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.

Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014

Lord Kennedy of Southwark Excerpts

Tuesday 25th November 2014 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, the three orders that we are discussing today modify the functions of the Chartered Institute of Legal Executives, the Institute of Chartered Accountants in England and Wales, the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys in respect of regulatory matters to the extent necessary to modify their powers under the Legal Services Act 2007, and the one regulation extends the ban on the payment and receipt of referral fees in personal injury cases to include appropriately qualified practitioners who are members of the Charted Institute of Legal Executives.

CILEx is an approved body to award practice rights in the reserved legal activity area and this regulation will be undertaken by ILEX Professional Standards. It also has to have the ability to protect the interests of the public who use the services of its members, and this includes the power both to provide redress in the form of compensation to clients and to be able to intervene into legal practices. The order gives it the required powers to set up a compensation fund and collect the required fees and, secondly, to take appropriate enforcement action to protect the interests of consumers. I agree with my noble friend Lady Hayter of Kentish Town that this is good news for consumers in giving them a wider choice in the marketplace when looking for legal services and in providing the public with proper protection. It is a boost to legal executives seeking to widen the sphere of work that they undertake, particularly unsupervised work, as they can demonstrate that they have proper protections in place.

The order in respect of the Institute of Chartered Accountants in England and Wales provides for appeals to the First-tier Tribunal against decisions made by the institute as an approved regulator and as a licensing authority. It also changes its arrangements and increases its scope for using intervention powers. This again is a sensible measure, and the Opposition have no issues with what is proposed here. Giving consumers uniform protections and rights is in itself a sensible move and works towards improving the efficiency of the regulatory and protection framework for legal services.

The third order makes changes to the regulatory arrangements in respect of the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys acting as approved regulators and, if designated in the future, as licensing authorities. Again, the Opposition have no issue with what is proposed, but I have a few questions for the Minister. In respect of the order relating to CILEx, what work has the Ministry of Justice done to satisfy itself that the Legal Services Board has acted with due diligence in coming forward with this proposal and that CILEx has the range of competences required to undertake these new regulatory powers?

In respect of the order regarding the Institute of Chartered Accountants in England and Wales, what work has the MoJ done to satisfy itself that this order is appropriate and, again in respect of the third order, what specific work has been undertaken in the MoJ to satisfy itself that these measures are proportionate, they deliver the objectives being sought here and those objectives are right in practice?

I have no issues to raise in respect of the regulation adding CILEx-registered practitioners to those banned from the paying and receipt of referral fees.

[Lord Faulks]

My Lords, I am grateful for the contribution to this debate from the noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, who I know broadly welcome all these changes by statutory instrument. I shall deal first with what the noble Baroness said about CILEx. She accurately described this as the next step in rolling out CILEx so that its increased role and activities can be used by more people. She rightly pointed out that many people will go to legal executives rather than spend more money on lawyers. There is increasing confidence in the standard of advice that they are giving. I have been to a number of events of theirs, and it is a profession that is in good health. The noble Baroness is also right to point to the range of diversity among their number. Although my figures do not precisely coincide with hers, as there were some CILEx members who chose not to provide information, I confirm that on the figures that the MoJ has, 74% of CILEx members are women and there is a higher than usual percentage of members from black and minority ethnic backgrounds—certainly not less than 16%, which is encouraging.

The noble Lord, Lord Kennedy, asked whether the Government were satisfied that CILEx had put effective and appropriate arrangements in place generally for these arrangements. He will appreciate that under the Legal Services Act 2007 the Legal Services Board was set up as a super-regulator. It was his Government who brought in that legislation, and it is not for the Government to regulate the regulator who then regulates the regulator, so we have to be satisfied that the Legal Services Board is in fact doing its job. Of course, as with all arm’s-length bodies, it is regularly reviewed.

The Ministry of Justice analysed each application made to it by the Legal Services Board before the Lord Chancellor agreed to make the specific orders that are before the Committee today. That included looking at the underlying regulatory framework. I can assure the noble Lord that that additional step was taken. The Ministry of Justice has to be satisfied with the overall framework of regulation that exists in relation to all these professions, whether it is legal executives or trade mark and patent attorneys. The Government are satisfied that effective and appropriate arrangements have been made in respect of the regulation and authorisation of CILEx members, and indeed in relation to compliance with the Legal Ombudsman, although the noble Lord did not specifically ask me about that.

The intention, by setting up the compensation fund and giving rights to intervention, is clearly to put such professionals in the same, more established position applying elsewhere and to provide additional security for consumers. That has been done, in so far as one can ever be 100% sure of these things.

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.

Divorce (Financial Provision) Bill [HL]

Lord Kennedy of Southwark Excerpts

Friday 21st November 2014 Lords Chamber

[Baroness Deech (CB)]

My Lords, I will speak also to the question of whether Clause 6 stand part of the Bill. All these amendments, starting with this one, have at their heart the protection of children and assistance to middling and lower income families, who are facing terrible problems now that legal aid has been removed from assistance in divorce law, and with the exceedingly high number of divorces that we have every year.

The law needed reform anyway, but the urgency that now arises comes from the removal of legal aid. Only this week, the Bar Council reported an 88% increase in the number of people having to represent themselves in the courts. Throughout the Bill, I am trying to provide a framework that is just but which also promotes autonomy, clarity and entitlement. Given that legal aid has been removed—and I do not envisage an improvement in that situation for years to come—we have to help the poor families who are struggling at one of the worst moments in their lives with something expensive and complicated. Noble Lords will all have seen the accounts of cases in which couples have assets of, let us say, £1 million—not so difficult if you have a house—half or three-quarters of which goes on lawyers’ costs because they cannot reach an agreement; they have no firm framework within which to do so.

This first amendment emphasises what was implicit—it would now make it clearer—that the Bill is not meant to affect the existing provision for children, let alone make it worse. This amendment has the effect of retaining untouched Section 25(1) of the Matrimonial Causes Act 1973—note that this House has not revisited that law since 1973—and retains a provision that in dealing with finance after divorce the interests of children under 18 are the first consideration for the court. They are not “paramount”, which is an even stronger word that is used as regards decisions about their residence.

