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.

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.

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.

Judicial Pensions 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 create the New Judicial Pension Scheme 2015—NJPS—establishing the pension scheme itself and also providing for its governance structure and the operation of its employer cost cap. The NJPS is a defined benefit scheme which provides a guaranteed pension based on average pay over a judge’s career. Each year, a percentage of a judge’s salary is notionally put aside. On retirement the cash value of all these annually calculated percentage pots is added up and that is the annual pension. To protect the accumulating pension against inflation, each individual’s notional pension is uprated each year. Employee contributions remain the same and there is transitional protection for those closest to retirement. Unlike previous judicial pension schemes this scheme will not have an automatic lump sum and will be registered for tax purposes in line with the practice elsewhere in the public sector.

The Government announced at the time of the emergency Budget in 2010 the establishment of an independent review of the provision of public service pensions. The judiciary was included in the scope of this review. The review by the Independent Public Service Pensions Commission, led by the noble Lord, Lord Hutton of Furness, made recommendations for reform to public service pensions in order to make them both affordable and sustainable in the long term as well as offering certainty and fairness to public service pension scheme members and taxpayers. The Government’s response adopted many of the review’s recommendations. This included a guarantee that benefits accrued before the date of the change would be protected. It also introduced protections for those within 10 years of retirement.

On 5 February 2013, the Lord Chancellor announced to Parliament the intention to reform judicial pension arrangements in the form of the NJPS under the statutory framework of the Public Service Pensions Act 2013. The reforms to judicial pension arrangements will apply to eligible members of the judiciary in Scotland and Northern Ireland, as well as those in England and Wales. There are a number of devolved judicial offices in Scotland and Northern Ireland to which these reforms will not apply. The NJPS will be open to eligible fee-paid and salaried judicial office holders. This will be set out in a separate instrument.

The principles of the Public Service Pension Act 2013 have already been approved by this House; these regulations apply those principles, introducing a new pension scheme for the judiciary. The Government believe that the reforms to judicial pensions constitute a fair balance of costs and benefits between judicial pension scheme members and other taxpayers. I therefore commend these draft regulations to the Committee and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as the noble Lord, Lord Faulks, has explained to the Grand Committee, the regulations before us today establish a new and reformed pension scheme for the judiciary. They are one of a number of instruments which are coming before your Lordships’ House on the matter of pensions.

I should say that as a general rule I am always sorry to see the end of final salary pension schemes, but I accept that that has been the trend in recent years, and I fully understand that pension schemes have to be reformed in order to ensure that they are sustainable in the long term. That has involved a change in the distribution of costs between the employer and the members of the scheme, along with a move from final salary schemes to other types of scheme and equalising the normal pension age with the state pension age.

I have only a couple of brief points. On looking at the Explanatory Notes, I see that the Lord Chancellor, after consulting with the judiciary, announced the intention to establish a stand-alone reformed pension scheme open only to the judiciary, although initially he had talked about bringing it into the Civil Service scheme. Can the noble Lord tell us why in the end the other options were not proceeded with, in particular the decision not to include the judiciary within the scope of the reformed Civil Service pension scheme? Further, will there be any additional costs to the taxpayer as a consequence of that decision?

I would appreciate a little more information regarding the tax concerns which have been raised by a number of members of the judiciary here in terms of the sums of money involved and whether that will result in additional costs which will have to be borne by the scheme and/or the taxpayer. Also, looking at the scheme itself, can he tell us a little about the governance arrangements? Will they differ in any material way from the governance of the Civil Service scheme? It would also be helpful to the Grand Committee if the noble Lord could highlight where in particular the scheme differs from the new Civil Service pension scheme? With those points, I am content to support the regulations before the Committee.

