Domestic Abuse Bill

Lord Kennedy of Southwark Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Lord Paddick (LD) [V]]

My Lords, as the noble Baroness, Lady Kennedy of the Shaws, has so clearly explained—and I pay respect to her enormous experience over decades in this area—Section 76 of the Criminal Justice and Immigration Act 2008 raises the threshold from disproportionate to grossly disproportionate before the force used by a householder for the purpose of self-defence can be considered unreasonable.

The fear generated by being attacked in your own home—the visceral reaction, the instinct to defend yourself and your property in such circumstances—is considered so strong that using disproportionate force to defend yourself is considered to be reasonable in the domestic setting. While it can be argued that there should be no distinction and that reasonable force in the circumstances should be enough, Parliament decided that being attacked in your own home sets apart this kind of self-defence from other situations. The Minister will not be surprised to hear me use the same expression as the noble Baroness, Lady Kennedy: what is sauce for the goose is sauce for the gander. What was seen, at least by the tabloid newspapers, as the “Englishman’s home is his castle” provision in Section 76 of the 2008 Act should equally apply to what will in most cases be a woman defending herself against domestic abuse.

I have personally been in both these scenarios. I have cowered behind my front door as a violent stranger tried to kick down the door of my flat; thankfully, the police arrived before the door gave way. I have also cowered as my violent partner kicked and punched me. The fear caused by not feeling safe in your home is truly terrifying, especially when you are being physically attacked. The fear I experienced was similar in both cases, but the latter was far more frightening. Being attacked by a random stranger does not hurt as much as being attacked by someone you have allowed yourself to be vulnerable with, and who has subjected you to coercive and controlling behaviour over a number of years.

Throughout the passage of the Bill, I have been keen to ensure that male victims and those in same-sex relationships are not forgotten. Even here, we are talking about someone who is physically weaker being attacked in their own home by a stronger person. In most cases, but not exclusively, this will be male violence against women. If she is to defend herself against a much stronger man, her options are limited and she may have to resort to using a weapon—for example, as the only way effectively to defend herself, or simply because of the instinctive reaction to grab whatever is available, such as a kitchen knife.

It is not difficult to envisage how such a use of force might be considered disproportionate but understandable, particularly if you fear for your life in circumstances such as we heard described when considering the previous group of amendments, and which the noble Baroness, Lady Kennedy, explained. It might be considered disproportionate, but not grossly disproportionate. Can the Minister explain why this amendment should not be accepted, in the light of the higher standard of acceptable force available to a householder under attack from a burglar?

Awareness has recently grown of how prolonged and sustained abuse can turn a victim into an assailant. As my noble friend Lady Hamwee has explained, Amendment 139 and the subsequent amendment would bring the law into line with these recent developments. As the right reverend Prelate the Bishop of Gloucester has explained, a trauma-based approach needs to be adopted. There clearly needs to be a change of culture in the criminal justice system in this respect, as well as a change in the law.

The mental health impact on women prisoners has been clearly set out by the noble Lord, Lord Bradley. As my noble friend Lady Hamwee has explained, Amendment 140 is almost identical to Section 45 of the Modern Slavery Act 2015. In the same way that I believe the burden of proof lies on the Minister to show why Section 76 of the Criminal Justice and Immigration Act 2008 should not apply to victims of domestic abuse in relation to Amendment 139, I ask the Minister why Amendment 140 should not apply to victims of domestic abuse when a very similar statutory defence is available to victims of slavery and trafficking. The Government must come up with very strong counter-arguments if these amendments are not to be accepted.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, we on these Benches fully support Amendments 139, 140 and 145, in the names of my noble friend Lady Kennedy of The Shaws and others. The issues addressed in these amendments have been raised in the other place by my honourable friend the Member for Birmingham, Yardley, Jess Phillips, and others during the Bill’s consideration there.

The amendments, as noble Lords have heard, are modelled on existing law and should not cause the Government any trouble whatsoever; I look forward to the Minister’s response. My noble friend Lady Kennedy explained the problems women face when they have killed a partner, having been the victim of abuse for years and years and then find themselves in the dock. The amendments seek to address that and reflect the realities of domestic abuse.

Everybody has been very complimentary about the Bill—it is a very good Bill, long overdue and we wish it success—but to become really effective legislation, it must incorporate these amendments or government amendments with the same intent. It is reasonable to afford the victims of domestic abuse who act in self-defence, often in their own homes, reasonable protection. They are compelled to defend themselves, having suffered years of abuse. As my noble friend Lady Kennedy reminded us—we have heard it many times before—on average, two women a week are killed by their partner or former partner. That is an horrific figure.

Amendment 139 would provide domestic abuse survivors with the same legal protection as householders have in cases of self-defence. Members have referred to such cases. Amendments 140 and 145 are modelled on Section 45 of the Modern Slavery Act 2015 and would give victims of abuse a statutory defence where they have been compelled to offend as a result of experiences of domestic abuse.

We have heard excellent speeches in this short debate from all noble Lords, particularly from the right reverend Prelate the Bishop of Gloucester. I endorse all the comments of noble Lords. My noble friend Lord Bradley, in particular, made a compelling speech. He raised the issue of mental health, its effect on women prisoners and the need for proper context to be taken into account when deciding to prosecute cases. I look forward to the response from the noble Lord, Lord Wolfson. If he cannot accept these amendments, I hope he will tell the Committee that he understands the issue and will go away and reflect on it, and maybe come back on Report.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first offer my sincere thanks and appreciation to the noble Baroness, Lady Kennedy of The Shaws, for outlining the case for these amendments. In response to her early comments, I can assure her that I have indeed listened to her and benefited from discussing these matters with her, both outside the Chamber in advance of today’s proceedings and in listening to her most diligently this evening. She has considerable experience in this area of the law.

In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner; and, secondly, a new statutory defence for victims of domestic abuse who commit a criminal offence. While in tonight’s debate the noble Baroness, Lady Kennedy, focused on the first of those defences, I have had the benefit of discussing both issues with her. I have read briefings on both and therefore hope that my reply will meet the points she has made inside and outside the Chamber. None the less, I will take each amendment in turn, because they raise different issues.

Amendment 139 is on the reasonable use of force. The Government are aware that what is being sought here is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in the home. I am aware that the proposed new clause stems from a campaign by the Prison Reform Trust seeking to clarify the degree of force that is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse. It has been suggested by the Prison Reform Trust that the common-law defences are unsuitable in the context of domestic abuse.

In that context, as the noble Baronesses, Lady Kennedy and Lady Hamwee, explained, the amendment seeks to build on existing provisions in Section 76 of the Criminal Justice and Immigration Act 2008, with the intention that, as with householders, the degree of force used by the defendant would have to be “grossly disproportionate” rather than simply “disproportionate” by reference to the circumstances that the victim believed them to be, and to take into account other factors set out within Section 76. It has been suggested that this would fill a gap in the law.

Let me start by saying what I hope does not need to be said, given the terms of the Bill and what has been said in Committee on this and previous occasions. The Government recognise the harm suffered by victims of domestic abuse. Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship, including the full defence of self-defence. In addition, the broad definition of domestic abuse in the Bill should assist, I hope, with identifying and clarifying the wide-ranging and pernicious nature of domestic abuse, and alerting all those involved in the criminal justice system to it.

It is worth mentioning at this point that the courts—by which I mean the judges—have developed the common-law defences and their relationship to domestic abuse. We should perhaps pay tribute to the judges for having recognised the nature and impact of coercive and controlling behaviour in the application of the criminal law and in sentencing, as well as in family and civil law. It is sometimes the case that the courts are quicker, more nuanced and more flexible in developing the common law than Parliament can ever be in introducing, by their very nature, more rigid and narrowly drawn statutory provisions. For fans of the common law, of which club I am an enthusiastic member, that is an important point to bear in mind.

There is also a need to balance recognition of the abuse suffered and its impact on the victim with the need to ensure that, wherever possible, people do not resort to criminal behaviour. The Government believe that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right balance between those factors.

Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021

Lord Kennedy of Southwark Excerpts

Tuesday 2nd February 2021 Lords Chamber

Moved by

[Lord Kennedy of Southwark]

As an amendment to the motion in the name of Lord Wolfson of Tredegar, at end to insert “but that this House regrets that the Regulations only provide protection from eviction for residential tenancies until the end of 21 February, and regrets that the Regulations permit evictions for arrears that have built up since the start of the pandemic, and that a case is deemed to involve substantial rent arrears if the amount of unpaid arrears outstanding is at least equivalent to six months’ rent, which contravenes Her Majesty’s Government’s commitment that nobody would lose their home because of the COVID-19 pandemic.”

