it should be. It is anticipated that, as in the past, these regulations would be used to make minor revisions to legislation; for example, to regularise and modernise terminology to match that in the new rules and ensure that the rules operate as intended. In other words, they will be used to make operability amendments. It is in these circumstances that consultation is considered to be the appropriate approach.

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[Lord Thomas of Cwmgiedd]

With the utmost respect to my predecessor, it would be usual for a magistrate to be appointed by the Lord Chief Justice rather than the Lord Chancellor. That would slightly affect the majority, but otherwise I agree with the points made.

[Lord Keen of Elie]

My Lords, it appears that we might avoid both potential problems if we retain the present membership of the proposed committee. Before I turn to the detail of the amendments, it may be helpful if I make some general remarks about the committee’s composition. We certainly support the need for a small, focused and agile committee responsible for making new court rules that are simple, tailored for the benefit of ordinary users and, therefore, understandable. In his final review of the civil justice system in 2016, Lord Justice Briggs as he then was anticipated—I accept—a very differently constituted committee of experts from across various disciplines reflecting users’ needs. A smaller committee allows the standing members to increase and adapt their membership quite easily every time they consider a different topic. That therefore allows them access to a greater spread of expertise and to ensure the rules are made by those who have an understanding of how they are most suited to the user.

The purpose of Amendment 15 from the noble Lord, Lord Beecham, is to add legally qualified members, or members with legal experience, to the committee. As I have indicated, we consider that there is considerable benefit in beginning with a small committee, but one where the membership and expertise can be adapted over time. We consider that adopting the amendment would create issues about who is appointing the membership of the committee and whether there was a disproportionate power of appointment between the Lord Chancellor and the Lord Chief Justice.

I remind noble Lords that the intention is that the online procedure will apply in the first instance to civil money claims up to the value of £25,000, but over time we of course want to widen the procedure’s scope so that it covers the civil procedures, potentially including family and tribunal proceedings. It would be difficult to see the value of insisting on an expanded legal membership at this stage without first gauging the overall value that could be addressed by bringing in specific experts in the area of specific proceedings being considered. In addition, as I said, Clause 6 would allow for the committee’s composition to be changed to incorporate particular experts or disciplines and particular areas of expertise if or when the committee came to address such issues as tribunal jurisdictions or some forms of family jurisdiction.

For similar reasons, we are not persuaded of the need for Amendments 16 and 17, which seek to add an additional member with IT expertise. Again, the argument is the same. Under Clause 6, the committee will have the ability to bring in additional expertise as and when it requires it, and that flexibility is seen as a considerable benefit.

In Amendment 18, the noble Lord, Lord Beecham, seeks to ensure a gender balance on the committee. Of course we support the wider aim of ensuring greater diversity among all senior appointments to public bodies but, to be truly effective, public bodies must bring together a mix of people with different skills, experience and backgrounds. The obligation with regard to appointment is always guided by the code of practice of the Office of the Commissioner for Public Appointments, which sets out the design principles and procedures for appointments with diversity in mind, including gender diversity. It is by these means that we can preserve accountability for diversity. That process is monitored by the Commissioner for Public Appointments, and is subject to a published report each year. We are certainly not complacent about the idea of gender representation at all levels on all committees, but we think it better that it is seen through the wider lens of the Equality Act, which protects a broader range of groups, not just gender. At this stage, we are not inclined to accept that there should be an express provision on gender balance.

Amendments 20 and 21 deal with the number of committee members required to agree the rule changes. Amendment 21 from the noble Lord, Lord Beecham, would increase the number needed from three to five, and that would perhaps be a consequence of an extended membership. Amendment 20 from the noble Lord, Lord Ponsonby, would require a simple majority with regard to matters, rather than just the current number of three. I can see that there may be an advantage in having some flexibility here, if we look forward to the point where the committee decides to exercise the powers under Clause 6 and extend the numbers in the committee to embrace further areas of expertise. I would like to give further consideration to that point in light of that, because it seems that underlying this there is a point that we should address before Report. With that, I invite noble Lords not to press their amendments at this stage.

[Lord Beecham]

Does the Minister accept the possibility that if there is not a requirement to reflect gender balance, there should at least be a requirement to report on it periodically, as part of the provision of the Bill?