[Lord Faulks]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for his observations. He will know that the judiciary had some concerns about the scheme, one of which turned on the importance of the independence of the judiciary and of attracting appropriate candidates to posts within the judiciary at whatever level. I am sure that Members of the Committee will understand both of those points. A particular concern that was expressed by many in the consultations was about the changes that were to take place to ensure that the judiciary came under the scheme which embraces all other senior civil servants. There was a particular provision which followed the judiciary’s own stand-alone scheme that is set out in paragraph 8.2 of the Explanatory Memorandum. It concerned in particular those whose existing arrangements for their pensions were unregistered so that when they came to accept a judicial appointment, they did so on the basis that their then pensions were unregistered, only to find that as a result of these provisions, the pension in their new post became registered. The result of that was a significant disadvantage to them, and therefore after some consideration, it was thought appropriate for there to be a special arrangement for the judges in that particular position.

The result of the special arrangement was that those who had previously had an unregistered pension could opt out of the government scheme and they would not receive the pension to which they would normally be entitled. However, during the time that they sit as judges, they will receive an increased salary to reflect the fact that their employer—the Government—would be paying a proportion of their income for pensions in the same way that they would in ordinary circumstances, and will be doing for judges in all other cases. This means that although there is an advantage to the individual, it is in fact neutral in terms of the effect on the tax take as a whole. That was the position.

Judges choose representatives to the pension board —I am talking now of governance—and make recommendations to the scheme manager on the question of discretion. The scheme was at the judiciary’s request. There is an increase in costs in the administration of that special scheme. On the scheme generally, the Government’s principle was to develop a scheme that is fair and sustainable for public sector workers and the taxpayer generally and, save for this fairly limited exception, the judicial scheme will bring the judiciary in line, for the first time, in fact, with the reformed Civil Service pension scheme Alpha, while there are some differences, which I have explained. There are also some slight differences in ill health provision, but any benefits to the department will be long term in nature due to the transitional protection provisions which apply to a considerable proportion of the judicial office holders in scope. However, there is a long-term financial benefit to the MoJ in the form of savings from the service award. This is a salary payment to judges upon retirement which compensates them for tax liabilities on their retirement lump sum. The cost to the department of the current annual service award is around £17 million per year. As the new scheme requirements will remove the need for service awards in the long term, this cost will be a saving to the department, and thus to the country in general. There is harmonisation. There are one or two exceptions.

We think judges have satisfactory pension arrangements. In the view of judges, they are not quite as satisfactory as they were before, but in view of the recommendations of the noble Lord, Lord Hutton, which were accepted by the Government, all public servants have had to accept some reductions in their entitlement in view of the overall financial situation, and judges are not considered an exception, but there is some reflection of their particular circumstances in those special arrangements. I hope that that is a satisfactory answer to the noble Lord’s questions.

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.

Criminal Justice System: Autism

Lord Kennedy of Southwark Excerpts

Thursday 22nd January 2015 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I start my contribution to this debate by thanking my noble friend Lady Uddin for tabling this Question for Short Debate. In the light of the case of Faruk Ali, she raises an important issue about how people with autism are treated when accessing the criminal justice system as victims, witnesses, suspects or offenders. The role of victim support is important, and a proper understanding in this respect is also needed. I agree with what the right reverend Prelate the Bishop of St Albans said when he paid tribute to the people who work in the criminal justice system.

What is autism? As other noble Lords have said, it is a developmental disability that affects how people communicate with, and relate to, other people. It also affects how they make sense of the world around them. A person with autism may display a number of characteristics, which can include, among other things, being unable to read social cues, appearing to lack empathy, behaving in what would seem an odd or inappropriate manner, having difficulty in understanding tone of voice or facial expression, and making literal interpretations of figurative or metaphorical speech. They may also become extremely anxious because of unexpected events or changes in routine.

It may not be immediately obvious if someone has autism. Unusual behaviour may invite the attention of others, but it can also be said that autism is a hidden disability. People with autism do not always understand the implications of their actions or the motivations of others, and they may not learn from past experience. There are examples of people with autism being victims of crime because they are not able to deal with the situation and avoid becoming a victim. I read about the example of a person with autism who understood that it was important to avoid dark places with few people around in the late evening or at night. But they were unable to cope with the situation of being threatened by a gang in the High Street on a busy Saturday afternoon.