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I have several declarations to make: I am a vice-president of the Local Government Association, chair of Heart of Medway Housing Association and a non-executive director of MHS Homes Ltd. Noble Lords will be further aware that my wife is my noble friend Lady Kennedy of Cradley, who is the director of Generation Rent.

In moving this regret amendment today, I make it clear that I do so as the official Opposition spokesperson for housing and local government, and not in a personal or any other capacity. I also welcome the noble Lord, Lord Wolfson; I have not had a chance to speak to him yet, but I have seen him in the Chamber and I am sure we will speak outside. I wish him well in his responsibilities.

From the start of the pandemic, the Government have made numerous announcements and promises. One such area is the private rented sector, where the Government’s mishandling of the situation has failed tenants and landlords. On 26 March last year, the right honourable Member for Newark in the other place, Mr Robert Jenrick, went on record saying

“no one should lose their home as a result of the coronavirus epidemic”.

These regulations confirm that that promise is broken: tenants across the UK are struggling to make ends meet right now; certain sections of the economy have had no help whatever; redundancies will be at record levels across huge sections of the economy when the furlough scheme ends; we are in the worst recession for 300 years and the economy is expected to shrink by 11.3%. The Chancellor of the Exchequer is on record as saying that the fiscal damage will be “lasting”, and the Office for Budget Responsibility predicted that unemployment will rise in 2021 to 7.6% of the entire workforce, or 2.6 million people.

These regulations satisfy no one. On the one hand, they extend the ban on enforcement of eviction orders which has been granted by the courts until 21 February, but they also expand the exemptions from the ban, meaning that tenants with more than six months’ arrears could be evicted. Citizens advice bureaux estimate that close to 500,000 renters are in arrears and are now at risk of a Covid-19 eviction because of the ban being lifted. Already, more than 174,000 private tenants have been threatened with eviction by their landlord or letting agent. Even at the start of the pandemic, nearly two-thirds of private tenants had no savings, on top of the 45% of private renters who have lost income since March.

We are asking the Government to stick to their word: that no one will lose their home because of coronavirus. In the months that preceded this debate, the right measures could have been put in place to ensure that the Government’s promise was honoured. They could have brought in the right support for struggling tenants that would have benefited both tenants and landlords, with changes to the universal credit system and an uplifted local housing allowance. They could also have announced a credible plan to deal with rent arrears. Instead, they leapt from crisis to crisis and wasted months, and tenants now face the same predicament they faced at the beginning of the pandemic.

Measures that could have been looked at include the setting up of a Covid-19 hardship fund to help support those in receipt of benefits who are struggling, or an increase in local housing allowance, but instead the Government proposed a freeze in cash terms from April 2021. All that achieves is that tenants in higher-rent areas get less support than those in lower-rent areas. The shared accommodation rate should have been suspended for at least 12 months, as called for by the Social Security Advisory Committee. The housing benefit cap should be scrapped and the £20 monthly uplift to universal credit kept. Those measures and similar ones would in most cases have the support of both landlords and tenants. Neither good landlords nor good tenants who find themselves in real difficulties should be penalised because of the pandemic.

Looking at the measures called for by landlord trade bodies and by tenant organisations, what is striking is the similarities between them. It is also worth noting that the BMA and others have warned of a potential rise in Covid infections if the Government force people into homelessness or overcrowded accommodation, the consequences of which would extend far beyond those directly involved. Look at the tragedy that lifting the lockdown measures over Christmas brought to families—this is a deadly virus, and measures that do not respect that fact and protect people accordingly will have deadly consequences.

I intend to test the opinion of the House on the regret amendment in my name. It is another plea to the Government to get a grip on the situation. People are really suffering, both landlords and tenants. They are really scared about their future. Landlords and tenants need help to get through this nightmare. We all need to get back on our feet and on the road to recovery. We all desperately want to see that.

There is a second regret amendment, in the name of the noble Baroness, Lady Grender. I have great respect for her. She has considerable knowledge and experience of these matters. The House would do well to listen to her. I make it clear that I would have no problem voting for her amendment and fully endorse its aims.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank all noble Lords who have spoken in this debate, and the Minister for his considered response to the points raised. I agree very much with the noble Lord, Lord Bourne of Aberystwyth, that we need a much more strategic solution to the crisis, a point also made by the noble Lord, Lord Naseby.

As I and other noble Lords have said, and the noble Baroness, Lady McIntosh of Pickering, made clear, it is striking how much agreement there is between landlord and tenant organisations as to the solution to these problems. I thank both the National Residential Landlords Association and Generation Rent for their very helpful briefings, and mention has been made of the similarity in the solutions that each has put forward to the Government. I agree with the noble Baroness, Lady Altmann, that there are good landlords and good tenants, and both need our support. The tragedy is that much more could be done to help landlords and tenants, but the Government are just failing to get this right. I hope that passing this regret amendment will encourage the Government to look again at the welcome proposals being put forward; they very much need to do so.

I also think that it is worth reflecting on the very short extension of this order, a point that many noble Lords have made. Landlords and tenants must be treated a bit better in this regard by the Government. An extension of less than three weeks, frankly, is no way to behave. We can do much better than that.

The Minister made the point about hypothetical cases. We can all draw them up to support our own positions. The problems is that it will be of little comfort to a tenant who has lost their job or who has little work due to being a freelancer, and on top of all that, they have the fear of sitting in their home waiting to be evicted in the next few weeks. They have all the legal papers there and are very worried. It is of little comfort to them. There is also very little comfort to the landlord, as the rent arrears accrue at the same time and they can see no end to that. The Government should take away the proposals put forward by the landlords and the tenants, look at them carefully and come up with a proper strategic plan for this crisis. I wish to test the opinion of the House.

Property Boundaries (Resolution of Disputes) Bill [HL]

Lord Kennedy of Southwark Excerpts

Friday 11th September 2015 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Earl, Lord Lytton, for bringing this Private Member’s Bill forward for debate today. He is a man of considerable expertise in this area, and the intention of his Bill is to resolve property boundary disputes at the earliest opportunity and with the least cost to the individuals concerned. That is a very welcome intention indeed.

We are all aware that matters concerning boundaries can lead to highly charged and protracted legal proceedings, which can be extremely expensive for the parties involved and certainly far more expensive, as the noble Earl said, than the value of the land in question or the boundary in dispute. That situation is of benefit to no one and one we all should all be concerned to remedy.

We had a useful debate on this very issue on 15 January this year, led by the noble Earl. Being able to move forward quickly and consider proposed legislation in this area is welcome progress. I generally welcome the Bill and what it proposes. That is not to say that there are no areas where it could be improved and refined in your Lordships’ House, and I hope we will have a day in Committee to do that.

As has already been outlined, the Bill makes provision for the resolution of disputes concerning the location or placement of boundaries and of private rights of way relating to the title of an estate in land. It seeks to do this by requiring the owner of land who wishes to establish a boundary to serve notice on the adjoining landowner. If the adjoining landowner does not specifically consent to the notice, a dispute is deemed to have arisen. The dispute is then resolved by an agreed surveyor or, where there is no agreed surveyor, three surveyors who shall determine the precise location of the boundary or location and extent of the private right of way. I very much agree with the noble Baroness, Lady Gardner of Parkes, that too many matters are driven towards the courts, and the Bill gives us a clear and straightforward way in which to resolve these disputes.

The matter is not to be questioned in court except through an appeal to the Technology and Construction Court, or perhaps just the High Court, and if no appeal is made within 28 days, the award is submitted to the Land Registry. The Secretary of State shall by regulation approve a code of practice that would set out the form and manner in which the documents are to be served and used under this procedure. Where a party to the dispute seeks to disrupt or not co-operate with this process, they would be guilty of an offence and, on summary conviction, liable to a fine.

I am assuming that the Bill is not going to receive an enthusiastic welcome by the noble Lord, Lord Faulks, but I hope that he can recognise that this is a real issue—a real problem—and that this is an attempt to reduce the costs and have these boundary disputes determined quickly and efficiently for as little cost as possible to the parties involved. The noble Lord on a previous occasion has said that this proposal would not always return beneficial results and suggested that this could be due to the adversarial nature of these disputes and the potential lack of legal expertise held by the appointed surveyors. I agree with the points made by the noble Earl, Lord Kinnoull, in that respect. If the Minister intends to pursue the opinion he stated previously, perhaps he could also address the argument that it is the very expertise of these surveyors in determining these matters that in fact would make the likelihood of successful appeal proceedings less likely. That is because the determination will have been made by a qualified professional who is expert in their field, following a code of practice set out by the Secretary of State on how these matters are to be determined.

