Divorce, Dissolution and Separation Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Committee stage & Committee: 1st sitting (Hansard - continued) & Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 3rd March 2020 Lords Chamber

[Lord Beecham]

Can the Minister respond to my request for the Government to look again at the issue of legal aid in matrimonial cases?

[Lord Keen of Elie]

The matter of legal aid is not within the scope of the Bill, and it is not the present intention to address it.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 11th February 2020 Grand Committee

[Lord Beecham]

What does the Minister envisage the role of the probation service to be under this new arrangement?

[Lord Keen of Elie]

Clearly, probation staff will have access to the monitoring data and will therefore use it to inform their supervision of individuals who are under licence, for example.

[Lord Beecham]

Has the matter been discussed with the probation service, and does it have the resources to do this? It is very stretched, and this will be an additional responsibility, presumably. The question therefore arises: can it meet it?

[Lord Keen of Elie]

There is no suggestion that it will not have the resources to address this matter. It will receive data in circumstances where there will be some 400 active monitoring requirements at any one time. That, I respectfully suggest, is not an overwhelming imposition in addition to the demands made upon the probation service.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 22nd January 2020 Lords Chamber

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

My Lords, I will also speak to the Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations 2019.

These draft instruments form part of the Government’s wider plans to reform sentencing and law and order, through which we aim to strengthen public confidence in the criminal justice system. The purpose of these instruments is to ensure that serious violent and sexual offenders serve a greater proportion of their sentence in prison, and to put beyond doubt that these release provisions will apply in relation to offenders receiving consecutive sentences, ahead of further changes the Government will set out in a sentencing Bill.

Under the provisions of the Criminal Justice Act 2003, all offenders sentenced to standard determinate sentences must be automatically released halfway through their sentence. These orders move the automatic release point for the most serious offenders who receive a standard determinate sentence of seven years or more. Instead of being released at the halfway point of their sentence, they will be released after serving two-thirds of their sentence.

A key component of our criminal justice system should be transparency, but currently, a person convicted of rape and sentenced to nine years in prison will be released after only half that sentence. Victims and the general public do not understand why they should serve only half their sentence in custody. While improved communication about how a sentence is served will help, this measure aims directly to improve public confidence by making sure that serious offenders will serve longer in prison.

Some may suggest that the whole sentence should be served behind bars, but this would not serve victims’ interests. It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community. The licence period has long been an integral part of the sentence, and it should remain so. It provides assurance to victims through the imposition of conditions to protect them such as non-contact conditions and exclusion zones, through supervision by the probation service and through the power to recall that offender to prison if they breach their conditions. It is also an important period for rehabilitation, giving the offender the chance to address their offending behaviour and undertake activities that can help to prevent them reoffending. So, a licence period must remain.

However, it is not in the interests of public protection that when someone has committed a serious offence for which they rightly receive a long sentence, such as grievous bodily harm with intent or rape, they are entitled to be released half way. This instrument aims to address this by moving the release point for these serious offenders so that they will serve two-thirds of their sentence in prison and the remainder on licence. Retaining them in prison for longer will provide reassurance to victims, protect the public and restore public confidence in the administration of justice. It will also provide longer periods for these offenders to undertake rehabilitative activity in prison and prepare effectively for their release and resettlement in the community.

Automatic release from a fixed-term custodial sentence is a long-established measure. The Criminal Justice Act 1991 made a clear distinction between long-term and short-term prisoners. Short-term prisoners would be released automatically at the halfway point of their custodial sentence. Under Section 33(2) of that Act, long-term prisoners could be released automatically only at the two-thirds point of the custodial period. The 2003 Act removed this distinction between sentence lengths, requiring all standard determinate sentence prisoners to be released at the halfway point.

This order is the first step in restoring that distinction, beginning with those sentenced to standard determinate sentences of seven years or more, where the offender has been convicted of a serious sexual or violent offence, as specified in parts 1 and 2 of Schedule 15 to the 2003 Act, and for which the maximum penalty is life. Moving the release point to two-thirds for these offenders will correct what this Government consider to be an anomaly in the current sentencing and release framework.

Take the example of an offender convicted of rape. They could receive a standard determinate sentence, or, if they are determined by the courts to be dangerous, an extended determinate sentence. If they are given an extended determinate sentence with a custodial term of nine years, they could spend the whole custodial period behind bars if it was necessary for the protection of the public, but the Parole Board could consider them for release on licence after two-thirds of that period—namely, six years. However, if they were not assessed to be dangerous but had still been convicted of this very serious offence and sentenced to a standard determinate sentence of nine years, currently, they would be released after four and a half years. This measure will bring the two sentencing regimes closer into line, so that the offender could be released only after six years, ensuring that offenders committing these grave offences serve time in prison that truly reflects the severity of their crime.

We are starting with those sentenced to seven years or more because this strikes a sensible balance between catching those at the more serious end of the scale and allowing time for the change to embed sustainably. While the measures will apply to anyone sentenced to a standard determinate sentence of seven years or more for a relevant offence after the orders commence, the effects will not begin to be felt until nearly four years later—that is, until we approach the stage at which the first affected prisoners reach the halfway point of their sentence and remain in prison rather than being released. The impact will be felt gradually; our best estimates are that this will result in fewer than 50 additional people in custody by March 2024, rising to 2,000 over the course of 10 years.

The House’s Secondary Legislation Scrutiny Committee has drawn attention to the impact of this measure. I am content to offer assurances that this Government will act to ensure that the additional demands on HM Prison and Probation Service will be met. We will continue to invest in our prisons, both to build the additional capacity of 10,000 places announced by the Prime Minister—as well as the 3,500 places already planned at Wellingborough, Glen Parva and Stocken—and to undertake maintenance across our prison estate to manage the anticipated increase in demand. We have also invested significantly to increase staff numbers, recruiting between October 2016 and September 2019 an additional 4,581 full-time equivalent prison officers, thereby surpassing our original target of 2,500. We will continue to recruit officers to ensure that prisons are safe and decent, and to support both the current estate and planned future additional capacity.

Our impact assessment is based on assumptions that judicial and offender behaviour will continue unchanged, although of course, that cannot be certain. We are putting in place mechanisms with our partners across the criminal justice system to monitor the impact of the additional officers and give us the ongoing and future insight necessary to allow us to plan the prison estate. As these offenders spend more of the sentence in prison, correspondingly less time will be spent under probation supervision in the community.

These measures will enable us to take swift but sustainable action ahead of the wider package of reforms that the Government intend to bring forward in the sentencing Bill. They are not retrospective and will apply only to those sentenced in England and Wales on or after 1 April 2020.

Not proceeding with legislation would mean continuing with a system which fails properly to ensure that serious offenders serve sentences that reflect the gravity of their crimes and continue to be released halfway through their custodial period. In our view, that is not in the public interest, nor does it promote confidence in the justice system. I beg to move.

[Lord Beecham (Lab)]

My Lords, for some time this country has had the dubious distinction of having among the highest number of prisoners relative to population in Europe, with the numbers having risen by almost 70% in 30 years, with the vast majority of those, some 60%, being imprisoned for non-violent crimes. Moreover, the length of sentences has increased substantially, with 2.5 times as many people being sentenced to 10 years or more in 2018 as in 2006. On average, those receiving mandatory life sentences spend 17 years in custody, an increase of four years since 2001, while the average minimum period imposed for murder rose from 12.5 years in 2003 to 21.3 years in 2016. And yet, typically, the Prime Minister chooses to play to the gallery by reviewing sentencing policy without any consultation beyond the inner workings of the Ministry of Justice, and emerges with proposals for a draconian increase in the length of sentences which is likely to increase substantially the problems faced by an overworked and understaffed Prison Service, and indeed by the majority of prisoners.

As the Prison Reform Trust has pointed out:

“No evidence is given about the re-conviction of people currently released from these sentences”


and there is a risk that

“the people affected will spend a shorter period under the supervision of the probation service after release.”

The trust points out that reconviction rates are indeed lower for those serving more than four-year sentences, but there appears to be no evidence that sentences of seven years or more lead to any further reduction in reoffending on release.

The trust also reveals that the Ministry of Justice’s own research discloses that, when they are given the full facts of individual cases,

“the public tends to take a more lenient approach than sentencing courts.”

Moreover, they are likely to be confused by the fact that, when two convictions lead to consecutive sentences of less than seven years but with a total of more than seven years, the new provisions will not apply. And, of course, it is in any event open to the trial judge to impose longer sentences where this is deemed necessary.

As the trust rightly points out, there are other and better approaches to combating potential reoffending, not least by tackling the problems of the understaffed probation service. It rightly points out that the Chief Inspector of Probation has raised the issue of unacceptably large case loads for officers responsible for the supervision of long-serving former prisoners. Typically, no detail has been supplied of the additional costs of providing the offender management of those in custody that the new regime will require. Can the Minister supply any information about the relevant staff numbers and the costs involved?

For that matter, is he able to provide an estimate of the costs likely to be incurred by local authorities to meet the needs of families struggling for even longer periods without the income of an imprisoned partner or parent? What assessment has been made of the impact on prisoners’ employment possibilities after serving longer sentences and the consequential cost of benefits if, as seems increasingly likely, they find it even more difficult to find employment after a longer period of imprisonment?

Other financial questions arise. Four years ago the Government declared that they would provide an extra 10,000 prison spaces. All of 200 have been created. How many places will be required now to meet the need created by this order? How long will it take to provide them? What is the estimated cost of their provision and of the necessary increase in staffing? To what extent does the estimated increase in prison numbers of 3,200 by March 2023 reflect this new policy—or did that increase precede the policy contained in this order?

The last decade has seen a shocking worsening of conditions in our prisons. Sexual assaults quadrupled between 2012 and 2018; 117 prisoners have died having used or possessed new psychoactive substances; self-harm incidents rose from 23,158 in 2012 to a staggering 55,598 in 2018, with women disproportionately affected; and assaults rose dramatically, tripling to more than 10,000 on staff between 2013 and 2018. Yet staff numbers were cut by 26% between 2010 and 2017-18—albeit with some partial restoration since then. But—this is surely alarming—54% of the officers who left the service last year had served less than two years. What, if any, attempts were made to understand the reasons for this drastic loss of staff in such a short period and to avoid its repetition? Currently, 35% of staff members have been in post for less than two years and only 46% have served for more than 10 years. What, if anything, is being done to address this disturbing position and what, if any, is the difference between privately and publicly managed prisons in those respects?

In 2018, 58,900 people were sentenced to prison, 69% of them for non-violent crimes. Of those who received custodial sentences, 46% served six months or less. Is it not time to review the utility of such sentences against alternative measures? Would it not be better to secure greater investment in the probation service and the youth service as an approach to tackling the problem?

Should it not be a priority to promote purposeful activity for those sentenced to imprisonment? Just two in five prisons received a positive rating for this in 2017-18, while the quality of teaching and learning in prisons has declined, with the number of those rated as good reduced to 42%. Some 62% of those in prison had a reading age of 11 or lower in 2017-18. What will the Government do to address this serious situation, which is mirrored in a significant fall in the number participating in education while in custody?

There are serious matters to be addressed in our Prison Service. Will the Minister use his influence to persuade the Prime Minister to address them rather than play to the gallery with a populist approach that at best will achieve nothing and is likely to make matters worse, not just for prisoners but for prison staff and society as a whole?

Prisons: Pregnancy Healthcare

Debate between Lord Keen of Elie and Lord Beecham

Thursday 31st October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I cannot accept all the propositions advanced by the noble Baroness. As at 3 pm on Monday, 47 women in custody were identified as being pregnant. In 2018, collection of local data identified that there were fewer than five cases in which a woman in custody had given birth in prison. Every effort is made to ensure that suitable midwifery and perinatal care is available for all women taken into custody. Indeed, the guidance document Working with Women in Custody and the Community, published in December 2018, includes an entire section on caring for perinatal women in prison. This was a most unfortunate incident. As I say, it is not appropriate for me to go into the detail of the incident, given that there is an ongoing police inquiry, but I can assure the noble Baroness that, apart from the guidance I have just referred to, the National Prison Healthcare Board has a principle of equivalence of care for prison healthcare in England to ensure that the same standard of perinatal care should be available to those in custody as to those in the community.

[Lord Beecham (Lab)]

My Lords, we have a situation where 600 pregnant women are confined. While this raises questions about sentencing, it surely also underlines the need for those in charge of women’s prisons to provide proper care. There are 11 investigations currently under way. Given the shocking failure of Sodexo in this case, what sanctions will the Government impose on the company? Will it transfer the management of women’s prisons to public sector or non-profit-making management?

[Lord Keen of Elie]

My Lords, the guidance that I referred to applies equally to public sector and contracted prisons. With reference to Her Majesty’s Prison Bronzefield, I observe that the most recent report from the inspectorate, published in April this year, identified Bronzefield as an “overwhelmingly safe prison” and an “excellent institution”. It found that pregnant prisoners in Bronzefield were identified and immediately referred to midwifery support. Clearly, we need to look at this incident and learn lessons from it. We are intent on doing so.

Crime: Rape

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 22nd October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I can understand the noble Baroness’s concern about this issue. That is why we are taking forward a quite urgent cross-government review in relation to rape. Where we consider that there are gaps in the law and these are identified, we intend to take action.

[Lord Beecham (Lab)]

My Lords, the number of convictions for rape fell by 26% between 2017-18 and 2018-19, while the proportion of reported cases being prosecuted declined to a mere 1.4%, the lowest on record. How does the Minister account for these figures? What steps will the Government take to ensure that the relevant departments—the Ministry of Justice and Home Office and, perhaps, the Department of Health working with the victims—address this deplorable failure in the justice system?

[Lord Keen of Elie]

My Lords, I fear that the drop in the number of rape cases being referred to trial is even greater than the noble Lord suggests. Current figures indicate that approximately half the number of cases is reaching court, from a peak in 2015. That is a matter of real and material concern and is why we have set up a cross-government working group—a sub-group of the Criminal Justice Board—to bring forward an action plan as soon as possible. We hope to have that plan in place by the spring of 2020.

Feltham Young Offender Institution

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 24th July 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I thank the noble and learned Lord for repeating that Answer. The state of the Prison Service in a country with one of the highest incarceration rates in Europe has long been a matter of concern. The chief inspector’s report on Feltham cites concerns about the safety and care of 15 to 18 year-old prisoners, with very little time spent out of their cells and an alarming increase in self-harm, physical restraint and attacks on staff. What steps will the Government take to remedy this situation and ensure that it is not repeated elsewhere?

[Lord Keen of Elie]

My Lords, I am grateful for the noble Lord’s observations. We have developed a clear process to respond to urgent notification letters. Senior officials, led by the executive director of the Youth Custody Service, will be directly involved in the work to ensure that immediate action is taken, along with a more in-depth plan to ensure that we see sustained improvement to the establishment in the long term. Of course, as part of the process, the department will publicly respond to the chief executive within 28 days.

Serco

Debate between Lord Keen of Elie and Lord Beecham

Thursday 4th July 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, this issue arises out of the Government’s infatuation with the concept of privatising public services—in this area, largely in connection with prison and the probation service. In these areas, privatisation has been a signal failure. Why has it taken six years from the revelation of Serco’s fraudulent charging for the offender tagging contract between 2010 and 2013 to secure the payment of £19.2 million? Deloitte has also been fined £6.5 million for its role in the scandal. Why do the Government apparently intend to continue to allow these companies to tender for government contracts of this or other kinds?

[Lord Keen of Elie]

My Lords, the noble Lord refers to an infatuation of this Government. I remind him that the contracts with which we are concerned go back to 2004, at a time when, at least as I recollect, there was a Government of a different complexion. It was that Government who let these contracts to Serco in 2004 and for many years thereafter.

The resolution of the matter between the Ministry of Justice and Serco took place in 2013-14, when there was a financial settlement of £68.5 million. As to why it took six years for the criminal matter to be concluded by DPA, that is of course a matter for the SFO, to which we lent all our assistance during the course of this very complex inquiry.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I declare my interest, as in the register, as an unpaid consultant with my former legal firm.

It is unusual for me to extend congratulations to the Minister, with whom it is usually an enjoyable conflict of arms over the Dispatch Box, but he has made it very clear in his approach to the Bill that the Government are seeking to secure improvements to the legislation. He has tabled nearly half the amendments that we are discussing on Report, which is an unusually high proportion. That says a great deal for his interest in securing support for and improvement of the legislation, and for that he is to be highly commended. I welcome Amendments 1 and 18, and the acknowledgement of the need to have regard to those involved in the justice system who will require support to engage in an unfamiliar process.

Amendment 7, in my name, does not appear to have attracted a great deal of support around the House. It is designed to ensure that either party may choose whether proceedings will be online or offline rather than restricting the choice to the claimant, which is the present position under the Bill. It would allow the relevant judicial officeholder to decide which rules are to be followed where the parties are not in agreement. I am frankly puzzled by the criticism on this occasion from noble and learned Lords with a rather higher status in the legal profession than I ever aspired to or achieved. But since the Bill itself provides under Clause 3(1) that the Minister may,

“by regulations, provide for circumstances in which the person initiating proceedings, or an aspect of proceedings, may … choose”,

one side of the case can choose. However, there seems to be an objection to the other party being able to make a choice with the ultimate decision made, if necessary—if there is conflict on that—by a judicial officeholder.

I understand that the suggestion I have made would make both sides able to opt for a decision—I remind noble Lords that they cannot concur on the decision to be made—by an officer of the court. This is consistent with the European Convention on Human Rights and is strongly supported by the Law Society. I hope that it may be looked at again, in either this Chamber or another place. It seems only equitable for both sides, if any is to have a choice in proceedings, to give an indication and provide for a system where an independent party could, if necessary and by way of being a judicial officeholder, decide which rules would apply.

[Lord Keen of Elie]

My Lords, I thank all noble Lords for their contributions to this debate. I propose to address Amendment 5, which touches upon government Amendment 4, and then go on to look at manuscript Amendment 9A and thereafter Amendment 7. I will also touch upon the two technical amendments, as they were termed by the noble Lord, Lord Marks.

On Amendment 5, the use of the word “initiate” was intended to capture all engagement with online services throughout the proceedings, as I indicated on a previous occasion—in other words, “initiate” was taken as a synonym for “engagement”, not “commence”—but I appreciate the uncertainty that is in the minds of some noble Lords with regard to that matter. The noble Baroness, Lady Drake, made the point about comparing the terms of an earlier clause with this clause, where it refers only to “initiate”. I intend to look further at that matter before Third Reading so that we can arrive at a conclusion as to the appropriate wording, because I believe we are as one on the appropriate outcome on that point. In these circumstances, I hope that the noble Lord may see fit not to press his amendment at this stage so that we can proceed with Amendment 4 and address that point further in due course.

--- Later in debate ---

[Lord Beecham]

My Lords, I welcome the Minister’s acceptance of the need for the Lord Chief Justice to concur with the creation of rules rather than merely to be consulted. However, Amendments 16 and 19 look to enhance parliamentary scrutiny by requiring the affirmative process. The increasing reliance on the negative procedure has already roused concern in your Lordships’ House, and many Members are further concerned about its application to this sensitive area. The Law Society strongly endorses the amendments prescribing the affirmative procedure on the basis that it would secure further parliamentary scrutiny of the regulations.