[Lord Keen of Elie]

Respectfully, it appears that there is already statutory provision for just such a report, because the appointments will be monitored by the Commissioner for Public Appointments, who will make an annual report for that very reason.

Amendment 15 withdrawn.

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[Lord Beecham]

My Lords, this is a fairly simple amendment requiring there to be an affirmative resolution, rather than a negative one. We are perhaps overdone with negative procedures. I suggest that this is an important area which should be subject to the affirmative process instead of the negative one.

[Lord Keen of Elie]

My Lords, might I be permitted to respond with equal brevity to the noble Lord’s proposed amendment? Our concern is that this should be a small committee which has the ability pursuant to Clause 6, for example, to extend its membership to other areas of expertise, and that it should be able to move relatively swiftly to do that. That is why, in this area and others covered by amendments including Amendments 26 and 27, we embrace the negative procedure. We are concerned that, if we introduced the affirmative procedure, it would be necessary to take the matter through both Houses of Parliament, with the potential for significant delay from time to time. In fact, we simply want to effect new draft rules following consultation with the Lord Chief Justice. Regarding the consultation provisions as well, we suggest that the negative and not the affirmative procedure is appropriate here.

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

My Lords, if I may say a word out of turn, I am grateful to the Minister for what he said about my Amendment 20 and for saying that he will consult about agreeing something along its lines. I also want to make a point about Amendment 15, which we have also passed, which is that magistrates are represented under statute, under the other rule-based committees.

[Lord Keen of Elie]

I will briefly clarify the position for the noble Lord, Lord Ponsonby. I was not undertaking to consult to agree, but to give further consideration to the matter before Report.

Amendment 20 not moved.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, our Amendments 31 to 33 in this group require a statutory review between three and four years from the date on which the Bill becomes law. They also require a report to Parliament from the appropriate Minister, prepared in consultation with the Lord Chief Justice and the Senior President of Tribunals, both of whom will be able to contribute independently to the report, should they wish to. The Minister’s answer to these suggestions to date has been that the Government will carry out a post-legislative review, so there is no need to incorporate a requirement for such a review into the Bill. Once again, I regret that we do not agree. Non-statutory promises have a nasty habit of being fulfilled well outside the time limits promised. Indeed, such reviews often seem to have as many delays as Crossrail. Statutory time limits, while not fool-proof, at least concentrate the minds of Ministers and officials. Furthermore, without further primary legislation, they do not bind future Governments. In any case, the requirement to review and report guarantees a certain thoroughness to the review and resulting report that might not otherwise have existed.

We regard as particularly important the requirement for the Government to consult the Lord Chief Justice and the Senior President of Tribunals in preparing the report and to have the opportunity to report to Parliament. That will guarantee that a judicial perspective is brought to bear on the review and formal report to Parliament. In this case, we regard the combination of judicial and political input as very important. Reviewing the operation of the legislation makes that combination important, as with making the changes and decisions that we discussed in the group of the amendments of the noble and learned Lord, Lord Judge. We also support the amendments in this group on further piloting these online procedures. Careful piloting and a staged introduction could avoid costly mistakes and improve the procedures as they are developed. Both providers and users will be able to see and report on what works and does not.

[Lord Keen of Elie]

I first turn to Amendments 22 to 24, tabled by the noble Lord, Lord Beecham, and address the issue that the rules should be piloted by the Online Procedure Rule Committee before they come into effect. I will then come on to Amendments 31 to 33, moved by the noble Lord, Lord Marks, and supported by the noble Lords, Lord Beith and Lord Pannick, and the noble and learned Lord, Lord Judge.

I assure the noble Lord, Lord Beecham, that when services are introduced, they are already subject to ongoing testing. HMCTS is rapidly testing and adapting new online services, based on user feedback and service data. That is important because it ensures flexibility and improvements in practice and procedures that enhance access to justice. Piloted online services cannot be rolled out to the public more widely without such rigorous independent assessment carried out by the Government Digital Service, and then confirmation that they are fit for purpose. In addition, some projects are also being more formally evaluated through their development by HMCTS itself.