It would also be helpful to your Lordships’ House if the noble Lord, Lord Faulks, said that he is of the view that this and a combination of factors would mean that a high number of appeals is likely. That would not be beneficial. Does he expect more boundary dispute appeals to appear before the courts, or would there be fewer appeals but not sufficiently few to justify making the change proposed in the Bill? How did he and his department come to that conclusion—if, indeed, that is the conclusion? Will he share that information with your Lordships’ House by placing a copy in the Library?

It may be that Minister is absolutely right, but I should like to understand what is behind that thinking if he is going to put forward arguments such as those he advanced in January. With those questions to the Minister, I bring my remarks to a close and again thank the noble Earl, Lord Lytton, for bringing this matter before your Lordships’ House. It is a valuable contribution to the debate on these matters and a pointer to where we need to make improvements.

Legal Services Act 2007 (Warrant) (Approved Regulator) Regulations 2015

Lord Kennedy of Southwark Excerpts

Wednesday 11th March 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I shall speak also to the draft Legal Services Act 2007 (Warrant) (Licensing Authority) Regulations 2015.

By way of background, as noble Lords will know, the Legal Services Act 2007—the 2007 Act—governs the regulation of legal services in England and Wales and established a new regulatory framework for legal services. The 2007 Act enabled the widening of the legal services market to allow for different regulators to regulate legal services and for different types of legal businesses to provide those services.

The intention of the 2007 Act was to put the consumer at the heart of legal services and deliver a more effective and competitive market. It established a number of regulatory objectives which the Legal Services Board and the approved regulators must promote, including protecting and promoting the public interest and the interests of consumers, encouraging an independent, strong, diverse and effective legal profession and promoting competition in the provision of legal services by authorised persons.

The Legal Services Board was established under the 2007 Act to be the independent oversight regulator with responsibility for overseeing the approved regulators. Under the 2007 Act, approved regulators are under a duty to act in a way that is compatible with the regulatory objectives set out in the Act. Where acts or omissions of an approved regulator are likely to have an adverse impact on these regulatory objectives, the LSB has a range of enforcement powers that it can exercise, including issuing performance targets and directions, public censure and imposing financial penalties.

Where an approved regulator’s acts or omissions cannot be adequately addressed by these other enforcement powers the LSB can, in appropriate cases, issue an intervention direction providing for certain functions of the approved regulator to be exercised by the LSB or a person nominated by it; or it can recommend to the Lord Chancellor that he cancel the approved regulator’s designation. Similarly, the LSB may recommend that the Lord Chancellor cancel an approved regulator’s designation as a licensing authority in relation to one or more reserved legal activities, but only if it is satisfied that it cannot address the issue through its other enforcement powers. This is intended to ensure that the power to issue an intervention direction or to cancel a designation remains reserved for the most serious or persistent infractions.

Where an intervention direction is made under Section 41 of the 2007 Act or an approved regulator’s designation is cancelled under Section 45, the LSB or a new regulator will assume some or all of the approved regulator’s functions. In order to provide continuity of regulation in these circumstances, the LSB, or a person nominated by it, can apply for a search warrant for the approved regulator’s premises under Sections 42 or 48, as appropriate.

Section 79 makes similar provision for licensing authorities to that made by Section 48 for approved regulators, in that it makes provision for search warrants which may be issued following the cancellation of a designation. It applies where a body has had its designation as a licensing authority cancelled, either automatically under Section 75 of the Act because its designation as an approved regulator has been cancelled under Section 45, or by an order made by the Lord Chancellor under Section 76 of the Act.

The 2007 Act permits the LSB to apply for a warrant in certain circumstances authorising it to enter and search the premises of an approved regulator or licensing authority and take possession of any written or electronic records found on the premises. There are two separate powers under the 2007 Act which are set out in Sections 42 and 48. These allow search warrants to be issued for an approved regulator’s premises, and one power in Section 79 which allows search warrants to be issued for a licensing authority’s premises. Regulations must be made by the Lord Chancellor under each of those three sections specifying further matters which a judge or justice of the peace must be satisfied of or have regard to before issuing a warrant, and also regulating the exercise of a power conferred by the warrant. That is the purpose of these two sets of regulations before the Committee, one of which relates to approved regulator warrants and one to licensing authority warrants.

The intention in exercising a warrant under Sections 42, 48 or 79 will be to provide continuity of regulation in specific circumstances of regulatory failure by an approved regulator or licensing authority. If both sets of these regulations come into force, they will enable the LSB or a person appointed by it to apply for warrants as part of its enforcement strategy. As required under the 2007 Act, the Lord Chancellor has also formally consulted the LSB about the making of these regulations.

Finally, I regret to say that there is a small error in the version of the approved regulator regulations before the House—the result of a computer glitch. In Regulation 1(2) the paragraph lettering is incorrect in that it runs through from (a) to (g) rather than restarting for each definition. I take it that no confusion has been caused. This error will be corrected in the final “made” version of the regulations.

In conclusion, these regulations enable the LSB or a person appointed by it to apply for a warrant as part of its enforcement strategy, enabling the LSB to assume effectively the functions of the relevant regulator. Overall, this has the potential to act as a deterrent against poor regulation, to improve the standard of regulatory practice and to strengthen the LSB’s regulatory powers, leading to greater consistency and better protections for consumers. I commend both sets of regulations to the Committee and beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I can say at the outset that we are not opposing either of these two sets of regulations. As the noble Lord, Lord Faulks, has outlined for the Grand Committee, the Legal Services Act 2007 permits the Legal Services Board to apply for a warrant in certain circumstances authorising it to enter and search the premises of an approved regulator or licensing authority. The Lord Chancellor must make regulations specifying further matters which a judge or justice of the peace must be satisfied of, or have regard to, before issuing a warrant and regulating the exercise of a power conferred by a warrant.

I am aware from the guidance that a previous draft of these regulations was originally laid in February 2010 and then withdrawn. That was at the end of the last Parliament and here we are, five years and one month later at the end of this Parliament, with another set of regulations that we are seeking to put through. Quite a lot of time has elapsed. I understand and accept that sometimes when things are drafted, that can highlight problems and defects, but it would be useful if in his response the noble Lord could outline in some detail why have we waited so long for these regulations to be brought back. We are literally in the last few days of this Parliament. It would also be helpful if he could say something about the nature of the problems which have been uncovered.

In looking at the regulations and the helpful Explanatory Memorandum, it appears to me that they have been quite tightly drawn up to limit the circumstances in which they can be used and to ensure that the issue of these warrants is a matter of last resort. That seems right and sensible to me. However, is the noble Lord satisfied that the regulations are proportionate and strike the right balance? Have any problems been caused to the Legal Services Board in exercising its regulatory duties over the past few years by not having these powers? If he is satisfied that there are no problems, perhaps he would inform the Committee of how he has come to that conclusion. With those points, I am happy to support the regulations.

[Lord Faulks]

I am grateful to the noble Lord for his consideration of these regulations and for his observations in general about them. He asked why there has been effectively a delay in these matters and also asked me to say a little more about whether I was satisfied with the various safeguards which exist.

In a sense both those questions have a common answer, which is that these powers are very much ones of last resort. They follow from the Act; Parliament expressed the view that there should be this residuary power but the circumstances in which the super-regulator—if one can call it that—would actually wish to step into the shoes of the regulator are very hard to foresee. I believe Parliament felt that there should be that power at least, hence the existence of the regulations. This is not, I think, something the absence of which has caused the LSB any difficulty at all in the delay during the five years since the replacement regulations were drafted.

The powers are not to be used, of course, until after all the other LSB powers have been utilised, and the noble Lord and the Committee will realise that there are a range of other powers short of these last-resort powers which the LSB can exercise. It was in those circumstances that these powers were prioritised below other more immediately required orders such as those required in the implementation of the Act and subsequently those recommended by the LSB. As outlined in the memorandum accompanying the regulations, we have produced 11 other legal services statutory instruments since 2013, which perhaps gives the Committee an idea of the scale of recent work. We have therefore prioritised our resources.

Progress on the approved regulator draft has continued steadily. For example we have consulted twice on the content of the regulations with the stakeholders—and there are a considerable number of stakeholders—who will be affected by them. We have made numerous changes as a result and taken their comments into account. The licensing authority regulations have also been drafted during this period allowing the two sets of regulations to be consulted on and progress through Parliament together, given how similar they are. I think the noble Lord will understand that regulators were likely to express a view as to whether the super-regulator should be allowed these powers and if so the appropriate restrictions on them. There is perhaps, one might say, a healthy tension between the interests of the regulators and the super-regulator, which, I think, provides some explanation.

