Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015
Lord Marks of Henley-on-Thames Excerpts(9 years, 2 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, one problem with a Bill that stretches to 186 clauses and 11 schedules and occupies 232 pages of the Queen’s printer’s copy is that, at least by the time that Clause 180 is reached, this House’s scrutiny powers begin to wane. Thus it was that, last year, by passing Section 180 of the Anti-social Behaviour, Crime and Policing Act, the Lord Chancellor was empowered to prescribe by statutory instrument, subject to affirmative resolution, court fees exceeding the cost of doing that for which the fee is charged—enhanced fees, as they are called. That Section 180 power must be reasonably, sensitively and fastidiously used. It is bad enough that the courts should be required to be self-financing at all. The justice system properly exists for the benefit of society and the economy as a whole. There has long been objection to the basic principle of full cost recovery.
To put that aside, the order for enhanced fees goes altogether further. In a real sense, it is selling justice—apparently contrary to Magna Carta, although now sanctioned by Section 180. Small wonder that it is characterised by some as a tax-like payment rather than a realistic charge for the use of the courts. Under Section 180(6), the enhanced fees,
“must be used to finance an efficient and effective system of courts and tribunals”.
That is small comfort to those who pay enhanced fees. Why, they will not unnaturally ask, should they be subsidising the family courts or whatever other proceedings are brought which do not attract the enhanced fee liability?
That is the first, fundamental, principled objection to the order. It is an objection not just in abstract constitutional terms, but because it must inevitably carry with it reputational consequences. Frankly, it sullies the overall image of British justice, no part of which should be open to criticism as a profit-making enterprise.
The second main objection is in two linked parts. First, to some extent at least, enhanced fees are bound to deter prospective claimants from litigating their claims. The second, necessarily linked, part of the objection is that, to the extent that claims are deterred, enhanced fees will fail in their central objective of raising money. The greater the number of claims deterred, the smaller the additional sum raised by the increases.
I add four footnotes to that objection. First, as explained in the Civil Justice Council’s response in December and the Lord Chief Justice’s letter written on behalf of all the heads of division, those dramatic increases, which, as we have heard, are in some instances over 600%, have to be paid up front and in full and are likely to impact disproportionately on SMEs and litigants in person. Of course, as the Minister observed in an answer at Question Time last week to the noble and learned Lord, Lord Mackay of Clashfern, the heads of division were indeed consulted, but even after modifications were made they continued to voice “deep concerns” about the proposals.
Secondly, as explained in a detailed briefing paper from the Law Society, the Bar Council and various other professional bodies, clinical negligence and personal injury cases, to which the noble Lord, Lord Beecham, referred, are likely to be adversely affected.
Thirdly, contrary to the Government’s bland statement that they are confident that the concerns expressed about the risk of damage to our legal services, and London’s reputation as the leading commercial dispute resolution centre, are misplaced—a bland assurance seen in their January 2015 response to the consultation and in Appendix 2 to the House of Lords Secondary Legislation Scrutiny Committee report—in fact 61% of the 158 people who responded on this issue to the BIICL research which was especially commissioned by the Ministry of Justice suggested that the proposed increase in fees could have a detrimental effect on the English litigation market, with 44 of those consulted considering this to be “highly likely”.
Wisely, following the consultation, the Government abandoned their initial proposal, which was to raise yet higher enhanced fees of up to £20,000 for the issue of the higher-value commercial claims in the Rolls Building, on the basis that this would be likely to kill or, at any rate, severely lame the golden goose that has paid the vast sums which this litigation has earned the nation—billions of pounds-worth, a lot of it foreign currency. It must surely follow from that abandonment that even £10,000 is likely at least to deter some foreign claimants from litigating their claims here or to drive people, if not actually to abandon their claims, at any rate to resort to arbitration or mediation, as the noble Lord, Lord Beecham, also suggested.
