Assisted Suicide

Lord Low of Dalston Excerpts

Thursday 14th February 2019 Lords Chamber

[Lord Keen of Elie]

We are of course conscious of the difficulties and challenges facing people in the situation that the noble Lord has outlined, but I emphasise again that it is for the CPS to apply the law, not to make the law. In doing so, it follows a policy that addresses not only an evidential test but a public interest test with regard to such cases. The consequence is that, of the 140-odd cases referred in the last nine years to the CPS, there were prosecutions in respect of Section 2 of the Suicide Act 1961 in only four of them, resulting in one acquittal and three convictions.

[Lord Low of Dalston (CB)]

My Lords, as the noble and learned Lord has implied, the police are only enforcing the law, so it is really the law that is the problem rather than the police. When will the Government bring in a new law to free the police from having to treat loving families like criminals?

[Lord Keen of Elie]

My Lords, it is not a case of having to treat loving families like criminals. It is a matter of having to look at the facts and circumstances of every case, in situations where the victim may be extremely vulnerable. As the Government have said before, it is therefore a matter for Parliament because it is a matter of conscience. It is not a matter for government to bring forward such legislation. The noble Lord will be aware that such legislation was proposed in 2015 and did not succeed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Lord Low of Dalston Excerpts

Thursday 7th February 2019 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, the Minister referred to early advice in the area of social welfare law. He will understand my interest in this area, given the review of advice and legal support in the area of social welfare law that I chaired. Could he tell us more about what is envisaged from the pilots in this area and perhaps say something about the Government’s thinking about public support for sustainable advice services generally?

[Lord Keen of Elie]

I am obliged to the noble Lord. Looking more generally at advice and assistance, we want and propose to look at how we can engage with people at a very early stage, so that we can evaluate their legal problems—and, indeed, sometimes problems that are not entirely legal but that lead on to legal issues if not addressed quickly enough.

In the specific area of social welfare law, we will seek pilots that evaluate various technological solutions and look at the cost benefits of trying to approach matters in that way. I mentioned earlier the idea of web-based material and the development we have seen in digital access to legal advice. For example, we have already instituted such digital access in the areas of uncontested divorce and debt, so that people can, without the need for legal advice, be guided through what should be a relatively straightforward process for the resolution of certain legal issues.

European Union (Withdrawal) Bill

Lord Low of Dalston Excerpts

Wednesday 21st March 2018 Lords Chamber

Moved by

[Lord Low of Dalston]

242A: Schedule 7, page 52, line 16, leave out “section 7(1), 8 or 9” and insert “this Act”

[Lord Low of Dalston (CB)]

My Lords, in moving Amendment 242A I shall also speak to Amendment 245A. These amendments aim to rule out the use of delegated powers to amend the protection of equality and human rights provided by EU law.

As a matter of constitutional principle, changes to fundamental rights should be made by Parliament by primary legislation, not by Ministers through secondary legislation. However, as it stands, the Bill does not rule out such changes being made by delegated powers. Delegated powers could be used to change the fundamental rights currently protected by EU law, such as rights to protection of personal data, children’s rights, the rights of disabled people, the right to human dignity and protection from discrimination, as well as workers’ rights, protections for pregnant women and nursing mothers, and rights to maternity leave.

There is a prohibition on changes to the Human Rights Act 1998. This is welcome as evidence of the Government’s commitment to the entrenchment of equality and human rights, but the Bill needs to do more if that commitment is to be reliably delivered. The Human Rights Act safeguards only rights enshrined in the European Convention on Human Rights. Rights underpinned by EU law are different and need separate protection. To ensure this, it is essential that the Bill is amended to guard against excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights are subject to full parliamentary scrutiny.

It is important to be clear that the new scrutiny procedures introduced in another place, though welcome, do not address this concern. They provide a mechanism in the form of a new sifting committee to recommend that the affirmative scrutiny procedure be used. However, this procedure does not allow Parliament to amend secondary legislation. The fact that it does not provide for effective scrutiny is demonstrated by the fact that there have been only 10 occasions since 1950 when delegated legislation has not been approved by Parliament under the affirmative scrutiny procedure. That is equivalent to one every six or seven years.