Only a small minority of people with autism come into contact with the criminal justice system as victims, witnesses, suspects or offenders. But it is important for people in authority to have a proper understanding of autism and to deploy effective strategies on an individual basis to ensure clear and effective communication. Some people with autism find it difficult to make eye contact, and that could, in certain circumstances, be misconstrued as being shifty or dishonest, for example. People with autism are individuals, but they all experience difficulty with social interaction, social communication and social imagination. They may not always be easy to recognise. Where a person, on coming into contact with the criminal justice system, displays unusual behaviour, it is important for the person in authority to consider whether the person has autism, and where they are on the autism spectrum.

People with autism often find unexpected or unusual situations very difficult. Encountering a situation that involves anyone from the criminal justice system or the emergency services is just the sort of situation that could be very difficult for a person with autism. My noble friend Lord Touhig gave us an excellent example of how difficult it could be for a person with autism to deal with the criminal justice system.

When the noble Lord, Lord Faulks, responds to the debate, it would be useful if he could explain what advice and guidance is given to professionals from the criminal justice system on adopting effective strategies for dealing with autism. Is he confident that police forces have fully understood the condition, and the steps they need to take when dealing with a person who has this disability, in whatever context?

It appears to me that more could be done to raise awareness among professionals in the criminal justice system. I read one report about a victim of crime with autism who was viewed as someone who would make an unreliable presentation in court, so the case against the suspect was dropped. It could of course be that the people who questioned the victim did it in a way that did not enable the victim to tell their story. Instead—unintentionally, I am sure—they caused that person stress and made it impossible for them to get their points across effectively, and they were denied justice as a consequence.

Organisations such as the National Autistic Society run bespoke courses for professionals in the criminal justice system. Does the Minister know what the take-up of such courses is, and what the Ministry of Justice is doing to encourage greater take-up? Has the ministry thought about talking to the Home Office and seeing whether at least one officer, if not more, in every police station has been on a course designed to equip them with the skills to communicate effectively with a person with autism?

The noble Lord, Lord Addington, made an important point about training in the criminal justice system. Perhaps the noble Lord, Lord Faulks, can tell us what he understands the Crown Prosecution Service does to communicate and deal with the needs of people with autism it comes into contact with. Is any discussion taking place with the legal professions to ensure that they have an appropriate appreciation of the condition and of how people with the condition need to be communicated with? My noble friend Lord Ponsonby of Shulbrede made an excellent contribution highlighting what happens when a person with autism appears in a magistrates’ court and the problems that delays and other issues cause them.

The autism alert card produced by the National Autistic Society is a useful initiative and can help people when dealing with someone with the condition, although I understand the point that the right reverend Prelate made in that respect. I do not intend to comment on the Faruk Ali case as IPCC proceedings are under way. In conclusion, I again thank my noble friend Lady Uddin for raising this important matter in the House today.

Property Boundaries

Lord Kennedy of Southwark Excerpts

Thursday 15th January 2015 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, I start my remarks by thanking and paying tribute to the noble Earl, Lord Lytton, for putting down this important question for debate today. In preparing for this debate, I read a number of very useful documents that gave sensible and practical advice on dealing with property boundaries. The overriding theme I picked up was the importance of discussion and communication with your neighbour, and of seeking to find a solution on a reasonable basis. The last place that anyone should want to find themselves in seeking to deal with these matters is a court of law. That, in my opinion, is very sensible advice. Every now and again a case is reported in the media in which a boundary dispute got completely out of hand, and both sides became involved in expensive litigation which cost far more than the worth of the boundary they were actually arguing about. This is, of course, in addition to the stress and anxiety people suffer in dealing with such matters.

In his remarks to the Grand Committee, the noble Earl highlighted the point that in many cases the boundaries for registered and unregistered properties are poorly defined. That is where the problems start. Relying on the Land Registry against a backdrop of Ordnance Survey mapping of the general position of the boundary may not provide the detail required to resolve the problem. I am an elected member of Lewisham Council, and at a recent planning committee meeting which discussed an application for an extension to a resident’s house it emerged that most of the garden was actually owned by Lewisham Council, which owned a long strip of land that went through a number of gardens behind properties. No one seemed to have any idea why the council owned the land or for how long it had owned it, but own it it did. It was not a huge problem in that case, but it illustrated to me how in many cases property boundaries can be ill defined and that, as the noble Earl said, can bring significant difficulties.