Amendments 20 and 21, which are in my name, would empower the committee to decline a government request—in effect, an instruction—to create certain rules, which is really the issue that my noble friend Lady Drake has just referred to. If there is to be a really meaningful role for that committee, to my mind we need an amendment along the lines of Amendments 20 and 21.

Finally, we will certainly support the noble and learned Lord, Lord Judge, if he seeks to take the opinion of the House on the two amendments in his name.

[Lord Keen of Elie]

My Lords, I begin with two general observations. First, I am not conscious of having run out of fuel, but I leave that to others to judge. Secondly, it occurs to me that the Henrician view of executive power does not differ in any practical respect from the Stuart view of the divine right of kings.

Perhaps I should begin by making this point. Under the structure of the Bill, it will be necessary, pursuant to Clauses 2 and 3, to identify proceedings of a specified kind that may be subject to the Online Procedure Rules. In the light of the Government’s amendments, that can be done only with the concurrence of the Lord Chief Justice, as indicated, and subject to the affirmative procedure.

It is not open to the Online Procedure Rule Committee to make Online Procedure Rules in respect of procedures that are not of a specified kind—that would simply be ultra vires. There is scope the other way, for the Online Procedure Rule Committee to provide that certain proceedings that are of a specified kind are not to be governed by the rules; that is pursuant to Clause 1(6). So the point I seek to emphasise at the outset is that the definition of specified procedures—the specified kind of procedures—sets out the framework within which the Online Procedure Rule Committee can operate. If the Minister were at any time to direct the Online Procedure Rule Committee, pursuant to Clause 8, to make rules in respect of proceedings that were not of a specified kind, that would be ultra vires; that is quite clear. He can direct them to make rules only in respect of proceedings of a specified kind pursuant to Clauses 2 and 3.

It is not possible to utilise the Clause 8 power in order to run roughshod over the provisions in Clauses 2 and 3, which clearly set out the need for the Lord Chief Justice to give concurrence to the proceedings that will be subject to the rules. Perhaps I am stating the obvious, but it occurred to me that one or two observations made in the course of this debate were inclined to suggest otherwise. I do not accept that. One has to look at the entire structure of the Bill and have proper regard to the way in which Clauses 2 and 3 will operate in that respect.

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[Lord Keen of Elie]

My Lords, this group of amendments, beginning with Amendment 10, concerns the composition of the committee. I will therefore address Amendments 10, 15 and 17. The purpose of the amendments is fourfold: first, to increase the number of judicial members of the Online Procedure Rule Committee; secondly, to enable the Lord Chief Justice to appoint one judicial member as chair of the committee; thirdly, to provide that, when making rules, the majority of the committee must sign the rules, rather than the current requirement that they be signed by three members; and fourthly, to ensure that, where the committee is tied on the making of one or more rules, the chair’s signature will act as a casting vote.

These amendments, alongside our proposed amendment on concurrence in Clause 2, seek to ensure sufficient safeguards in the Bill to balance the role of Ministers on the one hand and the judiciary on the other in the making of online rules. The amendments aim to achieve a balance of nominees of the Lord Chief Justice and of the Lord Chancellor, such that each would have three nominees to the committee. In addition, one of these judicial nominees will now be designated by the Lord Chief Justice as the chair of the committee and will have the casting vote should the committee be tied on the making of any rule.

On the issue of committee members signing rules, the previous iteration of the Bill simply stated “three” as that would have been a majority of the five committee members. However, having considered the observations of noble Lords, and having made a small change to ensure that in future the committee increases in size, a simple majority of members will always be required to make rules. In this instance, where there are six members, should the committee be tied, the chair, as I said, would have the deciding vote. The consequence would be that the judicially appointed members of the committee would in such circumstances always have the majority on the committee. It is in these circumstances that I commend Amendments 10, 15 and 17 to your noble Lordships.

[Lord Beecham]

My Lords, I rise to speak to the amendments in my name, Amendments 11, 12, 13 and 14.

Amendment 11 seeks to enlarge the Online Procedure Rule Committee to include members covering the legal profession and the magistracy, all of whom should be familiar with the difficulties experienced by people unused to the digital process. Importantly, Amendments 12 and 13 amend the provision of Clause 4(2)(d), under which two persons are added to the list of the committee members, one of whom must have experience in the advice sector, and the other two of whom must have IT experience and knowledge of end-users’ experience of internet portals. The amendment would add a third member with experience in representing the views of people who are digitally excluded. We regard this as imperative, not least in the light of the appalling experience of universal credit, which the organisation Mind cites as an example of “digital by default”, whereby 25% of people with long-term health conditions could not make claims online. Mind also cites a case, LH Bishop Electrical Co Ltd v Commissioners for Her Majesty’s Revenue and Customs, in which the First-tier Tribunal ruled that requirements to file VAT returns online discriminated against disabled people, older people and people living too remotely for digital access.

Mind, while supporting increasing the choice for core users and making the system easier to navigate, rightly avers that it is essential to make sure that there are safeguards to ensure that people who are digitally excluded are not locked out of the justice system. It goes on to suggest that the Online Procedure Rule Committee’s powers should be limited so that it cannot require that proceedings be initiated online without providing an alternative that is clearly advertised and provides for each stage of the proceedings. This reinforces the case with an approach that does not leave the decision as to whether proceedings should be online with one party. This is consistent with the view expressed in Lord Briggs’s report, which sought to include non-lawyers with the requisite skills. These amendments are supported by the Law Society.

Finally, Amendment 14 seeks to promote and ensure gender balance in the membership of the committee and invites further work by the Government to achieve that.

Probate: Delays

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 12th June 2019 Lords Chamber

[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.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

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

[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.

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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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 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.

Probation: Voluntary Sector

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 5th June 2019 Lords Chamber

[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.

Family Courts: Domestic Violence

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 21st May 2019 Lords Chamber

[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.

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Debate between Lord Keen of Elie and Lord Beecham

Monday 18th March 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I join my colleague in the House of Commons, and others in your Lordships’ House, in welcoming these amendments which meet concerns raised by family law practitioners, as mentioned in the Explanatory Memorandum. They were concerned about the prospective narrowing of the jurisdiction for financial remedies and the type of remedies which would be available.

This raises the question of what consultation took place before paragraphs 14 and 16 of the EU maintenance regulation were originally amended. To be fair, the Government have been persuaded by family law practitioners that the concerns raised were valid, hence the revised amendment in this statutory instrument, but surely adequate consultation in advance of drafting it would have avoided the need to amend it. What consultation, if any, took place? What assurances can the Minister offer that this scenario will not be repeated?

This is not quite the MoJ equivalent of the fantasy ferry projects subscribed to by the former Lord Chancellor, Chris Grayling, but it is rather disturbing. It comes, after all, only some seven weeks since the original regulations were approved by both Houses, and just over four weeks since they came into force.

The Law Society is content with the changes, which effectively revert to the relevant Hague conventions and some English law extant before 2011. I am glad that the Government have recognised the problem, just about in time, and made the necessary change. However, it underlines the need for proper consultation before laying new regulations to comply with the fate which appears to await the country.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. As the noble and learned Lord, Lord Hope, observes, the supplementary instrument is distinguished by its brevity. Nevertheless, I can assure him that it has the effect indicated by making the deletion from the relevant provision regarding maintenance. That was raised with the Family Law Committee as well. We consider that this will be effective. I will look at the point he raises and will write to him if there is further elaboration and assurance I can give him on it.

Regarding consultation, this issue arose at a very late stage when we were proceeding with the principal instrument. It is a highly technical issue. Indeed, there is some uncertainty as to whether the principal instrument did in fact cover these issues. It therefore proceeded, but, in the light of the concerns that had been expressed, we consulted further with family law stakeholders and brought it to the committee’s attention. It was determined that we should, on any view, take the line—I was going to say “of least resistance”—that, come what may, there was no technical deficiency in the instrument in the event that we exited without a deal.

There was consultation with relevant stakeholders when the principal instrument was considered. Their response on these points came rather late in the day as far as we were concerned. The principal instrument therefore proceeded but I remind noble Lords that when I moved it I drew this point to the attention of the House quite specifically and said that we were giving consideration to a further instrument to address it. It has been at the forefront of our minds for some time. In the circumstances, I commend the regulations to the House.

Services of Lawyers and Lawyer’s Practice (Amendment) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Beecham

Monday 18th March 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, it is ironic that our departure from the EU, if it occurs, will necessitate an agreement with Switzerland, which of course is not a member. Can the Minister indicate the extent of the problem that the regulations seek to address? How many Swiss lawyers currently practise in the UK—my understanding is that there might be as few as 10—compared with EU lawyers, and how many UK lawyers do so in Switzerland? How do these figures compare with those of other EU states?

The regulations are described as resulting “in the short term” with parties avoiding,

“the costs of adjusting their business models”.

How long is this short term expected to be, and what is the estimate of the cost of adjusting business models?

Paragraph 12 of the Explanatory Memorandum avers that there are all of 10 Swiss registered European lawyers in England and Wales. How many is it estimated will be here after Brexit? The impact assessment states that clients seeking legal services from them will not be allowed to obtain them unless the lawyers are “permanently established in the UK”. How is that status to be established? How many are deemed to fit that description now—presumably there are 10—and how will that be judged in the future? What is the rationale of the provision that Swiss lawyers will have only four years after Brexit to apply for REL status? Why will Swiss lawyers with contracts be able to serve clients for 90 days a year for up to five years? Why just 90 days? Will they have to abandon their clients in the midst of cases, for example?

The impact assessment fails to live up to its title when it explicitly states that:

“The cost of this change cannot be quantified as no data exists showing the number of Swiss lawyers providing regulated services in the UK on a temporary basis”,


and that the,

“cost to regulators is not quantifiable”.

Can the Minister indicate which provisions of these regulations, if any, are quantifiable? What is the anticipated impact on UK lawyers practising, or seeking to practise, in Switzerland, given that they will have a four-year period to register or, if not yet in Switzerland, to apply to transfer to Swiss professional status? UK law firms will be able to continue to serve existing Swiss clients for up to 90 days a year for five years after Brexit subject to written contracts being in place before exit day. What is the estimate of the number, and proportion of the existing number, that Her Majesty’s Government envisage will do so?

The Law Society points out that there is no provision to allow UK law firms to operate in Switzerland under their current structures. What, if any, estimate have the Government made of the impact of this position? The society suggests that some firms will have to amend their corporate structure and that a future trade agreement with Switzerland will have to be negotiated. What, if any, plans do the Government have to deal with this eventuality? What estimate have the Government made of the impact of the changes on the international standing of UK legal services and the contribution they make to the standing of our legal services and to our economy?

[Lord Keen of Elie]

I am obliged to noble Lords. I think the answer to the question posed by the noble Lord, Lord Beecham, is that we are implementing an international treaty, and that is why these steps have been taken. However, to respond to the point made by the noble Lord, Lord Thomas of Gresford, no Swiss lawyers are registered with the Bar Standards Board. We understand that 10 are registered with the SRA, and that is where that figure comes from.

It is not necessary for Swiss lawyers coming into the United Kingdom to carry out temporary work to register and therefore it is not possible to monitor the number, because they are entitled to come in on a temporary basis to provide legal services. The period of four years reflects the fact that it is possible for a Swiss lawyer to transition into membership of the relevant professional body in the United Kingdom in under four years—I understand that at present it is three years—and therefore there is full allowance for that.

With regard to English lawyers practising in Switzerland, at the last count, which I think goes up to 2015-16, in the region of 236 lawyers practising in Switzerland full-time were English-qualified.

With regard to the future corporate structure of English firms operating in Switzerland, I would not venture a view as to what the precise structure would be in the future. However, from engagement with the major legal firms in England and Wales over the last year or so, it is quite clear that they have made provision in anticipation of our leaving the EU, with the consequent effect that that will have on the EU-Swiss agreements on which we rely. We can therefore be reasonably confident that their structures will be compliant with the requirements of Swiss law.

On the question of the international standing of our legal profession, we see no reason to doubt that it will be maintained after Brexit, nor any reason why the terms of the UK/Switzerland citizens’ rights agreement as implemented by this SI should in any way derogate or detract from the standing of our legal profession in England and Wales, and indeed in the UK as a whole.

In these circumstances, we consider that this is a relatively technical amendment to the existing provision that is being made in anticipation of our departing from the EU without a deal. Of course, in the event that the deal is implemented and we go into a transition period, the application of this instrument will be deferred until the end of that period. We will then determine at that time whether in fact we have in place the relevant free trade agreements with both the EU and Switzerland.

[Lord Beecham]

Before the Minister sits down, obviously I was throwing questions at him that he may not have been able to answer, so will he perhaps cover those that have not been answered in a letter to me in due course?

[Lord Keen of Elie]

I will consult Hansard. If it appears that there is a question that the noble Lord posed that is relevant to this instrument then I will respond.

Female Offender Strategy

Debate between Lord Keen of Elie and Lord Beecham

Thursday 31st January 2019 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 29th January 2019 Grand Committee

[Lord Keen of Elie]

That is entirely right.

[Lord Beecham (Lab)]

My Lords, as we have heard, this statutory instrument has the effect of preventing UK courts from providing similar protection measures and certificates to secure the recognition and enforcement of their judgments in the EU while, paradoxically, recognising such measures and certificates issued by the EU courts. This is extraordinary. There is not an impact assessment as far as I know—if there is I have missed it—and no indications as to what steps will be taken to ensure reciprocity by the EU on this subject. The noble and learned Lord mentioned that possibility en passant without substantive clarification.

The Law Society recommends that there should be an explicit clarification that protective measures issued in the Scottish and Northern Irish courts will be recognised in England and Wales. Perhaps the noble and learned Lord will deal with that when he replies to the debate.

The Secondary Legislation Scrutiny Committee has recommended that this SI should be upgraded to an affirmative, stating:

“To allow UK civil courts to issue certificates post EU-exit would, potentially, mislead protected persons as to the recognition and enforceability of their UK issued protection measures in EU Member States post exit potentially placing them at risk”.

That sounds significant and I wonder why the Government have chosen to adopt the procedure they have rather than make this an affirmative, given the potential implications identified by the Secondary Legislation Scrutiny Committee. It points out that it is unclear what measures would be taken to ensure UK judgments would be recognised after Brexit and that there is an assumption that the EU states will not respect civil protection measures issued in England and Wales. Can the noble and learned Lord confirm that?

Finally, there is a question about the potential cost to the UK Government, the courts and the police of enforcing EU-issued protection orders, which will still be valid, while ours will not be valid there. It looks one-sided: the cost will fall on us as a nation because contrary positions have been taken up. Can the noble and learned Lord clarify that?

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 29th January 2019 Grand Committee

[Lord Beecham]

I am grateful to the Minister. He cites the difficulty with the restriction of the powers of the European court. Could that be addressed, not as part of a no-deal situation, but in the event of a negotiated deal? I assume that it would, but it would be welcome to have that on the record.

[Lord Keen of Elie]

I am not in a position to say what will or will not be addressed in the context of negotiations that are not yet under way, and that are pursuant to a political declaration that is attendant upon a withdrawal agreement that is not yet an agreement. So I am reluctant there. I observe, however, that it would be necessary for the EU to amend the relevant directive. It would have to amend it quite significantly to afford that benefit. No doubt parties will bear in mind the potential benefits of such an order going forward.

There is only one other matter that I will mention. The noble Lord, Lord Beecham, referred to me meeting the Resolution Foundation—in fact, it was my officials who met it, not me, to be clear on that. With that, I commend this draft instrument to the Committee.

Central Courts IT System

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 23rd January 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, last May the National Audit Office published a damning report on the Ministry of Justice’s four year-old £280 million IT programme. In the light of the latest fiascos affecting the probation service and the entire criminal justice email system, would the Minister rank the department’s performance in these areas as better or worse than that of Chris Grayling’s recent award of a ferry contract to a company with no ships, or the shameful record of the Home Office over the Windrush debacle?

[Lord Keen of Elie]

I rather fear that the noble Lord’s inquiry has taken sail. The position is that the issue that arose recently had nothing whatever to do with the development of the common platform system for the Ministry of Justice, which is still in its testing phase. It was entirely unaffected by the issue that arose, which was in fact attributable to the corruption of a routing server that has now been replaced.

Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 15th January 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, in general, the view of the Law Society and the Bar Council is that these regulations do not raise many problems but some matters appear to require clarification. I am not sure whether I am about to overlap with what the noble Lord, Lord Thomas, has just raised. He will forgive me—although the Minister may not—if I am going over the same ground.

The Law Society has raised a question on the impact on the provision for legal aid under paragraph 44 of Part 1 of Schedule 1 to LASPO, which states:

“Civil legal services provided in relation to proceedings in circumstances in which the services are required to be provided under Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes”.


At present it is unclear, certainly to me, how many people are granted legal aid under this provision. I do not know whether the noble and learned Lord will have that information to hand—presumably not. Perhaps he can provide it later if it is not immediately available.

The other question is: do the Government know how many such provisions are reciprocated by the other side, so to speak? If there are significant numbers involved, the Government should surely ensure that there is funding in the event of a no-deal Brexit but if there is a Brexit deal, this provision should be included on a reciprocal basis, given the number of UK citizens residing in the EU who may well need such assistance. As I say, I do not know whether the noble and learned Lord will have that information but I certainly join the noble Lord who spoke previously in wishing for confirmation that legal aid will still be available for those who need it in these areas.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions. The noble Lord, Lord Thomas, makes a good point about the advantages for all in securing mutual judicial recognition and enforcement. That is why, at an early stage, we sought to take forward those discussions with the profession on what was required. He is right to observe that the matter is not contained in the withdrawal agreement or the existing declaration but is an ambition. That may seem very little but, recognising that, we have taken forward what we can, which is to deal on a unilateral basis with the more recent Hague conventions that have been entered into by the EU on behalf of member states. We have engaged in discussion to become an individual state signatory to those conventions. My recollection is uncertain but I think the 2005 and 2007 conventions were involved. We have engaged with the council of the Lugano convention, which deals with the reciprocal position between EFTA states and the EU, to engage on that. Again, to become a party to Lugano, we require the consent of the EU because it is also party to it. Those steps are being taken forward and we are conscious of their importance. I underline that.

On legal aid provision, there is no question of a disqualification being applied on the basis of residence in the EU. Let me be clear about that. The point is that the scope of the EU legal aid directive is wider than the scope of the legal aid provision under LASPO. This instrument is to bring that into line with LASPO and have a situation whereby, in certain forms of civil and commercial dispute, the directive would require consideration of a legal aid application that would not otherwise fall under the LASPO provisions.

Non-Contentious Probate (Fees) Order 2018

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 18th December 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I am obliged to all parts of the House for contributions to the debate on this order. The noble Lord, Lord Pannick, correctly identified that there are two issues. One is whether the proposal is constitutional or unconstitutional. The second concerns fairness. Of course, at times the two arguments have merged. I will endeavour, however, to address each in turn.

On the question of whether the instrument is intra vires or not, I have to say that it is quite clear that statutory justification for it is given by Section 180 of the 2014 Act. The noble and learned Lord, Lord Judge, may, for reasons he has expressed in the past, deprecate the extent to which Parliament has given powers to the Executive in this regard: I think that in this instance it is entirely proper. Nevertheless, the power is there. On the point raised by the noble Baroness, Lady Hamwee, with reference to Section 180(3)(a) and (b), subsection (b) was referred to in the impact assessment, where it was determined that there was no identifiable or significant impact upon competitiveness in this context—which is hardly surprising in the circumstances.