Reference was made to a number of piloted measures in the existing digital portal for debt actions. The difficulty is that, if we accept measures of the kind proposed in these amendments, we will add a layer of bureaucracy to the rule-making process beyond current practice, thereby reducing the flexibility to respond to user needs and technological changes. The Bill permits the use of practice directions, which can support projects through development before formal rules are set out in statute, so one does not have to go to a formal set of rules immediately; one can simply have a practice direction that assists the piloting of particular projects.

I mentioned before the example of online civil money claims and the pilot that went live in March 2019, which is underpinned by practice directions that require the consent of the Master of the Rolls and the appropriate Minister. Such a project worked closely with the judicial sub-committee to develop the pilot. I emphasise that there is already a clear process in place through which such proposed rules are tested, piloted and reviewed. To that extent, we consider Amendment 22 unnecessary.

Amendment 23 would again limit the flexibility of the OPRC to make the small, minor changes required to respond quickly to changes in user needs or perhaps new technology. It would add time and consequently cost to the development of the online process. We do not consider it appropriate to go down that route.

Amendment 24 would require us to publish six-monthly reports. We regard that as simply unmanageable given the number of pilots across the services that we are in the course of transforming. Again, there is the issue of cost, so we are not persuaded of the need for such steps to be taken.

Amendments 31, 32 and 33 would place in the Bill a requirement for a formal review of the Act to which the Lord Chief Justice and Senior President of Tribunals were able to contribute independently. Clearly, reviewing legislation which has been passed by this House is of great importance. That is precisely why the Government already require departments to carry out post-legislative scrutiny of all Acts within three to five years after Royal Assent. We therefore consider this amendment unnecessary because post-legislative scrutiny of this legislation will be conducted—I emphasise, will be conducted—within that timescale.

Regarding the reference to the Lord Chief Justice and Senior President of Tribunals, of course, their views are incredibly important and are taken seriously. There would be no question of us laying a report on this or other courts legislation without taking account of their opinions. Again, we consider the amendments unnecessary, understanding the importance of what underpins and has prompted them. I hope that, with these assurances, noble Lords will accept that the amendments are unnecessary and I invite them not to press them.

[Lord Beecham]

My Lords, having listened to the Minister, I am happy to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

34: Schedule 2, page 18, line 41, leave out paragraph 5

[Lord Keen of Elie]

My Lords, I approach this amendment with some trepidation, but I shall explain it in this way. It removes paragraph 5 of Schedule 2 to the Bill, which itself provides for the omission of Clause 7(1); namely, the requirement for the Online Procedure Rule Committee to consult such persons as it considers appropriate and to hold meetings unless inexpedient to do so.

--- Later in debate ---

[Lord Blunkett (Lab)]

Is the original ever intended to be implemented?

[Lord Keen of Elie]

That is not a question that I am able to answer now because I cannot foresee the future, but I shall take further instruction on the matter and write to the noble Lord on the current position. I beg to move.

Amendment 34 agreed.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Thursday 6th June 2019 Lords Chamber

Tabled by

[Lord Keen of Elie]

That the Bill be referred to a Second Reading Committee.

[Lord Young of Cookham (Con)]

My Lords, on behalf of my noble and learned friend Lord Keen of Elie, I beg to move.

Probation: Voluntary Sector

Lord Keen of Elie Excerpts

Wednesday 5th June 2019 Lords Chamber

[The Lord Bishop of Newcastle]

To ask Her Majesty’s Government what steps they are taking to ensure that the voluntary sector can contribute to an effective national probation service.

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

My Lords, voluntary organisations play an important role in helping offenders turn their lives around. We are determined to strengthen this role. In May, the Government set out our plans for future probation arrangements, including that the National Probation Service will directly commission specialist and voluntary sector organisations to deliver rehabilitation services. We are engaging closely with voluntary sector providers to ensure that our arrangements maximise their potential engagement.

[The Lord Bishop of Newcastle]

My Lords, I thank the Minister for his Answer and welcome the proposal in the Strengthening Probation, Building Confidence consultation, which promises a clearer role for the voluntary sector. My concern, however, is that the consultation proposes ongoing mini-competitions and a mixed market for services. Can the Minister tell us how the Government will ensure that smaller charities are helped to spend less time competing for contracts and more time serving the community?

[Lord Keen of Elie]

My Lords, commissioning of interventions for each area will be driven by a regional probation director, who will have a special responsibility to make use of locally available services and to adapt provision to match local need. In addition, we intend to remove some of the barriers that have been in place for smaller voluntary organisations, such as the requirement to provide parent company guarantees, which these voluntary organisations could not meet.