There is of course scope in the Bill, as there has been previously, for the matrimonial home to be preserved for the use of, let us say, the mother and young children until they reach majority, even if a half share has already been allocated to the father but its realisation or liquidation postponed. From that follows the deletion of Clause 6, which spelt that out in a different way. This amendment also serves to preserve Section 25A of the Matrimonial Causes Act—the desirability of the clean break.

We are not talking about child maintenance as such, because there is a new Child Maintenance Service, successor to the Child Support Agency, and that law will continue as ever. I might also add at the beginning for clarification that the noble and learned Baroness, Lady Butler-Sloss, who cannot be in her place today, supports this, and the noble and learned Lord, Lord Mackay, has specifically authorised me to give his view to the House. He says:

“I support your Bill and support the amendments. I think it vital that the law should contain a provision setting out a generally suitable formula for the division of the assets of a divorcing couple that would guide them without recourse to the courts. It would not harm this concept that a discretion should be available to the court to depart from it on cause shown”.

In fact, a general consensus is building up through the courts that something must be done about this law. It is for the run-of-the-mill divorcing couple who can no longer afford legal representation. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I am sure that the House is very grateful to the noble Baroness for bringing forward this Bill for consideration, and I hope that we can make progress today through the Committee stage. I am supportive of what the Bill seeks to do. It is a fact that relationships break down, and proposals to make financial settlements between parties as simple as possible, enabling both parties to retain a greater proportion of their assets, are to be welcomed. As the noble Baroness has explained, this group of amendments seeks to leave untouched Section 25(1) of the Matrimonial Causes Act, which makes it clear that the interests of the children are the first consideration when dealing with finances after divorce. It is also proposed in this group, as a consequence of that amendment, that Clause 6, which dealt with children, should no longer stand part of the Bill, as it would be confusing and could conflict with provisions already in place. These are very sensible amendments, which I hope will find favour with the Government.

--- Later in debate ---

[Baroness Deech]

My Lords, in moving Amendment 2, I speak also to Amendments 3, 4, 20A, 21, 22 and 26. What the amendments in this group have in common is that they are minor and technical. I had great assistance with the drafting of this Bill over the summer, as your Lordships will have noticed, and these amendments arise from the refinement of the drafting as it took place in reaching the final state of the amendments.

Amendment 2 is simply a correction, while Amendment 3 is a clarification. Amendment 4 ensures that this law, as I hope it will turn out to be, applies equally to civil partnerships and same-sex couple marriages. Clearly, a new law must apply to all different sorts of couples, whoever they are, who may go through the courts. Amendment 20A has come about simply because there has been a redraft. Amendments 21, 22 and 26 arose from the fact that there has been a preservation of flexibility of lump sums in distribution of property. This entire group is technical. I beg to move.

[Lord Kennedy of Southwark]

My Lords, this is an important technical group of amendments, which follow on from the previous group in clarifying that the provisions of Section 25(1) of the Matrimonial Causes Act remains in force and that we are referring only to subsection (2), for all the reasons that noble Lords gave in the previous debate, along with Amendment 3, which again makes it clear that we are referring to the Act in the amended form. The addition and clarification of the 2004 and 2013 Acts, as the noble Baroness advised the House, will clarify that the new law will apply to civil partnerships and same-sex couples, but not to cohabiting couples, who are the subject of a different Bill, to be introduced by the noble Lord, Lord Marks, which will have a Second Reading shortly.

The second part of the group removes subsections 5(1) and (2), which deal with the issue of periodical payments, discussed during the Second Reading debate in your Lordships’ House. They seek to address an issue that everyone recognises needs to be looked at; on these Benches we were concerned that there appeared to be a one-size-fits-all approach. In a later group, we will look at amendments that seek to take on board concerns expressed in the Second Reading debate and elsewhere.

Amendments 21, 22 and 26 make clear the divide between lump sum payments and ongoing periodical payments.

[Lord Faulks]

My Lords, I shall speak briefly to this group of amendments. As the noble Baroness said, a number of these are technical or drafting improvements on which I need not detain the House; I have only these brief comments of substance to make.

I acknowledge the noble Baroness’s intention to limit the potential for litigation under this Bill through her amendments. Amendment 20 is consequential to the removal of paragraphs (b) and (d) of Clause 4(7). It removes the provisions on the making of periodical payments and the duration of such periodical payments and the requirement for the court to consider whether a lump sum payment would be sufficient to meet the needs of the person concerned; it also removes the restrictions and duration limits on the court when making orders for periodical payments, for which the existing subsection (1) of Clause 4 provides.

Amendments 21 and 22 remove from Clause 5 references to lump sum payments as an alternative to periodical payments in Clause 5, and Amendment 26 removes a reference to a lump sum order as an alternative to an order for periodical payments. The Government welcome the greater flexibility for payment of periodical sums provided by these amendments.

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[Lord Kennedy of Southwark]

My Lords, this next group of amendments, or one amendment and one clause stand part, seeks to improve the Bill from its original form, taking into account matters brought out on Second Reading. I think that all noble Lords who spoke in that debate thought that the Bill was seeking to address issues that had not been addressed for far too long, so what we are seeking to do here today is very welcome. Amendment 5 in the names of the noble Baroness, Lady Deech, my noble friend Lord Grantchester and the noble and learned Lord, Lord Walker of Gestingthorpe, sets out clearly what a relevant financial order is so that there can be no ambiguity about it. As the noble Baroness, Lady Deech, said, lump sum orders are also included as they may assist in providing flexibility in dividing up total assets. The noble Baroness, Lady Deech, is opposing that Clause 2 stand part of the Bill, as there are amendments down that better define what is sought to be achieved here. If agreed, those amendments will be an improvement to the Bill as it is presently drafted. I can see the logic here and the clarification that that brings.

[Baroness Deech]

My Lords, I wish to say simply that of course the noble and learned Lord, Lord Walker, is right—that is why he is learned and I am just a noble Baroness and not learned. However, my point is that this House has not revisited the principles of financial provision on divorce in more than 40 years, despite all the changes in society and all the things that have happened—the changes in the position of women, women going out to work and the rise in divorce. It is really crucial to do so now because of the removal of legal aid and the need to help those who mediate and arbitrate and give them a starting point. The Government favour mediation yet there has been a decrease in the use of mediation. How can people mediate if they do not know what the starting point is? To mediate means to find a middle way, and therefore we need a parameter. That is why we are trying to clarify this law.