The noble Baroness, Lady Meacher, suggested in the context of the vires of the instrument that it was necessary that the fee should be equal for all involved, otherwise it would be a tax. With great respect, at present there is no fee for estates worth less than £5,000: the current system is not equal in that respect. It is certainly my recollection that the probate fee was progressive until about 1999. The fixed fee came in only in the recent past, less than 20 years ago. Again, one has to see this in context. Let me be clear: the idea of progressive fees is not exceptional or unusual. A civil money claim for £1,000 may often be far more complex and demanding than a civil money claim for £100,000, but the fee in respect of civil money claims is progressive by reference to the sum to be recovered. These elements already exist in our system.

With this instrument, we are intending to remove more than half of all estates from any probate fee whatever, yet the logic of the noble Baroness, Lady Meacher, would be that we cannot do that because if we did the fee would not be equal for all involved. It is entirely appropriate that there should be a progressive fee system, just as there has been in the past and just as there is with other elements of judicial and related claims. In that context, an application for probate is an application for, in essence, a determination of status in order that somebody can ingather an estate and distribute it, so it is in a sense a judicial process, albeit, as it has developed over the years, it is seen as an administrative application.

There is clear statutory authority for the making of this order and the introduction of these sensible and proportionate fees in this context. The provision is there; I will not seek to repeat it. On the issue of fairness, I emphasise that more than half of all estates will be taken out of any fee whatever, the maximum fee will be £2,500, and the fee can never exceed 0.5% of the value of the estate.

The noble Lord, Lord Sharkey, raised some of the observations that have been made with respect to charities. Let us be clear: if a legacy is left to a charity and it is of a fixed sum, it will not be impacted at all by the provision. It would arise only in those—perhaps exceptional—circumstances where the entire estate is left to the charity. One has to appreciate that it is only in those exceptional circumstances that there could be any indirect—I emphasise that—effect on the value of the legacy itself.

At the end of the day, we are taking a proportionate and sensible approach to the need to ensure that we can maintain access to justice throughout our entire courts and tribunals system. We have been fair with regard to the level of the fees which have now been fixed for this purpose. I emphasise that we are dealing with a question of fees, not with the issue of a tax. In that regard, therefore, I invite noble Lords to concur with my Motion.

[Lord Beecham]

How does the Minister reconcile the position the Government have taken with the guidance to departments in Managing Public Money, to which I referred?

[Lord Keen of Elie]

There is clear statutory authority for the fixing of these fees in order that there can be an element of cross-subsidy between the various elements of the courts and tribunals system. It is justified by that statutory permission.

Brexit: Attorney-General’s Advice

Debate between Lord Keen of Elie and Lord Beecham

Thursday 29th November 2018 Lords Chamber

[Lord Keen of Elie]

There has been a resolution in the House of Commons. We are aware of its terms and its scope. We will await the Statement from the Attorney-General to see to what extent it is considered by the House of Commons to meet the resolution that was made.

[Lord Beecham (Lab)]

My Lords, as I understand the noble and learned Lord, the Attorney-General’s report, whatever form it takes, will be published only the day before the debate. Why is it being left to that late date?

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Ping Pong (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant with my old firm. I begin somewhat unusually by congratulating the Minister on having improved a pretty flawed Bill since it left us. I assume that he has played a significant part in that. In particular, I strongly endorse the provisions of Amendment 1, which are an improvement on the original wording. However, we would still have preferred the retention of the existing system which allows judicial discretion on the level of compensation to be awarded based on judicial guidelines. To answer the noble Lord, Lord Hodgson, that is how the system operates and there seems to be no good reason why the assessment of damages for this kind of injury should be different in those terms from any other form of injury.

Of course, we also continue to be opposed to the increase in the small claims limit by an amount higher than inflation, in accordance with the review carried out by Lord Justice Jackson several years ago of civil litigation costs. In fact, the increase is something like 100%, although I take the noble and learned Lord’s point that that is not strictly within the scope of this Bill.

The Justice Select Committee warned that,

“increasing the small claims limit for PI creates significant access to justice concerns”.

The Government’s plans to increase the small claims limit will mean that more cases are allocated to the small claims track. That will leave tens of thousands of working people priced out of getting proper legal representation. These measures are a further gift to insurance companies which are already experiencing increased profits at the expense of people injured through no fault of their own.

What assessment have the Government made of the impact of the changes to the operation of the courts, given that increasingly claimants will be unrepresented? Within the last fortnight, the Permanent Secretary at the Ministry of Justice has told the Justice Select Committee that two of the main spending assumptions were fundamentally “unrealistic” and that even the Treasury recognised that the department was under “considerable strain”. In these circumstances, how confident is the Minister about the ability of the courts to deal with an increase in unrepresented claimants from 5% to 30%, as predicted in the whiplash impact assessment? That of course relates only to that particular area; there will be another shortfall in relation to other claims. How long do they anticipate will be the “long term” envisaged before the courts operate at cost recovery level, as suggested in the whiplash impact assessment? To be clear, whiplash impact for this purpose is on the system, not on the unfortunate claimant.

It is estimated that insurers will gain £1.3 billion a year. I hope that the noble and learned Lord’s confidence that the industry will ensure that those savings are passed on to policyholders will be proved correct. Why will it be six years before the Treasury reports to Parliament on the savings accrued to policyholders, as apparently will be the case? It seems an inordinately long time to assess the impact of this provision. Further, is it not ironic that the Government, who make so much of the need to protect policyholders from the impact of exaggerated or fraudulent claims, have themselves increased insurance premium tax four times in eight years, thereby currently collecting £2.6 billion a year more from the people they purport to be helping through this Bill?

While the commitment given at Third Reading in the Commons that vulnerable road users will be exempt from the changes is welcome, why are children and people injured at work not included in the exemption? Extending the change to those two groups would seem to be a reasonable move.

By sheer coincidence, today sees the publication of the report of the Constitution Committee. It is highly critical of the Government’s increasing reliance on secondary legislation. The committee supported the views of the Delegated Powers and Regulatory Reform Committee earlier this year that key measures should be included in the Bill and not left to secondary legislation. Also, most tellingly, it said that judges, not the Lord Chancellor, should set the new tariff and that the Lord Chancellor should not be granting powers to make provision for damages relating to minor psychological injury. This accords with amendments debated during the passage of the Bill through this House but not enacted.

I hope that a review of this measure will provide an opportunity to return to this issue and adopt that approach in due course. I repeat that the Bill comes back to us in better condition than it was, but I remain convinced that it is not in as good condition as it should be.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Beecham, for acknowledging that we have at least achieved a curate’s egg, if nothing more.

The Bill makes important changes to our personal injury compensation system; it makes that system fairer, more certain and more sustainable in future for claimants, defendants, motorists and the taxpayer. That builds on our wider reforms to cut the cost of civil justice claims and strengthen the regulation of claims management companies, which play such a big part in this. The first part of the Bill will deliver a key manifesto pledge. It will support the consumer by bringing down the cost of living through a crackdown on exaggerated and fraudulent whiplash claims that lead to higher insurance costs. The second part of the Bill will provide a fairer method for setting the personal injury discount rate and reviewing it so that it does not remain at one level, as it did for 16 years.

I am grateful for noble Lords’ observations and careful scrutiny of the Bill. I want to touch on one or two of their points. The noble Lord, Lord Sharkey, commented on the complexity of the approach taken on Clause 11. That approach was carefully crafted after consultation with interested parties, including the FCA, to ensure that it is as effective as possible. At the end of the day, the Government’s approach has been determined by the need for a rigorous and proportionate regime for insurers as far as savings are concerned. We have to remember that the FCA is an independent body. Clearly, we cannot confirm exact FCA action in respect of these matters but we assure the House that it will take very seriously any case where an insurer does not treat customers fairly. That could include a public commitment not being met if that formed part of a policyholder’s or consumer’s expectations.

The Government have taken a careful and considered approach to what is sometimes termed “naming and shaming”, particularly with regard to the provisions in Article 6 of the European Convention on Human Rights. There are circumstances in which the FCA may decide publicly to censure a firm, but that would typically follow a detailed investigation. The idea of somehow naming and shaming a firm before such an investigation could raise questions about convention rights under Article 6. I suggest that we have taken a considered approach to this but, ultimately, those outliers—if I can call them that—who might seek to abuse the system will be open to censure, potentially publicly, by the FCA in due course.

In the context of the point made by the noble Lord, Lord Hodgson, I readily adopt the observations of the noble and learned Lord, Lord Judge. At the end of the day, consultation with the Lord Chief Justice will allow the judiciary some input into, or comment on, the setting of the tariff of damages against the background of its knowledge of the general level of damages awarded for personal injury in diverse cases. One would hope that this would ensure no material divergence in levels of damages as far as that is concerned.

The noble Lord, Lord Monks, raised a number of questions. Regarding Amendment 1, the primary legislation approach to setting the tariff is not considered appropriate because it should be amenable to review and flexibility. Setting it in stone would not allow for that. Regarding the question of employers’ liability and employers’ liability clauses, we consider that the courts are equipped to cope with such claims. On cost recovery, referred to in the impact assessment at paragraph 5.66, I note that the aim is ultimately to try to achieve cost neutrality so far as the court process is concerned, but I acknowledge that that is a long-term aim.

Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 17th October 2018 Grand Committee

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

My Lords, the Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018 will make amendments to the Companies Act 2006. The amendments are consequential to the changes in the law introduced by the Third Parties (Rights Against Insurers) Act 2010. They are necessary because of the effect of the interaction of the Third Parties (Rights Against Insurers) Act 2010, the Third Parties (Rights against Insurers) Regulations 2016, and the Companies Act 2006 on the ability of insurers to exercise their rights of recourse against other parties liable for the same loss.

I will make clear that the draft regulations are concerned only with the ability of one insurer to obtain money from someone else, typically another insurer, where the first insurer has already paid out an award of damages. They do not affect the rights of personal injury claimants.

The Third Parties (Rights against Insurers) Act 2010 simplified and modernised the previous law and procedure by which victims could obtain compensation for wrongs done to them by insolvent wrongdoers. Most importantly, the 2010 Act allowed claimants to take legal proceedings directly against the insurer of the insolvent wrongdoer, rather than having to establish the wrongdoer’s liability in separate legal proceedings.

Wrongdoers which are dissolved companies were brought within the scope of the 2010 Act by the addition in the Third Parties (Rights against Insurers) Regulations 2016 of new Section 6A. This also meant that claimants no longer had to spend time and money restoring the company to the register of companies simply for the purpose of suing it, establishing its liability and thereby gaining access to its insurer.

The creation of this direct remedy against the insurer affects the insurer’s rights of subrogation in respect of their ability to recover payments of contribution from other wrongdoers and their insurers potentially liable for the same loss. Subrogation is a common law concept allowing a person who pays out a claim to “stand in the shoes” of the payee as regards other rights of action the payee had in relation to the claim. An insurer who pays damages to the claimant is therefore subrogated to the rights of the insured in relation to the claim.

Importantly in this context, as a result of the 2010 Act claimants no longer have to restore companies to the register. As a result, the current six-year time limit imposed on the restoration of dissolved companies, other than in relation to personal injury claims, will bite on insurers who are directly sued under the 2010 Act. This is because a claim for subrogation is not a personal injury claim.

The effect is particularly acute in personal injury claims for exposure to asbestos, where Section 3 of the Compensation Act 2006 makes any defendant liable for the whole of the loss to the claimant, irrespective of whether others might also have caused the injury and might also have an obligation of contribution.

Damages in these and other personal injury cases are usually paid by the defendant’s insurer. As a result of the payment the insurer is subrogated to the rights of the defendant against other parties liable for the same loss. However, a right to subrogation can be exercised only if the company to be sued exists. A dissolved company clearly does not, and a company that has been dissolved for more than six years cannot currently be restored to existence.

The changes to the law introduced by the 2010 Act, which removed the need for a claimant to restore a company, have therefore had the indirect consequence in personal injury cases that the insurer has to restore the dissolved company to be able to exercise rights of subrogation, but cannot do so if the six-year limit has been exceeded. A right to be subrogated to a claim for contribution against such a company has therefore been made inoperable, with the consequence that one insurer will have to bear the whole loss. This was not the intention of the 2010 Act.

The draft regulations cure this problem by allowing an application to restore a company under Section 1030(1) of the Companies Act 2006 outside the six-year time limit for the purpose of an insurer bringing proceedings against a third party, typically another insurer, in the name of that company in respect of that company’s liability for damages for personal injury. This change ensures that the same subrogation result is produced for direct claims against insurers under the new Section 6A of the 2010 Act as is already produced for indirect claims where the person who suffered the loss claims against the insured wrongdoer and the insurer pays for the loss. In other words, this solution restores insurers’ rights of subrogation without prejudicing any third party. We submit that it is a fair and sensible way to resolve the problem inadvertently caused by the 2016 regulations. I beg to move.

[Lord Beecham (Lab)]

My Lords, try as I might, I can find absolutely nothing wrong with the regulations. I have tried very hard to do so and failed completely. It is perhaps worth noting that it is unfortunate that this problem arose in the first place; presumably the original drafting ought to have anticipated and dealt with it. However, it is being corrected, although somewhat belatedly. What are the consequences, if any, for cases that have already gone through the process? It is presumably too late to apply the present terms to cases that have already concluded. Will there be litigation to go back over cases that have already been determined?

Law Commission: Funding

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 10th July 2018 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government what assessment they have made of comments made by the Chair of the Law Commission that reductions in the Commission’s funding could put its independence at risk.

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

My Lords, the Law Commission’s independent status is protected in law. Following reductions in its core budget, the commission has undertaken more funded projects. It is for the Law Commission to decide which projects it recommends are taken forward.

[Lord Beecham (Lab)]

My Lords, the commission’s website proclaims that it is a statutory body that aims,

“to ensure that the law is as fair, modern … and as cost-effective as possible … to conduct research and consultations … to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes”.

The commission’s budget has been cut by 54%—£2.1 million—since 2010, resulting in projects being delayed and, even more worryingly, in the words of the current chair, Sir David Bean, “elbowed aside” in favour of projects commissioned by the Government. Will the Minister confirm the commission’s independence and its right to select projects without being obliged to prioritise unduly work commissioned by the Government?

[Lord Keen of Elie]

My Lords, I have already sought to underline the commission’s independence with regard to these matters. The Government continue to value the important work of the Law Commission and recognise that it must retain the ability to make independent choices about reform projects that it chooses to take forward. There are, of course, circumstances in which departments of government will, as it were, seek to instruct or seek approval for particular projects to assist with the Law Commission’s budget. At this point, I pay tribute not only to the work of the Law Commission but to its outgoing chair, Sir David Bean.

National Probation Service

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 27th June 2018 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government what plans they have to review the effectiveness of the National Probation Service.

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

My Lords, the National Probation Service supervises the highest-risk offenders. The Chief Inspector of Probation has consistently found the overall performance of the National Probation Service to be good. The Ministry of Justice has no existing plans to review the effectiveness of the NPS.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, the Justice Committee’s report is a damning indictment of the coalition Government’s so-called transformation of the probation system, with its split between the probation service and community rehabilitation companies, and with privatisation involving the usual suspects such as Serco. The committee is,

“unconvinced that … the … model can ever deliver an effective or viable probation service”,

and asserts that,

“Staff morale is at an ‘all-time low’”.


CRC performance has been “disappointing”, and the voluntary sector is “less involved” than before. The committee also criticises the Ministry of Justice’s ability to let contracts. One shocking revelation by the Chief Inspector of Probation was that 40% of offenders are supervised merely by six-weekly telephone calls. She agrees that the system is “fundamentally flawed”. Do the Government intend at all to address these problems? And can the Minister reassure the House that the chairman of the Justice Committee, Sir Bob Neill, will not be dispatched to Afghanistan when these matters are debated in the Commons?

[Lord Keen of Elie]

My Lords, I am not aware of any Member of the other place having been dispatched anywhere. With regard to the Justice Select Committee report, we are of course aware of its terms, and we are taking action to consider the terms in which it has reported. As the committee observed, it is important to understand the effect that probation can have on those leaving prison. It is often a cross-government and cross-departmental issue; for example, it involves issues such as homelessness, as well as other through-the-gate services. With regard to the situation of the CRCs, there are some instances in which they are working effectively with the National Probation Service, but we accept that there have been challenges. It is clear to us that the CRCs’ services need to be improved, and that is being addressed at the present time.

Privately Financed Prisons

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 27th June 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, of course I will follow the noble Baroness’s advice—up to a point. We have one of the highest incarceration rates in Europe, exceeded only by those in some of the less advanced countries in the east of Europe. Yesterday, the Prisons Minister, Rory Stewart, said that prison numbers would rise from the current 83,000 to 93,000—the figure inadvertently quoted by the Minister—by 2022. The state of our prisons is a national disgrace as the Government struggle to recruit and retain staff, yet the Minister in the other place feebly states that he would like the prison population to go down but that it is not very likely to happen because he is not sure that there is a will among the people or Parliament to take measures to reduce the population. Given this craven approach to a critically serious problem, should not that Minister resign?

[Lord Keen of Elie]

My Lords, there is nothing craven about the approach that has been taken to the very real and challenging issues relating to our prison population. We are concerned that we should look more carefully at alternative forms of sentence, such as community orders, that would in themselves replace the requirement for sentences particularly of less than 12 months’ imprisonment. That is a matter for consideration. In addition, I remind the noble Lord that we are in the course of taking active steps to provide not only additional but new and refurbished prison accommodation in order to improve the standard of our prisons across England and Wales.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

3rd reading (Hansard): House of Lords
Wednesday 27th June 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I hesitate to take either side of this argument, given the wisdom and experience of both noble and learned Lords, who have given conflicting views. I am therefore perfectly content, for once, to allow the Minister to indicate the Government’s attitude. After all, this Bill is not ending here; it is going to another place and there will be time for people with greater acumen than mine to look into the arguments advanced by the noble and learned Lord. It will be interesting to see what the Minister makes of them, but, of course, it is not the end of the day and perhaps this elevated discussion can take place with a more useful result than we are likely to see today.

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

My Lords, I am most obliged to the noble Lord, Lord Beecham, for his positive contribution to the debate, to all noble Lords and noble and learned Lords for their observations on this amendment, and to the noble and learned Lord for moving it.

From the very outset—I go back to the Law Commission’s 1994 report on structured settlements—it was intended that a provision of this kind to depart from a prescribed rate should be very much the exception rather than the rule. Clearly, it recognised that it would be both expensive and time-consuming if the prescribed discount rate could regularly be the subject of challenge on the basis that there might be another more appropriate rate for any number of reasons. That goes some considerable way to explaining the position of the Court of Appeal in the case of Warriner v Warriner.

As the noble and learned Lord, Lord Hope, observed, I referred to a guillotine, but I qualified it with the words “almost complete”—this is a deficient guillotine; it is not a complete guillotine. I said that because, for example, the decision of the Inner House of the Court of Session, the appeal court in Scotland, in Tortolano v Ogilvie Construction, indicated that there may be cases in which the power to depart from the prescribed rate can be applied—but I accept that they will be wholly exceptional. In Tortolano, the court suggested that there might, for example, be a need to take account of a claimant who had to pay tax in a foreign jurisdiction, and that impacted upon the valuation of the award.