Stronger safeguards are therefore required in the Bill to exclude changes to equality and human rights from the scope of delegated powers and to require a Minister, when laying secondary legislation before Parliament under the Act, to make a statement that it does not reduce any protection provided under equality and human rights law. A number of amendments have already been debated that would provide these essential safeguards. I refer in particular to Amendments 82 and 82A in the name of the noble Baroness, Lady Hayter, which would prevent the use of secondary legislation under Clause 7 to make changes to the Equality Acts of 2006 and 2010; and Amendments 101A, 133A, 161 and 259 in the name of the noble Lord, Lord Adonis, which would prohibit the use of secondary legislation made under Clauses 7, 8, 9 and 17 to change laws relating to equality or human rights. I support those amendments. However, I wish to speak to two additional amendments, Amendment 242A and 245A, which continue to be necessary.

Amendments 242A and 245A, which emanate from the Equality and Human Rights Commission, give effect to the Government’s commitment that current protections in the Equality Acts of 2006 and 2010 will be maintained once we leave the EU by placing it on the face of the Bill. In their White Paper legislating for the UK’s withdrawal from the European Union, the Government promised that,

“all protections covered in the Equality Act 2006, the Equality Act 2010, and equivalent legislation in Northern Ireland …will continue to apply after we have left the EU”.

That welcome commitment followed the recommendation of the House of Commons Women and Equalities Select Committee that it is important that the Bill,

“explicitly commits to maintaining the current levels of equality protection”.

On the first day in Committee in the House of Commons, the Minister promised to introduce an amendment that would require,

“Ministers to make a statement before this House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act”.—[Official Report, Commons, 21/11/17; col. 904.]

That was in response to concerns raised in the debate by Maria Miller MP, chair of the Women and Equalities Select Committee. The Government made an amendment on this point in the Commons which is now at paragraph 22 of Schedule 7. However, it fails to fulfil the Government’s commitment to maintain current equality protections and has the potential to undermine understanding of Ministers’ existing statutory duties. The Government’s approach requires Ministers to make an explanatory statement, including in relation to equality issues, when laying secondary legislation made under Clauses 7, 8 or 9 of the Act. However, it does not require a statement that current levels of protection will be maintained. It merely requires the Minister to explain whether and how equality legislation has been changed and that “due regard” has been had to the need to eliminate conduct prohibited by the Equality Act 2010.

There is nothing to stop the Minister having had “due regard” to this need deciding to reduce protections. The duty to have due regard is already a requirement under the public sector equality duty and the Minister’s statement would do no more than confirm that she or he has partially complied with an existing statutory duty. Furthermore, the requirement focuses on the first duty in the public sector equality duty—namely, to have regard to the need to eliminate discrimination, presumably because of the emphasis that parliamentarians placed on ensuring non-regression during debates in the House of Commons. However, the public sector equality duty also includes other duties—to have regard to the need to advance equality of opportunity, and to foster good relations.

The focus on just one aspect of the public sector equality duty rather than the whole risks confusion about whether Ministers are obliged fully to comply with the whole of the public sector equality duty as opposed to just this single limb of the duty. This must be rectified to ensure clarity and compliance with existing statutory duties. Again, the requirement applies only to certain enabling powers in the Bill under Clauses 7(1), 8 or 9. However, changes could still be made, for example, under Clause 17, which provides a very wide power:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”,


without the need for any explanatory statement.

Amendments 242A and 245A would remedy that deficiency by requiring a Minister, when laying secondary legislation before Parliament under any enabling provision in the Act, not just those clauses to which I have just referred, to make a statement that,

“it does not remove or diminish any protection provided by or under equalities legislation”.

I beg to move.