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[Baroness Shackleton of Belgravia (Con)]

My Lords, I rise to thank the noble Baroness, Lady Deech, for bringing in the Bill and to declare my interest as a practitioner in matrimonial law for 30-plus years. I am grateful to the noble Baroness because the Bill is overdue and much needed. It provides some clarity and simplicity for those of us who operate in the field, at the moment without proper statutory guidance. It is vital that the matters that she is addressing are put forward for debate, and reform is long overdue.

The simplicity behind the Bill is wonderful. It applies not only to what happens when things go wrong and people get divorced but to the drafting of prenuptial agreements, which is practically impossible if one does not know what is going to happen at the other end if a marriage, civil partnership or same-sex marriage is dissolved. Such agreements are become increasingly fashionable, despite the fact that there is nothing in Section 25 of the 1973 Act about the enforceability of prenuptial agreements. The courts are therefore enforcing them in circumstances that they think may or may not be fair. There is no official guideline from Parliament as to how they should be enforced.

There should be a purer definition of what people can expect upon the breakdown of a marriage. This is not for rich people who can afford to spend a small percentage of their money litigating matters. They can have the luxury to do what they want, like they can in everything else. This is for the average person who goes into a marriage trying to protect the assets that they previously acquired and knowing what they are going to end up with, should it break down. I welcome these amendments and the Bill. I thank the noble Baroness very much indeed for introducing it.

[Lord Kennedy of Southwark]

My Lords, this amendment in the names of the noble Baronesses, Lady Deech and Lady Wilcox, my noble friend Lord Grantchester, and the noble and learned Lord, Lord Walker of Gestingthorpe, and the other amendments in the group—namely, Amendments 14, 15, 15A, 16, 18 and 19—deal with matrimonial property, an issue central to the Bill.

The new clause proposed by Amendment 6 is detailed and, as we have heard from the noble Baroness, Lady Deech, and the noble and learned Lord, makes it clear that the split of assets on divorce should be limited to property acquired after marriage by the couple. The family home will be treated as matrimonial but property, gifts and inheritances acquired before the marriage will not be matrimonial or available for sharing.

I very much see the point that without the certainty that the proposed new clause aims to give, couples run the risk of spending vast sums of money fighting over the division of assets and thereby reducing the assets that they are left with. As the noble Baroness, Lady Deech, said, to reduce costs we need to make things simpler and clearer for divorcing couples. These are welcome amendments that seek to do just that. I also associate myself with the comments of the noble Baroness, Lady Shackleton of Belgravia, in thanking the noble Baroness, Lady Deech, for bringing forward the Bill.

[Lord Faulks]

My Lords, the amendments in this group would provide greater clarity about how the court is to approach the making of orders dividing matrimonial property on divorce. Clarity and a degree of certainty are clearly desirable. Against that, one has to weigh the need for flexibility, with the possibility that flexibility can sometimes bring fairness that certainty precludes. I am very grateful for the way in which the group was introduced by the noble Baroness, and indeed for the elaboration by the noble and learned Lord, Lord Walker of Gestingthorpe. He explained with great lucidity the attempt to improve upon the Scottish definition to deal with the problems of portfolios and the like, which may change and therefore change their character in legislative terms.

The proposed new clause seeks to define matrimonial property as property acquired “during the marriage”, rather than property owned before the marriage by either party, or property received as a gift during the marriage. Its intention is to clarify the definition of matrimonial property, which, under the terms of the Bill, will be the only property in respect of which financial orders can be made on divorce, except where there is a significant additional contribution by one party, or if the property has increased in value. The noble and learned Lord described what is meant by a significant additional contribution.

Matrimonial property would normally be divided equally between the parties. The Government have concerns over the definition of “matrimonial property” and the rigid equal division of matrimonial property, as the definition may be unfair in many cases: an equal division of property is rarely found in most ancillary relief cases, due to the lack of assets of the family, and the needs of the children and of the family. If the provisions of the Bill were to be taken forward we would need to define matrimonial property extremely carefully to ensure that any division was fair.

Existing provisions for division of property on divorce give the court a wider discretion to divide property and determine who should have which assets, in the context of the needs of the family. That enables the court to seek to achieve fairness in all the circumstances. The Government are not convinced that the certainty that the Bill and these amendments intend to provide would not come at too great a cost in rigidity. Therefore, the Government believe that the definition of matrimonial property in the Bill is problematic and, I fear, continue to have significant reservations about it.

Amendment 14 is in a different category. It would clarify the date on which the net value of the matrimonial property is to be valued. Instead of the “relevant date” described in Clause 4(4), the valuation is to be made on the date of the relevant financial order made by the court. This provides a clear and unequivocal date for the valuation: the date on which the property is divided. Consequentially, Amendment 15 removes the definition of the date at which the matrimonial property is valued in Clause 4(4). That is clearly desirable.

Amendment 17 would insert a new subsection into Clause 4, describing how a lump sum order is to be taken into account on the division of property on divorce. A lump sum payment is to be taken into account as part of the equal sharing of the matrimonial property, irrespective of the assets used to pay the lump sum. The amendment clarifies the position as to how lump sum payments are to be taken into account.

The Government welcome the greater clarity that would be introduced into the Bill, but as I have indicated remain concerned about the lack of flexibility for the court to determine how to divide property on divorce, and about the fact that the provisions in the Bill apply only to matrimonial property, allowing no flexibility for the court to consider what might be fair to the parties of a marriage in particular circumstances. I acknowledge the noble Baroness’s intention, through her amendments, to limit the potential for litigation under the Bill. The Government and all noble Lords are particularly aware of the unsatisfactory nature of the law, in the sense that it can so often lead to protracted disputes.

Amendments 18 and 19 concern Clause 4. They would remove paragraphs (b) and (d) from Clause 4(7), so that, under the Bill, the court would no longer have to take into account the source of funds not derived from the efforts of the parties during the marriage when making an unequal sharing of the matrimonial property—nor would the court have to take into account the nature and use of the matrimonial property in such circumstances.