These are wholly exceptional circumstances, but the provision in Section 1(2) of the Damages Act 1996, which would be preserved by the words in subsection (2) of the proposed new Section A1, would allow for those wholly exceptional circumstances where the judiciary would be entitled to exercise an inherent discretion in order to achieve justice between the parties. It is in these circumstances that I would resist the amendment; I recognise that there may be room for taking this further, although I have been unable to identify it so far, to ensure that we can perhaps more clearly identify circumstances in which the exception would be applicable.

As the noble Lord, Lord Beecham, indicated, the Bill will be considered in the other place, and I and my officials would be content to explore further with the noble and learned Lord, Lord Hope, if he wishes to do so, whether the provision might be improved in some way. However, I have difficulty with that because I am concerned that if we intrude too much into this quite exceptional discretion, there is a risk of encouraging unnecessary and expensive litigation over the appropriate rate in individual cases.

On that basis, and recognising the point that the noble and learned Lord makes, I invite him to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I am slightly puzzled at the effect of amendment as moved by the noble Lord, because the Bill prescribes that the rate of return must be started within a period; not every three years, or every five years, but within that period. So potentially, it seems to me—perhaps the noble and learned Lord will either correct me or confirm that I am right—that you could have a review at less than five years, depending on the circumstances. If, for example, there were a crash, as in 2008, which affected rates of return and so on very significantly, you would not have to wait up to five years to deal with it; you could have that review within the period. In effect, any time within that five years could mean a three-year review, a shorter review or something with a maximum of five years. If that is the case, is that acceptable to the Government?

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend Lord Faulks and to other noble Lords who raised this matter in Committee and on Report. On the point raised by the noble Lord, Lord Beecham, it is indeed the case that we are talking about a maximum period for review, and therefore it can be at any time within that period. What we are concerned to avoid is the situation that arose in the past where many years passed before a review was carried out.

The choice between the two periods, three years and five years, is essentially a pragmatic one, I suggest. The arguments for the two options appear to me to be quite evenly balanced. A number of noble Lords have made the point that there would be less likelihood of a gaming of the system if that period were extended to five years. It was a point made in particular by the noble Lord, Lord Marks, on Report, when he indicated that he would prefer a five-year period over a three-year period.

Following discussions with several of your Lordships after Report, we have given further consideration to the question of the length of the review cycle and we accept that a five-year maximum period could help to reduce the effect of the litigation practice of trying to game the system, as distinct from a three-year period. In light of the arguments that have been made, the Government propose to accept these amendments.

Private Burial Grounds

Debate between Lord Keen of Elie and Lord Beecham

Monday 18th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I entirely accept the noble Baroness’s observation on the limited regulation of private burial grounds in England. That is why we have agreed that the Law Commission should have a project aimed at addressing this matter. The present regulation, such as it is, goes back to a series of statutes between 1852 and 1857 and is of limited utility today. The London Borough of Enfield has acted on health and safety concerns reported at the cemetery referred to by the noble Baroness, and following an inspection by council inspectors, a temporary closure notice was placed on the site so that necessary repairs could be carried out.

[Lord Beecham (Lab)]

My Lords, what is the current position regarding the policy of the north London coroner, Mary Hassell, of refusing to facilitate prompt funerals in accordance with Jewish and Muslim practice, following the High Court ruling that her policy is discriminatory and unlawful? I ought to declare a potential posthumous interest.

[Lord Keen of Elie]

I deeply regret that the noble Lord’s interest is posthumous. I am not in a position to answer the specific point raised by the noble Lord, but I will write to him and place a copy of the letter in the Library.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Beecham]

My Lords, I refer to my interest as an unpaid consultant to my former legal practice. A distinguished former Member of this House in the late 19th century, Lord Bowen, who served as a Lord of Appeal in Ordinary, was a noted wit. He it was who wrote:

“The rain it raineth on the just


And also on the unjust fella;

But chiefly on the just, because

The unjust hath the just’s umbrella”.

In its enthusiasm to deprive the unjust claimant in whiplash cases of the umbrella of justice, the Government’s measures, embodied in Clauses 2 and 3, will effectively remove it from the just claimant—a reversal of Lord Bowen’s scenario. As the noble and learned Lord, Lord Woolf, asserted, this is,

“a proposal which involves a genuine victim of whiplash injuries receiving reduced damages in order to deter a dishonest claimant from bringing a claim”.

Let me be clear. There can be no one in this House who wishes to facilitate false claims. All of us support the need for any claim to be founded on objective medical evidence, and it is right for this to be a requirement of any out-of-court settlement. However, as the Bar Council points out, the effect of the Bill as originally drafted, and the draft regulations that have been published, would result in reductions of between 22% and 89% in compensation for the victims of whiplash injuries for up to two years, coupled with the costs that they will have to bear no longer being recoverable by the defendants. Thus the compensation under current Judicial College guidelines, set in 2017, for a four to six-month duration of injury, would drop from a range of £2,150 to £2,703 to £470 under the draft regulations, and for a 10 to 12-month duration from £3,257 to £3,810 as a range to £1,250. Of course, the new arbitrary figures for damages would relate only to the time factor and not, for example, to the intensity of any pain suffered.

The amendment proposed by the noble Lord, Lord Sharkey, comes closer to the Judicial College guidelines, but it would be better in my submission simply to delegate the responsibility for certain tariffs to the college rather than to either Ministers or Parliament. That should be a matter for the judiciary.

The Minister’s letter of 7 June contains some welcome changes to the Bill as drafted, including a triennial review of Part 1. However, it contains a statement that underlines the problematic nature of the Government’s response. The Minister avers:

“The Lord Chancellor should set those tariffs which will act to disincentivise unmeritorious claims to reduce costs for all motorists but which will also continue to provide a proportionate amount of compensation where genuine injury is suffered”.


In other words, a genuine claimant is to recover less compensation than he would otherwise receive in order to deter the fraudsters.

But why are the insurers not more rigorous in their assessment of claims, and what happens when the fraudsters cotton on to the implication that they simply need to moderate their claims and the insurers will be content to pay up, effectively on demand, without demanding proper examination of the claim? As the noble and learned Lord, Lord Woolf, averred in a note circulated some time ago, this proposal,

“involves a genuine victim of whiplash injuries receiving reduced damages in order to deter a dishonest claimant from making a claim”.

There is of course disagreement about the extent and cost of fraudulent claims, which should certainly be resisted by insurance companies. It has been suggested that they have been too ready to settle dubious claims rather than risk the costs of defending them. But, importantly, the insurance industry’s own estimates show that the amount paid out on whiplash claims declined by 17% between 2007 and 2016, while premiums rose by an average of 71%. Meanwhile, premium tax—imposed, of course, by the Government—doubled to 12% between 2014 and 2017, and the cost of repair bills has risen by 33% since 2013. The noble Baroness, Lady Berridge, gave us further illustrations of where costs are rising. I remind your Lordships at this point that there is not a consensus on the number of fraudulent complaints brought and settled hitherto. Of course fraud must be deterred—but again I say, not at the expense of genuine victims.

Another consequence that is highly likely to flow from the Bill’s proposals is on the working of an already overstretched court system, with the increased number of litigants in person already causing delay likely to rise even further. Perhaps the forthcoming courts and tribunals Bill will impact on this, as more people who work in the system will be empowered to offer advice—although not representation, which is no longer available from legal professionals. However, there must be a risk in reducing the level of expertise in this way.

Amendments 6 and 8 in this group would restrict the application of the clause to 12 months rather than two years. Most cases are in that category, and two years of pain and discomfort is surely too long for the lowest level of compensation. Injuries that are serious enough to last over one year and up to two years are not “minor” by any reasonable definition. The effect of the reductions in damages is the removal of the right to claim full compensation. These are arbitrary and disproportionate measures.

Amendment 7 deletes an unnecessary requirement to mitigate the effect of damages which of course is already part of common law. We on these Benches support Amendment 9. On Amendment 10, there has been much pressure, understandably, for the tariff to be in the Bill. However, the problem with that amendment, and generally with Clause 2, is that the figures would be determined by the Lord Chancellor—with all due respect to former Lord Chancellors in your Lordships’ House. Our view is that, while any changes would be made by secondary legislation, the setting of the tariff should be determined by the Judicial College—and we concur with the argument of the noble and learned Lord, Lord Woolf, in that respect—in accordance with the practice as exemplified by the 14th edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases. It should be for the judiciary, not the Government of the day, to determine this, and we do not favour Amendment 10 on that ground.

Amendment 12 goes some way to meet that requirement, but still leaves it open to the Lord Chancellor of the day—now, of course, no longer necessarily someone well-versed in legal matters, as other noble Lords have pointed out—to take a position contrary to that of the judiciary. This could be a troublesome precedent for other areas of justice at a time when it seems to be increasingly difficult to recruit judges of calibre, let alone with the experience of the noble and learned Lords participating in today’s proceedings.

Amendment 29A follows in seeking to leave out Clause 13 and giving the court power where it seems that the tariff is inadequate in respect of damage inflicted. We on these Benches support Amendment 46, which would require regulations for the FCA to report on the effect of insurance practices in relation to premiums and savings.

The noble and learned Lord, Lord Woolf, made a powerful case for removing Clauses 2 and 3 from the Bill. If the real concern is the prevention of fraud, with which we all concur, we should look at other measures. These could include heavier sentences for insurance claims fraud, higher no-claims bonuses and, above all, not punishing a genuine claimant for the misdemeanours of the fraudulent or the laxity of the insurance industry in resisting the fraudster. Of course, the role of claims management companies demands rigorous examination and action.

In the light of our support for the noble and learned Lord’s proposal to delete Clause 2, we will not push our amendments to Clause 2 today, as we hope that the clause will disappear. However, should it remain, we will need to bring our amendments back at Third Reading.

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

I am obliged to noble Lords for their contributions. I will speak to Amendment 6 and to Amendments 7, 8, 9, 10, 11A, 12, 17, 17A, 17B, 18, 19, 20, 25, 26, 27, 29A, 30, 32, 39 and 46. I hope noble Lords will forgive me if I take a little time over some of the points.

I begin by picking up on some of the observations made by noble Lords but will begin with a generality. I sometimes have the feeling that, were some noble Lords faced with an enormous edifice, their response would be, “You have to explain how every component part is held together before I am prepared to believe that I face an edifice”. The reality was outlined by my noble friend Lord Faulks, who pointed out that there has been a 70% rise in whiplash-based claims in the past 10 years, during which time the number of road traffic injuries reported has dropped dramatically and during which time Thatcham Research has identified that the safety of seats and headrests in cars has improved in something like 88% of vehicles on the road, up from 18%.

Seven hundred and eighty thousand personal injury claims arising out of road traffic accidents were reported in 2016-17. That is the totality. Of those, 670,000 were whiplash claims. It is an astonishing statistic, and the edifice, let alone its component parts, is enormous. As some have already observed, there is clearly widespread abuse.

We have heard reference to the need to test the validity of claims. I noted the reference of the noble Lord, Lord Beecham, to the impact on the courts of increased litigation. One has only to stop and imagine the impact of trying to litigate 650,000 claims in the courts in order that liability can be established and the claim can be tested in each case. The cost implications of that go wider than just the impact on the courts.

There was a call from the noble Lord, Lord Marks, to do more to test the validity of claims. Again, one of the difficulties is the sheer magnitude of the problem that we now face. He also alluded to the need for further measures in relation to aspects such as cold calling, which feed this enormous industry.

To address that point, the GDPR and the Data Protection Act 2018 ensure that, where personal data is obtained through an unlawful cold call, further use of that data will not be allowed, and indeed the ICO can impose very large fines. In addition, the Financial Guidance and Claims Act bans any legal person, not just claims management companies, from making unsolicited calls relating to claims services without having first obtained consent. Crucially, changes made by that Act make it explicit that any organisation in the United Kingdom cannot make unlawful cold calls and, in addition, cannot instigate others to do so on their behalf. Notwithstanding that, there is an enormous unregulated industry out there, much of it based abroad where we cannot touch it, and it continues with these practices. It is a major social problem and requires a policy decision.

Touching on the matter of the damages, the noble and learned Lord, Lord Woolf, referred to a highly complex judicial process, but I take issue with that. As my noble and learned friend Lord Mackay of Clashfern pointed out, the assessment of damages for pain, suffering and loss of amenity is essentially a jury question. Whether you give it to a judge or a jury is neither here nor there; it is essentially a jury question and it always has been.

--- Later in debate ---

[Lord Beecham]

My Lords, I shall attempt to provide some sort of explanation. The amendment seeks a review of what is actually happening in the light of the changing circumstances; it does not prescribe a particular solution. It offers precisely the opportunity for the professions to contribute to ensuring that the arrangements for periodical payments suit the client, particularly those who have suffered significant injuries and may be looking for lifetime support. It is very much an open request, and the expertise of the noble Lord—and others, of course—is very welcome in dealing with it.

Amendment 73A in my name also seeks a different review on the assumptions on which the discount rate itself is based and how investors have dealt with that over time. As will be seen, the review should, I hope, indicate whether the assumptions on which the discount rate is based need to be changed, and set out any recommendations.

This is entering new territory, and it is reasonable to have a report within a reasonable time—three years is probably long enough—to allow a proper examination of the impact of the new arrangements. For that matter, there is a question of course about how often there should be such a review. It would be difficult to prescribe, because interest rates and returns on investments change. We have been living in a fairly good period in terms of returns, but that may not last. So periodic reviews should be very much part of the agenda.

On the amendment proposed by the noble Lord, Lord Hodgson, I strongly support the position that he takes and hope that the Minister will feel sympathetic to it and to the other amendments in this group.

[Lord Keen of Elie]

I am obliged to noble Lords. In speaking to Amendment 49, I shall also address Amendments 50, 73, 73A and 89. Clearly, we welcome the support on all sides of the House for the appropriate use of periodical payment orders as a means of ensuring that the anticipated future needs of an injured person are met. Of course, periodical payment orders avoid many of the uncertainties inherent in taking damages for future loss as a lump sum.

My noble friend’s Amendment 49 would require new rules of court to be made to highlight features of PPOs that may make them more appropriate than a lump-sum payment for a person with a long-term injury who is risk-averse, who would otherwise receive a large award for damages for future pecuniary loss. In responding to the very similar amendment tabled by my noble friend in Committee, the Government underlined their support for the use of PPOs. However, they also recognised that claimants and defendants must be able to make choices, and that the best choice for any individual is dependent on the circumstances of their particular case. My noble friend Lord Faulks pointed out that under Section 100 of the 2003 Act it is open to the court to insist on a PPO being utilised. As far as I am aware, the court has never actually exercised that power, but it does exist in statutory form.

It is vital that claimants who have suffered long-term serious injuries are well informed as to the implications of their choice between a lump-sum payment and a PPO, irrespective of whether their particular case reaches such a stage that the court has to consider whether to order a PPO. The Government remain fully committed to ensuring that appropriate advice is available to claimants in all cases. We are working to encourage the use and understanding of PPOs. In particular, we will over the coming months provide, or at least endorse, guidance that ensures claimants fully understand the choice between a lump sum and a PPO, and investigate whether current advice received by claimants on the respective benefits of lump sums and PPOs is effective.

Over and above that, we have listened carefully to the points raised in Committee and in further engagement with noble Lords. I am obliged to many of them for their engagement in the period running up to this stage of the Bill. The Lord Chancellor has now written to the Master of the Rolls on this matter, and I am pleased to say that he has recently agreed in principle to the Civil Justice Council, with its specialist expertise, exploring the issue with a view to suggesting the most practical, beneficial steps to increase the use of PPOs within the current system. The Government are grateful to the Master of the Rolls for this.

Taken together, we believe that these steps will ensure that focused and practical action will be taken to identify effective reforms that will encourage the use of PPOs whenever they are suitable. These measures can be tailored to address specific identified problems. Rules of court may be part of the solution, but they will relate to the practice and procedure of the courts. That is the appropriate function of rules of court and their related practice directions, not providing guidance as to when one form of taking an award of damages might be better than another, which might be better in guidance itself. In light of that explanation, I hope that my noble friend would consider it appropriate to withdraw his amendment.

I turn now to Amendment 50 in the name of the noble and learned Lord, Lord Hope, which, as he says, would require the court to consider certain factors in deciding in an individual case whether it would be appropriate to take into account a different discount rate to that prescribed by the Lord Chancellor. As he pointed out, the wording in the present Bill reflects almost exactly the wording that appeared in the original provisions in the Damages Act 1996. The application of those earlier provisions is, of course, coloured by the decision of the Court of Appeal in Warriner, and the more recent decision in the Inner House in Tortolano. In light of that, I wish to give further consideration to the matter that the noble and learned Lord has raised to come to a view as to whether something might be done to tailor the wording to address the almost complete guillotine that is, in effect, in place in the two Appeal Court decisions.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Report stage (Hansard - continued): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Beecham]

My Lords, I am inclined to agree with the noble Earl about Amendments 68 and 71, but I am afraid I remain unconvinced about the five-year period as opposed to the three-year period, and find myself in the rather strange position of agreeing with the Minister. It is not as though all claimants will be five years off a review. Some will be and others will not necessarily be. There will be different timescales for individual claims, and I do not think five years is necessary to protect the integrity of the system. Some people will try to game, whatever the period. Five years is not necessarily more likely to protect against that than otherwise. Rather unusually—I am sure the noble and learned Lord will stick to the three-year period in the Bill—I will have to agree with him.

I should like to say at the end of this very long day that the House has done its usual very good job of scrutinising difficult legislation. It is a little late to try to recall everything that we have discussed and agreed, but a good job has been done today and I hope the Bill will be improved. The Minister has offered to consider a number of matters before Third Reading—and, in any case, the Bill will go somewhere else in another week’s time and come back to us eventually for further consideration. There may be changes that we have to consider at that stage.

On behalf of these Benches—or what is left of us—I thank the Minister for his running of the Bill. He has been more than willing to talk to colleagues, even when some of them, like me, are rather slow on the uptake in this rather technical area. It is not one where, in practice, I had very much to do with cases at this level, as a personal injury lawyer—thank heavens. Around the House, we have heard some very important contributions from Members from all sides, and there is every prospect of further changes being made at Third Reading or in another place on the basis of the level of debate, discussion and argument that we have had. That is a signal tribute to the work of the House.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions, not only to this grouping but to the debate as a whole that has taken place this afternoon and evening. In speaking to Amendment 54, I shall speak also to Amendments 57, 61, 62, 67, 68, 70 and 71. I do so because, although they were not formally moved in this grouping, the noble Lord, Lord Marks, made it clear that he was addressing the amendments in this group when he spoke earlier. I appreciate his determination not to repeat himself.

As I explained in Committee, the choice between three and five years is not one of principle. The three-year period adopted in the Bill represents a compromise approach based on the responses received to the March 2017 consultation, which included a wide range of views, ranging from automatic reviews at short intervals up to a 10-year fixed maximum. We have listened carefully to the arguments this evening and in Committee from noble Lords about the potential for the gaming of the system, depending on whether there is a three-year or five-year maximum between periods.

I note the observations of the noble Lord, Lord Beecham, who brought himself to agree with the Government on this matter. Tempted as I am to move away from the Government’s position in light of that, I maintain that, overall, it would be appropriate for us to look to three years. But there is no clear-cut case, and I am perfectly content to speak again to noble Lords before Third Reading if they wish to make further representations to the Government with regard to the period. So I do not close the door on that, but our position is that three years would be appropriate, and we would have to be persuaded by something that might be termed “new evidence” before we would consider moving away from that position. However, as I say, the door is open.