--- Later in debate ---

[Lord Low of Dalston]

My Lords, I am very grateful to all those who have spoken in support of my amendments; there has been very heavyweight support, if I may say so, from the noble and learned Lords, Lord Wallace of Tankerness and Lord Goldsmith, and very valued support from the noble Lord, Lord Cashman. I also thank the Minister for his reply. Since he was kind enough to describe my amendments as “constructive”, it would be less than gracious if I did not say that I regarded his response as constructive. The Minister has recognised the need to look further at the scope of the explanatory statements provided for in the Bill, and I welcome that.

There is room for further discussion about the extent of the enabling powers in the Bill, which are underpinned in this legislation. The Minister thinks that my amendments go too far in the enabling powers that we are seeking to include, while I suggest that the Bill does not go far enough, so there may be some scope for meeting in the middle. Since the Minister has kindly undertaken to review the scope of the provisions in the Bill before Report, I hope he might agree that it would be beneficial if we could have further discussion to see whether there is not some common meeting ground in the middle so that we can go forward to Report in a spirit of unanimity. On that basis, I am happy to beg leave to withdraw the amendment.

Amendment withdrawn.

Bach Commission: The Right to Justice

Lord Low of Dalston Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I congratulate the noble Lord, Lord Bach, not only on securing the debate but on the excellent report that he has produced with his commission. So far as interests are concerned, the noble and learned Lord, Lord Falconer, reminded me that I, too, gave evidence to the noble Lord’s commission. It is an outstanding report. With its recommendations of a right to justice, a new right to justice Act, a justice commission, a national public legal education and advice strategy and a host of detailed recommendations for kick-starting the process of making the right to justice a reality, the report is both radical and principled. Lawyers tend to get rather a bad rap for the self-serving way in which they hold the public to ransom and tie things up in process, but this report, in showing that lawyers do have a social conscience and that a concern for social justice is at the heart of the law, exemplifies the law at its best.

Noble Lords may recall that I chaired a commission tasked with developing a strategy for advice and legal support on social welfare law in the wake of the cuts introduced by LASPO. We sat between the end of 2012 and 2016 and produced a number of reports which are generously referenced by the Bach commission—that shows that we are very much on the same page. We identified a continuum of provision, including public legal education, informal and formal information and general advice, specialist advice, legal help and legal representation. With cuts of the order of £100 million in legal aid, it seemed clear to us that the advice end of the spectrum would need to take more of the strain. Given this perception, we focused increasingly on what needs to be done to strengthen local advice services. I am delighted that the noble Lord, Lord Bach, laid some stress on this today, and it is to this matter that I wish to devote the rest of my remarks.

In this connection, Bach and Low are very much on the same page. Bach draws attention to a shrinking information and advice sector. Our key recommendation was for a national advice strategy supporting local advice and legal support plans produced by local authorities with the local not-for-profit sector and commercial advice agencies. So it will come as no surprise that I was particularly pleased to see recommendation 25 of the Bach report, which states:

“The government should create a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities”.


A couple of years ago there was interest in something such as this at the top of government and a recognition of the contribution made to society by the advice sector. We had very positive meetings with Oliver Letwin, Michael Gove and the noble Lord, Lord Heseltine.

We were able to show that money is not really the issue: there is no shortage of potential funding streams, either from the Government, the lottery or the Government through the lottery. We estimated that a topslice of just 1% of all these funds would yield the £50 million a year needed to fund the Government’s contribution to the national advice and legal support fund we were proposing. The rest would be for local authorities to match-fund from a range of sources that we identified. What is needed is strategic co-ordination of these funding streams, with provision of advice services as a central strategic aim. We put a paper developing this approach to the Cabinet social justice committee, but I fear that it got lost in the works and the whole thing has simply gone off the boil. I hope that, with the renewed stimulus of the Bach report, the Government may be induced to revive their interest in advice services. They have great strategic importance.

Both Low and Bach stressed the value of early intervention for preventing problems escalating further down the track. There is a great deal of evidence that early legal advice saves the state money. Advice has a triple strategic value. Not only is it valuable for assisting people with their immediate problem, it helps to make them more resilient generally in dealing with life’s challenges across the board. Moreover, helping people to be more resilient reduces the burden on public services and public expenditure further down the line. This is a case which it is in the Government’s own interest to take very seriously. In fact, they cannot really afford to ignore it.