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[Baroness Deech]

My Lords, it might surprise the noble Lord, Lord Cormack, to know that I am absolutely with him on the importance of marriage. I have spent much of my academic career writing about it in an atmosphere where I was almost a lone voice. I am with him all the way. I wish there was more we could do about it without being accused of claiming the moral high ground and so forth.

Nevertheless, I have studied the situation and realised, as the noble Baroness, Lady Shackleton, pointed out, that this is going on. The Supreme Court has recognised it. It is for this House to grab a hold of it. We should grab hold of all this law, which has been interpreted and elasticised and twisted around by the judges for 40 years without this House getting a grip on the principles. Now is an opportunity to recognise that we are where we are with 100,000 couples divorcing every year, leaving aside the many more breakdowns of cohabitation—and possibly in the future, civil partnerships and the relationships of same-sex couples who have not turned up in the statistics yet. My heart is absolutely with the noble Lord.

[Lord Kennedy of Southwark]

My Lords, this group of amendments starting with Amendment 7 in the names of the noble Baronesses, Lady Deech and Lady Wilcox, and my noble friend Lord Grantchester are all to Clause 3, which concerns prenuptial and post-nuptial agreements.

I see the arguments made that these agreements, which were not very common a few years ago, are on the increase and can provide certainty to both parties as to the division of assets in the result of a breakdown of the relationship. I recall the comments of the noble Lord, Lord St John of Bletso, when he told us at Second Reading that these agreements had in no way encouraged the breakdown of marriage. Also, the noble Baroness, Lady Wilcox, spoke about people who had been widowed or divorced and were afraid to marry again where there were assets they wished to protect and who were reluctant to commit again, fearing a potentially financially disadvantaged position at a time of life when starting again would be almost impossible. The noble Lord and other noble Lords spoke about this again today.

The amendments themselves seek to provide further clarity as to what this Bill seeks to do in respect of pre and post-nuptial agreements and build on the comments and points raised both inside and outside your Lordships’ House.

[Lord Faulks]

My Lords, this has been a useful and instructive debate on this interesting and significant area. There are those who retain great faith in the institution of marriage. The noble Baroness herself said that, and I for one see no tension between thinking that and nevertheless being of the view that it is important there should be some sensible provision about prenuptial agreements. Her student may have been anticipating a trend by suggesting going to a lawyer almost immediately, in the heady days of announcing her engagement. A number of popular songs that suggest going to see the preacher at that juncture may have to be amended to reflect this different approach.

These amendments all relate to this clause. Amendment 9 changes the threshold of the duty of disclosure placed on both parties for the prenuptial or post-nuptial agreement to be binding on both parties. The Bill currently requires that the parties fully disclose their assets before the agreement will be binding on them and this amendment would require only “proper disclosure”.

Amendment 7 corrects the omission of the requirement in the Bill for a prenuptial or post-nuptial agreement to be made in writing. I recall that that point was specifically drawn to the House’s attention by the noble and learned Lord, Lord Scott of Foscote, at Second Reading. As the noble Baroness said, this is an essential prerequisite and a key feature of the recommendations made by the Law Commission.

The intention is clearly to protect people entering into prenuptial agreements by imposing the formality of a written and signed agreement. However, the Government have already indicated that we have reservations about the lack of flexibility in the Bill for the court to override an agreement that is unfair or does not adequately provide for “needs”. This is especially so given that people often enter into a prenuptial agreement at a point when they are not as realistic about events, sadly, as they should be.

The Government has yet to consider the detailed proposals for binding matrimonial property agreements put forward by Law Commission in its report on Matrimonial Property, Needs and Agreements. We have informed the commission that a final decision on the proposals should be made by the new Government after the election. However, the Government would not seek to oppose this amendment to the Bill.

The requirement under the existing divorce process is for both parties to make,

“full, frank, clear and accurate”,

disclosure of their assets using form E. We have concerns that undefined “proper” disclosure would be open to interpretation and offer scope for possible hiding of assets in a way that the current requirement is designed to avoid.

Amendment 8 amends the formulation of subsection (1) of Clause 3 and, if I have understood it correctly, is intended only to tidy up the drafting and not to change its substantive effect. The amendment seeks to replace the words,

“binding on the parties and is to be given effect unless”,

with “binding on them unless”. However, I believe that normal legislative drafting convention means that the effect would be to omit the crucial word “unless”, which is necessary to apply the conditions set out in paragraphs (a) to (e) of subsection (1).

Amendment 11 inserts a new substantive provision into the clause which sets out the requirements for a prenuptial or post-nuptial agreement to be binding. It does not set a new condition for the agreement to be binding; rather, it provides that only the person who has been disadvantaged can rely upon failure to obtain legal advice or failure to disclose assets as a means to make the agreement non-binding. The Government remain generally concerned about the lack of protection for people entering into binding prenuptial or post-nuptial agreements under the terms proposed in the Bill. These amendments do not appear to improve significantly on the protection offered and are substantially different from the approach recommended by the Law Commission, which would preserve the ability of the court in appropriate cases to override an agreement made between the parties where in the view of the court its terms are manifestly unfair or where they fail to provide adequately for needs. The Government have yet to consider the Law Commission’s detailed proposals. In relation to the Bill we are concerned that leaving prenuptial agreements to be subject to the rules of contractual law around validity and enforceability, and post-nuptial agreements subject to review by the court under the provisions set out in Section 35 of the Matrimonial Causes Act 1973, does not amount to a coherent set of protections.

Amendment 12 would remove the possibility of the Lord Chancellor making rules to specify what constitutes the full disclosure of assets, which is one of the requirements in the Bill for the prenuptial or post-nuptial agreement to be binding. The noble Baroness said that she has been advised that the law in relation to disclosure is sufficiently clear not to need further elaboration. As already noted, the second amendment would alter “full disclosure”, which as she rightly says is well understood, to “proper disclosure”. The Government agree that there are already established principles around disclosure. I understand that the noble Baroness is really concerned with what might be regarded as de minimis omissions from the list, but I do not think that that would in fact cause a difficulty on the existing rules. We are concerned that the use of the term “proper disclosure” could open up some areas of concern.