Clear boundaries are important, and it is good advice to get the boundaries of your property clear with your neighbours. As I said, and as the noble Earl mentioned earlier, relying on a Land Registry guarantee of title is not the protection that some people think it is. The noble and learned Lord, Lord Hope of Craighead, usefully outlined the position in Scotland. Not for the first time, we could learn valuable lessons from how property law operates in Scotland. To resolve any dispute, speaking to your neighbours is of paramount importance, as is not taking action that would be seen as inflammatory, such as submitting a planning application or using any other means to reclaim land. Reaching an amicable solution to the dispute is in the interests of all parties.

Problems can occur when boundaries are not clear or have become confused over time. Hedges, fences, stone walls or other physical barriers might not be the actual boundary at all but have become seen as the boundary. As I said earlier, minor disagreements can quickly escalate into major disputes involving solicitors and expensive litigation. When agreement cannot be reached between the parties themselves, the objective should be to resolve the dispute at the lowest common denominator. For example, that could involve chartered land surveyors or chartered surveyors who specialise in boundary work making an expert determination. That could be legally binding on the parties concerned if they agree that it is to be so. There are a number of advantages to this method, which is confidential, speedy, cost effective and final, but actually this procedure is not very popular or often used. I am not sure why that is. Perhaps it is because people are not aware of it, and by the time that professional people get involved lawyers are often needed, as it has come to a court action.

As with other disputes it is possible to go through a process of mediation, by which a settlement is negotiated between the parties that they can live with. However, for this to work there has to be a willingness to negotiate. That involves give and take, and being prepared to enter into the process with an open mind about the discussion and the options for reaching a solution. It is possible that at the end of a mediation process one party will feel that the outcome is unsatisfactory, but if people enter the process with an open mind it can resolve matters. It is also worth noting that the advantages of mediation are that the parties arrive at the agreement themselves, and in reaching that agreement hopefully get a better understanding of the position of the other side.

Moving on from these ways of seeking agreement, people can often find themselves at the land registration service of the Tribunals Service, the county court or the High Court, in certain circumstances. All those options begin to cost quite a lot of money. It does no good to enter into disputes before courts and tribunals that, in the end, cost more to resolve than the value of the land or boundary in question.

The Government need to act on this, and the noble Earl, Lord Lytton, has made the case today with a sensible solution to the problem before us. We need an effective link between the public and the Land Registry so that, where required, the position of boundaries can be formally established and recorded without recourse to litigation of the type I outlined earlier.

As the noble Earl suggested, to achieve that there should be a system of notification of a boundary proposal to neighbours which, if disputed or ignored, would trigger a dispute resolution system backed by a requirement to register the outcome with the Land Registry as a formal determined boundary. It would be similar to the process that operates under the Party Wall Act 1996. It would ensure that the vast majority of boundary disputes were removed from the courts, but without in any way preventing an appeal in appropriate cases. We have only to look at how many party wall cases are appealed to the courts to see the effectiveness of such a measure.

In conclusion, I again thank the noble Earl for raising this issue and I look forward to the response of the noble Lord, Lord Faulks.

Transfer of Tribunal Functions (Transport Tribunal) Order 2014

Lord Kennedy of Southwark Excerpts

Tuesday 13th January 2015 Grand Committee

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

My Lords, I will refer to this order as the transfer order. The purpose of the order is to transfer the quality contract scheme jurisdiction of the Transport Tribunal into the Upper Tribunal. The Transport Tribunal currently sits outside the unified tribunal structure. Most of the jurisdiction of the Transport Tribunal was transferred to the First-tier Tribunal and the Upper Tribunal in 2009. However, the Transport Tribunal could not be abolished at that time as it remained necessary to hear appeals resulting from proposed quality contract schemes, introduced by the Transport Act 2000, as amended, and to hear appeals under the Transport (Scotland) Act 2001 for bus timetabling.