[Lord Dholakia (LD)]

My Lords, the National Probation Service has more than a quarter of a million people under supervision at any given time. A lack of resources and Chris Grayling’s reforms have not helped, as was clearly demonstrated by the National Audit Office. We welcomed the setting up of the National Probation Service, but we now have another problem about the extent of its workload. Is it not time to set up a thematic review to examine whether present resources are adequate to meet the implementation objectives of both the Prison Service and the National Probation Service? How do we involve the voluntary organisations in this critical exercise?

[Lord Keen of Elie]

My Lords, there is a determination to ensure that the voluntary sector is fully engaged in the future delivery of probation services. Indeed, although there are only 94 voluntary community or social enterprises delivering services in the current CRC supply chain, we know that there are many hundreds of such organisations that are either signposted by the present system or are available to be used, and we intend to go to them in so far as we can. As regards the future organisation of those services, we are in the process of gathering data on all staff across the probation system to inform our workforce planning for this new model.

[Lord Beecham (Lab)]

My Lords, this House debated the Government’s Offender Rehabilitation Bill, which was an early example of Chris Grayling’s ideological approach to policy and his limitless capacity to get things wrong—in this case, at the cost of over £400 million. Now, a year after a devastating report from the Justice Select Committee, in a belated decision the Government are abolishing the community rehabilitation companies, but why are they insisting, in effect, that the role of the National Probation Service is to contract out much of the service to private companies?

[Lord Keen of Elie]

The mixed-market model that we have engaged in has proved effective in a number of respects, and we continue to believe that that is the way in which to deliver services. Indeed, I notice that the noble Lord’s suggestion might well have the unfortunate result of excluding much of the voluntary sector.

[Lord Farmer (Con)]

My Lords, I ask my noble and learned friend how Her Majesty’s Government will ensure that the importance of family and other supportive relationships is recognised as the golden thread that runs through all probation processes, when they transfer responsibility for management of all offenders to the National Probation Service.

[Lord Keen of Elie]

My Lords, the support of family and other social networks is a critical factor in helping to reduce reoffending, and we want to build on that where possible. Over the past couple of years, we have been implementing the recommendation of my noble friend’s first report on male offenders, and we plan to act on his more recent report on female offenders.

[Lord Ramsbotham (CB)]

My Lords, the consultation response that the Minister mentioned is long on thoughts and ideas but particularly short on any implementation plan. Can the Minister please tell the House when the director-general of the probation service will produce an implementation plan to give effect to all these ideas in the consultation response?

[Lord Keen of Elie]

My Lords, our plans regarding this matter are more developed in respect of Wales, where the model was originally considered. We are looking to transfer offender management functions from the community rehabilitation companies to the National Probation Service before the end of 2019 in Wales. Beyond that, it will go into 2020. That is the sort of timescale we will have in mind when it comes to the position of further probation reports.

[Lord Tomlinson (Lab)]

My Lords, a few minutes ago, the Minister referred to the great successes of this mixed-market model. Can he help people such as me by giving a couple of examples of these great successes? Can he then explain why it has been so necessary to introduce such proposals for major reform?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am not sure I used the word “great”, but there have been successes so far as that model is concerned. Indeed, if we look at the statistics, we see that there has been an overall reduction, by a number of percentage points, in the reoffending rate for offenders managed by CRCs over the same offenders in 2011. In addition, we have seen that a proportion of CRCs have been consistently successful in reducing reoffending. However, we recognise that the model has not worked as we had hoped. In particular, it has not enabled us to engage with the voluntary sector in the way we had anticipated. We are desirous to achieve that objective.

Parliament: Freedom of Speech and the Rule of Law

Lord Keen of Elie Excerpts

Thursday 23rd May 2019 Lords Chamber

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

My Lords, I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his careful and well-considered contribution to this debate. I am also grateful for the contributions of other noble and learned Lords, and noble Lords, on this issue.