Solicitors: Professional Qualifications

Lord Low of Dalston Excerpts

Monday 6th March 2017 Lords Chamber

Asked by

[Lord Low of Dalston]

To ask Her Majesty’s Government what assessment they have made of recent proposals by the Solicitors Regulation Authority to reform the qualifications for admission to the solicitors’ profession.

[Lord Low of Dalston (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare my interest as chair of the University of Leeds School of Law advisory board.

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

My Lords, as the legal profession in England and Wales and the bodies that regulate it are independent from government, we have not made any assessment of the Solicitors Regulation Authority’s recent proposals. As set out in the Legal Services Act 2007, it will be for the Legal Services Board to determine whether to approve changes to the qualification arrangements for solicitors, should the Solicitors Regulation Authority seek to proceed with its proposals.

[Lord Low of Dalston]

My Lords, I thank the noble and learned Lord for his reply. However, is he not aware of the widespread concern that the Solicitors Regulation Authority’s proposals will mean that universities have to teach to the solicitors qualifying examination if they are to remain competitive, potentially constraining the breadth of the curriculum that can be taught as part of an academic law degree and stifling innovation in curriculum development?

[Lord Keen of Elie]

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

Assisted Dying

Lord Low of Dalston Excerpts

Monday 6th March 2017 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I went to Oregon nearly three years ago. I asked people what they thought of their law on assisted dying. No one could understand why we did not all have one.

Some disability rights groups oppose assisted dying legislation, yet polling consistently finds that more than 80% of disabled people support such legislation. I cannot emphasise too strongly that no one is obliged to avail themselves of assisted dying legislation unless they wish to.

Research in Oregon demonstrates that groups that might be considered vulnerable, such as disabled people, are not negatively impacted by assisted dying legislation. In fact, they are underrepresented in the numbers of those who make use of it. As far as I am aware, no cases of malpractice or abuse have been reported. Nor is impairment of the doctor-patient relationship general.

We should learn from our friends in North America how best to give dying people the choices they want at the end of life, while ensuring that robust protections are in place for potentially vulnerable people.

Digital Economy Bill

Lord Low of Dalston Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Baroness Bonham-Carter of Yarnbury]

My Lords, I put my name to this very important amendment. The noble Lord, Lord Wood, has said most of what I was going to say, so I will be brief, but I add that we live in such a rapidly changing world, in which the existence and preservation of public service broadcasting is ever more crucial.

As the noble Lord, Lord Gordon, mentioned, we were at a breakfast yesterday hosted by Channel 4. The topic for discussion was fake news—a frightening phenomenon that threatens to undermine democracy as we know it and to distort people’s understanding of the world. It is still the case that the main source of news, and the most trusted, is TV. Given the rise of fake news, PSB content—impartial, well regulated and fact based—is more important than ever.

Alongside being universally available, what is crucial is that PSBs are easy to find. As the noble Lord, Lord Wood, said, this is increasingly difficult—the number of clicks you need to get to BBC Alba is, I believe, 15 on Sky Q. Then there is the specific matter of children—children’s content lurks below numerous foreign cartoon programmes.

Change is needed. Ofcom and the Lords’ Communications Committee have argued it and these amendments provide it. Will the Minister not agree that the Bill offers the opportunity—dare I say an historic one—to ensure changes that are essential if public service broadcasting is to survive, in a time in our history when its survival is more important than ever?

[Lord Low of Dalston (CB)]

My Lords, I put my name to this amendment, so I shall speak briefly in support of it. It simply seeks to modernise the prominence regime for our digital age, expanding the existing legislation to cover on-demand services, such as catch- up television, on-demand TV menus and electronic programme guides.