With regard to my fourth footnote—I say this in fairness to the Government—unlike certain others, I do not see the employment tribunal fees experience as a directly helpful analogy. No doubt the introduction of those fees, whereas before there were none, has discouraged a number of meritorious claims but I suspect that it has discouraged at least as many unmeritorious claims—speculative claims, which used regularly to be brought and then bought off or settled because, frankly, that was a cheaper option for the defendant employers than successfully resisting them and then being left to bear their own costs, which were quite likely to be very substantially more.
A third and final reason for objecting to these increases is that they are not only intrinsically unfair when levied at this level but, in addition, produce curious and unfair anomalies. An obvious one is that all claims not specifically limited are now to attract the maximum full fee of £10,000. It is true that the Civil Justice Council said that it could see no logical justification for distinguishing between specified and unspecified money claims, and as far as it goes that is right. However, as the Lord Chief Justice’s letter points out, in personal injury cases, for example, it may well be quite impossible to value the claim when it is issued. Similarly, in many of the Rolls Building commercial cases, damages may be a subsidiary consideration. The principal relief being sought may well be an injunction or some other remedy—perhaps an account or something of that character.
My final point is that the Government are now proposing yet further enhanced fees, with a view to raising a further £55 million annually. They propose to do this—it is the subject of the January 2015 consultation document—by raising fees in possession cases and upon applications of one sort or another being made in ordinary civil proceedings. Again, there are compelling arguments against those, summarised in the Civil Justice Council’s response in February to the latest consultation round, but it is not necessary to go into them today.
Today’s Motion is of course one of regret rather than a fatal Motion. For whatever reason, Labour has apparently not been prepared to go that far. However, it will, I hope, help at least to persuade the Government that enough is enough and that really there must be no more use of this enhanced fee power. I suggest that the order is not merely to be regretted but to be deplored.
Lord Marks of Henley-on-Thames (LD)
My Lords, I regret that I find it difficult to understand what has made the Ministry of Justice persist with these changes in the face of the well reasoned and overwhelmingly hostile reaction to them. The ministry’s impact assessment was based upon express assumptions, described as “key”, that,
“fee changes will not affect court case volumes”;
that,
“there are no detrimental impacts on court case outcomes nor on access to justice from any increase in court fees”;
and that,
“there are … no impacts on the legal services used to pursue or defend claims”.
It was those assumptions to which the senior judiciary referred in their letter dated 19 December 2014, to which reference has already been made, which led the Lord Chief Justice to describe the proposals as,
“very sweeping and, in our view, unduly complacent”.
For judges not inclined to overstatement, that is trenchant criticism indeed. The letter was based upon the draft impact statement, which the senior judiciary had seen. Notwithstanding that criticism, the assumptions nevertheless found their way into the final impact statement when it was made on 16 January this year.
When the noble Lord, Lord Howarth, asked a Question of the Minister last Thursday, my noble and learned friend Lord Mackay questioned why these measures had not been introduced with the consent of the heads of division. Cynics, and anyone who had read the letter of 19 December, could be forgiven for the view that the reason why such consent was not sought was that it clearly would have been withheld for the very reason that the assumptions made by the department were unsustainable.
It was not only the Law Society and the Bar Council that prepared a briefing on these proposals. Other professional bodies as disparate as the Association of Personal Injury Lawyers, the Forum of Insurance Lawyers —who, of course, are usually on the other side—the Association of Business Recovery Professionals, and COMBAR, the Commercial Bar Association, joined them in referring to the evidence from individual law firms, to which the noble Lord, Lord Beecham, referred, that:
“Over 200 individual examples provided by law firms show that the total value of cases brought by individuals would be likely to fall by around one-third (35 per cent) under higher court fees. For small and medium-sized companies it would halve (a 49 per cent decrease). This suggests that increased court fees could have a significant impact on access to justice for both individuals and businesses, as fewer could afford to pay the higher rates”—
a point eloquently made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.