Article 2 of the order transfers the functions of the Transport Tribunal that relate to quality contract schemes to the Upper Tribunal. Schedule 1 makes consequential amendments to the Transport Act 2000, and Schedule 2 contains transitional and saving provisions. Transitional provisions ensure that if any existing case were to start before this order is approved, it would start in the Transport Tribunal and would not be adversely affected by the transfer. A case that has begun but is incomplete will be determined by a panel comprised of the same judicial members. Directions and orders made by the Transport Tribunal prior to the order coming into force will continue in force as if they were directions or orders of the Upper Tribunal.

Under powers in the Transport Act 2000, local authorities are able to determine local bus services by establishing a quality contract scheme, which suspends the deregulated bus market in a defined area and specifies what bus services will run in that area. Other than specific exceptions, no other bus services are then permitted. Before doing so, the authority must undertake a consultation exercise with affected parties. If the local authority wishes to pursue a quality contract scheme after consultation, its final proposal must satisfy a public interest test that involves the proposal being examined by a quality contract scheme board chaired by a traffic commissioner, who determines whether the making of a quality contract scheme by the local authority is the only practical way of implementing its transport policy in the area in an economic and effective manner. Statutory consultees currently have a right of appeal to the Transport Tribunal, as does the local authority.

Why are the Government taking this action? Integrating the quality contract scheme jurisdiction into the unified tribunal structure will provide the flexibility to utilise the pool of Upper Tribunal judges and panel members who already have the necessary expertise in the law of their jurisdiction to hear transport-related appeals as the need arises. The Senior President of Tribunals could ticket appropriate judges to hear the quality contract scheme cases.

Although it would still be necessary to retain the Transport Tribunal to deal with any potential appeals under the Transport (Scotland) Act 2001 for bus timetabling, it is expected that these will be transferred to a suitable devolved tribunal in Scotland in due course via secondary legislation made under the Tribunals (Scotland) Act 2014, once the necessary structures are in place.

The Government are committed to the ongoing transformation of our tribunals, placing the user at the heart of the service. This order further implements the legislative changes enacted by the Tribunals, Courts and Enforcement Act 2007 by transferring the quality contract scheme jurisdiction of the Transport Tribunal into the Upper Tribunal. The Government believe that the transfer of the quality contract scheme jurisdictions to the unified tribunals structure will benefit all users of the jurisdiction who seek judicial redress and will provide access to a more coherent, swift and responsive system. I therefore commend this draft order to the Committee.

[Lord Kennedy of Southwark (Lab)]

My Lords, I have no wish to detain the Grand Committee any longer than necessary. I have no issues with the order. As the noble Lord said, the transfer of the functions of the Transport Tribunal which relate to the quality contract schemes to the Upper Tribunal is another step along the way to a unified tribunal service which, as the Minister said, came from the previous Government which put the Tribunals, Courts and Enforcement Act 2007 on the statute book.

Will the Minister tell the Grand Committee why the Government opted for the Upper Tribunal as the preferred outcome, which was suggested by a number of responders, including local authorities, rather than the First-tier Tribunal, which was the bus operators’ proposed option? The hybrid option was ruled out by the Government, which was sensible and right as it would not provide clarity but would have caused confusion. I note that two schemes are going to come forward. I will not make a joke about two coming at once on the day of the bus strike but will leave it there.

[Lord Faulks]

I am grateful to the noble Lord for his support for this proposal. As he rightly said, this is pursuant to the previous Government’s attempt to bring all the tribunals under one umbrella.

In answer to his question about why the Upper Tribunal of the unified tribunal system was chosen to hear quality contract scheme appeals rather than the First-tier Tribunal, the Upper Tribunal was considered the appropriate appeal designation to hear these appeals as it would avoid two rounds of appeal within the tribunal system, which could unduly delay the implementation of schemes where they are in the public interest.