Amendment 67 largely replicates the provisions already in the Bill for the conduct of a review, but applies them only to the second and subsequent reviews, in light of Amendments 65 and 66. But Amendment 67 in isolation makes a relatively small number of changes to the procedure for the conduct of the second and subsequent reviews. First, it adopts the language of advice rather than response to describe the panel’s reply to the Lord Chancellor. Secondly, it makes clear that it is not just the question of whether the rate is to be changed but what the new rate is to be that is subject to the provisions for determining the review in paragraph 3 of the new Schedule A1—and that, in reaching these decisions, the Lord Chancellor should have regard to the advice from the panel. Finally, that amendment would introduce a requirement that the Lord Chancellor will consult the panel within 10 days of the start of the 180-day period for the completion of the review. This is new, but noble Lords’ proposals for the first review contain a similar provision, albeit with a 25-day period, and we are conscious of that.

Rape Trials

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I am not a regular viewer of the television and I am not aware of the programme to which my noble friend refers. However, at present there are no indications that the criminal cases review operation is not operating in accordance with its remit or that it is not capable of discharging its functions.

[Lord Beecham (Lab)]

My Lords, the chief constable of Surrey has described the situation as having had a “catastrophic effect”. It is two years since warnings were first given about this problem. Will the Government now ensure that further inquiries are made for the period before that time to see whether other cases need to be dealt with? Will he also ensure that a view will be taken not just in relation to sex offences, which have been the subject of the present findings, but across the field of criminal offences? Clearly, there is a risk that we will see the same kind of failings affecting other offences.

[Lord Keen of Elie]

My Lords, a joint justice systems inspectorate investigation on disclosure issues took place in 2016 and the report was published in July 2017. We were in the process of implementing a series of recommendations when a number of further cases arose in early 2018, and that is what has given rise to the Attorney-General’s determination that there should be a review. We will await the outcome of that review before taking further decisions with regard to disclosure. However, disclosure is not of course limited to cases of rape or other sexual assault. We appreciate that this issue has to be addressed across the board so far as the criminal justice system is concerned.

Courts: Modernisation

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I entirely agree with the observations of the noble Earl.

[Lord Beecham (Lab)]

My Lords, the Government’s concept of modernisation of the court system seems to include court closures up and down the country and a reduction in the availability of legal aid, which has led to a growth in the number of litigants in person, causing great delays in the courts. In the circumstances, is it not the Government’s duty to ensure that any modernisation of the system is reflected in securing access to justice as opposed to making some fairly minor financial savings?

[Lord Keen of Elie]

My Lords, of course what is paramount in the context of this reform is access to justice. As the reform programme progresses, we expect that we will need fewer courts and we will continue to review our estate to make sure that it is able to maximise the benefits of the reformed courts and tribunal service.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2018

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 23rd May 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I am grateful to the Minister for a very clear explanation of the provisions of this statutory instrument. I note that in the House of Commons Delegated Legislation Committee, all of 11 minutes were spent on this matter. The Minister has provided us with somewhat more information than was provided on that occasion. Is he in a position to indicate the number of cases expected? The noble Lord, Lord Marks, referred to a very limited number, but is it anticipated that it will remain at a low level, or is there likely to be any growth?

Can the Minister also make some reference to the condition of the asylum centres where, presumably, some of these applicants will be held pending the outcome of their cases? Of course, great concern has been voiced about the management of some of these establishments. I confess that this issue is not directly related to the statutory instrument, but it is a matter of concern and I would be pleased if the Minister could say that the Government are looking seriously at the management of these places, whatever the outcome of the applications by the individuals involved.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. We consider that this instrument is necessary to make sure that the SIAC procedure rules are consistent with the primary legislation, as has been acknowledged. SIAC does of course perform an essential function in dealing with appeals without compromising national security.

On the point made by the noble Lord, Lord Marks, and followed up by the noble Lord, Lord Beecham, there have indeed been about 14 cases before SIAC in the past year. There is only one party on bail from SIAC at present, pending a determination by the commission, so the use of these powers is extremely limited and I am not aware of any indication that that will increase in the foreseeable future.

On the point raised by my noble friend Lord Hodgson, I am not aware of the current position on re-interview by special advocates, but I will determine what the current procedural position is and write to him on that and place a copy of the letter in the Library. On the point about the condition of centres where persons are held pending determinations by the commission, I am not in a position to comment upon any adverse management issues at present, but I will inquire of the appropriate department as to what current work, if any, is ongoing with regard to that issue. Again, I will write to the noble Lord and place a copy of that letter in the Library.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Committee: 2nd sitting (Hansard): House of Lords
Tuesday 15th May 2018 Lords Chamber

[Lord Beecham]

My Lords, I simply wish to confirm that we on this side agree with what noble Lords have suggested, so the quicker we can get things moving, the better for everyone.

[Lord Keen of Elie]

My Lords, I believe that we are as one in our desire to see these provisions brought into force as rapidly and as sensibly as possible, and all of these amendments stem from the entirely reasonable, and indeed strongly argued, wish for the review to be carried out in order to minimise the impact that the present discount rate is having—disproportionately, one would venture—on defendants and in particular on NHS Resolution.

As I explained in writing to noble Lords following Second Reading, to which the noble Lord, Lord Sharkey, referred, the Government remain fully committed to beginning the first review of the rate promptly after Royal Assent and to completing that first review as soon as is practicable in 2019. To that end, I indicated that although the expert panel cannot be appointed before the power to do so has been created, preparatory work on the setting up of the panel is already under way and the Government will progress the appointment process as far as they properly can before Royal Assent. I hope that that goes some way to meeting the point made by the noble and learned Lord, Lord Judge. As part of that preparatory work, the Government intend to publish the draft terms of reference for the expert panel in time for the Report stage of the Bill in this House. However, the appointment of the expert panel cannot take place until after Royal Assent and thus the completion of the appointment process cannot be predicted with absolute certainty.

The effect of Amendment 58 and its related Amendments 63 and 66 might be to force the Lord Chancellor to delay commencement or risk the time to conduct the review being eaten into, thereby reducing its effectiveness. We have in mind the stages that have to be gone through. Amendment 59 would reduce the period of time within which the first review of the discount rate must be started following commencement from within 90 days of commencement to 10 days of commencement, and other amendments specifying 30 days have been referred to as well.

What I would emphasise is the word “within”. These are outliers, but we are determined to carry out the process as swiftly as we reasonably can. Having regard to that, however, we have to make provision for any uncertainties that may emerge, and therefore to fix too stringent a period might impact adversely upon the whole process that we want to carry out. In other words, while it is important to move quickly, it is also important to ensure that any review is completed fully and properly and is not going to be the subject of untoward challenge.

As I have said, the appointment of the expert panel to advise the Lord Chancellor simply cannot take place until after Royal Assent and even then it may still take a little time, despite the preparations that are ongoing even now. If the review starts without the panel being ready to start work, the whole task is going to be thrown into some difficulty.

Grandparents: Legal Rights

Debate between Lord Keen of Elie and Lord Beecham

Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the requirement for non-parents first to seek leave of the court in order to apply for a child arrangement order is regarded as an important filter mechanism, and was the subject of review by an independent panel in 2011 which came to the same conclusion. With regard to means of alternative dispute resolution, we are of course anxious to see mediation employed in the situation to which the noble Lord refers. He may recollect that at a recent Westminster Hall debate, on 2 May, my honourable friend the Parliamentary Under-Secretary of State in the Ministry of Justice indicated that she was carefully considering the current position and provision. In doing so, we will of course be happy to look at international experience.

[Lord Beecham (Lab)]

Will the Government consider extending legal aid to grandparents, assuming that the law is changed to allow them to apply, because that would clearly be very helpful in many cases?

[Lord Keen of Elie]

The law does not require to be changed in order that grandparents can make an application in respect of an arrangement order for children. As regards legal aid, as the noble Lord is aware, that is currently the subject of a review within the Ministry of Justice.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Committee: 1st sitting (Hansard): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

I am grateful for the noble and learned Lord’s assistance. In the past his interventions have not always been of assistance, but they certainly are on this occasion. I would go further and suggest that it would make no more sense to exempt people who were driving red cars at the time of the accident. It is a distinction without a difference; it is as simple as that. That is why we do not consider this to be a helpful line of inquiry, and it is not one that we intend to pursue further.

With regard to the other amendments that were spoken to in this group, I have endeavoured to address the points made. I acknowledge the point made by the noble Earl, Lord Kinnoull, and indeed by the noble Lord, Lord Trevethin and Oaksey, about the potential for anomalies where someone suffers a whiplash injury and other forms of injury as a result of the same accident. That is there, and there is no obvious answer to that. Nevertheless, the Bill is structured with the intention of addressing the vice we are really concerned with here and which is generally acknowledged to exist. In these circumstances, I invite noble Lords not to press their amendments.

[Lord Beecham]

My Lords, I beg leave to withdraw the amendment.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Beecham

Committee: 1st sitting (Hansard continued): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I concur with the views expressed and proposals made by the noble Lords, Lord Sharkey and Lord Marks. They are absolutely on the right track, although I do not agree with the provision for the Judicial College guidelines to be taken into account. It will be seen that in the next group, we have an alternative proposal suggesting that the Civil Justice Council should be involved in making the decisions.

In this group, however, there is an amendment in my name and that of my noble friend Lord McKenzie which would restore a degree of discretion for the court to uplift the amount of damages payable where it deems it just to do so in all the circumstances of the case. That would revive the role of the judiciary in assessing damages, at least to some extent, where it felt that the scale proffered under the legislation was inadequate—as noble Lords have already made clear, that seems likely in many cases.

I broadly support the amendments of the noble Lord, Lord Sharkey and Lord Marks, and will revert to one aspect to which I referred in the next group.

[Lord Keen of Elie]

My Lords, I am grateful for the contributions that have been made. It respectfully appears to me that the points made by the noble Lords, Lord Sharkey and Lord Marks, materially bolstered the approach that the Government take in the Bill. Why do I say that? Because it is quite clear that we are addressing a matter of policy and have to do so as such. What ultimately has to be taken here is a political decision, not a judicial determination.

In fairness, I think it was a slip from the noble Lord, Lord Sharkey, but when he talked about the question of whether claims are genuine or not reasonable, he said that it was unquantifiable—and then corrected himself to unquantified. The former is more accurate than the latter.

Let us be clear. More than 80% of road traffic injuries are allegedly whiplash-induced injuries. The vast majority of all personal injury claims are whiplash claims. Over 10 years, the number of whiplash claims has rocketed—yes, it has stabilised a little in the past year or two, but it has still rocketed. At the same time, the number of road traffic accidents reported has dropped by 40%. At the same time, the number of vehicles classified by Thatcham as safe from the perspective of seating and headrests has increased from 18% to 80%.

As some people have said, an industry is going on. As others have suggested, there is a racket. We have a claims culture that has built up—I attribute no blame to any one party; all sides involved have contributed in one way or another to the ballooning of the claims culture. The time has come—indeed, the time may be almost past—when we need to address it as a political issue.

The noble Lord, Lord Sharkey, suggested that somehow we were making a transfer from claimants to motorists. With great respect, a very large proportion of claimants are motorists, so it is not as simple and straightforward as that. Secondly, he talked about the transfer requiring to be justified. The transfer is a consequence of the policy decision we are making to deal with the industry, the claims culture; it is not the purpose of it. It is, as I say, the consequence.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I was rather hoping that my noble friend was going to explain the tariff, but that may be for another day.

If I respond shortly, it is not because I dismiss the importance of the amendments that have been moved but because I have already sought to set out the Government’s approach to the tariff, and I hope that will be appreciated. However, I understand the purpose of these probing amendments, in particular the amendment spoken to by the noble Lord, Lord Bassam, which reflects some recommendations from the Bar Council. I will add two short points.

First, as I mentioned before, we allow for the 20% uplift for exceptional circumstances to be placed in the hands of the judiciary. Secondly, in setting the tariff, the Lord Chancellor is going to consult widely and take into account the views of a wide spectrum of interested parties in order to arrive at what is considered, for policy purposes, to be the appropriate levels, both now and in the future. However, we do not consider that it is appropriate to formalise any part of that consultation, for example by reference to consulting the Lord Chief Justice.

I have heard what has been said; it is essentially a development of the previous group of amendments. I appreciate why these additional amendments have been moved, but invite noble Lords to withdraw.

[Lord Beecham]

My Lords, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I am a little concerned at the degree to which political considerations are supposed override our system of justice. This is not the first time it has been mentioned. However, the latest case is perhaps the least acceptable of the recommendations of this kind. Why on earth should Parliament decide on the so-called exceptional circumstances—undefined, of course, for the purposes this debate—on what are already constrained sums to be awarded in damages? It is trespassing too much on the rights of the citizen and the role of the judiciary. I hope that the Minister will concur with that, given his enormous experience of these matters, and, I apprehend, a real interest in justice being effective and available. With all due respect, the amendment moved by the noble Lord undermines both.

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend Lord Hodgson for his amendment. I understand the intent when we are seeking to address a very particular problem. However, I cannot concur with the proposal that we should set in the Bill some limit to the judicial discretion that will be exercised in exceptional circumstances. We have yet to see how exceptional circumstances will develop once the Bill comes into effect. We therefore consider it more appropriate that the percentage increase in tariff should be determined by regulation by the Lord Chancellor in order that he may, from time to time, have regard to developments once the Act is in force. We do not consider it appropriate to constrain that exercise by setting a ceiling in the Bill. For these reasons, I invite my noble friend to withdraw his amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, the amendments in this group pray in aid, as it were, for the work of MedCo, a body set up by the Government, I believe in 2015, to facilitate the sourcing of medical reports on injuries of the kind that we are debating under the terms of the Bill. The Ministry of Justice produced a pre-action protocol for what it calls low-value personal injury claims in road traffic accidents. Before that, there was no system at all to effectively source reports, and apparently a practice was developing of some claimant representatives—not necessarily solicitors—and insurers using what are described as “tame” doctors to produce medical reports for the purposes of securing compensation.

The Government set up the MedCo organisation to provide claimants with access to independent medical reporting facilities from reputable sources, which are themselves subject to regulation and control by the MedCo board. Apparently MedCo had a bit of an uneasy period in its early days and there have been a number of reviews, but the principle remains valid. I understand that it is now working better and that there is no channelling of medical reports to, as it were, sympathetic doctors who might be relied on to back up claims that are less than valid. To that extent, the Government’s original idea has proved right.

In relation to the Bill, it appears that there will be a necessity to reconstruct the portal so that litigants in person can access and use the portal themselves. Therefore, it is all the more necessary to ensure that the MedCo system is available and as user-friendly as possible. I hope that the Minister will acknowledge that I am taking the unusual stance of having supported a decision made by the Government some time ago and seeking that it should continue to flourish. I look forward to his acknowledging that this is a good way of serving justice for both sides in such cases, by having thoroughly professional, independent people providing the necessary political evidence, not being paid for a particular kind of evidence—which one suspects can happen and perhaps has happened hitherto, producing some decisions that were, frankly, unjustified. I hope that the noble and learned Lord will build on the position created originally in 2015 by the Government and ensure that it remains applicable and useful under the new regime being developed.

[Lord Keen of Elie]

My Lords—

--- Later in debate ---

[Lord Keen of Elie]

I quite understand the noble Lord’s concern, and I would be willing to consider any further amendment that he puts forward on this in due course. At this stage, I invite the noble Lord to withdraw the amendment.

[Lord Beecham]

I am obliged to the Minister for his invitation, which I will certainly take up. The intention of the amendments is to fill out, as it were, the provisions in Clause 4 relating to regulations to be made by the Lord Chancellor about the appropriate evidence of an injury for the purposes of this clause. It may be that both of us are replicating something that already exists, but we can have a look at it and I am sure it is a matter on which we can reach agreement one way or another. I beg leave to withdraw the amendment.

Employment Tribunal Hearings

Debate between Lord Keen of Elie and Lord Beecham

Thursday 26th April 2018 Lords Chamber

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

My Lords, we wish to ensure that employment cases are dealt with swiftly and effectively. We are taking action to deal with the tribunals’ increased case load. This includes setting aside extra days for judges to hear tribunal cases, as well as developing plans to recruit more tribunal judges. We continue to monitor the situation closely.

[Lord Beecham (Lab)]

My Lords, this issue was drawn to my attention by a newspaper headline—in the Times, not the Morning Star—entitled “Tribunals gridlocked by surge in claims”. Among the many cases cited by the trade union USDAW and Thompsons Solicitors was a case in London, which happened in November 2017 and will be heard in January 2019, and a case in Watford, listed for a three-day hearing in January 2018 but postponed until September due to “having overbooked and a lack of judicial resources”. Is the Minister aware that ACAS conciliators have reported that they are overwhelmed by the increase in claims? For example, solicitors in Newcastle have been unable to get through to speak to anyone for two weeks. In detail, what steps do the Government intend to take, and within what timescale, to ensure that the maxim “justice delayed is justice denied” is no longer exemplified in the workings of the employment tribunal system as a result of what the Supreme Court ruled was its unlawful and unconstitutional imposition of fees of up to £1,200?

[Lord Keen of Elie]

On the last point, the Supreme Court determined that it was lawful to charge fees for the tribunal; it was the level of fees that was considered disproportionate. The time taken for tribunal cases was in the region of 26 to 28 weeks per case for resolution. That has increased to about 33 weeks because there was a significant increase in applications to the tribunals after the decision in July 2017. We have put in place a process for recruiting a further 54 tribunal judges for employment tribunals, which should increase capacity by about 44%. In addition, we are now taking steps to increase the number of fee-paid judges in the tribunal system; indeed, fee-paid judge sittings have increased by 180% since July 2017. We are also conscious of the need to employ additional staff in employment tribunals; that is being undertaken at the present time. I apologise for the length of my answer, but I felt I should give the noble Lord’s question a full response.

Probation: Voluntary Sector

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 24th April 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the community rehabilitation companies faced unexpected difficulties when it was found that the financial float of those companies was less than had been planned for. We have already discussed the terms of the contracts with the CRCs and they are the subject of further consideration. We are certainly determined that there should be a diverse provision so far as probation is concerned, and one that does involve third sector organisations.

[Lord Beecham (Lab)]

The chief inspector has stated that the present system is fundamentally flawed and that she doubts whether the service can ever be restored to the standard we should accept. Will the Government now join with her, the relevant trade unions and the judiciary to examine how the performance and reputation of a critical part of our system can be restored?

[Lord Keen of Elie]

My Lords, with regard to the present provision it should be noted that the community rehabilitation companies have reduced the number of people reoffending. Indeed, our reforms mean that they are monitoring 40,000 offenders who had previously been released with no supervision.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the flow of work between the NPS and the CRCs was indeed lower than the Government had anticipated when they implemented these measures.

[Lord Beecham]

My Lords, could the Minister perhaps answer the question that I put to him? Will the Government sit down with the trade unions and the judiciary to deal with the crisis in the system?

[Lord Keen of Elie]

My Lords, with respect to this reference to crisis, I remind the noble Lord of what the chief inspector said in her report:

“We found that the quality of services was variable, but reasonable overall”.