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[Lord Cashman (Lab)]

My Lords, I welcome all the noble Baroness’s amendments. They seem sensible and the principle of equality is at the heart of them. I just wanted to point out that, given the equal marriage Act and the Civil Partnership Act, feasible as it is for a noble Baroness to find her footballer, it is equally feasible for a noble Lord, too.

[Lord Kennedy of Southwark]

My Lords, on the footballer point, I suggest that noble Lords should look at carefully at the teams, because certainly the teams that I and my noble friend Lord Hunt support probably would not give the sort of assets that people would be looking for.

The three amendments in this group in the name of the noble Baroness, Lady Deech, beginning with Amendment 23 in her name and that of the noble Lord, Lord Grantchester, again respond to concerns raised at Second Reading. I and others then raised the concern that the one-size-fits-all approach would not work in all cases, as there was no provision to take account of individual circumstances that could leave an individual in a much weaker position than would be reasonable. The amendments seek to address those concerns. In particular, Amendment 24 sets out a specific duty for the court to satisfy itself. This is a step in the right direction, but I am still left wondering whether we should go a little further to protect the weaker partner. However, the case for indefinite maintenance orders needs addressing and these amendments make progress in that respect.

Social Action, Responsibility and Heroism Bill

Lord Kennedy of Southwark Excerpts

Tuesday 4th November 2014 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, this has been an interesting and entertaining debate on a five-clause Bill that I am not convinced is very necessary. I agree with what the noble Lord, Lord Hurd, said, though I am sorry if he feels disappointed by how the Opposition are responding to the debate.

We have heard from other noble Lords, in particular from my noble friend Lord Beecham and the noble and learned Lord, Lord Lloyd of Berwick, that this Bill is unnecessary. The Government have suggested that the impetus behind this Bill is to increase volunteering and other forms of social action to provide reassurance to people, including employers, that the courts will take certain factors into account when considering claims for negligence and certain breaches of statutory duty. If the Government feel that there is a problem with people volunteering, it is probably more to do with their attitude to the sector and the policies that they are implementing.

I agree with the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, that, if there is a problem with getting people to volunteer and they are under a misapprehension about their legal position, what is needed is some sort of media campaign. I do not see the fear-driven culture to which the noble Baroness, Lady Hodgson, referred, nor the compensation culture to which the noble Earl, Lord Attlee, referred.

I enjoy the area of south London and the vibrant community in which I live. I do voluntary work with no fear of being sued or taken to court for trying to be a good citizen. Where I live in Lewisham, I also serve as a local councillor. I have never heard anyone say to me in the voluntary projects that I visit and work with—either in the ward I represent, or elsewhere in the borough—that they cannot get more people to help because they are worried that they might be sued. No one has ever told me that they would like to be involved, but that the risk of a negligence claim against them is too much for them to bear.

I invite the noble Lord, Lord Faulks, to visit the Ackroyd Community Centre in Honor Oak Park, where I am a trustee, so that he can see for himself the wonderful work that the people there undertake. He can ask them how they think we can increase volunteering. I am certain that not one word of this Bill will be raised as a barrier to volunteering, and no one will suggest that the Government need to legislate on it.

I have the greatest respect for the noble Baroness, Lady Browning, but I do not agree with her that the Bill is necessary; all the important points she made are already adequately covered. Again, I agree with the noble and learned Lord, Lord Lloyd of Berwick, on this.

While we are on the subject of volunteering, what happened to the big society? No one from the Government ever mentions it—it has disappeared. Only the Opposition ever mention it to ask, “Where has it gone?”—but four years ago it was all the Government ever talked about.

I have concerns that the legislation could worsen the position of workers. Hugh Robertson, head of health and safety at the TUC, described the Bill as “gobbledegook” and said:

“There is not a shred of evidence that there is a problem”.

The Association of Personal Injury Lawyers, to which the noble Lord, Lord Faulks, referred, has also raised concerns, and Thompson Solicitors said that it is,

“nonsense before it even starts”.

We generally have a good health and safety record in this country, which we should be very proud of. I visited the Olympic park just before it opened, where both the noble Lord, Lord Coe, and Sir John Armitt proudly told us that the most serious accident over the whole construction period was one broken leg, because health and safety was such an important part of life on the construction site.

It is important for the noble Lord, Lord Faulks, and the Government in general to make it clear that no employer should be under any doubt that the Bill on becoming law will not in any way loosen health and safety provisions or place less importance on risk assessments—I hope that the noble Lord will have the opportunity to do that when he responds to this debate. Although an employer may have a good health and safety record—and it is quite right that their good record should be taken into account—if they are negligent, they should be found liable, whether or not it is their first breach.

The noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Beecham, referred to both the Fire Brigades Union and the St John Ambulance brigade, which made compelling comments on the issue of heroism and raised concerns about the present wording of Clause 4. They are worried that it could encourage people to engage in reckless behaviour. It is important that we are not seen to be encouraging people to act recklessly and risk becoming a casualty themselves. I hope that the noble Lord, Lord Faulks, will say something about that when he responds to the debate.

I pay tribute to anybody who through their work as a police officer or firefighter, or any other occupation—or as a member of the public—has acted heroically and saved others. We have seen that spirit many times in our country; nowhere was it more in evidence than on 7/7 in London. Some of the heroes on that day needed help after the event, in addition to medical care and in some cases counselling, but maybe they also needed a bit more protection from the media intrusion they suffered after those terrible events.

In addition, how would the Bill affect Armed Forces personnel and the difficulties they could face in obtaining compensation for injuries sustained while serving their country? Can the noble Lord reflect on that in particular in detail, and explain how the Armed Forces covenant would work there? I am worried that that could be an issue, so perhaps he could come back to me on that between now and Committee.