Taken together, the quality contract scheme board and the other tribunal will provide two levels of independent scrutiny and will utilise the existing Upper Tribunal judges and panel members, who already have the necessary legal expertise, to hear these transport appeals. There will also of course be an onward right of appeal on a point of law and exercisable only with the permission of the Court of Appeal, which provides an additional safeguard.

This instrument supports the Government’s continuing commitment to implement the provisions of the 2000 Act and to provide a unified tribunal structure to meet the needs of users. In those circumstances, I commend this draft order to the Committee.

Youth Justice Board for England and Wales (Amendment of Functions) Order 2014

Lord Kennedy of Southwark Excerpts

Tuesday 13th January 2015 Grand Committee

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

My Lords, the order before us today amends the Youth Justice Board for England and Wales Order 2000, which was made under Section 41(6) of the Crime and Disorder Act 1998. The order gives the Youth Justice Board for England and Wales—the YJB, as it is customarily known—additional functions so that it can more effectively and efficiently fulfil its statutory role to oversee the operation of the youth justice system in England and Wales.

This draft order deals with four provisions. These relate to the YJB’s grant-making powers, its role in the temporary release of young people from secure training centres, its power to commission education provision in young offender institutions and its ability to assist in the development of IT systems underpinning the youth justice system. I will briefly describe for the Committee the effect of each provision and our reasons for making these changes.

The first provision, set out at Article 2(c), extends the scope of the YJB’s function to make grants to local authorities and other persons, allowing it to respond more effectively to the evolving needs of local youth justice services. The YJB’s current grant-making function dates from when the board was established by the Crime and Disorder Act 1998. At present, the board, subject to the approval of the Secretary of State, may provide grant funding to local authorities and other bodies for the purposes of developing good practice and commissioning research on issues affecting youth justice. One such example of a grant provided by the board is the annual youth justice good practice grant made to all youth offending teams in England and Wales.

At the time of the establishment of the YJB and local youth offending teams, the scope of the board’s grant-making powers was appropriate. However, the Government’s triennial review of the YJB, laid before Parliament in November 2013, concluded that the purpose of the grant-making power was now outdated and limited. This order acts on the review’s recommendation by widening the YJB’s powers so that it can make grants to local authorities and others for the purposes of the operation of the youth justice system and the provision of youth justice services. This will increase the scope of services for which the grant money can be used, thereby better responding to the evolving local priorities of youth justice and promoting improved front-line delivery.

Noble Lords may well be aware that at the same time as we are seeking to broaden the YJB’s powers to make grants to local authorities, we are also conducting a stocktake of youth offending teams, or YOTs. The aim of this stocktake is to establish a clear picture of how YOTs are operating and to make sure that we are providing the best support possible to young people and their communities. While the details of the stocktake are being finalised, we nevertheless believe that now is the right time to amend the board’s grant-making powers so that funding can be better targeted to the evolving needs of youth justice services locally and that there should be no delay in bringing about this important reform.

The second provision, set out at Article 3(3)(a) of the draft order, gives the YJB a new power, concurrent with the Secretary of State, to release young people temporarily from secure training centres—STCs—a form of youth custody. Where young people are risk-assessed as suitable for temporary release without compromising security or public protection, permission will be given for them to leave the establishment for an agreed period to undertake constructive activity with the aim of supporting their effective resettlement in the community after release. Temporary release from custody can be used to enable young people to attend interviews and training courses or to arrange accommodation ready for their release. Making more effective use of temporary release to support resettlement is an objective of the Government’s Transforming Youth Custody programme.

At present, the process of temporary release from STCs is overseen by a combination of the National Offender Management Service—NOMS—on behalf of the Secretary of State and the directors of STCs. As it is the YJB rather than NOMS that is responsible for commissioning and monitoring the delivery of youth custodial services in STCs, we believe that the board is better placed to oversee the temporary release process. This instrument will enable the board to release trainees from STCs temporarily. Under this proposal, STC directors, in conjunction with youth offending teams, will assess a young person’s suitability for temporary release and submit applications for the YJB to approve. The YJB’s expertise and knowledge will ensure that there is greater consistency in the use of temporary release and that activities properly balance the benefits to the young person with public protection considerations.