Parliamentary privilege is a critical part of our democratic process, and is essential if Parliament is to function fully and freely. Noble Lords, and in particular the noble Lords, Lord Norton and Lord Lisvane, referred expressly to Article IX of the Bill of Rights of 1689, which protects debates and proceedings in Parliament from interference from the courts. But let us be clear: the protection of absolute privilege belongs to the Houses of Parliament, not to its individual Members. This protection does not mean that Members are above the law, nor that they can ignore it. Indeed, parliamentarians have a duty to exercise the privilege of the House in a responsible manner that reflects the public interest. That includes being mindful of the sub judice principle and respectful of the jurisdiction of the courts.

It is a matter for Parliament, in the administration of its internal affairs, to regulate the conduct of its Members in the exercise of Parliament’s privilege. More particularly, it may be for the Committee for Privileges and Conduct of the House of Lords to consider the use of parliamentary privilege by Members of this House. The noble Lords, Lord Armstrong, Lord Parekh and, I believe, Lord Anderson of Ipswich, alluded to the apparent absence of procedures and perhaps sanctions to address that issue.

It is clear that the privilege of Parliament should not be relied upon in such a way as to undermine the independence of the judiciary and, consequently, the rule of law. Where the judiciary has seen fit to make a court order, that ruling should be respected. That is the case no matter what stage legal proceedings may have reached. There may, of course, be a tension, but the relationship between parliamentary privilege and the independence of the courts—and, indeed, the rule of law—should be one not of conflict but of mutual respect. Each individual parliamentarian has to be mindful of the tension between releasing information where he subjectively considers it to be in the public interest and, on the other hand, the absolute necessity of maintaining comity between Parliament and the courts.

As it happens, we already have in place appropriate guidance on how that can be achieved. The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords has already been referred to. It is quite clear, at least with reference to the issue of sub judice. Indeed, it is recorded that the House of Lords adopted a resolution on sub judice on 11 May 2000. That resolution, as amended, states inter alia:

“Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question”.


That is subject to qualification, as is necessary, because the Companion goes on to say:

“But where a ministerial decision is in question, or”—


I emphasise this—

“in the opinion of the Lord Speaker a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions”.

That, of course, is subject to a safeguard. The Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. That, in turn, will prompt the Lord Speaker to consult with the clerks and the usual channels when he receives intimation of such an intention.

The Lord Speaker cannot, of course, intervene in our proceedings in this House, but it is open to any Member to move that a noble Lord should no longer be heard on a particular matter. We do, therefore, have in place safeguards that can be properly employed. Regrettably, where those safeguards and recommendations are circumvented, there is a danger that the House will bring itself into disrepute, and that the comity that it is necessary to maintain between Parliament and the courts may be undermined. In those circumstances, noble Lords may wish to look further at the issue raised by a number of noble Lords concerning the present terms of the guidance given on this matter and the potential need for sanctions where such guidance is overlooked.

Clearly it must remain central to our proceedings that we maintain the privilege of Parliament. I emphasise again that it is the privilege of Parliament, not a privilege of individual Members. I am obliged to noble Lords.

Suicide Act 1961: Prosecutions

Lord Keen of Elie Excerpts

Thursday 23rd May 2019 Lords Chamber

[Baroness Meacher]

To ask Her Majesty’s Government what assessment they have made of whether the threat of prosecutions under the Suicide Act 1961 is causing suffering to mentally competent, terminally ill people at the end of their lives.

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

My Lords, the Government recognise the challenges faced by those suffering from a terminal illness, and the desire of some to have choice over how to end their lives without fear of prosecution of themselves or those close to them. In a recent case, the High Court found that Parliament’s decision not to change the current law strikes a fair balance between the interests of the wider community and those of people who are terminally ill and wish to be helped to die.

[Baroness Meacher (CB)]

My Lords, the Minister will be aware that Ann Whaley recently took her husband, Geoff, to Dignitas for a peaceful death. Geoff suffered from motor neurone disease and faced the complete loss of any movement and the ability to speak, swallow, eat, drink or breathe without a ventilator. In answer to a question from Ann, Lord Sumption, our Reith lecturer, said that the assisted dying law—that is, the prohibition of assisted dying—should remain but that compassionate families should break the law. I find that remarkable. If a former Supreme Court judge is telling people to break the law, does that not indicate that the law itself is broken and should be reformed? What plans do the Government have to prepare for a change in this broken law so that terminally ill people who suffer unbearably—there are a number of them—and have only six months to live can have a peaceful death?