I have looked carefully at Part 1 of the Compensation Act. As the noble and learned Lord, Lord Lloyd of Berwick, points out in his amendment and his contribution today, the matters in the Bill are adequately covered there. The noble Lord, Lord Faulks, is a very skilled advocate, a Queen’s Counsel and an officer of the court, while I am just a lay person. It would be helpful if he could explain to me why the Bill is necessary. Would he not expect the advocate for a defendant in a negligence claim to put these matters before the court? Would he not expect the advocate for the defendant to make use of Part 1 of the Compensation Act, and would he not expect the court in considering a negligence claim to consider such matters and give them due weight in coming to its decision?

If the noble Lord, Lord Faulks, says to me, “Yes; I would expect the defendant’s advocate to put these matters forward and I would expect the court to consider them”, again I ask, why is the Bill necessary? I certainly found nothing in the risk assessment to convince me that it was necessary. As the noble Lord, Lord Pannick, said, the document is nearly as thin as the Bill itself, and phrases such as,

“slightly less likely to pursue a case … slightly reduced aggregate compensation paid … slight drop in the number of negligence cases”,

do not make compelling or convincing reasons as to why the Bill is wasting valuable Parliamentary time.

Having said that, the Opposition will not be supporting the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, if he presses it to a vote, for the reasons outlined by my noble friend Lord Beecham. We agree with him that the Bill is unnecessary, but do not believe that it is right to deny it a Second Reading. However, it is a depressing waste of valuable parliamentary time. When you look at the Order Paper and see the list of uncontroversial Private Members’ Bills—such as the Mutuals’ Redeemable and Deferred Shares Bill put forward by the noble Lord, Lord Naseby, from the Minister’s own Benches, which has much more merit and is struggling to get a hearing—it is a matter of much regret that we are here today. My noble friend ended his contribution by saying, “Let the grilling commence”. It has started, and the noble Lord has much work to do.

Criminal Justice and Courts Bill

Lord Kennedy of Southwark Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.

I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.

I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.

However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.

Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.

However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.

I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.

I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.

[Lord Kennedy of Southwark (Lab)]

My Lords, the noble Lord, Lord Hunt of Wirral, raised some very important issues, and mentioned claims management companies. Since I came to the House I have raised the issue many times; the more dubious end of the industry is a problem. I know that he mentioned it before, but the claims management regulation unit at the MoJ, run by Mr Kevin Roussell, does a good job on that. I pay tribute to the work that it does and say to the Government that if it had a few more resources it would be able to do an even better job. Pointless, vexatious claims waste our time and cost us money, and the more help we can give to that unit at the MoJ, the better.

[Lord Beecham (Lab)]

My Lords, I expect that other Members of your Lordships’ House will have had my experience of being called about accidents or insurance policies that I have never had, and I entirely sympathise with my noble friend’s last observations. Clearly, no one would wish dishonesty in the presentation of a claim to go without penalty. However, there are some questions to be asked about this provision. The first of those is, why should any change in the law, which we are now progressing, apply only to PI cases? The noble Lord, Lord Hunt, has broadened that somewhat, and is in a sense making my case for me, because he cited a case in which there is both an alleged personal injury and an accident. However, the driver who sues for a personal injury and is deemed to have been fundamentally dishonest will of course be penalised, and rightly so—although how the penalty is levied is perhaps debatable. However, if the claim is only for the damage to the vehicle, he will not be caught by the present clause, and nor, of course, would somebody fundamentally dishonest—whatever that means; that is perhaps another issue, but let us take it as a given at the moment—in a whole variety of other claims. Why should not somebody making a claim—for example, as regards breach of contract, professional negligence or any number of claims that have a monetary element in them for some breach of duty other than involving personal injury—also be brought within the framework? It seems odd to single out this group, albeit there clearly are cases where claims management companies and the like deliberately promote false claims.

Having listened to the noble Lord, Lord Marks, I am not entirely sure that this binary system of small claims and larger claims is appropriate. What might be a small claim to me and some other Members of your Lordships’ House is not necessarily a small claim to the individual claiming £25,000. One needs to have the same approach overall. However, there is then an issue about what constitutes substantial justice, and that is also unclear.

The major issue to which my amendment is addressed is why the courts should have to strike out a claim—an argument made, up to a point, by the noble Lord, Lord Marks—in its entirety on the balance of probabilities, as opposed to the criminal standard of proof. After all, we are talking about essentially criminal behaviour—it is essentially fraud. That is unsatisfactory, particularly if a claim is to be dismissed on that basis, hence my amendment. Of course, as I informed the House in Committee, in the case of Fairclough Homes v Summers in the Supreme Court, the noble and learned Lord, Lord Clarke, said:

“It is for the court, not for Parliament, to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process”.

He said that the existing power to strike out should,

“only be exercised where it is just and proportionate to do so, which is likely to be only in very exceptional circumstances”.

One has to take that judgment into account in determining how to apply the test. I invite the Minister to reconsider whether the balance of probabilities is not a safer and better test to apply before further draconian action—which must in part be justified by fraudulent behaviour—is taken.

Criminal Justice and Courts Bill

Lord Kennedy of Southwark Excerpts

Monday 20th October 2014 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, I will be very quick. The amendment in the name of the noble Earl, Lord Lytton, seems very sensible. If a new offence applies to police officers, it should apply to those acting under the authority of a constable or performing a duty that would normally be provided by a constable and falls within the term “policing”. The House should be very grateful to the noble Earl for spotting the potential loophole that his amendment is an attempt to close. I hope that the noble Lord, Lord Faulks, is able to support the amendment—but, if he is not, I hope that he will be able to give us a detailed reasoning of why the Government do not think that it is necessary, as the noble Earl made a convincing case.

[Lord Faulks]

My Lords, I, too, am grateful to the noble Earl for bringing these matters to the attention of the House and for telling us specifically about the incidents to which he has drawn the attention of the Home Office—although he will, of course, understand, as I think he accepted during his remarks, that I cannot comment on specific cases. However, by using a specific case, he raises a wider concern about the fact that it is not specifically and exclusively police officers who may be involved in what might loosely be described as corruption.

Before dealing with the amendment in a little more detail, I will reassure the noble Earl that although the new offence in its current scope is not retrospective, existing laws will continue to apply to any behaviour before the commencement date of the Act. The question of corruption remains a considerable concern of police forces and prosecuting authorities—and the police, sadly, are used to dealing with it. In the next few weeks, Her Majesty’s Inspectorate of Constabulary will publish a report on anti-corruption capability—so there is an awareness of the need to ensure that this matter is well and truly a focus of its intention.