At Second Reading, I shared my own and others’ experience of how frustrating electronic programme guides and user interfaces can be. Navigating them and finding a particular channel can be a particular challenge for people with a sensory impairment. Finding BBC News on electronic programme guides or finding the iPlayer on smart and connected televisions can take a considerable time. Likewise, finding BBC Parliament to allow people to take in your Lordships’ proceedings can be quite difficult—I am assured that people do still attempt to do this.

The Commercial Broadcasters Association has argued that giving public service broadcasting children’s channels extra prominence would create problems for investment in UK children’s content by their members. Moving public service broadcasting channels to higher electronic programme guide positions would mean displacing commercial broadcasting channels, with a detrimental impact on audience share and revenues. This, they say, would ultimately damage investment in children’s content. However, I am advised that greater prominence for public service broadcasters’ channels has a cross-promotional value which ultimately redounds also to the benefit of commercial channels. As I see it, there is no real threat to commercial broadcasters from this amendment.

This is a straightforward amendment which simply seeks to update the letter of the legislation for an increasingly digital age and bring it in line with the spirit in which it was originally conceived. I trust that the Government will see their way to accepting it.

[Lord Wigley]

My Lords, I am delighted to follow the noble Lord, Lord Low, and to support Amendment 226A, relating to public sector broadcasting prominence, about which I spoke during the Second Reading debate. This Bill presents an excellent opportunity to update prominence rules so that they work as they should in our digital world. Given the amenable response from the Minister on earlier amendments, I hope there will be an equally forthcoming response on this one.

The current legislation, from 2003, places a requirement for PSBs to have appropriate prominence to ensure that the flagship PSB channels, such as BBC1 and BBC2, are prominent on electronic programming guides. However, as I raised at Second Reading, the BBC’s children’s channels, referred to earlier, do not enjoy this prominence and sit below 12 commercial children’s channels on some electronic programming guides. As a former member of the S4C Authority, I know from experience that this is a particular issue for both S4C and BBC Alba. S4C is a vital service for hundreds of thousands of people in Wales who speak Welsh and who want to be able to watch programmes in their own language. This content must be easily available on electronic programming guides and—as I will touch on in a moment—on demand. I believe, quite simply, that PSB content must be prominent, whether it is “Y Gwyll”—an excellent Welsh detective drama series known outside Wales as “Hinterland”, which has been sold to almost 200 countries and shows what it is possible to achieve—or great children’s dramas such as “Wizards vs Aliens”, filmed at Roath Lock in Cardiff.

Perhaps a more recent issue, but nevertheless one which must also be tackled, is the need to modernise prominence rules to ensure that they cover on-demand services, such as catch-up TV and connected TV on-demand menus. As I raised at Second Reading, young people in particular are increasingly watching public service content this way and spending less time watching linear TV. At the same time, finding the iPlayer on connected and smart TVs is getting to be a longer and more arduous process, making it harder to watch programmes—including S4C. I am told that there are more than 100,000 requests for S4C programmes on iPlayer every week, showing just how popular this content is.

Both S4C and MG Alba have stated their support for extending prominence to cover on-demand and catch-up TV. They have issued a statement which I should like to quote:

“The extension of the PSB prominence principle to include the PSBs’ on-demand players is of great and growing importance. Its significance is not only for the future of public service media content and how it is consumed by the public, but it is also particularly vital for the availability of Welsh language content as S4C is the only Welsh language PSB available—serving Welsh speakers throughout the UK”.


It also has a considerable following in parts of the UK outside Wales.

Although this is certainly an incredibly technical area of legislation, I see it as another simple problem with a straightforward solution. Had smart TVs and the iPlayer been common when the original legislation was devised, I have no doubt that they would have been included at that stage. We now have an opportunity to do something about this and I hope that the Government will take it.

Digital Economy Bill

Lord Low of Dalston Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I declare an interest as I gave evidence to the Leveson inquiry and my family decided that I should give evidence on their behalf—believing undertakings by the former Prime Minister that Lord Justice Leveson’s recommendations would be implemented. One of those recommendations, as we were all aware, was Section 40 of the Crown and Courts Act 2013, which Parliament enacted with cross-party support, but which the Government have so far failed to commence. This leaves victims of press abuse without affordable access to justice and leaves the royal charter hamstrung with no incentives for its use.