[Lord Keen of Elie]

My Lords, the Government do not plan to change the law at this time. Lord Sumption is a distinguished author and retired judge, of course. In his retirement and in delivering his Reith lecture a few days ago, he is entitled to express his personal opinions on morality and the law. I remind noble Lords that, while sitting as a Justice of the Supreme Court in the case of Nicklinson and Lamb in 2014, he said that,

“there is a diversity of opinion about the degree of risk involved in relaxing or qualifying the ban on assisted suicide, but not about its existence. The risk exists and no one appears to regard it as insignificant. There is a reputable body of experienced opinion which regards it as high”.

[Lord Dubs (Lab)]

My Lords, how much longer can we say to people that the only legal thing they can do is take the lonely journey to Switzerland? Surely we as a society can show more compassion to people than that. Can the Minister confirm that all surveys show that the majority of people in this country want a change in the law?

[Lord Keen of Elie]

My Lords, I am not in a position to comment on all surveys because that may embrace ones of which we are not aware. The Government have always taken the view that this is a matter of individual conscience and for Parliament to decide, rather than one of government policy.

[Lord Mackay of Clashfern (Con)]

My Lords, noble Lords will remember that I chaired a committee of the House on this issue many years ago. Is it possible to take account of the suffering that may be experienced by vulnerable people, surrounded in their weakness by relatives whose interests may not be completely in the best interests of the vulnerable person? That is a serious risk to be taken into account. On the other hand, the Director of Public Prosecutions has issued very clear guidelines on these matters, in accordance with a requirement from what was then the Supreme Court, in his jurisdiction.

[Lord Keen of Elie]

The noble and learned Lord is entirely right. The Director of Public Prosecutions has issued very clear guidelines, which address not only the evidential test but the public interest test that arises in such a complex and difficult area. That is why we see the need for a careful and balanced approach to what is, at the end of the day, an issue of conscience.

[Baroness Brinton (LD)]

My Lords, many families do not have access to Dignitas. Indeed, before it was available, a family friend of ours waited until his wife was away for two days before killing himself because he was very worried that the police might take action. The DPP guidance states:

“A prosecution is less likely if the person made a voluntary, informed decision to end their life, and if the assister was wholly motivated by compassion”.


However, it then lists a string of reasons why a prosecution may be more likely. Despite the fact that Ann Whaley clearly fell into that first category, she was immediately interviewed under caution by police. The distress that caused was phenomenal. On Sunday, the Justice Secretary said in the Sunday Express:

“Personally I am in favour of reform in this area, and sympathise with calls to allow individuals choice”.


When will the Ministry of Justice change the guidance?

[Lord Keen of Elie]

My Lords, my right honourable friend the Secretary of State for Justice expressed his personal views on this issue of conscience, but it is not a matter of government policy. With regard to the involvement of the police in cases where a matter is reported to them, that is not prompted simply by Section 2 of the Suicide Act, because if the police receive a report that someone’s life is going to be terminated they would in any event investigate lest it be a case of murder or manslaughter.

[The Lord Bishop of Winchester]

My Lords, in a recent Royal College of Physicians survey just over 80% of palliative care doctors opposed the assisted suicide law reforms. The Secretary of State for Justice is committed to meeting organisations that support changes. Can the Minister assure this House that the views of those opposing such reforms, out of due concern for vulnerable patients placed at risk of abuse, have been and will be equally considered?

[Lord Keen of Elie]

I can give the right reverend Prelate that assurance. Indeed, we have had recent contact with some organisations representing the very parties to which he refers. They will be given an equal opportunity to express their views on this difficult matter.

[Baroness Finlay of Llandaff (CB)]

My Lords, do the Government accept the evidence from jurisdictions that have changed the law? A recent paper from Holland shows that a majority of Dutch physicians feel pressure when dealing with requests for euthanasia or physician-assisted suicide, and their confidential survey shows a mismatch of many thousands more between euthanasias and assisted suicides and the reported figures. In Belgium there are estimates that up to 50% may not be reported. It is on the basis of the danger to those who can be pressurised that many people feel that a change in the law is too dangerous to contemplate.

[Lord Keen of Elie]

The noble Baroness makes a very clear point with reference to the findings in Holland and Belgium. The British Medical Association and the Royal College of Physicians have come out with diverse views on this issue, which raises challenges for the medical profession in general.