In terms of the safeguards, the word “necessary” or “desirable” is an important one for the exercise of a regulatory function. A judicial officer must be satisfied before issuing a warrant. Specifically, the regulations allow a judicial officer to issue a warrant only if satisfied that the LSB has made reasonable attempts to obtain the records sought by other means. This would be likely to result in the records being removed, hidden, tampered with or destroyed. There is also provision to prevent repeat applications where another of the same substance was refused. There are other safeguards providing for the return of seized documents. A key safeguard is that a warrant may not be used to take possession of or copy records subject to legal professional privilege. That matter was drawn to the attention of the regulators by the Bar Standards Board as a matter of importance and that finds its way into the regulations, as the noble Lord will have seen. Any such record which is taken or copied in error must be returned.

These regulations were drafted in consultation with the approved regulators, whose suggestions were incorporated in the way that I have indicated to achieve the desired balance. I hope I can satisfy the Committee that there are these appropriate safeguards. I do not think it could be said that the LSB is champing at the bit to exercise these regulations—it is unlikely it will do so—but Parliament has envisaged that it should have its power. By providing these regulations, albeit they have taken a little time to produce, we are acting in a way that is faithful to Parliament’s intention. In those circumstances, I hope the regulations can be approved.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2015

Lord Kennedy of Southwark Excerpts

Wednesday 11th March 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

The draft rules amend the Special Immigration Appeals Commission—which I will call SIAC—rules of procedure, giving effect to two provisions contained within the Immigration Act 2014. These are straight- forward—being consequential to the new Act—but, none the less, important amendments. One will amend a current right of appeal to SIAC and introduce a new power of statutory review to ensure that all cases that should be dealt with by SIAC remain there, while the other will tighten up its bail processes.

Your Lordships will be aware from previous debates that SIAC is a specialist tribunal dealing with the most serious immigration and asylum appeals where there are issues of national security or other matters of public interest. For instance, it has heard cases under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists. SIAC heard the deportation case of Abu Qatada, for example. Unlike other immigration tribunals, it has processes in place designed to control the disclosure of material which, if released into the public domain, could be damaging. These are its closed material procedure and its use of special advocates, whereby some of the Home Secretary’s evidence is withheld from the appellant and his representatives. The purpose in both instances is to avoid compromising intelligence sources and the UK’s national security. The appellant’s interests are instead represented by a special advocate—a lawyer of the highest experience and ability and who has access to all the material withheld from the appellant.

The Immigration Act 2014 is being implemented by the Home Office on a phased basis, starting last July, with full and final implementation on 6 April this year. It contains a number of provisions to improve and streamline immigration processes. We have already considered and debated all of the Act’s provisions during its passage last year, so today is not about revisiting those, but rather about the consequential procedural rule amendments that are now required.

The Immigration Act provides that there will be a right of appeal to a tribunal only where fundamental rights are involved. From next month, the Act will remove the current right of appeal to SIAC against deportation decisions where the individual does not claim that removal would breach their human rights. Although it is likely that an individual will claim deportation would breach their human rights, there may still be cases where an appellant does not want to challenge their deportation on that basis, but rather that the reasoning behind the deportation decision itself is flawed. The Act allows for that by introducing a further power of statutory review to SIAC’s jurisdiction.

The number of cases that we are talking about is likely to be very small indeed. SIAC is a low-volume jurisdiction: it currently has only 17 appeals, although it has some other work. Although this does not represent a significant extension to the use of the closed material procedure, we must still make provision to allow SIAC to continue to consider these cases. Without the new review, the only route of challenge once the statutory appeal is removed would be by way of a judicial review to the High Court. This would not be satisfactory for two reasons. First, the High Court has only limited provision for the closed material procedure. Secondly, SIAC is the tribunal with the greatest judicial and panel member expertise in immigration matters and national security cases, and is the specialist in deciding and using closed material procedure.

SIAC is a superior court of record. It is presided over by a senior and experienced judge of the High Court, so this is not a lesser option. SIAC already deals with two other types of statutory review: to set aside a direction by the Home Secretary to exclude a non-EEA national from the UK and to set aside a decision by the Home Secretary in relation to naturalisation and citizenship applications. In both instances, SIAC is required under primary legislation to apply the same principles that would apply in judicial review proceedings; namely, the principles of natural justice and general public law. This further statutory review will also apply these principles, so SIAC will, as it does now, give full and proper consideration to any request for the closed material procedure.

In mandating those two statutory reviews in SIAC, Parliament has decided that it is the appropriate forum for all immigration challenges involving matters of national security or other public interest. I am sure noble Lords will agree that we would not want to go back on that decision when deciding whether to approve this amendment today.

The Immigration Act also tackles repeated bail applications, which are often made in an effort to delay someone’s removal from the United Kingdom. Before the new Immigration Act there was no limit on the number of bail applications that someone could make, and an identical application could be filed the day after one had been refused. These all currently require a hearing, which can be costly and time consuming. From April, these draft amendment rules will allow SIAC to dismiss a repeat application without a hearing if it is made within 28 days of an earlier unsuccessful application and there has been no material change in the applicant’s circumstances. Similar rules are in place in the First-tier Tribunal Immigration and Asylum Chamber, as required by the Immigration Act provisions which were commenced in October last year, so these amendments provide parity in the rules of procedure.

The draft rules have been produced on behalf of the Lord Chancellor following a short period of consultation by the Home Office and the Ministry of Justice with several of the bodies most familiar with SIAC, including the Law Society, the Bar Council, special advocates and the SIAC chairman and judiciary. We are therefore satisfied that they meet the needs of SIAC users and adjudicators.

The rules before us represent straightforward changes but, as I have outlined, they are critical in preserving our national security. Decisions made by the Home Secretary in reliance on sensitive and potentially damaging material should continue to be challenged at SIAC rather than the High Court. SIAC’s hearing time is best saved for dealing with such matters and for the appellants who genuinely need it, rather than being spent on unmeritorious applications for bail. I therefore commend these rules to the Committee, and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the Minister has outlined, these rules make amendments to bring the 2003 rules into line with the provisions of the Immigration Act 2014. The first change to the rules is the removal of the current right of appeal to SIAC against deportation decisions where there are no human rights grounds and the application of a new section of the Special Immigration Appeals Commission Act 1997 allowing SIAC to deal with these by way of a statutory review. Appeal rights properly and rightly remain for human rights matters. Will the Minister comment on whether any thought has been given to whether the restriction of these appeal rights is likely to increase the number of cases claiming human rights as a reason? Has any further work been done on the potential cost in that case? Have the Government taken account of those costs when they looked at the savings they think they will make?

On the forum for appeals, we are always concerned when there is an extension of the use of closed material procedures. Will the Minister say something further about the matters that will be dealt with by SIAC rather than the High Court by a process of statutory review rather than by judicial review? I assume that the terms will be of a similar effect. I was pleased when the Minister confirmed that asylum will be looked at on human rights grounds, using the same criteria as the High Court. I agree with his comments about the members of the judiciary who work in that court.

On the question of bail, some concerns have been raised as to what constitutes material change. Could the Minister say a bit more about that as well? I get his point about renewed bail applications being permitted only when there has been material change. I assume that I am right in thinking that a procedural defect would be a very serious material change. Could he outline any further things that would constitute material change? With that, I accept that these are important and serious matters and matters of national security and I am happy to support the rules.

[Lord Faulks]

I am grateful to the noble Lord for his observations and for his acceptance, for the most part, of what lies behind these rules. He makes a valuable point in asking whether there could be a perverse incentive for somebody to claim that there were human rights violations and therefore get themselves within SIAC. That is, with respect, a little unlikely. In fact, the purport of the regulations is to embrace those cases where national security is an issue but the person is not relying on human rights grounds. Classically, that would happen on the grounds of Article 3 or Article 8 of the European convention. It has to fall within SIAC because of the national security arguments; it is not a simple incantation of a human-rights based challenge.

I caused some inquiries to be made as to precisely what cases might come within the regulation when somebody was not claiming human rights grounds and would therefore be covered by this measure. I was given to understand that the likely applicant would be someone who was before the court in relation to espionage, who would not want to rely ex hypothesi on Articles 3 or 8 but might want to challenge the underlying assertion that they were, in effect, a spy. In that way, they would still come within the national security ambit of SIAC, involving all the closed material procedures with which we are familiar—the special advocates and well travelled range of things—and not rely on human rights matters.

