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.