At Second Reading and in answer to the noble Lord, Lord Kennedy, in the context of the earlier amendment, I said that the offence in the Bill has been brought forward in response to particular issues of corruption that have occurred in the past among police officers—some of senior rank—not all of which are capable of being pursued under the common law. This offence would allow such cases to be addressed. It is something of an irony that senior police officers opposed the introduction of the offence on the basis that it was unnecessary. The noble Earl takes the opposite view: namely, that the offence should be extended beyond the scope which it currently has to include those who are enmeshed in the whole process of corruption. He is right that agencies do not act alone. They are best when they act together in a concerted way. It is very unfortunate if they act in a concerted way that is also corrupt.

Sadly, I am sure that there have been cases of police staff and other public officials corruptly accessing sensitive information or seeking to disrupt investigations by manipulating IT systems. However, the Government have taken the view that it is imperative at this time to address corruption among police officers. Other public officials, including police staff, remain subject to the common-law offence of misconduct in public office, to which I made reference earlier. There have been high-profile prosecutions for the common-law offence in recent months in connection with selling information to the press, including of prison officers, military personnel and police officers. I reassure the noble Earl that we are dealing with corruption across the board.

I should also point out that the Law Commission is starting a project to examine the broader issue of misconduct by public officials, including the misuse of sensitive official information. That, I suggest, is the proper place to look at misconduct and corruption in other areas of public service. I encourage the noble Earl to raise his concerns with the commission when it publishes its consultation document early next year. I also say to the noble Earl and to the House that the amendment would greatly extend the reach of the new offence to a group of individuals who may not have received any specific training of the type that one would expect and may not be clear that they fall within the definition he proposes, and for whom there is no public clamour for a specific anti-corruption offence in the same way that we believe there is for police officers.

I make no criticism of the noble Earl’s drafting. His intention is perfectly clear. But we believe that, notwithstanding the continued anxiety we all face to eradicate corruption wherever it is found, it would be unwise to agree such a broad amendment at such a late stage of a Bill without an opportunity to consult with police representative bodies or the wider public. Therefore, I thank the noble Earl but nevertheless ask him to withdraw his amendment.

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[Lord Paddick (LD)]

My Lords, I rise briefly in support of my noble friend Lord Marks’s amendment. In particular, I will address what has been suggested is an inconsistency, in that 16 and 17 year-olds who use knives to threaten people are subject to mandatory imprisonment, whereas this would be inconsistent with 16 and 17 year-olds being excluded from mandatory imprisonment for possession. However, there are circumstances, in particular where older young men pass weapons—particularly when faced with an oncoming police officer—to younger members of the group, who are intimidated into taking possession of those weapons. Therefore, they could in those circumstances be carrying a knife innocently, as it were. As my noble friend said, if those are the circumstances of the original or even the secondary offence, those individuals should not be subject to mandatory imprisonment.

[Lord Kennedy of Southwark]

My Lords, the amendment in the name of the noble Lord, Lord Marks of Henley-on-Thames, seeks to take out 16 and 17 year-olds from the scope of a mandatory custodial sentence for possession of a knife in a public place. I have considerable respect for the noble Lord and a good deal of sympathy for what he is trying to achieve. However, if he pushes this to a vote today, I will not support him in the Division Lobby.

As the noble Baroness, Lady Berridge, said, there is already provision in the Bill as it stands for the court to show some discretion if it is of the opinion that there are particular circumstances which relate to the offence and which would make it unjust to do so in all the circumstances. However, as the noble Lord, Lord Marks, said, this provision was put into the Bill during its passage through the Commons by the honourable Member for Enfield North, and technically it was not a government amendment. Perhaps that was not the easiest way to have done this. However, I see the deterrent effect of such provisions and I am not convinced that removing all 16 and 17 year-olds from the scope of this would be helpful.

I am well aware that knife crime is falling, and I want that to continue. However, there are also parts of London where this sort of crime is still far too high, and we have to take action to ensure that we reduce this type of offending. During Committee—and I have talked about this before—I explained to the House that I was born in Lambeth and grew up in Southwark. I am involved with a little charity there which works with some kids on the council estates. It is quite shocking when you go down there. There are kids living on the Wyndham estate who will not cross the Camberwell New Road into Lambeth because they are terrified that they will be attacked—knifed, and so on. That is what we have to deal with. We need the council to do things, but we also need strong deterrents from the courts as well.

This provision is for all young people—those 16 and over and those 18 and over—not for a first but for a second offence. So they will have previously been caught and convicted of an offence with a knife and can be under no illusion what the likely outcome is if they are caught for a second time. We must do everything we can to stop young people killing each other with knives on our streets, which is a tragedy. However well intentioned this amendment is, it will not help achieve that aim.

However, the Government should give a commitment to review this provision after a couple of years, maybe even bringing forward a sunset clause at Third Reading. That would enable us to evaluate exactly what happens over the next couple of years and to take any corrective action quickly.

[Lord Faulks]

As noble Lords will be aware from previous discussion on this matter in Committee, this clause was added to the Bill by a Back-Bench amendment in the other place and the principle agreed by your Lordships’ House. Noble Lords will also be aware that agreement has not been reached on the policy underlying this clause within the Government, so I hope that noble Lords will understand why I cannot speak to the detail of these clauses, much though I would like, for example, to have risen to the challenge posed by my noble friend Lord Carlile.

The only thing I can say is simply to assist the House in answer to a technical query about Section 44 of the Children and Young Persons Act 1933 and the welfare of the child and the young person. That is not—and I do not think my noble friend Lord Marks suggested it was—an impediment to actually passing a sentence of this sort. Otherwise, a child might not ever be sent into the secure children’s estate.

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[Baroness Berridge]

My Lords, although my noble friend Lady Browning states that she is not a lawyer, I think that she has outlined to your Lordships’ House in comprehensive detail the changes that are needed to ensure that this amendment, which was made in the other place, does not cause conflict with existing legislation.