The noble Lord asked about costs. I do not believe that the human rights element of itself would cause additional costs. In relation to the rules amendment costs, there are minimal costs on the work of drafting and laying the amendment rules and no costs to the SIAC administrator or Her Majesty’s Courts and Tribunals Service in introducing this new statutory review. They already deal with other statutory reviews, so forms, guidance and IT are not affected. The bail amendments will reduce costs for SIAC, because they will save hearing time from being used on unmeritorious applications.

The question of material changes is a fairly well travelled doctrine in terms of bail applications generally, and judges will be familiar with that. It involves something material, as the adjective suggests, not just a minor change that warrants an application—something that may have an effect on personal circumstances, such as their address, giving the court grounds for thinking that the risk was somewhat less than originally appreciated. It might be a matter for SIAC to give further guidance, but of course material change of circumstance is the sort of thing that courts are used to addressing in a number of circumstances. Indeed, the noble Lord may be familiar with it in his guise as a magistrate, with frequent bail applications—although I may be wrong in thinking that he is a magistrate. It might be something that affects the range of considerations which the tribunal thought important when the previous bail application was decided. I would be reluctant to specify precisely what might constitute material circumstances, but it does not mean de minimis matters, things that do not really alter the basis of the application. It would be a matter for the court on the particular facts of the case to decide whether there had been a material change.

I hope that, with those assurances, the Committee is content that the rules should proceed, and I beg to move.

Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015

Lord Kennedy of Southwark Excerpts

Wednesday 11th March 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the purpose of this order is to bring into force a revised code of practice under the Criminal Procedure and Investigations Act 1996, setting out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation.

The revised code that this order will bring into force replaces the current one that was introduced in 2005. The changes to the code are not extensive but they are a crucial element in an initiative that is designed to make summary justice more efficient. This is the transforming summary justice programme—TSJ for short.

The objective of TSJ is to enable guilty plea cases to be dealt with wherever possible in one hearing, and contested cases to be properly managed at the first hearing and actively progressed and disposed of at the second. One of the elements of TSJ is that summary cases that are likely to be guilty pleas and those that are expected to be contested should be treated differently, the former being listed for a hearing after 14 days, the latter after 28 days.

Last May, the senior presiding judge received the report of a review that he had asked His Honour Judge Kinch and the chief magistrate, Senior District Judge Riddle, to carry out into disclosure of unused material in summary cases. This magistrates’ court disclosure review made several recommendations that complement TSJ, including that the relevant code of practice should be amended to enable a streamlined but proportionate procedure to be used in disclosing unused material in summary cases.

The review endorsed the separate treatment of likely guilty and not guilty cases. It recommended that the code should be amended to remove any implication that a guilty plea might be expected simply on the basis of the defendant not having denied the offence. However, where a guilty plea was expected with good reason—typically because the defendant had admitted the offence—then a schedule of unused material need not be served.

Even in these cases, however, there remains a duty on the prosecution at common law to disclose any material that might assist the defendant in a bail application or in preparing his case. This is often referred to as “ex parte Lee disclosure”, after the case in which the principle was set out. It is perhaps unlikely to be required in a straightforward summary case, but the review recommended that in the rare cases where the need for such disclosure arises, the police must draw the material to the attention of the prosecutor. Where on the other hand there is nothing to disclose, as will ordinarily be the position, that fact should be declared.

These recommendations are reflected in the revised code. Annexed to the code are three forms, the first of which is for use in cases where a guilty plea is anticipated, declaring that there is nothing to disclose at common law.

The review noted the intention of the CPS,

“to replace the unused schedule with a short disclosure report in anticipated not guilty plea summary cases”,

which it observed would require an amendment to the code of practice. This, too, is reflected in the new code and in the second and third forms annexed to it. These are streamlined certificates for use in anticipated not guilty cases, one certifying that there is nothing to disclose under the 1996 Act or at common law, the other certifying that there is disclosable material and specifying what it is. These forms are quicker, simpler and less bureaucratic than the ones they replace.

The amendments incorporated in the revised code were drafted in consultation with the national police lead on unused material, as well as with representatives of the Law Society, HM Courts and Tribunals Service and the office of the senior presiding judge. In accordance with the process set out in the Criminal Procedure and Investigations Act 1996, the revised code was published in draft for consultation in October last year. Six responses were received, and the draft was further slightly revised in the light of them.

The resulting revised code was laid on 28 January and the draft order to bring it into force, which your Lordships are considering today, was laid the following day. This slightly unusual process is in accordance with Section 77(5) of the 1996 Act. The order was subject to scrutiny by the Joint Committee on Statutory Instruments and has been amended slightly in the light of it. The code will come into force on the day after the day on which the order has been approved by whichever House approves it last.

The revised code introduced by the order under consideration today does not alter the criteria for disclosure. Rather, it seeks to help to ensure that defendants receive the disclosure to which they are entitled earlier than at present, including an assurance that the prosecution’s obligations at common law have been met. As the review observes, late compliance with disclosure obligations, or failure to comply with them,

“frequently leads to ineffective trials, delay and the incumbent costs in both financial and human terms … Many practitioners observe that there is a procedural rather than substance difficulty in most cases. The material listed on the unused schedule (and often any items disclosed) frequently has limited, if any, bearing on the outcome of cases tried summarily. With that in mind, it is all the more frustrating for procedural failures in the disclosure process to lead to a case collapsing, or suffering delay”.

The purpose of the revised code is to prevent such procedural failures and to reinforce the effect of the TSJ programme in speeding up summary justice. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, the order before us today replaces the code of practice issued in 2005 under the Criminal Procedure and Investigations Act 1996. I understand it is being brought forward following the Magistrates’ Court Disclosure Review in 2014, which recommended the adoption of a streamlined procedure in summary cases and, I think, in those either-way cases that are likely to remain in the magistrates’ court, so that a schedule of unused material need not be served in such cases, when it is anticipated that a guilty plea is going to be entered.

The present procedure is outlined in the magistrates’ court review, which I have looked at, with particular reference to paragraph 49. The recommendation that this order is seeking to bring into effect is listed as point 220 in the summary of recommendations. It would be helpful if the noble Lord, Lord Faulks, could just set out for us how we get to this position of an anticipated guilty plea. Clearly, someone can admit, at the first opportunity, that they have committed the offence and are guilty, but what about other cases? What sort of assessment will actually take place? Is there an expectation or assumption that, on the evidence already there, they will be getting legal advice from their own solicitor that the wisest course of action for them would be to submit a guilty plea at the earliest opportunity? I just want to be clear on the process that will be followed.

It would also be helpful if the noble Lord could just outline for us what will happen if the anticipated guilty plea does not materialise after all that. As the noble Lord said, I have served as a magistrate. I was on the Coventry bench for many years, and most cases that come before you, especially summary offences, result in a guilty plea and there are very few trials. However, things do not always go to plan, and it would be useful for that to be outlined for the Grand Committee.

I am grateful to the noble Lord for confirming when he spoke earlier that material that is of assistance to the defence and that meets the appropriate tests must be disclosed to the defence. As he said, that is the rule of common law disclosure. He referred to the ex parte Lee case, which is helpful in this respect. With those few points, I am very happy to support the order.

[Lord Faulks]

I am grateful to the noble Lord for his careful consideration of the order, informed of course by his own experience as a magistrate. He is quite right that the question of a plea is not simply a binary one or an automatic process at a particular juncture. People change their minds, and it is important that their right to do that is respected by the procedure rules and that we do not become too much a servant of process, at the risk of in any way jeopardising the important choice that a defendant has. Of course, it is important to stress in that context that defendants, whatever their intended plea, are entitled to know the case against them. They receive that in the form of the initial details of the prosecution case. Under the proposed arrangements they will receive that information earlier.

This is about disclosure of unused material. However, as I have endeavoured to stress, defendants are still entitled through the ex parte Lee case to the disclosure of material by common law which might potentially assist them. If, for example, a witness had a previous relevant conviction or had refused to give a statement, the police would have to reveal that before or at the first hearing. Such information is vital for the defence in making a bail application—quite apart from anything else—and the amended code reminds the police of the importance of making such disclosures even in a guilty plea case.

The noble Lord asked what would happen if an expected guilty plea did not materialise. In those circumstances the appropriate certificate must be prepared and served as soon as possible. The procedure is outlined in paragraph 6.4 of the code, which embraces the possibility quite reasonably and sensibly suggested by the noble Lord. Experience tells him that defendants sometimes get cold feet for one reason or another.