Probation
Lord Marks of Henley-on-Thames Excerpts(9 years, 3 months ago)
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Lord Faulks
I presume that the noble Lord is referring to the judicial review instituted by NAPO that was withdrawn by NAPO, which was ordered to pay the substantive costs of that judicial review. As to pre-sentence reports, there is a 97% response rate of timely reports. As all those who have had to sentence offenders will appreciate, from time to time before this transformation there were delays in these reports. It is greatly to the credit of the probation service that it has maintained this standard. It is to be congratulated on the hard work that it is doing in coping with this transformation.
Lord Marks of Henley-on-Thames (LD)
My Lords, can my noble friend the Minister tell the House what progress is being made by the Probation Institute—the professional body for which many of us argued and which was established last year by the Probation Chiefs Association, the Probation Association and the two trade unions NAPO and UNISON? What role do the Government believe this institution might have in ensuring the continuing delivery of effective probation services?
Lord Faulks
My noble friend is quite right to draw the House’s attention to the Probation Institute, which, as well as providing assurance that existing standards are to be maintained when the various bodies to which he referred are combining, is also there to capture the innovation that we hope will follow the Transforming Rehabilitation programme. It has been going for a year, involves all those concerned with probation, and will help with training, research and the establishment of good practice.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(9 years, 5 months ago)
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Baroness Butler-Sloss (CB)
My Lords, I am a patron of a secure unit in Exeter, the Atkinson unit, which at the moment has troubled children coming under Section 25 of the Children Act, but it used to have children from the Youth Justice Board. It is a very small unit, taking 10 to 12 children. From my frequent visits there I have had the opportunity to see how this very small unit works extremely well with young children—those under 15. I am very unhappy about the Government’s proposals that children as young as under 15 should go into a large group of children, many of whom will be over 15, from whom they can learn all too much. I therefore also support the noble Lord’s amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, the arguments on this issue have already been well developed today by other noble Lords who have spoken, as well as at earlier stages of the Bill. I do not propose to develop the position that I have taken earlier in the Bill’s passage.
We all know that the reason for this House’s amendment was that the virtually unanimous professional evidence is to the effect that it would be unsatisfactory to place a small number of girls and younger boys in a secure college with a very large number of older boys. The pathfinder college at Glen Parva in Leicestershire is proposed to hold about 320 young people. There are currently only about 45 girls and 40 offenders under 15 in custody throughout the secure estate. Even adopting for Glen Parva a very wide catchment policy—which would itself be undesirable because of the distances these children would be from their homes, although I accept that that is not always a negative—it is highly unlikely that more than about 15 girls and 15 boys under 15 could be placed in Glen Parva. In my view, that is entirely unacceptable. It would be intimidating and unsafe for either group to be in this tiny minority in this very large secure college.
The Government say that they will not put boys under 15 or girls into Glen Parva at its opening. In a sense that concedes the case. They nevertheless say that they wish to be free to put boys under 15 and/or girls in Glen Parva or other secure colleges in the future. They propose to go ahead with the building of the two houses for these groups at Glen Parva. The design for Glen Parva has those two houses for girls and younger boys cut off from the main site, but the children held in them would share the main health and education block and access to the main site with a very large number of older boys.
My noble friend says that the Government will not use secure colleges in this way until they lay a report before Parliament. However, originally they did not say who would write that report. It now appears from what my noble friend said that it is the Secretary of State who will do the consulting and therefore, presumably, the Secretary of State who will prepare and approve the report. However, it is the Secretary of State’s own plan to use Glen Parva. The Minister does not say whether it will be incumbent upon this or any future Government to follow the recommendations in a report, nor has he offered any effective form of parliamentary scrutiny. An offer of a chance for Parliament to debate the report, with no right to stop a proposal proceeding, is no safeguard.