In response to the Government’s failure to follow through on their undertakings, I tabled amendments to the then Investigatory Powers Bill to replace Section 40 of the Crown and Courts Act with a similar provision. Government Ministers and others, in resisting those amendments, suggested that the Digital Economy Bill would be a better vehicle to resolve the matter—particularly because of the urgent nature of the Investigatory Powers Bill. Although my amendments were in scope and the Bill had been amended with a large majority by your Lordships’ House, I agreed to withdraw them when they were returned by the other place.

I will very briefly explain the effect of the amendment I am proposing today. It would make a similar provision to that in Section 40 in the Crime and Courts Act 2013 in so far as is possible within the scope of this Bill. Lord Justice Leveson recommended that all newspapers should join an independently approved regulator that is independent and effective, and that such a regulator would offer guaranteed, low-cost arbitration as a cheap route to justice for the press and free for the public. If a newspaper refused to join a system that Lord Justice Leveson set out and to offer low-cost arbitration, the judge said that, in order to prevent the power and work of newspapers being used to bully and intrude on ordinary members of the public, the newspaper would have to shoulder the court costs of any claim brought successfully against it. To avoid having to meet the costs of claims brought against it, and indeed to benefit from costs protection if sued in court, a publisher need only join a recognised regulator and resolve any claim far more cheaply through that regulator’s arbitration system.

It is this provision that the former Secretary of State decided not to commence. The amendment I am moving today would bring a Section 40 lookalike into effect for online publications. That would include, of course, the major print publishers, which all have significant news websites. Given that it relates only to the online publication of libels or other illegal abuses as they relate to online publication, it is slightly narrower in effect than the provision agreed by Parliament in 2013. It is a weaker substitute for Section 40. But in the absence of any of the access to justice which Section 40 would provide for families and individuals attacked unfairly by the press, it is far better than nothing at all.

The Government may argue that a consultation on these matters is ongoing. Lord Justice Leveson consulted publicly throughout 2011 and 2012. Section 40 was one of his many recommendations. My family and I went through the traumatic process of giving evidence at Leveson because we expected that his recommendations would be taken seriously. The consultation now being considered in private, with a government Minister presiding over it, does not, to be honest, inspire the same confidence.

My second amendment, Amendment 234A, simply provides for immediate commencement for reasons that I do not need to explain. I hope that the Committee will support these probing amendments. I beg to move.

[Lord Low of Dalston (CB)]

My Lords, I support the amendments because they provide the Government with yet another opportunity to deliver on their commitments to the victims of press abuse and bring this critical access-to-justice measure into force.

Amendment 233F would not bring Section 40 of the Crime and Courts Act into force in full, as we have heard. That is regrettable but it is as much as can be done within the scope of the Bill. However, it will demonstrate to the Government that this matter is not going to go away, and that people like the noble Baroness, Lady Hollins, will keep bringing back amendments such as this and seeking to insert them into any Bill into which they can plausibly be inserted until the Government keep their promises to the victims of press abuse.

It is now almost four years since the cross-party agreement was reached and Section 40 was enacted by Parliament. This House, as the noble Baroness reminded us, voted for it again as an amendment to the Investigatory Powers Bill before Christmas. The press lobby believes that by intimidating the Government with the threat of negative headlines and causing maximum delay, it can prevent it coming into effect. I support the amendment because I do not believe that people such as Mr Murdoch are sovereign and because I do not believe that the Government should override the will of Parliament to placate the interests of newspaper owners.

The consultation that the Government have launched, which has recently ended, is offensive to the victims of press abuse, whose evidence was accepted by Lord Justice Leveson, and should be offensive to Parliament, which enacted this measure in 2013. The former Prime Minister David Cameron, as the noble Baroness, Lady Hollins, has again reminded us, undertook to implement Leveson’s recommendations unless they were “manifestly bonkers”. Retrospective consultations to undermine the recommendations of a public inquiry whose recommendations were not manifestly bonkers, as well as the will of Parliament, are an affront to any understanding of what is meant by “good governance”. It is no wonder that the consultation exercise is facing a legal challenge.