The importance of the order is that the defendant will be protected by this process. Important material which may assist will still be disclosed, but not a considerable amount of unused material which would have no relevance to a decision or to the outcome or strength of a case. Such material would simply slow up the process, causing additional expense and inconvenience, not only to the court but, importantly, to the defendant.

This order meets the desire to streamline the process —the transforming summary justice programme. It means that there will be fewer hearings but none the less protects the defendant and his or her freedom to choose whether to plead guilty or not guilty.

Freedom of Information (Designation as Public Authorities) Order 2015

Lord Kennedy of Southwark Excerpts

Monday 9th February 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks)]

My Lords, the purpose of this draft order is to bring Network Rail’s public functions within the scope of the Freedom of Information Act. This is a significant extension of the Act and the latest step by this Government to expand its scope in the interests of transparency and accountability.

We are committed to achieving greater openness and transparency in order to enable the public to hold those who deliver the services affecting their day-to-day lives to account through both the Freedom of Information Act and the wider transparency agenda. In relation to that Act in particular, the coalition agreement set out this intention, stating that the Government would,

“extend the scope of the Freedom of Information Act to provide greater transparency’.

We have already taken a number of steps to meet this commitment since May 2010. In 2010, we extended the Act to academies, in 2011 to the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service, and in 2013 to more than 100 companies wholly owned by more than one public authority. The order to extend the Act to Network Rail is a further step along this road.

I recognise that some noble Lords may wish to see the Freedom of Information Act extended in further directions. There is certainly a case for its further extension, in particular to more bodies performing public functions through Section 5 of the Act. There is also a case for extending it to other bodies. For example, the Home Secretary has already announced her intention to extend the Freedom of Information Act to the Police Federation. This would require primary legislation and, in the absence of a suitable vehicle in this Parliament, the Home Secretary has registered this as a longer-term commitment which this Government intend should be fulfilled as soon as possible in the next Parliament. I hope, however, that no matter the views of noble Lords about other bodies which might be included in future, this change will itself be welcomed as a significant and positive step.

Turning to the detail of the draft order, Section 5(1)(a) of the Freedom of Information Act enables the Secretary of State to designate a person as a public authority if they appear to the Secretary of State,

“to exercise functions of a public nature”.

Where a body is designated as a public authority under this limb it is also necessary, under Section 7(5) of the Act, for the order to specify each of the body’s functions which appear to the Secretary of State to be of a public nature. Only those functions specified in the schedule to this order will be subject to the Act.

Network Rail is not a single legal entity but is made up of a group of companies instead, hence the need to designate the listed companies separately. The companies affected, which are listed in the schedule to the draft order, are Network Rail Ltd, Network Rail Holdco Ltd and Network Rail Infrastructure Ltd. Network Rail Holdco Ltd, which is the holding company for Network Rail, and Network Rail Ltd, the umbrella company for the group as a whole, are legally responsible for many of the same functions as Network Rail Infrastructure Ltd, so they are also listed in the order. In practice, however, Network Rail Infrastructure Ltd is responsible for the day-to-day delivery of Network Rail’s public functions.

The functions performed by these companies which are considered of a public nature are those relating most directly to the development and operation of the rail network. Network Rail’s network services function covers its ownership of the rail network and the related activities that it is licensed to carry out under Section 8 of the Railways Act 1993. This includes the full range of activities carried out by Network Rail which enable our railways to operate, from large-scale projects relating to the construction or improvement of new lines to more locally focused works on, for example, individual stations, bridges or level crossings. It also includes the provision of information about train movements to train operators to enable them to meet their information obligations to the public.

In addition to owning all UK railway stations, other than those in Northern Ireland, Network Rail operates a number of major railway stations under a further licence issued under Section 8 of the Railways Act. The operation of these stations also constitutes a public function and is covered by the “station services” function listed in the schedule to the draft order. Finally, Network Rail’s provision and operation of light maintenance depots for the purpose of providing services, including the refuelling and cleaning of trains, also constitutes a public function and is covered by the order.

I appreciate that this designation is quite technical but, importantly, it covers rail safety issues in connection with the networks, stations and depots. The designation will also cover information about the management of Network Rail, such as pay. The Secretary of State has accordingly concluded that all these functions are of a public nature, for a number of reasons. Of critical importance to this decision are factors such as: the extent to which these functions are performed in the public interest, given the importance of the services which Network Rail provides to the travelling public; the extent to which Network Rail receives public funding; and the degree to which Network Rail is subject to government control, and is accountable to government and Parliament.

Network Rail provides a variety of other services which do not constitute public functions and are therefore not capable of being covered through this order. As self-funding commercial services provided in a competitive market environment rather than on a monopoly basis in the public interest, it would not be appropriate to include them. In any event, it is not possible to include such non-public functions through an order made under Section 5 of the Freedom of Information Act.

Article 2(2) of the draft order is intended to provide clarity about the services which are excluded from scope on the above basis. With the exception of permitting train companies to access and use stations and tracks, the order does not cover services for which Network Rail charges fees or receives other consideration. This includes, for example, the provision of consultancy or property services, such as the letting of shop units, railway arches and advertising space, not directly related to the operation of the railways.

Network Rail representatives have been consulted about the companies and functions covered in the order. They view its inclusion under the Freedom of Information Act positively and are in agreement with the Secretary of State about the scope of the draft order. Network Rail will handle requests submitted to it as if it were the single organisation that the public generally see it to be. We welcome the constructive way in which Network Rail has engaged with the Ministry of Justice in drawing up this order.

The Secretary of State has concluded that the three companies subject to this order exercise, in the ways I have described, functions of a public nature. As a result, I believe that it is appropriate for them to be subject to the same scrutiny as those performed by other public authorities so that they will become more open, transparent and accountable. Network Rail has taken very considerable steps to become more transparent in the last few years. It already publishes large amounts of information proactively and responds to information requests on a voluntary basis, as opposed to a statutory basis. This is highly commendable. This order builds on those solid foundations by providing a legally enforceable right to request information, so I hope that noble Lords will agree that this order is an important part of the journey towards greater transparency. I therefore commend this draft order to the Committee, and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the Minister has explained, this order designates the companies considered by the Secretary of State to carry out functions of a public nature within Network Rail as subject to the provisions of the Freedom of Information Act. As far as it goes, I welcome this order, but it has taken a long time getting here, and the Government should be going a lot further in respect of freedom of information. We have heard a lot about freedom of information from the Government. As the Minister said, it is mentioned in the coalition agreement, but progress has been slow in this area over the last five years.

Calls for the extension of FOI to cover Network Rail have been made for some considerable time. I am sure the Minister is aware that the Public Accounts Committee has called for it on a number of occasions. Will the Minister name the companies that are part of Network Rail that will not be subject to the provisions? Will he tell the Grand Committee why it has taken so long for the order to get here today? Who in Network Rail was opposed to the extension of these provisions? Was that part of the reason it has taken so long? It would be useful if he could tell the Committee whether this is a settled position or one that the Government intend to keep under review to see whether the scope of the coverage could be broadened in future. As a regular train user, being able to get further information on issues such as the shambles at London Bridge and how we arrived at such poor service for passengers is most welcome.

Will the Minister say something on the Government’s general thinking in respect of freedom of information? I know he said something earlier, but more would be helpful. Do the Government have a view about private sector companies that are delivering public services being subject to FOI, particularly about the public service they actually deliver? I am thinking of train operating companies, which in some cases are delivering such a poor service. I do not know how much train travel the Minister does in London, but my experience of travelling in from south London every day is of a generally poor service from companies who largely think that they are beyond any form of accountability.

I am also an elected councillor in the London Borough of Lewisham and the ward that I represent has dreadful problems with Crofton Park railway station, for example, and neighbouring stations. I have written to the Secretary of State for Transport and invited him to take a train with me from either Brockley or Crofton Park, but I am still waiting for a reply. If the Minister bumps into his right honourable friend, perhaps he could mention to him that I am still waiting for that reply. There is such an awful service at those stations that I would love to show him what goes on there. However, I am content with the order today and welcome it.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015

Lord Kennedy of Southwark Excerpts

Monday 9th February 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

Noble Lords will be aware that the Rehabilitation of Offenders Act 1974 is the primary legislation concerning the disclosure of criminal convictions and cautions. It seeks to help the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified period, as “spent”. Once a conviction has become spent, an individual is not required to declare it when, for example, entering most employment or applying for insurance. The reforms we made to the Rehabilitation of Offenders Act, which allow many convictions to become spent sooner, were commenced in March last year and widely welcomed.