We aim to improve that. We do not intend to sit down at present with particular parties, but we are addressing the recommendations in the chief inspector’s report, which is the proper way forward.

Legal Aid

Debate between Lord Keen of Elie and Lord Beecham

Thursday 19th April 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we agree that the criminal Bar is one of the vital pillars underpinning the rule of law and that its contribution should be fairly rewarded.

[Lord Beecham (Lab)]

My Lords, there are two forms of advice desert in relation to the current legal aid system. One is geographic, where legal advice is simply unavailable because there are no longer legal aid practitioners to provide it, and the other is in relation to particularly sensitive and important areas, such as housing or family law, where the number of cases receiving legal help since LASPO has dropped from 200,000 to 40,000 in the last financial year. Will the long-awaited LASPO review address these problems? Do the Government have an open mind in relation to the possible restoration of legal aid and advice currently denied to people of limited means, with the added benefit of reducing the pressure on the courts system from the growing number of unrepresented parties to proceedings?

[Lord Keen of Elie]

My Lords, with particular reference to housing, at present 133 of the 134 housing and debt procurement areas for legal aid have provision, and in addition there is provision for telephone advice in the context of housing issues that are covered by LASPO. Our review will embrace all the issues that are being raised by interested groups and will take account of the observations made by the noble Lord, Lord Low, and the noble Lord, Lord Bach, in their respective reports.

Prisons: Women

Debate between Lord Keen of Elie and Lord Beecham

Monday 5th March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, with regard to the dispersal of prisoners from HM Prison Holloway, there were at the time of the move 241 prisoners who had to be transferred to other prisons. Of those, 114 were transferred to Downview and the remand prisoners, extending to about 56, were transferred to Bronzefield. Both those establishments had suitable facilities and services for the prisoners who were transferred. We are, of course, engaged in looking at and renewing the entire prison estate at the present time, which is one reason for the disposal of HM Prison Holloway.

[Lord Beecham (Lab)]

My Lords, it is nearly two and a half years since the closure of Holloway was announced and 20 months since it closed. As we have heard, prisoners have been moved outside London to Surrey, Kent, Peterborough and beyond, with serious effects on staffing and the well-being of prisoners now further away from their families. More efforts appear to be made to develop the former site than to replace the prison. Why was the closure implemented before accessible, suitable and permanent provision was secured?

[Lord Keen of Elie]

My Lords, accessible and suitable provision was secured for those prisoners who were transferred from Holloway. I have indicated that they were transferred to Downview, in particular, Bronzefield and one or two others. There were individual interviews in respect of all prisoners in order to determine the suitability of their transfer. In addition, 24 service providers at Holloway transferred to Downview and a further 12 were replaced with equivalent provision at Downview. We consider that suitable provision was made in respect of these transfers.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Beecham

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, your Lordships may have noticed that I am rather short: this afternoon, I can give the House some comfort by saying that, in relation to this amendment at least, I shall also be brief.

The Constitution Committee points out that Clause 2 is not needed to ensure that most categories of domestic legislation—which in practice will remain in force—will continue to apply. It concludes that,

“clause 2 appears to be significantly broader than it needs to be”.

The Constitution Committee affirms that it is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as retained EU law and be subject to the powers of the amendment referred to in Clause 7.

Does the Minister accept this? If not, on what basis does he take that stance? The provision appears to be a way of allowing the Government to amend legislation by the mechanism of secondary legislation. With all the concerns around the excessive use of such procedures that have frequently been expressed by committees of the House and by Members in the Chamber, it would be reassuring if the noble and learned Lord could make it clear that that is not the Government’s intention in respect of this Bill.

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

My Lords, I am grateful for the contributions from Members of the House with regard to this issue. We are extremely grateful for the extensive work done by the Constitution Committee with regard to the Bill, as set out in the report, and for the consideration that members of the committee have given to the provisions of the Bill and some of the difficult issues that arise in transposing EU-based legislation into domestic law, because it represents something of a challenge in a number of respects.

I shall begin by referring to a matter that does not arise out of this group, or did not until the noble Lord, Lord Adonis, raised it, because it may help if I address his point about whether retained EU law is primary or secondary legislation. It is neither in the Bill. There are provisions in paragraph 19 of Schedule 8 with regard to the Human Rights Act, which is a very particular case, where it will be treated as primary legislation. There is the Constitution Committee’s recommendation that it should all be treated as primary legislation. I shall not go into detail at this stage because we will address this later, but I want to reassure the noble Lord about where we are.

That recommendation raises enormous difficulties because there are aspects of EU-derived legislation that, for example, involve the enumeration of the contents of a particular dye or chemical, and the idea that we could amend that only by way of primary legislation raises issues of its own. Nevertheless, it seems to the Government that there is some scope for considering how we can take this forward, and we are open to considering not only the recommendations of the Constitution Committee but of others. For those who have an interest in this issue, I commend for consideration, at least, the recent observations of Professor Paul Craig of St John’s College, Oxford, in a blog on the UK Constitutional Law Association site dated 26 February—only a few days ago—in which, supplementary to an earlier note that he made, he proposes a categorisation of EU-derived legislation. I cannot say that it is one that we entirely agree with, but it is certainly one that we are looking at because there is more than one route to the resolution of this issue. We are looking at that and, for noble Lords who are interested in that point, it may be worth considering.

Prisons

Debate between Lord Keen of Elie and Lord Beecham

Thursday 8th February 2018 Lords Chamber

[Lord Keen of Elie]

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

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

[Lord Beecham (Lab)]

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

Asylum Seekers: Legal Advice

Debate between Lord Keen of Elie and Lord Beecham

Monday 5th February 2018 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

Prisons: Careers Guidance

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 31st January 2018 Lords Chamber

[Lord Beecham]

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

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

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

Prisons: Action Plans and Special Measures

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 24th January 2018 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

HMP Liverpool

Debate between Lord Keen of Elie and Lord Beecham

Thursday 21st December 2017 Lords Chamber

[Lord Beecham]

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

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

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

--- Later in debate ---

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

Probation Service

Debate between Lord Keen of Elie and Lord Beecham

Thursday 14th December 2017 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

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


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

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


She adds that,

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

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

[Lord Keen of Elie]

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

Selection of the President of Welsh Tribunals Regulations 2017

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 29th November 2017 Grand Committee

[Lord Beecham (Lab)]

My Lords, I of course defer to the experience of the two noble Lords from Wales, who clearly have a greater insight into the position than either the Minister—with due respect—or I could have. Of course, I join them in welcoming the instrument. However, according to the Explanatory Note, the consultation process was very limited, as it was apparently confined to officials of the Welsh Government and the Lord Chief Justice. Was there any consideration with the professions in Wales about this? Presumably many members of the legal profession would have an interest in the matter.

On the concern about diversity, I wonder whether the noble and learned Lord is in a position to say—if not, perhaps he could subsequently advise me—what is the present composition of tribunal membership and chairs of the tribunals in terms of gender and ethnicity. Clearly there is an implicit aspiration at paragraph 12.2 of the Explanatory Memorandum to promote diversity. I would be interested to know what the starting point is. Although the question of developing a baseline against which progress can be measured is apparently still incorrect, it would be helpful to see where we are starting from, if not today by a note to those Members present.

This is clearly a welcome step forward. One hopes that it will work well and in particular that the diversity issue will be addressed properly and in a timely way. I join other noble Lords in welcoming the regulations and trust that their impact will be beneficial.

[Lord Keen of Elie]

I am obliged to noble Lords and to the noble Baroness for their contributions. I begin with the point raised by the noble Lord, Lord Thomas of Gresford. I entirely agree with his observations about the importance of maintaining the independence of the judiciary and, equally, of defending the judiciary from inappropriate attack. There is an important distinction to be made between what can be regarded as justified criticism and what is tantamount to abuse. We have to underline that distinction if we are properly to defend the judiciary. Of that there can be no doubt.

On the question of whether these powers should be used, I again entirely agree with the noble Lord. This is the alternative mechanism to be employed, but it is contemplated that it will be employed only in circumstances where there is a breakdown in agreement between various parties. It is not something that is contemplated, but because the Act makes provision for this alternative mechanism it is only appropriate that we should have regulations in place so that, if necessary, it can be employed.

On the matter of who will be the president of the Welsh tribunals and his role so far as defence of tribunal members is concerned, remembering that some of those tribunal members are lay members, it is doubly important there is somebody there who can advise and defend their interests. One of the responsibilities of the President of Welsh Tribunals will be not only the training and guidance of members of the tribunals, but consideration of their welfare. That again is important.

On the point raised by the noble Lord, Lord Wigley, on the Welsh language, of course we recognise the importance of the Welsh language in the context of proceedings in Wales, but we have to remember that we are making an appointment to the judiciary of England and Wales. While the proceedings of those tribunals may take place in Welsh as distinct from English, it is not considered appropriate that we should extend the criteria for the appointment of this post to include the Welsh language itself.

Probation Contracts

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 31st October 2017 Lords Chamber

[Lord Keen of Elie]

On that last point, I cannot say that the Government will be able to make time for a debate on the subject before the end of the year. On the suggestion of bad contracting, I would point out that contracts were entered into with 21 CRCs, and that those contracts encountered some financial difficulty for one particular reason—namely, it was originally anticipated that some 80% of those undertaking probation would be referred to the 21 community rehabilitation companies. In the event, only about 60% of those subject to probation supervision were referred to the companies, and that impacted directly upon their financial model as determined under the original contracts. For that reason, interim arrangements were made with the CRCs in the year 2016-17, and in the current year. However, the figure of £277 million referred to by the noble Lord is not a fixed figure: it may have to be met, depending on the performance of the CRCs.

[Lord Beecham (Lab)]

My Lords, morale in Northumbria’s probation service and CRC is at a low level because of understaffing, with 50% of officers leaving the service, excessive workloads, less supervision and the need to concentrate on high-risk cases at the expense of other cases. This is exemplified by case loads of 40, including four to five high-risk cases, now being replaced by much higher case loads, with a greater proportion of high-risk cases and problems with escalating cases from the CRCs to the National Probation Service. What do the Government regard as a satisfactory case load for officers to manage in terms of overall numbers and the balance between high-risk and other cases?

[Lord Keen of Elie]

There is no fixed proportion as between officers and the number of persons being supervised. That will depend upon the particular CRC and the circumstances in which it is engaged with the individual. The National Probation Service is in the course of recruiting 1,400 additional staff. In addition, the CRC contracts require providers to ensure that they have sufficient adequately trained staff in place. Indeed, results tend to bear that out. Nearly two-thirds of CRCs have reduced the number of people reoffending in the past year, according to statistics up to June 2017.

Civil Procedure (Amendment) Rules 2017

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 13th September 2017 Lords Chamber

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

My Lords—

[Lord Beecham (Lab)]

Noble Lords will have to wait a little longer for what I suspect will be the most enlightening speech of the evening.

I congratulate the noble Lord, Lord Marks, on tabling his Motion, which we on these Benches, and perhaps those who are not, will shortly support through the Lobbies. There are only two things wrong with the Government’s policy in relation to the specific part of the Civil Procedure (Amendment Rules) we are debating: the process from which it emerged and the substantive effect of the policy it embodies.

On process, yet again the Secondary Legislation Committee, composed of highly experienced Members from all parts of the House, finds cause to be highly critical of the lack of information on or a clear understanding of the policy objective and intended implementation of the radical changes embodied in the rules. As we have heard, these are likely to deter challenges to decisions in the planning arena under the Aarhus convention by raising the cap on costs to be paid by unsuccessful applicants—very often, voluntary organisations or other groups of a non-commercial nature—to the benefit of the defendants, who are likely to be better endowed financially and, in this environmental area, may include the Government or public bodies. I concur with the rebuttal—if I may use as strong a term—made by the noble Lord, Lord Pannick, of the observations of the noble and learned Lord, Lord Mackay.

On process, the committee found that the Explanatory Memorandum accompanying the rules apparently forgot to report that fewer than 10 of the 289 responses—some of them admittedly merely replicating answers provided by Friends of the Earth—supported the proposals. The vast majority of the respondents averred that the proposals failed to meet the principles emerging from the Edwards case, to which reference has already been made. The committee stated that the Government should have better explained their interpretation in the memorandum and identified any changes made following the consultation—they did not do so. It went on to point out that, whereas the consultation document pledged a review within two years, no such undertaking is mentioned in the Explanatory Memorandum supporting the statutory instrument we are debating. It called for clarification of the Government’s intentions—no doubt the noble and learned Lord the Minister will provide such clarification.

The committee’s conclusion was damning. It proclaimed:

“The Ministry of Justice has not addressed any of these concerns in its paperwork and we therefore draw the matter to the special attention of the House on the ground that the explanatory material … provides insufficient information to gain a clear understanding about the … policy objective and intended implementation”.


That is a very severe critique by the committee.

Time and again, we have similar critical reports from the committee and still the Government proceed to adopt a cavalier approach to the process, which, at a time when Brexit is in train, is even more worrying than in the past. What undertakings will the Government make to improve their lamentable performance in the use of secondary legislation not merely in this area but across the whole range of secondary legislation?

It would appear that there is already evidence of the chilling effect of the new regime, to which some references have already been made. As we have heard, Friends of the Earth estimates that the number of cases has reduced by around 25% since the introduction of the new regime. Can the Minister, if not today then subsequently, publish the relevant data so that a proper assessment of the position can be made?

It is instructive to compare the different scenarios before and after the change. Friends of the Earth cites two cases under the old regime which exemplify the workings of the previous system. In one case, the Campaign to Protect Rural England Kent sought judicial review of a planning decision affecting an area of outstanding natural beauty. It succeeded in having the planning permission quashed by the Court of Appeal. Commenting on the case, CPRE Kent said that,

“the certainty of costs protection allowed Trustees and staff to assess the likely expenditure over the duration of such a challenge”.

In another case, this time in Norfolk, residents of Norwich were much exercised over proposals to build a major road which they contended would irreversibly damage the environment, destroy areas of countryside, farmland and wildlife habitats, and increase noise and pollution. A local parish councillor sought judicial review on behalf of the Wensum Valley Alliance and the council, to its credit, accepted that the scheme was unlawful. It was quashed in the High Court. However, the salient point is that the councillor—Councillor Boswell, who was also involved in the case—stated that the local community group, the Wensum Valley Alliance, would have,

“found it impossible … to contemplate legal action without knowing the extent of their financial liability in advance”.

We heard earlier the experience of the Liverpool Green Party, which again illustrates the chilling effect of the new regime. The net result of the changes seems likely to reduce significantly access to justice in this area of the law, in which applicants under the old system were 12 times more likely to succeed than fail. Given that under Brexit, there would be no recourse to the European Court of Justice, the recent developments are even more worrying.

As we heard from the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Parminter, we await the outcome of a case brought by Friends of the Earth, the RSPB and ClientEarth contending that the changes already made are incompatible with the UK’s obligations to provide access to justice as set out in European law. Can the Minister offer any assurances that, with or without Brexit, UK citizens will not be deterred from challenging authority by the potential exposure to large claims for costs?

I understand that we currently await a report from the compliance committee of the Economic and Social Council on the UK’s compliance with its obligations under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. I trust the Government will abide by the recommendations of the committee and thereby distinguish this country from some countries in, for example, eastern Europe which seem, alas, to be reverting to a more authoritarian mode of government whereby access to justice and the independence of the courts appear in danger of being undermined.

[Lord Keen of Elie]

My Lords, I begin by thanking the noble Lord, Lord Marks of Henley-on-Thames, for tabling this evening’s Motion on this topic. I welcome the valuable contributions from noble Lords across the House.

The United Nations Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, generally known as the Aarhus convention, requires countries which have signed the convention to guarantee rights for their citizens of access to information, public participation in decision-making and access to justice in environmental matters. In particular, it requires those countries to make sure that the public have access to legal procedures to challenge relevant decisions taken by the countries’ public authorities and specifies that those legal procedures should, among other things, not be “prohibitively expensive”. Both the UK and the European Union are signatories to the Aarhus convention, and the convention has been incorporated—albeit in part—in EU law, including the requirement that the legal costs of relevant environmental claims must not be prohibitively expensive.

The costs regimes and the amendments made to them to fulfil this requirement in respect of claims within the scope of the Aarhus convention are similar between England and Wales, Scotland and Northern Ireland. However, there are important differences. In the present context, I address the position in only England and Wales. In seeking to comply with the “not prohibitively expensive” requirement, successive Governments have taken steps to control the costs that a losing claimant may be ordered to pay a winning defendant. I will set out key recent events, although most of them have been touched on at various points during the course of this debate.

In April 2013, an environmental costs protection regime was introduced by amendment to the Civil Procedure Rules, which capped the amount of costs that a court could order an unsuccessful claimant to pay to other parties. Under this regime, the claimant’s costs liability to a successful defendant was capped at either £5,000 for claimants who were individuals or £10,000 for other claimants, as alluded to by the noble and learned Lord, Lord Mackay of Clashfern. The defendant’s costs liability to a successful claimant was similarly capped, but at the rather higher level of £35,000.

Prisons and Youth Custody Centres: Safety

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 19th July 2017 Lords Chamber

[Lord Beecham (Lab)]

My Lords, the Chief Inspector of Prisons describes a “staggering decline” in safety in young offender institutions and secure training centres, not one of which is,

“safe to hold children and young people”.

He asserts that the current state of affairs is,

“dangerous, counterproductive and will inevitably end in tragedy unless urgent corrective action is taken”.

Adult prisons have seen,

“a dramatic and rapid decline”

in standards, with a rising incidence of violence and drug abuse, but also shocking sanitary conditions. What urgent action will the Government now take to address the scandalous state of our prisons, and in what timeframe? Is it not time to acknowledge that having the fourth highest incarceration rate in Europe contributes to the shameful state of the service?

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Beecham, for his observations. First, on the safety of the youth estate, since his report was published the inspector has acknowledged that at the institution at Werrington, the standard of safety for both inmates and staff is at a scale of three out of four: that is, at 75%. Of course, the fact that one of these institutions has achieved such a level of safety takes us only so far. We will seek to emulate those standards across the entire estate going forward, but it is not the case that all these institutions have failed. I accept, however, that the failure reported upon by the inspector is unacceptable and has to be addressed.

As the noble Lord may recollect, we have already committed to spending £1.3 billion on the prison estate. In addition, I note that Her Majesty’s Prison Berwyn, which has been completed, now has 430 places in use, and, once fully operational, will have a further new 2,100 prison places. That is but a step but it is a step in the right direction. As for periods of incarceration, I note that the level of sentences imposed for violent and sexual crimes over the past decade has increased. That, of course, has an impact upon the prison estate. That is a feature that we have to take into consideration in looking at the overall operation of the system. But we cannot lose sight in this context of the issue of public safety.

Judicial Pensions (Additional Voluntary Contributions) Regulations 2017

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 21st March 2017 Grand Committee

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

My Lords, I will set out the purpose of the draft regulations in turn.

First, the fee-paid regulations are required to establish a pension scheme for eligible fee-paid judges, to mirror the existing pension scheme for salaried judges established by the Judicial Pensions and Retirement Act 1993. This is required following the court’s decision in the case of O’Brien v Ministry of Justice. These regulations make provision for a pension scheme for the benefit of those people who have held eligible fee-paid judicial office between 7 April 2000 and 31 March 2015. They also establish the Fee-Paid Judicial Added Voluntary Contributions Scheme, the Fee-Paid Added Years Scheme and the Fee-Paid Judicial Added Surviving Adult Pension Scheme to enable members of the principal scheme to pay voluntary contributions towards the costs of additional benefits under one of more of these additional schemes.