I have made it clear to my noble friend that I would want to agree a compromise on this issue if it were possible to do so. In particular, I accept that there is no definition in the Bill of what is meant by “secure colleges” or what size they should be. They could be smaller colleges than Glen Parva and more specialist, so that an educational environment that was mixed in gender and age might not be so inappropriate. However, that is not what is proposed at the moment. If the Government were to offer not to put under-15 year-olds or girls into secure colleges without parliamentary approval, that would offer Parliament a chance to consider and vote on any new circumstances that might be said to justify the detention of these groups in secure colleges. However, when my noble friend Lord Willis asked the Government for such an assurance, he was categorically refused it. The noble Lord, Lord Beecham, says that he was naive to ask for it. I do not believe that it is a naive request; it is a justified and justifiable one, and the Government’s position can be sustained only if they accede to it.
To date, no opportunity for parliamentary scrutiny has been offered. In these circumstances, while I have listened very carefully to what the Minister has to say, I find it impossible to support the Government’s position.
Baroness Armstrong of Hill Top (Lab)
My Lords, I support the noble Lord, Lord Ramsbotham, largely because since this House last discussed secure training colleges, two secure training centres have been given notice of closure by the Youth Justice Board. One of those, Hassockfield, was in my constituency. What lessons have the Government learnt from the introduction of secure training centres? My recollection is that I opposed them when we were in opposition when the legislation went through in, I think, 1996. My Government said that they had to carry that through because the contracts had been signed. When Hassockfield opened, I was contacted virtually daily by the police who said, “The children in here are too young. They do not understand what it means to be in a secure establishment. We are being called every day and they’re ending up in police cells”. Indeed, they wrecked the place. So the initial contract, which was given to an American company, then went to Serco. Someone from the Youth Justice Board had to be in there full-time to sort out the regime, and since then Hassockfield and, I understand, the other secure training centres have not taken many children under 15 because the regime in a secure centre, even with what Ofsted says is now very good education, is not suitable for young children.
The other issue is about being near home. There was a tragedy at Hassockfield. I discussed it at great length with a whole range of people, and one of the reasons for that young boy taking his life, although by no means the only one, was his distance from home and his contact with home and his own community.
The Government are taking enormous risks with the safety—and the ability to change and handle their lives—of children in incredibly complex difficulties. In relation both to having one centre in the middle, to which children have to travel a long way, and to the issues of the age group and including girls, the Government need to learn the lessons of their own history in setting up secure training colleges. They should think about this again and look at the language used when the colleges were introduced. It was very similar to the language that Ministers used in this House today and in the Commons last week. If they do so they will recognise that they are making a mistake and that they really do need to rethink this policy.
Lord Faulks
My Lords, this has been a lengthy debate in which we have had some important contributions from a number of noble Lords, some of whom have been with us for the whole journey of scrutiny and some of whom have made their first appearance today. I am sorry that more noble Lords were not able to participate in the very considerable number of meetings in which the Government explained what they were doing. We answered many of the questions which have been raised by a number of noble Lords for the first time today. We answered them in correspondence. We also had a number of meetings in which we went through the plans. While I do not wish any disrespect to those noble Lords who have asked a number of questions to which I have already given the answer in various contexts, I hope they will forgive me if I refer significantly to the debates that have already taken place at Second Reading, in Committee and on Report, and to various letters to all Peers. I will try to keep my remarks as short as is consistent with answering the general burden of the debate.
I was disappointed that my noble friend Lord Marks said that there had been no opportunity for parliamentary scrutiny. I accept that the scrutiny may not have satisfied him or other noble Lords that the plans are appropriate, but scrutiny there has been.
Lord Marks of Henley-on-Thames
I am sorry to interrupt my noble friend but he has plainly misunderstood what I was saying. I am not complaining about the scrutiny of this Bill. I am complaining about the lack of a parliamentary approval proposal from the Government before girls and under-15s can be placed in secure colleges.
Lord Glenarthur
My Lords, before my noble friend sits down, perhaps he would reconsider the issue of whether it is more appropriate to go to the affirmative resolution rather than the negative. I have sat on the Front Bench for many years with many of my colleagues here and have been through the same debate, but often it is wiser and more sensible to try to pursue something that allows Parliament to have that debate rather than simply to brush it aside. I understand the negative procedure only too well, and I hope that on this point my noble friend will reconsider.