We are concerned today, however, with the exceptions order to the Act. This acts as a balance to the Act to maintain public protection. The exceptions order lists activities and posts which may present a particular risk of harm—for example, regular contact with particularly vulnerable groups, such as children—and exempts them from the protection of the primary legislation. This allows certain employers, bodies and proceedings to ask for the disclosure and to take into account certain spent cautions and convictions as well as any unspent convictions. In these sensitive areas, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their fuller criminal record.

I should explain that the Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates. Standard disclosures contain details of a person’s spent and unspent cautions and convictions, where there are any such convictions and cautions, with the exception of certain older and minor convictions which are protected from disclosure. Enhanced disclosures include, in addition, any locally held information which the chief officer of police considers is relevant to the purpose of the application. These criminal record certificates are issued by the Disclosure and Barring Service.

Having set out that background, I will now explain the two amendments which we propose to add to the exceptions order. The first deals with individuals seeking counterfraud, investigatory and security management posts in NHS Protect; the second concerns individuals seeking to engage in regulated activity relating to children and vulnerable adults.

As to counterfraud, investigation and security management in the NHS, staff in the NHS undertaking the investigation of fraud, bribery and corruption, and the safeguarding of patients, staff and NHS assets, will have access to confidential information and medicines. They may also have contact with vulnerable persons. In addition, those who are engaged in counterfraud investigations have responsibility for the preparation of prosecutions and can be called to give evidence in court proceedings. In these circumstances their character history is relevant to the issue of witness credibility, which can prove critical in obtaining successful prosecutions.

These activities clearly give rise to public protection considerations and justify the disclosure of certain spent cautions and convictions so as to determine the suitability of an individual applying to do this work. To date, this area of activity has been dealt with under a wider provision in the exceptions order, which covers working in health services more generally, including contact with patients. Investigations into fraud and other criminal activity in the health service may not involve patient contact but will nevertheless require access to sensitive material. Recent changes to counterfraud and security management in the health service mean that certain administrative staff may now assist in investigations. Consequently, they will have access to some sensitive material. In the light of these developments, we consider that there should be a distinct provision in the exceptions order which not only deals with the new administrative group of staff undertaking this work but covers the area of activity so that the exception is both precise and clear.

The second amendment in this order relates to regulated activity. While this area of work is, of course, already covered in the exceptions order, there have been changes made to the definitions of regulated activity relating to children and vulnerable adults. The Protection of Freedoms Act 2012 made changes to the definitions set out in the Safeguarding Vulnerable Groups Act 2006. We now need to reflect those changes in this instrument. The exceptions order currently covers all individuals engaged in regulated activity relating to children, and all individuals engaged in regulated activity relating to vulnerable adults as defined prior to the amendments made by the 2012 Act, which in the most part narrowed these definitions. The earlier definition of regulated activity was kept for the purposes of the exceptions order, as the Government had made a commitment to ensure that employers would still be able to obtain criminal record certificates for those individuals who no longer fell within the amended definition of regulated activity.

However, while the 2012 Act generally reduced the scope of regulated activity, its definition of relating to children was also expanded to a limited extent. This remains the case today. For example, a person who provides healthcare or personal care on an occasional basis now comes within the definition of regulated activity relating to children. These individuals would not previously have been covered because this activity would not have met the relevant frequency conditions for it to fall within the definition of regulated activity relating to children.

In addition, the Safeguarding Vulnerable Groups Act 2006 provides the Secretary of State with the power to amend the definitions of regulated activity in that Act by order, subject to the affirmative procedure. In the future, it is therefore possible that the definitions of regulated activity could be amended to cover new roles. These would not then be covered by the current provision in the exceptions order, which refers to the definitions of regulated activity as they were at a fixed point in the past.

This amendment will therefore ensure that all those engaged in regulated activity can be asked about unprotected cautions and convictions when their suitability for this work is being assessed and that that remains the case for any future changes to the definitions of regulated activity made by order under the Safeguarding Vulnerable Groups Act 2006.

I assure noble Lords that any such changes to the definition of regulated activity will be subject to debate in the House. I therefore believe it is unnecessary for an express amendment to made to the exceptions order for each new role added to that definition on the basis that any debate in respect of the order amending the definitions of regulated activity would provide the House in any event with the opportunity to consider the appropriateness of such changes, including the implication of those changes in respect of the ability of employers to seek information about certain spent convictions and cautions.

These amendments, while relatively minor in scope, are important for public protection purposes. They make sure that all those who are responsible for protecting the NHS and all those engaging in regulated activity are properly covered by the exceptions order. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I will not detain the Committee very long. As the Minister told the Grand Committee, this exceptions order makes amendments in relation to those concerned with counterfraud work, the investigation of offences and security management and to current regulated activities under the Safeguarding Vulnerable Groups Act 2006. I have read the order and the Explanatory Memorandum very carefully. I am content with this order which takes account of legislative changes and ensures that individuals in a position of trust, as defined in the order, can be asked about their unprotected spent convictions and cautions. This is a very good balance between helping individuals who have offended to return to meaningful work and the need to protect the public, as the Minister said. This is a very sensible move, and I am very happy to support the order before the Grand Committee today.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for his constructive and helpful observations. As he said, this is not a party-political issue. These are necessary and proportionate amendments endeavouring to strike the balance in a difficult area, and they form part of this Government’s—I dare say any Government’s—ongoing commitment to keep safeguarding measures in step with developments elsewhere. I commend the draft order to the Committee.

Legal Services Act 2007 (The Law Society) (Modification of Functions) Order 2015

Lord Kennedy of Southwark Excerpts

Thursday 29th January 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, as noble Lords may know, and by way of background, the Law Society of England and Wales is an approved regulator under the 2007 Act. The Solicitors Regulation Authority, the SRA, is the independent regulatory arm of the Law Society, which regulates all forms of solicitors’ practices and alternative business structures—ABSs.

Recognised bodies and ABSs are subject to the same authorisation process by the SRA, which is a one-off authorisation followed by ongoing supervision. In contrast, because of the requirements of the Solicitors Act 1974, sole practitioner solicitors are required to have annual endorsement of their practising certificates. This difference results in regulatory inefficiencies and increased costs for both sole practitioner firms and the SRA. The current differences in regulation also make it more difficult for solicitors to move between one type of practice and another. There are also differences in the way in which the SRA can take regulatory action where difficulty arises with a sole practitioner firm as compared with other firms.

This order therefore removes the requirement in the Solicitors Act 1974 for a solicitor who is a sole practitioner to obtain an annual endorsement on their practising certificate. The order therefore establishes a single method of authorisation and regulation of all solicitors. The effect of the order is to remove the concept of a sole practitioner from both the Solicitors Act 1974 and the Administration of Justice Act 1985 and instead create the concept of a “recognised sole solicitor’s practice”.

Recognised sole solicitors’ practices will be subject to the same type of authorisation and ongoing supervision process as recognised bodies and alternative business structures. This order is therefore a welcome deregulatory measure. It comes before the Committee following a public consultation by the Legal Services Board. No objections were raised during this process. The order was welcomed by the Sole Practitioners Group, which advised that it welcomed efforts to reduce the current burden of regulation of sole practitioners and welcomed the harmonising effect of the order.

In conclusion, the Legal Services Board is satisfied that there will be no lessening of consumer protection as a result of this order which will make it easier for the SRA to regulate solicitors more effectively and proportionately. I commend the order to the Committee, and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I do not intend to detain the Grand Committee for long on any of the orders before us today.

As the noble Lord, Lord Faulks, has explained, this order removes the requirement on a solicitor who is a sole practitioner to obtain an annual endorsement on their practising certificate and so establishes a single method of authorisation and regulation for all solicitors. That is welcome and we are very happy to support it from these Benches.

I notice from the impact assessment that there is a small financial saving to solicitors as a consequence of this change. It is not huge and would not be the dominant consideration in making these changes. However, I see the benefits of making the change in the methods of authorisation and regulation.

I note from the impact assessment that the proposal was originally consulted on between December 2010 and March 2011, but nothing was taken forward. Three years later a policy statement was issued, which again attracted support. Here we are at the end of January 2015 with the measure finally being brought into effect. Can the noble Lord shed some light on why four years have passed since this measure was first suggested and subsequently enacted? However, I am content to support the order.