Following the case of O’Brien v Ministry of Justice and subsequent decisions it is now established law that a lack of a pension and other specified benefits amounted to less favourable treatment than some fee-paid judicial office holders in comparison to salaried judges doing the same or broadly similar work, contrary to the part-time work directive. The Ministry of Justice made a commitment to implement a pension scheme for these fee-paid judges. This commitment was honoured for future service, subject to transitional protection, by the Judicial Pensions Regulations 2015. However, a new scheme is required as the remedy in respect of reckonable fee-paid service from 7 April 2000—the date when the part-time work directive ought to have been transposed into UK law. The power to create such a scheme was created by Section 78 of the Pensions Schemes Act 2015, which inserted a new Section 18A into the Judicial Pensions and Retirement Act 1993.

The draft fee-paid regulations have been the subject of a detailed public consultation and were modified as part of that consultation process, taking account of responses and as part of our own review of the draft. A response to the consultation was published on 27 February alongside the final draft regulations.

The amendment regulations amend the Judicial Pensions Regulations 2015 to take account of the creation of the fee-paid judicial pension scheme and ensure parity of treatment between individuals with entitlement in the existing Judicial Pensions and Retirement Act 1993 scheme and those with entitlements under the fee-paid scheme in respect of their pension entitlements under the 2015 regulations. In addition, we are taking the opportunity to amend the 2015 regulations to make a number of other changes: to amend a drafting error in Regulation 1 of the 2015 regulations; to enable the Lord Chancellor to determine the eligibility of particular Scottish fee-paid judicial officeholders to join the pension scheme created by the 2015 regulations; to remove negligence as a basis for forfeiture or set-off; to make a correction to the definition of index adjustment for revaluation purposes; and to apply full and tapering protection for those judges who were in fee-paid office on 31 March 2012 but who have subsequently been appointed to salaried office.

The 2015 regulations were made under the Public Service Pensions Act 2013 to create a career average pension scheme for judicial officeholders as part of the Government’s wider reform of public service pensions. This is the first time the 2015 regulations have been amended.

Thirdly, I turn to the additional voluntary contributions regulations, the purpose of which is to make provision to establish a judicial additional voluntary contributions scheme. This is a money purchase scheme that enables scheme members to make contributions within a range of investment options. This is in addition to their contributions to the 2015 scheme. The AVC scheme is to be managed by the Lord Chancellor and the Judicial Pensions Board will oversee the governance. The 2015 judicial pension scheme was established on 1 April 2015 in response to the Public Service Pensions Act 2013. The 2015 scheme applies to fee-paid and salaried judicial officeholders.

The existing judicial pension schemes provided a facility to contribute to a money purchase pension scheme and the same facility is provided for members of the 2015 scheme through these AVC regulations. This includes the pension flexibilities contained in the Taxation of Pensions Act 2014 and the Pension Schemes Act 2015. Amendments to the additional voluntary contribution scheme established under the older judicial pension scheme, made by the Judicial Pensions and Retirement Act 1993, are being made in separate instruments containing similar regulations, which also give effect to the pension flexibilities.

To summarise, the fee-paid regulations are necessary as the remedy to provide eligible fee-paid judges with pension benefits that are equivalent to their salaried comparators. The amendment regulations are necessary as they introduce a range of amendments required to the 2015 judicial pension scheme. The additional voluntary contributions regulations are necessary to honour the department’s commitment to provide such a facility to members of the 2015 judicial pensions scheme. I hope that noble Lords will welcome these three sets of regulations as necessary to make important provision for judicial pensions. This is in terms of the Government’s legal obligations and to meet outstanding commitments, and to ensure that all the necessary arrangements are in place for a consistent approach relating to the relevant provisions across the judicial pension schemes. I therefore commend these draft regulations to the Committee.

[Lord Beecham (Lab)]

My Lords, I must declare a paternal interest since my daughter is a part-time, fee-paid district judge. The noble and learned Lord will, no doubt, be particularly pleased with the Judicial Pensions (Amendment) Regulations 2017 inasmuch as they contain a rather rare provision for the Scottish Government to request permission to join a national UK scheme, which is a remarkable volte face from the present Administration in Edinburgh. No doubt the noble and learned Lord will make that point on his next return to that city, and I wish him well in such an approach.

The three regulations dealing with judicial pensions are, of course, welcome so far as they go, but they come at a time when we face a shortage of judges and apparent difficulty in finding sufficient numbers of suitable applicants to fill a rising number of retirements. The Lord Chief Justice’s report of 2016 referred to,

“serious concerns about recruitment to the judiciary, in particular the ability to attract well-qualified candidates for positions in the higher levels”.

He pointed out that this created an impact both on the administration of justice and the position of the UK as a forum for international business litigation, where we are already facing growing competition from other jurisdictions.

The degree of unhappiness with the situation is reflected by results of a recent survey which shows that nearly half of High Court judges plan to retire early. Respondents to that survey alluded to resentment over loss of earnings, deteriorating working conditions and even fear for their personal safety in court. The latter will not have been helped by the scurrilous campaign against the judges by sections of the media and the further reaches of the Conservative Party and of UKIP, which were roundly denounced by the Minister, much to his credit.

A survey of judicial attitudes last year showed that 42% of all judges would leave if they had a viable option, nearly double the number of the previous survey in 2014. A more recent survey suggests that 47% of High Court judges and 36% of all judges indicated they would consider early retirement from the Bench over the next five years. Their attitude is partly coloured by the large number—78%—who suffered a loss of net earnings over the past two years and the 62% who were affected by pension changes. The Lord Chief Justice warned in 2016 that a new High Court judge would have a pension less than that of a District Judge, which is hardly conducive, one might think, to retention or recruitment to the High Court. He also felt that the situation was likely to have a considerable inhibiting effect on promoting gender and ethnic diversity, which the survey disclosed. Significantly 43% of judges felt unappreciated by the public but, tellingly, only 3% felt they were esteemed by the media, and, shockingly, only 2% felt they were esteemed by the public.

If this were not bad enough, one-third complained of the quality of court buildings and two-thirds referred to the low morale of court staff. Just over half the judges expressed concerns for their safety in court, partly due to the number of unrepresented litigants, especially in somewhat fraught cases in the family side of the courts’ work. The same proportion said that out-of-hours work was affecting them—a rise from 29% in 2014.

Currently there is a shortage of 25 High Court judges and between 120 and 140 circuit judges. Lord Justice Burnett, who is vice-chairman of the Judicial Appointment Commission, has complained that suitable applicants for the High Court have been insufficient in the past two years, while the demands on the judiciary continue to grow across the whole system. It would appear that only 55 applications were made last year for 25 vacancies and only eight were filled.

Public Guardian (Fees, etc.) (Amendment) Regulations 2017

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 21st March 2017 Grand Committee

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

My Lords, these regulations apply to England and Wales and reduce the fee for registering enduring and lasting powers of attorney. The current fee of £110 will be reduced to £82. The resubmission fee, paid when an application has to be resubmitted because of an error with the original application, will be reduced to £41 from £55. If Parliament agrees, we intend these changes to take effect on 1 April this year.

The new fee will be an enhanced fee, allowing us to cover the full cost of registering a power of attorney as well as to ensure the efficient and effective discharge of the public guardian’s functions. The power to charge an enhanced fee is contained in Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014.

There are currently more than 2 million powers of attorney registered. These comprise lasting powers of attorney and their predecessor enduring powers of attorney, which remain valid and may still be registered. In October 2017, we will celebrate 10 years since lasting powers of attorney were introduced. In that time, the Office of the Public Guardian, the body responsible for maintaining a register of powers of attorney, has registered nearly 2.5 million powers.

The high uptake of lasting powers of attorney is an indication of the success of the Mental Capacity Act. They allow individuals to plan ahead for a time when they may lack capacity to make decisions for themselves and to appoint someone they trust to make those decisions for them. It is, of course, positive that so many more people are now making powers of attorney, but it has led to a position where the income we receive from fees charged is exceeding the cost of delivering the service. A detailed review of power of attorney fees, together with an improved forecasting model for volumes of applications, taking into account the ageing demographic and the rise in dementia, has enabled us to take decisive action to reduce fees and bring them closer to the cost of providing the service.

As many more people have been registering LPAs in recent years, increased volumes coupled with greater efficiencies in processing applications have resulted in fees being charged above the operational cost of delivering the service without our having exercised the power provided by legislation to allow us to do this. Clearly this situation must be remedied, which is what these draft regulations seek to do. Furthermore, alongside the reduction in fee, we will also introduce a scheme for refunding a portion of the fee to customers who may have paid more than they should. Full details of the scheme will be announced in due course. We will take such steps as are necessary to make sure that people are made aware of, and receive, the refunds to which they are entitled.

The Government’s aim is to ensure that the public guardian’s functions are properly resourced. We consider that an enhanced fee will go towards funding vital wider functions carried out by the Office of the Public Guardian. The enhanced fee will allow the public guardian to ensure that those who cannot afford to pay still have access to the key services offered by the Office of the Public Guardian; there is a remission scheme in that regard. The fee will also contribute to costs of the public guardian’s safeguarding activities, including the annual costs of supervising deputies appointed by the court to manage the affairs of people who have lost capacity to do so for themselves. I therefore commend these draft regulations to the Committee, and I beg to move.

[Lord Beecham (Lab)]

My Lords, I am not sure whether I need to declare an interest in this matter as having registered an enduring power of attorney myself, which might entitle me, I suppose, to a rebate. It is pretty unlikely, I suspect, but it is a possibility and I shall have my old firm explore it.

Obviously, therefore, I welcome the main thrust of the order, which is to reduce the fees from their current level. The Government have acted perfectly properly in that respect. However, it is interesting that the Explanatory Memorandum confirms what the Minister has described as the Government’s policy—namely, that they have decided,

“in view of the financial circumstances and given the reductions in public spending, that a fee above full cost is necessary in order to ensure that the Public Guardian is adequately funded and that safeguarding the vulnerable is protected in the long term”.

That does not seem to be a logical explanation for retaining, albeit now reduced, a fee that is above the full cost. It is a philosophy which I hope will not be applied elsewhere in public services—namely, that you contribute not just to the cost but to an excess of the cost. Have the Government made any estimate of how much they will benefit by this device over time? How do they justify charging more than it actually costs to provide the service? They have been doing so, as it were, unconsciously for some time; now they will do so consciously. That strikes me as a very odd way of proceeding.

[Lord Keen of Elie]

The fees charged in respect of a power of attorney in 2007, when the scheme came in, were £150. They have reduced steadily since then, although they increased between 2009 and 2011, while transitional measures were being taken to upgrade IT for the Office of the Public Guardian. When they were reviewed in 2013, they were brought down. Subsequently, audit has indicated that they are still above a necessary and appropriate level.

However, with regard to the question about the enhanced fee, that allows for the fact that over and above the actual cost of dealing with a power of attorney, the Office of the Public Guardian also has to deal with other costs and demands—namely, those involving the application of parties who get a fee exemption and therefore the cost of their application has to be covered, as well as the cost of appointing deputy supervisors by the court. I did not use the correct term. It is not deputy supervisors but supervising deputies.

[Lord Beecham]

Not that it matters.

[Lord Keen of Elie]

I am sure it does—to somebody. Therefore, the limits in Section 180 of the 2014 Act are there to ensure that although we can recover more than the actual costs of the operation itself, it is for the purposes of funding the wider demands on the Ministry of Justice.

[Lord Beecham]

Is there any report of how that actually works in practice? I do not expect the Minister to have the answer today but what is the amount that has been raised in that way and where has it been spent?

[Lord Keen of Elie]

So far as the additional funding is concerned, I should have made it clear that it is funding for the Office of the Public Guardian and not wider than that. As to the precise sum, no, I do not have the figure to hand.

[Lord Beecham]

I am sure the Minister will write to me in due course.

[Lord Keen of Elie]

I will do that.

[Lord Beecham]

I am obliged.

Collection of Fines etc. (Northern Ireland Consequential Amendments) Order 2017

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 21st March 2017 Grand Committee

[Lord Browne of Belmont (DUP)]

My Lords, I thank the noble and learned Lord for his very comprehensive explanation of the order, and I very much welcome the order, which will provide the courts in Northern Ireland with additional sentencing, collecting and enforcement options. It will go a long way in helping to reduce the number of people—I believe 2,000—who are jailed each year for non-payment of fines by increasing the availability of community-based options in place of custody, by deducting money from their benefits each week. I believe that the vehicles of habitual offenders can be seized.

Can the Minister say how much money in unpaid fines is owed to the Stormont Government, going back over the last number of years, and how much money in police time is spent in enforcing fines? Is the Minister confident that there are enough safeguards with regard to the policy of possible seizure of vehicles? However, these amendments will go a long way and will prove effective in saving money.

[Lord Beecham (Lab)]

My Lords, this order—one of five we are discussing today—is the only one so far to have been taken in the Commons. In that place a very brief explanation was given by the Minister—the noble and learned Lord has given a rather fuller explanation than was given then—and my honourable friend David Anderson replied with a sentence only. I do not propose to add to that except to say that the noble Lord who has just spoken has raised some salient points and I was interested to hear what he said. We certainly have no objection to the order.

[Lord Keen of Elie]

I am obliged to noble Lords. I will address the points raised by the noble Lord, Lord Browne of Belmont. I do not have precise figures for outstanding fines, but if those figures can be collated I undertake to write to the noble Lord, although I am not sure that they can be collated in the manner he indicated. However, perhaps at a higher level of generality, I can say that at present we are dealing with about 20,000 cases a year where there is a financial imposition. Of those, more than 16,000 currently result in a default hearing, and the default hearing itself is an extremely time-consuming exercise, taking up manpower and, in particular, police time. It is anticipated that with these measures we will be able to reduce the number of default hearings to something of the order of 4,000 cases. That in itself will bring about a significant saving in time and money. I hope that goes some way to satisfy the points raised by the noble Lord. With that, I invite agreement to the order.

Prosecutions: Defence Legal Costs

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 15th March 2017 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

Solicitors: Professional Qualifications

Debate between Lord Keen of Elie and Lord Beecham

Monday 6th March 2017 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

Personal Injury Claims: Motor Vehicle Incidents

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 1st March 2017 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

Prisons: Staff

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 22nd February 2017 Lords Chamber

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

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

Lay Magistrates

Debate between Lord Keen of Elie and Lord Beecham

Monday 20th February 2017 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

[Lord Keen of Elie]

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

IPP Prisoners

Debate between Lord Keen of Elie and Lord Beecham

Monday 20th February 2017 Lords Chamber

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

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

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

[Lord Keen of Elie]

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

Disabled People: Medical Records

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 7th February 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Baroness for her observation, however I fear that some confusion has entered the debate around the issue of discrimination. The Equality Act 2010 deals with the issue of discrimination on the part of individuals. Judicial decision-makers are exempt from the provisions of the Act on very reasonable grounds; however, any judicial decision-maker is bound, in any event, by the provisions of Articles 6, 8 and 14 of the European Convention on Human Rights, and is therefore bound never to discriminate against any party on grounds of disability.

[Lord Beecham (Lab)]

My Lords, support for 3.7 million disabled people has been cut by £28 billion since 2012 under the Welfare Reform Act. Five years on, will the Government undertake a thorough review of the Act’s impact on this important section of the community? In relation to medical records and reports, will the Government intervene to prevent general practitioners charging the victims of domestic abuse up to £175 for letters which are required to support applications for legal aid?

[Lord Keen of Elie]

I am obliged to the noble Lord for raising a series of questions unrelated to the original Question from the noble Baroness. The question of fees for reports is not a matter that is under immediate review but it is, of course, borne in mind in the context of legal aid provision as a whole. Not every general practitioner makes a charge for such a report.

Family Court

Debate between Lord Keen of Elie and Lord Beecham

Monday 9th January 2017 Lords Chamber

[Lord Beecham (Lab)]

My Lords, while the Secretary of State’s announcement is welcome, this issue was highlighted in a report in 2014, and was pursued by the All-Party Parliamentary Group on Domestic Violence, which, in a report last April, listed seven recommendations, including one on this issue, none of which appears to have been implemented. In 80% of cases in the family court, one or more parties is unrepresented, a major problem being access to legal aid. How much has been saved on legal aid in the family courts, given the minimal grants of exceptional funding in domestic violence and abuse cases? In the first six months of last year, only five out of 125 applications for exceptional funding were granted. Will the Government now act on the other recommendations of the all-party parliamentary group? Do they have a view on the perhaps more controversial proposal of Sir James Munby for family court hearings to be in public, for which he is proposing a trial run?

[Lord Keen of Elie]

We are, of course, aware that this has been a matter of concern. That is why we are determined to address it as urgently as we can. On the matter of legal aid, clearly there are many circumstances in which individuals will seek to represent themselves in family proceedings. Even where that is done, there has to be some degree of control over their conduct. I believe that everyone in this House would agree with that. I point out that we spend in excess of £1.5 billion a year on legal aid. That was the figure for last year. We have increased the availability of legal aid in domestic violence cases—for example, by increasing the period during which evidence of abuse can be produced from two years to five years. As regards the other recommendations under consideration, I invite the noble Lord to await the outcome of the urgent work being done by the department and the conclusion of that work.

Legal Services Act 2007 (Claims Management Complaints) (Fees) (Amendment) Regulations 2017

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 20th December 2016 Lords Chamber

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

My Lords, the Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014 enable the Lord Chancellor to charge fees to regulated claims management companies to recoup the costs of the Legal Ombudsman’s work in handling complaints from consumers about claims management companies. It is right that the costs of handling such complaints fall on the claims management services sector and not on the taxpayer.

The draft regulations before us amend the level of fees set out in the existing 2014 fees regulations for the financial year beginning 1 April 2017 and for subsequent years. Revising the level of fees will ensure that the Lord Chancellor can accurately recover the costs of the Legal Ombudsman dealing with complaints about the claims management services industry in the 2017-18 financial year. In addition to the Legal Ombudsman’s expected costs for 2017-18, we also need to take into account an overrecovery in the amount recovered by the end of 2016-17.

Taking both elements into account, the total cost to be recovered from the market for 2017-18 of around £1.6 million is lower than last year’s £2.3 million. There has been a reduction in the size of the market since last year, but the assumptions about future market change used in our fee model are still valid. Taking into account both the total to be recovered and the current market, the fees need to be reduced.

Noble Lords will be aware that it is intended to move the regulation of the claims management services sector to the Financial Conduct Authority, and in tandem with this it is intended to transfer the complaints handling for the sector to the Financial Ombudsman Service. Until this occurs, however, it remains appropriate for the Legal Ombudsman to deal with complaints about the sector.

I know that noble Lords welcome the fact that the Legal Ombudsman’s costs relating to complaints about regulated claims management companies continue to be met by the claims management services sector, in the same way that the costs relating to complaints about the legal services sector are met by that particular sector. Fees do, however, need to be reduced where this is appropriate to ensure that the fees charged mirror as closely as possible the actual costs of the Legal Ombudsman in handling complaints. I commend these draft regulations to the House.