Lord Marks of Henley-on-Thames
My Lords, before my noble friend answers that question, will he confirm to my noble friend Lord Glenarthur and the whole House that the present proposal is that there would be no parliamentary procedure at all apart from the laying of a report for consideration—no vote, no regulations and no SI is proposed?
Lord Faulks
I thought that I had made it reasonably clear that there will be the laying of the report. That is the limit to which I committed and I commit to it now. It is beyond what we committed before. It may not be enough for some noble Lords but none the less the report, informed as I have said that it will be, will enable Parliament to consider whether it is appropriate.
Lord Horam
I totally agree. I said on a later clause. Here, we are dealing with a situation where the actual result would be highly unlikely to make any difference. The noble Lord’s point would not occur because obviously they would hope to win their case. Here we are dealing with cases where it would be highly unlikely to make any difference at all and therefore the point made by the noble and learned Lord, Lord Woolf, does not arise.
There is abuse which I think is doing the rule of law and judicial review damage. That is a real problem. How does this Bill affect that? There is a suite of measures here to deal with the treatment of interveners, financial transparency and lowering the bar slightly in meritless cases where it would make no difference to the eventual result. That is a complex series of measures and we do not really know—I do not suppose the Government know entirely—what effect they will have but clearly it is an attempt to remedy abuse. Remedying abuse in this case would serve the purpose of government. It would certainly help judicial review because it would diminish the impression that people have, rightly or wrongly, that it can be used and abused in the way I have described and is happening up and down the country. You could argue that it would not really detract from judicial review but in many ways would improve its performance. I say to my two Conservative colleagues that one aspect of being a Conservative is that very often you want to improve things for the sake of keeping them as they are. It is a classic Conservative position. I would not regard it in any way un-Conservative to be asking to improve these matters rather than defending the status quo, warts and all.
I think there is a serious problem here. The Government are addressing it. Noble Lords may disagree with the way they are addressing it. I think that the Government need some understanding of where they are coming from. In response to the views in the other place, they have listened and changed their position; not here, I agree, but in later amendments. I wholly agree that the discussion in the other place was truncated and in many respects very unsatisfactory, as has been pointed out. None the less, between the two Houses, we are beginning to get to a more rational and sensible position that acknowledges that there are problems and tries its best to find a way through without damaging judicial review.
Lord Marks of Henley-on-Thames
The Government have repeatedly characterised this clause as being concerned with cases involving procedural irregularities only. Indeed, the Minister used the term “technicalities” as a diminutive, which is inappropriate. Such terms are inaccurate in relation to this clause. At very best, they are inadequate. These are public law cases concerned with unlawful conduct of the Executive where an organ of government has ignored the law in taking or carrying out decisions.
With the greatest respect to my noble friend Lord Horam, I must say that his assertion that the system of JR is rife with widespread abuse is unsupported by the evidence. Nor does he take into account the fact that judicial review is, at its heart, about decision-making in accordance with law. Nor does he take into account the fact that, certainly over recent years, judges have made it very difficult indeed, in the exercise of their discretion, for unmeritorious cases to get permission to proceed.
I do not regard this clause as merely protecting government from the effects of minor procedural errors that have made no difference to decision-making. I regard it, as do other noble Lords who have spoken, as an attack on the rule of law and an attack on parliamentary democracy. To take the example given by my noble friend Lord Lester, where a statute is passed by Parliament, often after discussions such as the ones that we have had on this Bill, which requires that the Government consult before making a decision, it should not be open to government to flout that requirement imposed by Parliament and then claim an immunity from judicial review on the basis that a lawful consultation would have made no difference to the outcome of the decision-making so that permission and relief should be withheld. That is the heart of the point made by the noble Lord, Lord Deben.