I hope that the Government will keep their promises and implement Section 40 without delay, and I hope that they are under no illusion about the strength of feeling on all sides of the House on this matter. There may not be too many people here at this hour to demonstrate that, but the Government should make no mistake: it is the case. I attended a meeting the other evening where constructive proposals were discussed that seemed to some of us to have the makings of a settlement between those pressing for the implementation of Section 40 and the newspaper editors. Surely the Government should be trying to broker such an agreement instead of just sitting on their hands. Until they do, as I say, amendments such as this will keep coming back.

Courts and Tribunals: Administration Charges

Lord Low of Dalston Excerpts

Monday 16th January 2017 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I am grateful to the noble Baroness, Lady Gardner of Parkes, for asking this Question for Short Debate and proud to be the sole representative of the Cross Benches among the select band from across the House which has assembled to discuss it. The available evidence indicates that the proportion of litigants appearing before the civil and family courts without legal representation—litigants in person, also sometimes called self-represented litigants—has increased since the Legal Aid, Sentencing and Punishment of Offenders Act took many civil and private law children and family cases out of the scope of legal aid in England and Wales from 1 April 2013. I have become involved in these issues through the work of the commission that I chaired on the future of advice and legal support on social welfare law, and I declare that as an interest.

One of the policy responses that the commission has been concerned with has been the Ministry of Justice’s decision, two years ago, to fund and support a Litigant in Person Support Strategy, encouraged by the Civil Justice Council’s work and drawing on many of the resources from the pro bono, legal information, personal support and other support sectors, such as Law for Life’s Advicenow website, with a personal support unit providing additional capacity and better co-ordination of pro bono. More than 1 million people used the Advicenow website last year, with 50,000 accessing pro bono legal advice through clinics supported by the strategy and more than 50,000 being provided with practical and emotional support via the personal support unit. The litigant in person strategy is an excellent initiative but one has to remember that it has been developed in a context in which more than 700,000 people have lost their entitlement to legal aid in family and civil matters. Moreover, they now have to pay much steeper fees if they want to bring cases as litigants in person. In terms of access to justice, this amounts to a double whammy.

Over the past few years, fees for litigants bringing cases have increased and mushroomed across our civil courts, family courts and tribunals. There have been a number of proposals for further increases. These issues have to be considered together with the impact of legal aid cuts on the outcomes delivered by the justice system. Take employment tribunals, for example, where legal aid was cut to zero and steep tribunal fees were introduced, as we heard at length from the noble Baroness, Lady Gardner. Since August 2013 the issue fee in employment tribunals, having been nothing at all, may now be £250 and the hearing fee as much as £950 in more complex cases. These may include discrimination, equal pay and unfair dismissal claims. For claims to the Employment Appeal Tribunal, the issue fee is £400 and the hearing fee is £1,200. Fees can be waived if the party cannot afford to pay but however that may be, since introducing fees the volume of employment tribunal claims has plummeted.

Between October 2013 and September 2014, single claims brought by individuals were 64% down on the previous 12 months and multiple claims—those brought by more than one person—were down by 67%. In 2015, the number of employment tribunal cases brought by single individuals declined by 67% and the number of multiple claims by 72%. Even if one accepts that the imposition of fees was flushing out some unmeritorious cases, they are clearly having a very negative impact on access to justice.

Last July’s report from the Justice Select Committee in the other place criticised many aspects of the fees and charges regime: not just employment tribunal fees but civil fees, which have risen by up to 600%. Last autumn, there were proposals for an increase of up to 500% in immigration tribunal fees—again, a jurisdiction that was mostly taken out of scope of legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act. Only a matter of weeks into their implementation, the Government had to abandon them when they realised that the projected levels of fee income from this increase would not materialise, as the volume of claims would be so depressed. This seems to follow a familiar pattern from the time when Michael Gove had to scrap the criminal courts charge, which was clearly not working but just serving to penalise poor people for the right of citizens to use the courts. There is clearly also a strong case for reviewing these massive increases in employment tribunal fees. I should be grateful if the Minister told us whether the Government would be willing to consider this.