[Lord Beecham (Lab)]

My Lords, we support the transfer of responsibility for regulating this somewhat parasitic industry to the Financial Conduct Authority, not least because my noble friend Lady Hayter played a part in making the necessary legislative provision for the step that the Government are now taking.

Most of us, I suspect, will have been subjected to cold calling from a range of outfits of this kind. I confess to sometimes being tempted to adopt the approach that I heard someone once advocating—saving the presence of the right reverend Prelate—of saying, “I am so glad you called, I would like to talk to you about Jesus”. That could have the effect of shortening the conversation, although in practice, like most people, I simply put down the phone. But this is an increasing nuisance that we all have to contend with.

It is a nuisance that the industry has failed to tackle. It has an appalling record. Fines of over £2 million have been levied since 2015, and 1,400 licences have been revoked. In the current year there have been some 40 investigations, 16 of them leading to withdrawal of a licence. In 2013 there were 8,500 complaints, and no less than 76% of customers in a survey were doubtful about the benefits of using these companies.

The Brady report, which recommended the change in regulation, stated that,

“there is a widely held perception among stakeholders and government that there is widespread misconduct among Claims Management Companies”.

They flourish in part, of course, because of the withdrawal of legal aid, which, together with changes to court fees, has curtailed access to justice for many who need properly qualified advice and representation. The Government are consulting on the small claims limit, below which it will not be possible for a successful claimant to recover costs. Is not that move likely to increase the role of CMCs, as the Transport Select Committee warned as long ago as 2013? Moreover, we are dealing only with registered claims management companies. Are there statistics on the number of unauthorised companies which may be operating? What is the Government’s estimate of that number, and how can the companies be dealt with?

As the Minister said, regulation of the sector needs to extend beyond the—admittedly crucial and obvious—financial aspects to monitoring how it performs on behalf of clients and requiring minimum standards, preferably before licences are granted. This will no doubt fall to the Financial Ombudsman Service, as opposed to the Financial Conduct Authority. I take it that the two organisations will remain in close touch. It might have been better if one could have contrived a situation in which a single authority dealt with both aspects. However, presumably there will be communication between the two. In the meantime, should not the Government or one of the authorities involved warn the public about the risks involved in engaging with such organisations and offering independent guidance on which companies they should consider instructing on the basis of their past performance?

As I said, we welcome the approach taken here. Perhaps the Minister can indicate when the further change of responsibility involving the Financial Ombudsman will take place; it looks as though it will be some time in the coming year. We very much support the Government extending that element.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Beecham, for his observations on this matter, and I note the general level of support given to the regulations and their amendment in the current circumstances. On his last point, the transfer to the Financial Conduct Authority and the Financial Ombudsman is anticipated to be implemented by April 2018 under the present procedure.

As for the conduct of CMCs, the particular concern expressed is with regard to cold calling—unsolicited calls. That issue is being addressed as a priority. Indeed, the Claims Management Regulation Unit works continually with the Information Commissioner’s Office and Ofcom, which are the primary enforcement authorities in the field, to share intelligence and to target and investigate CMCs that indulge in inappropriate behaviour. The noble Lord himself observed how many fines and investigations there had been.

Of course, we know that many of these claims management companies are fleet of foot and alter their business model in the face of further investigation. For example, they no longer carry out this form of cold calling themselves: it is carried out by third-party bodies, which then seek to sell the product that they have harvested to the claims management companies. Steps have been taken to deal with CMCs which illegally purchase or acquire such unsolicited data; again, fines will follow. I acknowledge that this is an ongoing and developing problem. The Claims Management Regulation Unit is developing its response with Ofcom and the Information Commissioner to try to deal with that, but it is very difficult.

The noble Lord alluded to the introduction to the market of unauthorised operators, to whom I just referred in passing. Of course, the very fact that they are unauthorised and unregulated makes them very difficult to identify, pursue and deal with—but where they are identified, steps can be taken.

With regard to independent guidance about which claims management companies to go to, I hesitate to suggest that the guidance might be very short. It would be difficult to advance such guidance when in other sectors we do not provide such independent guidance. For example, we do not provide guidance as to which solicitor a person should consult or which barrister should be briefed. It would be very difficult to single out claims management companies in this context.

The increase in the small claims limit was mooted in the recent consultation document that was issued. We shall look at that; it may impact on the role of CMCs. Equally, a process of educating people as to the simplicity of making PPI claims may result in a reduction in recourse to the CMC companies. It is well known that what often happens is that these claims management companies harvest claims and essentially pass them to the banks to process. They do nothing other than act as a middleman, endeavouring to take a cut of the proceeds. Again, production of the consultation document and other steps are being taken to address that issue—in particular, the question of how far CMCs can go in securing fixed fees and, in addition, a percentage of the recovery they can take. Steps are being taken in that regard.

On the question of statistics on unauthorised operators, I understand that we do not have those statistics at present. I rather suspect that they would be extremely difficult to ingather—but if there is some data about the scope of unauthorised activity in the market, I will arrange to write to the noble Lord and place a copy of such a letter in the Library if the data are available. But I venture to doubt that such data are available in any meaningful sense. By that I mean that, beyond the fact that we know they do operate, it is very difficult to determine and measure the extent of that operation. I hope that that addresses the principal points raised by the noble Lord, and in those circumstances I beg to move.

Rainsbrook Secure Training Centre

Debate between Lord Keen of Elie and Lord Beecham

Thursday 15th December 2016 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government whether they intend to seek an alternative contractor to take over the management of Rainsbrook Secure Training Centre, in the light of the recent inspection finding that the effectiveness of leaders and managers is inadequate.

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

My Lords, the recent Ofsted-led inspection recognised the challenges that the contractor, MTCnovo, has faced since taking over at Rainsbrook earlier this year. We are working with MTCnovo to put a plan in place to make improvements. This includes the imminent appointment of a new director. We are not seeking an alternative contractor for Rainsbrook.

[Lord Beecham (Lab)]

My Lords, in October 2015 I tabled a Written Question about the proposal then to replace the abysmally failing G4S in the running of this centre with a US contractor with a controversial record and no experience of running residential establishments for vulnerable children. The then Minister, the noble Lord, Lord Faulks, gave a somewhat bland reply. Ofsted has now produced a report covering eight aspects of the centre’s working, one of which was found to be good, five required improvement and two, including the effectiveness of leaders and managers, inadequate. Among the disturbing revelations, the report states that: reported levels of violence remain high, the use of force and restraint continues to be high; there are shortages of staff and an urgent need for the staffing situation to improve. How long are the Government willing to wait before taking action to ensure that this centre is managed effectively and safely?

[Lord Keen of Elie]

The Government are taking action to ensure that this centre and other centres are managed effectively and safely. In quoting from the report, it might be appropriate to look at some of the more positive observations made by Ofsted with regard to MTCnovo. As the report points out, and as the noble Lord is aware, the company took over this establishment from G4S in May of this year, but as Ofsted observed, the,

“transfer arrangements were poor and problematic … the inherited staffing arrangements led to too few staff transferring to the new provider”.

However, the new provider has,

“responded with speed and purpose to recruit more staff as a priority … Many staff and managers are demonstrating commitment and fortitude during this period of complex change”.

On the matter of safety, Ofsted observed that,

“the vast majority of young people report that they feel safe. In the survey completed for the inspection … 93% reported that they felt safe”,

in the institution.

Criminal Justice System: Diversity

Debate between Lord Keen of Elie and Lord Beecham

Thursday 15th December 2016 Lords Chamber

[Lord Keen of Elie]

We are of course committed to greater diversity within the judiciary, and are endeavouring to take that forward. With regard to the particular statistics that the noble Lord referred to, there are a variety of complex reasons why these figures have emerged. For example, the rate at which black, Asian and minority-ethnic men plead not guilty at Crown Court and go to trial is distinct from those who plead at an earlier stage and perhaps receive a lesser sentence. The Government are not committed to any particular means of analysing the relevant statistics at this time.

[Lord Beecham (Lab)]

My Lords, in addition to the measures that the Minister and the noble Lord, Lord Marks, referred to, will the Government look at increasing the number of prison officers, and magistrates appointed at the lower levels, who are recruited from BAME communities to participate in the administration of justice?

[Lord Keen of Elie]

We are clearly concerned that there should be a suitable element of diversity among magistrates and the other parts of the judiciary, and are committed to that. As the noble Lord will be aware, we are also committed to materially increasing the number of prison officers within our estate over the forthcoming year. A figure of 2,500 has already been referred to. That recruitment process will no doubt seek to engage with the issue of ethnic diversity.

Prison Officers’ Association: Protest Action

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 15th November 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, last week in his valiant if unavailing defence of the Government's prisons policy the Minister justified its failure, even in the light of recent events, to restore staffing levels to where they were four years ago by citing the fact that a number of prisons had closed. But it is not the ratio of prison officers to prisons that is the issue; it is the ratio of properly trained and supported staff to the number of prisoners which is relevant. Given that there is no sign of any policy calculated to reduce that number, how can the reduction in the number of officers—last week’s announcement that some 2,500 will be recruited over the next few years will still leave a shortage of 4,500—be expected to transform the situation?

Will the Secretary of State sit down now with the representatives of this dedicated workforce to discuss ways in which the present crisis can be urgently alleviated? Will she initiate a comprehensive review of the whole service as thorough as the Woolf review following the Strangeways riots as long ago as 1991? Is the issue of an injunction likely to lead to the kind of discussion that will resolve this matter?

[Lord Keen of Elie]

My right honourable friend the Secretary of State for Justice has made it clear that she will sit down with the Prison Officers’ Association to discuss this matter as soon as it withdraws this unlawful action. She would be anxious to take forward such discussions.

The noble Lord referred to prison officer numbers. That is an issue, but it is an issue that is part of a wider problem. It is not just a question of prison officer numbers; it is a matter of training, retention, the prison estate itself having to be improved, attempts to bring down the number of prisoners using psychoactive substances, the question of safety and in particular of violence in prisons, and the need to develop suitable means of education and reform within our prisons. In other words, we have to accept that this is a complex algorithm that cannot be reduced to a simple binary issue about prison numbers.

Judiciary: Independence

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 15th November 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, it is not the job of government or the Lord Chancellor to police the press headlines. Having considered the headlines and, more importantly, public reaction to them, the Lord Chancellor made a clear and timely statement that an independent judiciary was the cornerstone of the rule of law and that she would defend that independence to the hilt.

[Lord Beecham (Lab)]

My Lords, I congratulate the noble and learned Lord on his forthright criticism of media and other attacks on the judiciary. Will he convey to the Prime Minister the disappointment of many across this House at the Lord Chancellor’s failure to be anywhere nearly as explicit in condemning those attacks, and will he offer her a short course on the proper discharge of her responsibilities in relation to this and other matters?

Magistrates: Sentencing Powers

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 8th November 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to my noble friend. We recognise that magistrates deal with more than 90% of criminal cases in the justice system. The proposed increase in sentencing powers was introduced by the Labour Government in 2003. They contemplated it for about seven years. We have not quite caught up with them yet, but we have had the recent report from the Justice Select Committee and we will consider its recommendations carefully. One of those recommendations noted that the Sentencing Council’s new allocation guidelines, which came in in March 2016, should be given an opportunity to bed in before the matter is finally reviewed, and we will do that.

[Lord Beecham (Lab)]

The former Minister Shailesh Vara, before being sentenced to life on the Back Benches, told the Justice Select Committee that the Government were considering piloting increased sentencing powers in some areas. Can the Minister confirm the Government are not going to adopt this proposal, given the inevitable sense of injustice which would follow from the imposition by different courts of substantially different sentences for similar offences? Would he also comment on the wisdom of the Magistrates’ Association receiving funding from Sodexo, MTCnovo and Working Links, which are all engaged in the Prison Service or running community rehabilitation companies, to generate income for the association’s education and research network, as was revealed in Private Eye last December?

Prisons: Self-inflicted Deaths

Debate between Lord Keen of Elie and Lord Beecham

Thursday 3rd November 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, a key aspect of our prison reform programme will be to address offender mental health and improve outcomes for prisoners. That is why we are investing £1.3 billion to modernise the prison estate.

[Lord Beecham (Lab)]

My Lords, last week the Justice Secretary proudly proclaimed her intention to appoint another 400 prison officers; today, she says that an additional 2,100 will be recruited. But the service has lost 7,000 officers since 2010, which is 28% of a workforce for whom the sickness rate is 25% higher than the labour market average. When will the Government recognise that prisoner numbers—the highest in Europe except for Hungary, Slovakia and the Czech Republic—are the real problem and adopt a cross-government strategy to reduce the prison population, not least by tackling the mental health problems which afflict 70% of those given custodial sentences?

[Lord Keen of Elie]

The noble Lord is right to highlight the fact that mental health is a very material issue so far as prison populations are concerned. As I indicated earlier, it is one that we are addressing but it is not just increased staffing levels that will deliver improvements. How prison officers are deployed and the training and support they receive are equally important elements for any workforce strategy.

Press Matters

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 1st November 2016 Lords Chamber

[Lord Keen of Elie]

The Government have set no limits on the consultation process so far as costs are concerned. Clearly, the question of conditional fees will arise in the context of whether Section 40 should be brought into force. The noble Lord is quite right that it is important, while bearing in mind the victims of press abuse, to ensure a fair, acceptable and level playing field in issues between the press and powerful individuals. The press should not be coerced by the issue of cost into not reporting in a fair, open and effective manner.

[Lord Beecham (Lab)]

My Lords, while it might not be unreasonable for the noble and learned Lord not to give a view on the matter raised by the noble Baroness at this stage, will he confirm that the Government will at least take it into consideration before they reach any conclusion as a result of the consultation?

[Lord Keen of Elie]

I have no doubt that that will be taken into account, as will the general conduct of IPSO, when it comes to determining and reporting on the terms of the consultation itself.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 25th October 2016 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government whether they have commenced a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and, if so, when they anticipate that the review will be published.

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

My Lords, the coalition Government promised to review Parts 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 within three to five years of its implementation. We remain committed to undertaking that review. The precise timing is under consideration and we will announce our intentions in due course.

[Lord Beecham (Lab)]

My Lords, it is four and a half years since Royal Assent, so it is a little disappointing that the Government have not yet decided when to carry out their promise. I had prepared a response, rather anticipating the Answer that the noble and learned Lord gave. However, today I was telephoned by a young woman in great distress because she is in the middle of a custody case involving her child by someone who is legally represented. There is no case here for legal aid to be granted under the present regime because there is no violence or any suggestion of child abuse. I tried to put her in touch with people who might help. This exemplifies some of the real problems that have arisen as a result of the narrowing of the field in which legal aid applies. Will the noble and learned Lord confirm that the Government will be open to reviewing such areas where legal aid has been withdrawn and will not be adamant about refusing to extend it to cases such as this?

[Lord Keen of Elie]

I remind the noble Lord of a Written Answer by my noble friend Lord Faulks some time ago in which he pointed out that the review of LASPO would take place between April 2016 and April 2018, and towards the end of that period. With regard to the case which the noble Lord highlighted, of course I cannot comment on an individual case. However, I would observe that, prior to LASPO coming into force, almost two-thirds of family cases already had at least one unrepresented litigant. Therefore, there has not been a sudden introduction of unrepresented litigants in the context of family courts and family cases since LASPO came into force. However, clearly, when it comes to a review of LASPO, particularly Part 1, we will take into consideration the sort of case that the noble Lord raised.

Prisons

Debate between Lord Keen of Elie and Lord Beecham

Thursday 20th October 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, since 2010, the number of assaults on prison officers has risen from 3,000 a year to 5,500, with serious assaults doubling. Assaults with weapons on officers and fellow prisoners increased by 30% to 22,195 in six years. The level of self-harming has increased in the last two years by 50% to 34,586. Suicides last year totalled 105. Meanwhile, the number of prison officers has fallen from 18,500 to just over 15,000 in the last four years. When will the Government recognise that we have a crisis in our prisons and that it is necessary to reduce the overall prison population—including those on remand, many of whom do not end up with custodial sentences—substantially increase the number of trained staff, provide appropriate medical and other support, and move from housing people in large institutions, which are difficult to manage, to smaller custodial facilities?

[Lord Keen of Elie]

It is recognised that there has been an increase in violence in prisons in the past 10 years or more. It should also be noted that in the period from 2005 to 2015, the number of offenders in prison for violent conduct increased by 29%. So far as resources are concerned, we have already announced, as of 30 June this year, the allocation of an additional £10 million of new funding for prison safety. That funding is to include Pentonville prison. In addition, by March 2017 we expect to find 400 extra staff deployed in consequence of the funds being made available, as I mentioned before.

County Court Judgments

Debate between Lord Keen of Elie and Lord Beecham

Tuesday 11th October 2016 Lords Chamber

[Lord Keen of Elie]

It can be squared by defendants entering an appearance into the court process and putting forward, in any appropriate manner, the defence that they have to the claim. In these circumstances, it would appear that the system works equitably. I point out again the need to balance the interests of claimants, many of which are small and medium-sized enterprises that suffer serious problems of cash flow due to debtors, and the interests of defendants.

[Lord Beecham (Lab)]

My Lords, is the alarming picture reflected in the noble Baroness’s Question not another symptom of what is increasingly a failing civil justice system? Will the Government look at their support for Citizens Advice and other advice agencies as well as—building on the Minister’s last remarks—perhaps publicising the need for people to respond to any such claims and to seek advice where it is available?

[Lord Keen of Elie]

It has to be made clear that resort to the court is the last step in the process of debt recovery, and that those responsible for debts are given notice of their indebtedness and are required to pay. It is only when they fail or refuse to respond to these entreaties that any application is made to the court. In these circumstances, defendants are given ample opportunity and notice to defend their interests.

Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Debate between Lord Keen of Elie and Lord Beecham

Wednesday 20th July 2016 Lords Chamber

[Lord Keen of Elie]

That matter is the subject of comment in the Justice Committee’s report, and we will respond to it. I again emphasise that from the figures we have it is clear that a large proportion of women qualify under the fees remittance scheme and to that extent have that relief.

[Lord Beecham]

My Lords, I thank all noble Lords who have spoken in this debate, and I thank the Minister for his reply. He has given something of a hostage to fortune in his reference to employment tribunal fees. It will be surprising—although not, I suppose, impossible—if the Government do not, after having considered this matter for a year so far, come up with some proposals to increase those fees, the extent of which remains to be seen.

It is extraordinary that the Minister made no substantive defence whatever to the criticisms of the process that were made by, among other bodies, the Justice Select Committee. I quote from its report:

“It will be evident from the chronology”,

regarding the time that had elapsed, which I referred to before,

“that there are some inconsistencies in the Government’s account of the progress of its review into the impact of employment tribunal fees. It is difficult to see how a Minister”—

not this Minister—

“can urge his officials to progress a review which they apparently submitted to him 4 months or more previously. And even if Ministers may now be discussing how to proceed … and recognizing that Departments other than the Ministry of Justice have an input into this, there can be no compelling reason to withhold from public view the factual information about the impact of the introduction of employment tribunal fees which will have been collated by the review. There is a troubling contrast between the speed with which the Government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial change it has made … We find it unacceptable that the Government has not reported the results of its review one year after it began and six months after the Government said it would be completed”.

On that basis, and with respect to the Minister, we can have little confidence in the outcome of that aspect of the matter or in other decisions that have been made. In these circumstances, I wish to test the opinion of the House.