[Lord Faulks]

I am grateful to the noble Lord for his observations. On his second point, these measures were, as he said, first proposed in 2010. Following a detailed consultation, the SRA stopped work on these proposals as it had to concentrate on various other priorities, including preparing to be designated as the licensing authority for alternative business structures which was, as he will appreciate, a fairly major piece of work. The SRA took up this work again last year in conjunction with my officials, and this order has been brought before the House at the earliest opportunity. The delay was because of other priorities rather than for any sinister reason. As to the noble Lord’s question on cost, this measure will remove some costs and bureaucracy. One hopes that that will be passed on in due course in some way to the client. I am grateful for those observations and I beg to move.

--- Later in debate ---

[Lord Kennedy of Southwark]

I would never think anything sinister at all. I had just noticed the four-year gap.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015

Lord Kennedy of Southwark Excerpts

Thursday 29th January 2015 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the regulations before us today are needed to accompany the commencement of Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO as it is commonly called. Section 85 has not yet been commenced. It provides for all fines and maximum fines in the magistrates’ courts of £5,000 or more to become unlimited. This includes the level 5 maximum on the standard scale of fines and all exceptional summary maxima for environmental and health and safety offences, which can be as high as £50,000. It means that magistrates will be able to impose, if they so choose, a higher fine than they previously could.

I should make it clear that the way in which magistrates calculate the appropriate fine to be imposed in each individual case will not change. Sentencing decisions in individual cases are a matter solely for our independent courts. Parliament sets the maximum penalty for an offence and the courts sentence within that maximum, taking account of all the circumstances of each case. Where the sentence is a fine, the courts are required to take account not only of seriousness, but the known financial means of the offender. How the amount of a fine relates to these factors is covered in some detail by the sentencing guidelines issued by the Sentencing Council, which is also independent of government. None of these things will change.

I should also make it clear that dangerous criminals will always belong in prison, and there are others who will need to be made subject to community penalties. However, it is important that magistrates, who sentence the majority of offenders who come through our courts, have the power to hand down the appropriate fine with the severity they see fit for the most serious cases that come before them. They include summary crimes such as making and selling realistic fake guns, assaulting a police officer, using threatening behaviour and not making a property safe before renting it out.

Other offences that will be liable to unlimited fines in the magistrates’ courts will be harassment without violence, the sale of alcohol to children, and the unauthorised sale of football tickets, an offence introduced to help prevent violence at matches. The Government believe that it is important that magistrates should not be limited in the amount they can fine for serious offences such as these. Where appropriate, the courts will of course continue to be able to impose custodial sentences.

These regulations do not amend the text of every piece of legislation that provides for an offence to be subject to a maximum fine expressed variously as level 5, “the statutory maximum” or “the prescribed sum”, all of which mean £5,000. When Section 85 comes into force all these offences will automatically become fines of an unlimited amount. However, these regulations were needed to amend the text of legislation governing fines expressed as numerical amounts of £5,000 or more. The noble Lord, Lord Kennedy, may have seen the considerable extent of the draft statutory instrument carrying myriad different offences. There was a considerable amount of work for parliamentary counsel to try to tie up these issues.

As well as removing the £5,000 cap, Section 85 allows the Secretary of State to specify any exceptions in regulations. These exceptions are included in the draft regulations that we are debating today. But not only do they exempt certain offences from the general provision removing the £5,000 cap, they need to make additional provision if Section 85 is to work properly in practice. For example, some penalties are currently expressed as a proportion of £5,000. If we commenced Section 85 without amending such provisions, they would become meaningless as we cannot have legislation specifying a proportion of an unlimited amount, so we need to make changes there too.

These regulations achieve a range of objectives that will allow us to commence the LASPO provision. In total they do the following. First, they disapply the removal of the £5,000 cap in some cases, mainly for customs and excise offences, and substitute alternative figures, generally £20,000. These can be found listed in Schedules 1 and 2.

Secondly, they deal with penalties that were previously expressed as a proportion of level 5. These are generally daily fines. The regulations deal with these by setting an alternative figure for them to be calculated against. So, for example, instead of being expressed as a fifth of level 5 they are changed for the time being to a fifth of £5,000, although the provisions are future-proofed so this amount could rise in line with increases to other fines. These changes can be found listed in Schedule 3.

Thirdly, as I have already mentioned, they make specific provision for fines currently expressed as a numerical amount of £5,000 or more by providing for these to become a fine of any amount. Similar provision is made for powers to create offences subject to such fines. These are listed in Schedule 4.

Fourthly, they deal with certain non-criminal penalty schemes which operate by reference to the amount of a fine on summary conviction. Changes here will make sure these continue to work once Section 85 is in force. These are listed in Schedule 5.

I hope that noble Lords will appreciate that the Government needed to trawl all legislative provisions to check whether changes needed to be made before we could commence Section 85. This was, as is apparent, a significant task, which accounts for the time it has taken to compile the regulations and for their considerable length. I hope that the Committee will consider these regulations, which are necessary in order to commence the provision in LASPO that Parliament has already provided. I appreciate that they are lengthy and complex, but they are essential before we can give magistrates the increased powers that Parliament intended. I therefore commend these draft regulations to the Committee.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the Minister has explained to the Grand Committee, the regulations before us today will, when Section 85 of LASPO is enacted, remove the cap on fines imposed in magistrates’ courts on summary conviction. The regulations are to ensure the section works sensibly, and they provide for some exceptions.

I have a couple of points to raise with the Minister, but generally I am happy to offer our support to these regulations. I noted in paragraph 3.3 of the Explanatory Memorandum that an order was laid and then withdrawn in respect of levels 1 to 4 fines and that there are no plans to reintroduce it in the foreseeable future. It would be useful if the Minister could tell the Grand Committee a little bit more about that.

Paragraph 7.7 in the Explanatory Memorandum explains that magistrates are obliged to follow the sentencing guidelines, unless that would be contrary to the interests of justice. I know this is an aside to the regulations today, but I have recollections from my time as a magistrate sitting in Coventry. I used to do a lot of fines on Thursday mornings. We would spend a lot of time with people who had been fined by other magistrates’ courts and could not pay the fine. It was a ridiculous situation with fines often grossly disproportionate to the person’s means. It was not a proper punishment because they could not pay the fines. We all want to see punishments handed out that actually punish offenders on conviction, but they also have to be realistic to have the required effect. Does the department have any plans to ask the Sentencing Council to look at fines and their suitability as punishment in terms of their scope, size et cetera? With that, I am happy to support the regulations before us today.

[Lord Faulks]

I am grateful to the noble Lord, Lord Kennedy, for his observations in relation to these regulations and for his agreement on the part of the Opposition in relation to them. It is true that we were responsible for laying regulations in June 2014 and then withdrawing them. They would originally have uprated the amounts of levels 1 to 4 fines as well as level 5 fines. The Government took the view that further consideration was needed in relation to the appropriate amounts at levels 1 to 4, but the priority was to give magistrates the power to deal with the most serious level 5 offenders, which is why we have taken the most important step first in removing the £5,000 barrier. We are giving further consideration to levels 1 to 4 fines, which cover the less serious offences. We are also giving consideration, by way of a review, to driving offences and penalties, many of which would be within levels 1 to 4, although an offence such as driving without insurance is a level 5 offence. Any proposal to change these fine levels requires agreement from both Houses of Parliament. It does not mean—if that was the inference, and I am not suggesting it was—that we are taking a soft line on levels 1 to 4 offences, it is simply a question of prioritising level 5.

The noble Lord identified the dilemma that faces many sentencing tribunals in finding the right penalty and, in the case of repeat offenders, the unreality sometimes of having to impose fines that reflect both the seriousness of the offence and the sentencing guidelines. The problem is very often that those who commit these offences do not necessarily have the means to pay, the fines become unrealistic, and whether it is appropriate to continue imposing fines at that level becomes questionable.

Of course, the Government do not purport to tell sentencing tribunals what is appropriate in a particular case, and among the matters taken into consideration will be the means of the particular offender, not withstanding the guidelines, which are only guidelines. The courts will sometimes have other options, such as community penalties or even imprisonment, if the imposition of fines that are not being paid is becoming unrealistic. It is a matter for the individual tribunals. The Government respect the independence of the judiciary in this and any other field. I understand the dilemma the noble Lord identifies, but we feel that this change will give magistrates in appropriate cases the power to impose large fines, often on people who are, in fact, in a position to pay them.

The Secretary of State can ask the Sentencing Council to consider amending guidelines on specific matters if necessary, and the council is independent of the Government. Guidelines already cover in detail how fines are set in relation to income, and we like to follow carefully the way the Sentencing Council works and its sentencing guidelines. In fact, I am attending one of its meetings tomorrow, although not on this particular subject. It is important that the Government are at least aware of what it is doing. I hope that the noble Lord is satisfied with the answers to his questions.