Family Courts: Domestic Violence

Lord Keen of Elie Excerpts

Tuesday 21st May 2019 Lords Chamber

[Baroness Newlove (Con)]

My Lords, on behalf of my noble friend Lady Jenkin of Kennington and with her permission, I beg leave to ask the Question standing in her name on the Order Paper.

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

My Lords, the Government have today announced the establishment of an expert panel, which will hold a public call for evidence about how the family courts protect children and victims in child contact and other child arrangements cases relating to domestic abuse and other serious offences. The panel will report within three months.

[Baroness Newlove]

I am very grateful to the Minister for his reply. I am delighted to hear it, having met many victims and survivors of this horrendous abuse through the family courts, but will the panel be chaired by the Government and will it be independent of the family courts? Can he reassure me that this review will be underpinned by systematic gathering of data, evidence and analysis? Otherwise, it will have to be repeated several times and for me, that means too many lessons learned because of too many lives lost under that status.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, it is intended that this will be an expert panel with representatives of the third sector, the judiciary and the Ministry of Justice.

[Lord Beecham (Lab)]

My Lords, I declare my legal interests as set out in the register. Law Society research confirms that the legal aid cuts of 2012 and the accompanying means test operate as a barrier to people in poverty—including victims of violence and abuse—claiming legal advice and representation, requiring them to represent themselves against their abusers. Will the Government ensure, via their review of the legal aid means test, that adequate support is available? Will they address the problem that in 61% of cases of domestic abuse, there are no separate facilities for waiting or for giving evidence by screen or video link?

[Lord Keen of Elie]

My Lords, the Government are concerned to ensure full access to justice, particularly in such delicate cases as those involving children and domestic abuse. The draft domestic abuse Bill was subject to pre-legislative scrutiny this morning and will come before the House in the foreseeable future.

[Baroness Corston (Lab)]

My Lords, Women’s Aid published research last year showing very harmful gender-stereotypical attitudes to women survivors of domestic abuse and their children in our family courts. Does the Minister think that there is a connection between that and the fact that the Government’s gender strategy shows that 60% of the women in our prisons are victims of domestic violence?

[Lord Keen of Elie]

I am not able to identify the link that the noble Baroness refers to. We have full confidence in our family courts system and in the ability of our circuit and district judges to discharge their functions objectively and without regard to issues of gender. In order to do that in cases of the kind that we have discussed, they will always be guided by the requirement for the interests of the child to be paramount.

[Baroness Burt of Solihull (LD)]

My Lords, perhaps I may ask about the Minister’s announcement of the setting up of an expert panel. Children are often victims too, whether the damage inflicted is physical or psychological. I am worried about the fundamental presumption of the family courts that the interest of the child is to have contact with both parents, sometimes even when abuse of the parent with care is proven or alleged. However, this is tricky territory, because parental alienation can enable one parent to use the children as a weapon. Will the review, called for by 123 colleagues in the other place, work alongside the panel or is it not needed now because we have the panel?

[Lord Keen of Elie]

My Lords, the intention is that the expert panel should meet in June, that it should report in a very short period and that we should then be guided by its findings. That will inform us more fully as to the evidential position that should properly be considered. I emphasise that the paramount consideration in these matters is always the interests of the child. The Children Act 1989 rightly places the child’s welfare as the paramount consideration, and there is no absolute right for any parent to have contact with a child.

[Baroness Chalker of Wallasey (Con)]

My Lords, what plans are there to train more judges for the family courts? Much of the backlog seems to indicate that we do not have adequately trained judges who specialise in the needs of persons who come before the family courts.

[Lord Keen of Elie]

We consider that we have a specialised group of judges operating within the family courts. Having regard to the potential for backlogs, to which the noble Baroness refers, we increased circuit and district judge sittings by 4,000 days in 2018-19 and it is our intention to allocate an additional 6,000 days in 2019-20.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, given that a very large number of homicides start with domestic violence, does the Minister agree that the criminal justice community should treat the early indicators, such as stalking activities, far more seriously?

[Lord Keen of Elie]

My Lords, I believe that the judiciary treat such early signs extremely seriously. Where an instance of domestic abuse comes before the courts, it is recognised that it may be just a beginning that could lead to more serious consequences.