The respected commentator Roger Smith has spoken about,

“the economic cleansing of the … courts”,

by deliberately denying poor people access to justice through new economic barriers and much reduced public assistance to support litigants through the system. I could go on at length about the false logic and false economy of the MoJ seeking full-cost recovery, and more besides, from court users and trying to use court fees as an income-generating vehicle to offset the Treasury’s meanness to the MoJ. However, I am interested more broadly in the question of how we reclaim the courts and tribunals for citizens, especially poorer and disadvantaged citizens. Part of the answer must be to make the whole process cheaper, with less reliance on expensive paper-based bureaucracy, the removal of costly delays in proceedings through more streamlined processes and better case management systems to minimise the wastage of court and judicial time.

The whole process also needs to be redesigned with the needs of litigants in person in mind. I am encouraged by the Briggs proposals for court reform and digitisation, and the Government’s take-up of those proposals. However, until one actually sees them in operation one must have reservations about whether the Government’s commitment to funding better assisted digital legal services to help the least legally or IT-literate communities will actually materialise in practice.

Investigatory Powers Bill

Lord Low of Dalston Excerpts

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

[Baroness O'Neill of Bengarve (CB)]

My Lords, I support my noble friend’s amendment. The situation is complex and I think everybody concedes that the amendment as passed by your Lordships’ House last week had deficiencies. However, it was agreed by the Public Bill Office that it was adequate, as it has agreed that the amendment which is now before your Lordships is adequate. It seems to me that the ball is in the Government’s court to try to work out a way in which to achieve this. We must remember that in this Bill we have, for good reasons to do with press freedom, given the media very considerable additional protections for journalistic sources. That is open to possible abuse because sometimes there is no source or there might be, let us say, an incorrect reporting of a source. The quid pro quo for that is surely some protection for the public. Amendment 1 is not perfect, but if it is not to be accepted by the Government, I hope that the Minister will suggest how the Government propose to deal with the evident lacuna, and the risk to members of the public, of having greatly empowered media.

[Lord Low of Dalston (CB)]

My Lords, in considering this amendment we need to be mindful of lessons from history. We have heard the tale before that the press will reform itself. Some noble Lords will remember similar debates following the 1990 Calcutt inquiry. When asked to report on the efficacy of the PCC in 1993, Sir David Calcutt said that it was not doing its job and that the time for statutory regulation had come. But Parliament lost its nerve and the press was allowed to carry on underregulated, with disastrous consequences for ordinary people. Predictably, the newspapers are telling us that IPSO is a much improved version of the PCC, but it falls woefully short of the standards set out by Lord Justice Leveson.

Since we last voted, the Government’s position has actually hardened. When setting out the Government’s response to the amendment of the noble Baroness, Lady Hollins, in Committee, the noble Earl, Lord Howe, said:

“I fully understand that many noble Lords here, particularly those who have been victims of press abuse themselves, are frustrated as to what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report. I want to reassure noble Lords that that is not the case … the Government continue to look at this issue closely … this is something that the Government are actively considering. … The position is that, for the time being, Section 40 remains under consideration”.—[Official Report, 11/10/16; col. 1809.]

Last Monday, on 24 October, the Secretary of State said at the Culture Select Committee that she was not minded to commence Section 40. The Times the next day—last Tuesday, 25 October—ran a triumphant front-page story based on what it later said were reliable government sources. It said:

“Westminster sources revealed last night that the ‘punitive elements’ of Section 40 of the Crime and Courts Act …‘will not go ahead’. The change of tack, which avoids a clash between Theresa May and the media, came on the eve of a decision to approve a new regulatory body”.

The Government have not informed Parliament of this and have not sought to correct the story.