The third provision, set out at Article 3(3)(b) of the draft order, has also arisen from the Government’s Transforming Youth Custody programme. In line with our aim to put education at the heart of youth detention so that young offenders can equip themselves with the skills to lead productive, crime-free lives, the provision gives the YJB a concurrent power with the Secretary of State to contract for the provision of education in directly managed young offender institutions.

The YJB currently commissions custodial provision in YOIs from NOMS, while the education provision in these directly managed establishments is commissioned and managed by the Education Funding Agency, an executive agency of the Department for Education which manages funding to support all state-provided education for children and young people up to the age of 19. The result of having separate commissioners of custodial and education provision in YOIs is a lack of integration between the two services. As a consequence, young people in YOIs receive an average of only 12 hours’ education a week, with classes frequently disrupted to facilitate appointments and other interventions.

Giving the YJB the power to commission and manage the provision of education in directly managed YOIs will promote the more effective integration of custodial and education services by creating clearer and stronger accountability arrangements. The board has considerable experience in commissioning and managing contracts in the youth custodial estate, and this change will ensure that the new education contracts in YOIs, which we announced in December and which will more than double the number of hours that young people spend in education, will be robustly managed and better meet the needs of young people.

The final provision, set out at Article 2(c) of the draft order, is intended to enable the YJB to make the best use of its skills and knowledge of the information technology systems used in the youth justice system. The provision will enable the board to provide assistance to local authorities and others in relation to the development, management and maintenance of IT systems. Youth justice IT systems are in place to facilitate the flow and management of information between local authorities, youth custodial establishments, the YJB and others who work directly with children and young people. This exchange of information, and the IT systems that underpin it, are therefore vital.

The important role that the board plays in overseeing the operation of the youth justice system means that it is highly knowledgeable about the needs and requirements of these information technology systems and their users. The board ought therefore to be in a position to assist local authorities, the Secretary of State and others to make adjustments to these systems to fit the evolving requirements of the youth justice system. This draft order will give the board a clearer remit to assist local authorities and others, such as IT suppliers, in the development, management and maintenance of these systems. For example, the YJB would be able to help local authorities co-commission services from case management suppliers.

As a whole, the provisions in this draft order will enable the YJB to discharge its functions more effectively, thus improving the overall operation of the youth justice system. Our intention is to give the YJB the powers it needs to tackle offending and reoffending by young people. The challenges the board faces now are not identical to those it faced when it was established in 1998, and it is right that we amend its powers to reflect this. Fewer young people are entering the criminal justice system and fewer are ending up in custody, which I am sure is welcomed on all sides. These are significant achievements, and this draft order will ensure that the YJB is able to continue building on this success while supporting new approaches to tackling what can be stubbornly high reoffending rates. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Lord, Lord Faulks, for setting out the details of this order for the Grand Committee to consider this afternoon. As the noble Lord explained, the order both amends the functions of the Youth Justice Board for England and Wales and grants it new powers. Of course, we can look back to earlier in this Parliament when the Government were talking about the bonfire of the quangos and the Youth Justice Board was firmly in their sights. Thankfully, we on these Benches saw off that threat and now the noble Lord’s predecessor, the noble Lord, Lord McNally, is the chair of the Youth Justice Board—how things change!—and we wish him well.

I would like to put on record my thanks to the Youth Justice Board for the work it does in England and Wales and its many achievements. I have a number of points to make and a few questions for the noble Lord. First, I welcome the proposals to extend the ability of the Youth Justice Board to award grants to local authorities or other bodies working in the youth justice system. Will the Minister say something about the level of funds that are going to be available to make grants from? Is there any new money here or is it just new powers and grants from existing budgets, with no new money?

Secondly, the order gives the Youth Justice Board the new function of assisting other relevant bodies with IT support. Anything that involves IT always worries me as I have seen so many things go wrong due to poor planning, poor procedures and problems around IT. The words “overpromise” and “underdeliver” are usually in my mind when it comes to IT projects. Will the noble Lord tell the Grand Committee a bit more about what is planned here? What assurances can he give the Grand Committee about the protection of data? These are people’s data and, in this case, young people’s data. How can we be assured that these data will be protected and kept secure? Will the Youth Justice Board have the necessary funds to ensure that this important function is done properly?