[Lord Kennedy of Southwark]

My Lords, this group of amendments raises important issues, just as we saw with the previous group, concerning the possession of an offensive weapon or a bladed article.

I have the greatest respect for the noble Baronesses, Lady Browning and Lady Berridge. They make some very important points but I am not convinced by their arguments that what they seek is necessary. As I said previously, knife crime can have a devastating effect, not only on the person who is killed or seriously injured but on the life of the offender. In Committee, the noble Lord, Lord Blair of Boughton, told the House that he had to speak to many families whose loved ones had been murdered in such circumstances and saw at first hand the devastating effects of that. We have to get the balance right. For this group of amendments, my previous suggestion stands: we need to look at this whole area and review it after a couple of years. If the Government come back then and look at how the whole Act is operating, that is the best way forward.

I will listen very carefully to the reply by the noble Lord, Lord Faulks, especially with respect to increasing the scope to include people convicted of an offence under various military and Armed Forces Acts. Clearly the noble Baronesses have considered this very carefully. However, I am not convinced that to put in the Bill an amendment that a court must have regard to the duty under Section 44 is necessary. I am sure the Minister will respond to that as well.

[Lord Faulks]

I am sorry to disappoint the noble Lord, Lord Kennedy, and the House but I am unable to respond in detail because, as I said in response to the earlier amendment, the clause has been added by a Back-Bench amendment and the principle has been agreed by your Lordships’ House. However, agreement has not been reached within the Government on the policy underlying this clause. Therefore, I am unable to speak as to the detail of these clauses.

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[Lord Balfe (Con)]

My Lords, I support the principles of the amendment, which shows how belonging to a responsible union such as USDAW can benefit workers. As I have said in this House on previous occasions, it would be wrong for the Opposition to believe that all union members are adherents of their party. Indeed, one of the USDAW executive, Mr John Barstow, a member of the Conservative Party, keeps me informed of USDAW and its doings, which are generally very beneficial and certainly of value to its members.

In a debate earlier this evening—I do not normally intervene in this sort of debate; I generally stick to foreign affairs—I noticed all the statements made about knife crime and it being argued that just being found with a knife should be a reason for a custodial sentence. I was at the meeting with the noble Lord, Lord Foulkes, the other day when we listened to USDAW. We heard some pretty horrific accounts. One of the most horrific things to me was the absence of prosecution by the police even in the face of CCTV evidence and other quite clear evidence that assaults had been committed. I hope that the Minister will be able to tell us not only his views on the clause but also how we intend to get the law, as at present, implemented because what was done is already an offence—and was an offence in many of the incidents put before us. We do not need this new law. What we are facing is a crisis of the police deciding that the law should not be enforced as it stands.

Having said that, I see no reason why we should not afford these workers the level of protection that they justly deserve. After all, as Mr Foulkes—sorry, I have known the noble Lord as Mr Foulkes and George for a bit too long, I reckon—as the noble Lord, Lord Foulkes, said, these workers are actually upholding the law that we have passed. In many ways they are as much agents of the law as the police. When they are assaulted as a result of upholding the laws that this Parliament has passed, they should benefit from the protection that the law should afford. On that basis, I hope that the Minister will be able to give us a very positive response.

[Lord Kennedy of Southwark]

I am delighted to be able to support the amendment of my noble friend Lord Foulkes of Cumnock; it seeks to protect shop workers from assault when they are doing their job and refusing to sell alcohol after the permitted time as required by law. The amendment has the support of the shop workers’ union, USDAW, which is a campaigning union standing up for its members. It also has a reputation as a hard-working professional organisation that works with employers and wants the businesses that its members are employed in to be a success. It is respected in the industry as a whole and the amendment is typical of the way USDAW works. The amendment has the support of not only the union but the organisations that represent the businesses in the sector and the staff who can find themselves at serious risk of assault for just doing their job, as many noble Lords have already said.

In Committee, I told the House that USDAW has run its Freedom from Fear campaign for many years. That campaign seeks to highlight the unacceptable situation that shop workers can find themselves in just for doing their job. Shop workers are among some of the lowest paid workers. They deserve the right to go to work without the risk of being verbally abused or even physically assaulted. People come into shops that sell alcohol, often late at night, usually the worse for wear having drunk far too much, and when they are told that they cannot buy any more alcohol as it is past the licensing hours, the poor shop workers can be subject to abuse and, in many cases, actual physical assault. We should also remember that these offences occur late at night, often when there are only one or two members of staff on duty in the shops concerned.

As my noble friend Lord Foulkes said, we recently met with the Minister and Mr John Hannett, the general secretary of USDAW. The Minister was very courteous and was concerned about what we heard from our friend John Hannett. Clearly the Government have not been prepared to move so far and that is somewhat regrettable. I hope that today when the Minister responds he can signal how unacceptable the situation is and that the Government take this matter really seriously and quite rightly expect people to be able to go to work and earn their living free from the fear of attack.

[Lord Faulks]

My Lords, this amendment in the name of the noble Lord, Lord Foulkes of Cumnock, would make it an offence to assault a worker who is required to enforce or comply with the Licensing Act 2003, either in the course of that worker’s employment or by reason of that worker’s employment. The proposed new offence would be triable either way with a maximum penalty on indictment of two years’ imprisonment, or an unlimited fine, or both.

The issue has been well described by the noble Lord, Lord Foulkes, and by other noble Lords during the debate: those who are in the position of selling alcohol can find themselves in a highly vulnerable position and can be the victims of serious assaults. The amendment was debated in some detail in Committee. As he told the House, the noble Lord, Lord Foulkes, and the noble Lord, Lord Kennedy, met with me—Lord Faulks—to discuss the issue further. We were joined by the general secretary of the Union of Shop, Distributive and Allied Workers, and I benefited greatly from their analysis of the problem and the need, as they saw it, for action. As the noble Lord, Lord Foulkes, said, I made it clear that the Government remain at the moment unconvinced of the need for a new offence of assaulting workers selling alcohol, although I said that I would consider any additional evidence and data on that point. I remain in that position and the Government remain aware that there is concern about this, but I must make it clear now, as I made it clear then, that I do not wish to accept this amendment or to return to the matter in the course of the Bill’s progression.