I welcome the proposal to allow the Youth Justice Board to enter contracts for the provision of education in young offender institutions. Good quality education and purposeful activity for the young people held in these institutions is of paramount importance and more must be done in this area. Will the noble Lord tell the Grand Committee how he sees standards being improved in the coming period? There are lots of data and other pieces of evidence about the education level achieved and the number of people who suffer from some form of learning difficulties going through the criminal justice system. It is essential that educational achievement is improved as part of rehabilitating these young people—I am delighted to hear that fewer young people are going through the system now—so that they can return to make a proper contribution to society and not be in a revolving door in and out of these and similar establishments. With those points, I am happy from these Benches to support the order.

Compensation (Claims Management Services) (Amendment) Regulations 2014

Lord Kennedy of Southwark Excerpts

Tuesday 25th November 2014 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, I say at the outset that the Opposition very much welcome what is proposed today. Since joining your Lordships’ House in June 2010, I have regularly raised the question of claims management companies and the end of the industry that indulges in bad practice. I also want to start by paying tribute to the work undertaken by the claims management unit at the MoJ, led by Kevin Roussell. It does a really good job with limited resources and the regulations will be another important tool in its box to deal with bad practitioners who rip off consumers and cause unnecessary costs for businesses to which they submit claims.

What is most reprehensible is submitting pointless, vexatious claims to financial services providers with which their client has no record of doing business. That is done as a fishing expedition on the off chance that they may get lucky, with no regard to the cost to the business, the clogging up of the processes in each business and the Financial Ombudsman Service, or to the genuine people who have been ripped off by bad practice in the financial services industry, who will have to wait even longer to have their claim settled.

I must say that I have no problem with the responsible claims management company, which can provide a valuable service to its clients. It can give advice on how to proceed, and as long as its client is aware of the charges to be incurred and is happy to pay them, and the company is properly processing and managing claims, that is fine. Nothing here will concern the responsible claims management company. In the consultation there was broad support for the proposals from all respondents, including the claims management industry, which wants to improve the image of its industry, raise standards and get rid of the rogues.

However, it is important to put on record that CMCs working in this field are dealing with bad practice in the financial services industry. There have been a number of cases in recent years where people have behaved very badly in that industry. I note in the Explanatory Memorandum that the Ministry of Justice does not see a case for consolidation at present. I think that that is probably right. I hope, however, that the department will keep this under review, as things change over time, sometimes very quickly. We may get to the point where the case for consolidation becomes more compelling. If that is the case, the Minister can be assured of support from these Benches. I have no wish to detain the Grand Committee any longer than necessary, and conclude my remarks by again welcoming the proposals.

[Lord Faulks]

I am grateful for the observations of the noble Lord, Lord Kennedy, who has indeed several times in your Lordships’ House raised questions about claims management and the more unattractive habits in which they have been prone to indulge. I am also grateful to him for specifically drawing the Committee's attention to the claims management unit and Kevin Roussell, who runs it. I have visited that unit in Burton-on-Trent. It is a small, efficient, extremely dedicated collection of employees who, I think, have made real progress in improving the industry. Although there are some who wonder why we need claims management companies at all, we are increasingly left with fewer, better regulated and better organised claims management companies who provide a service to clients.

I accept the noble Lord’s point that that there is a need to be nimble and alert, and possibly in due course to consolidate. This is an area where the market changes swiftly, and there has to be a swift response—if necessary, a legislative response—to make sure that changes in market do not bring about unacceptable practices. We feel that the changes embodied in the statutory instrument—the new power to impose financial penalties—which are similar to those of regulatory authorities such as the Financial Conduct Authority and the Information Commissioner’s Office, are an additional and useful adjunct to the existing powers. I hope the Committee will agree that they are proportionate and necessary measures, and in those circumstances, I commend the regulations to the Committee.