The public interest amendment of the noble Lord, Lord Pannick, reflects an amendment that I moved in Committee. If carried, and if this House insists on it, a court will not be compelled to say, where a government department has acted unlawfully, that the decision would have been the same anyway and therefore permission to apply for judicial review must be refused and relief must be withheld. The court will instead be able to say that the decision was illegal and, before it can be properly made, the Government must follow the law—quite simply because that is what the law requires. That is the rule of law. That respects the will of Parliament. That gives effect to be principle of government accountability. This House has a constitutional duty to be very careful indeed when what is happening here happens—when the Executive seeks parliamentary sanction for breaking the law, as this clause does. I shall support the amendment of the noble Lord, Lord Pannick.
Lord Mackay of Clashfern (Con)
My Lords, the question in this particular amendment is a simple one. The courts have developed law in relation to situations in which the outcome would not be any different if the conduct complained of had not occurred. My understanding of the decision in that area is that the court may decide, if it concludes that the result would inevitably be the same, that the relief is to be refused.
The government Motion that is the subject of this substantial debate simply raises the question of whether that would be inevitable or “highly likely”. In the civil law, of which judicial review is part, the ordinary rule is that the balance of probabilities determines the fact. That is the question that was raised here and there is quite a lot to be said for that point of view. But the situation tonight is affected by the way the debate was conducted in the other place. It is not for us—it is certainly not for me and not for any of your Lordships—to criticise what happened in the other place. On the other hand, the Lord Chancellor has apologised to a Member of the other place for the mistake that he made, which is fairly fundamental to the consideration of this amendment. Therefore, for my part, I would like to see this amendment going back to the House of Commons, not necessarily to change the result—that is a matter for the Commons—but so that the debate should proceed on a basis that is 110% correct.
Lord Marks of Henley-on-Thames
My Lords, throughout the passage of the Bill, my concern with these clauses has been that they would require any individual who was minded to support a judicial review application financially to disclose to the court his or her resources. That requirement is coupled with a requirement for the court, when considering questions of costs, to consider making a costs order against a supporter of an unsuccessful application, making use of the information disclosed.
With the greatest of respect to his argument, the Minister understated the effect of Clause 66. He said that the court would have to consider the information; what he did not take into account was that the court would be enjoined to consider making a costs order against the supporter. The inevitable effect of that would be to deter people from supporting judicial review applications financially. Group applications—for example, by groups of villagers or school parents—would then become very difficult indeed to fund.
This House’s amendments gave the court a discretion relating to financial information and costs orders. The Commons rejected our amendments and, in response to the concerns raised, my noble friend Lord Faulks and the Government have nevertheless introduced an amendment to provide that rules of court would exempt some supporters of judicial review applications from the financial disclosure requirement, provided their support did not exceed a level to be,
“set out in the rules”.
The difficulty, as the noble Lord, Lord Pannick, pointed out, is that the Government and my noble friend have given no indication of the level of support intended to be covered by their amendment. My noble friend and his officials—I am grateful to him and them for this—have met me and, I understand, others to discuss this amendment. I quite understand their position, enunciated by the Minister, which is that further work would need to be done to set an appropriate level. However, the Government are able to say nothing as to the level intended, except that it is likely to be a “few hundred pounds at most”. That is not satisfactory.
A very limited exemption for small-scale supporters would not significantly reduce the chilling effect of a disclosure requirement. It will not be anything like enough to enable groups to raise meaningful funds to support JR applications. I remind the House that most solicitors now charge about £250 or more per hour, even outside London. For the exemption to be meaningful, a supporter would have to be permitted to contribute several thousand pounds before financial disclosure was required. I accept the formulation put forward by the noble Lord, Lord Pannick, but that could be assessed when formulating the regulations on a percentage basis. I had in mind a figure of 20% as the starting point. I had in mind a figure of somewhere between £10,000 and £15,000 as a likely level below which disclosure would not be required. However, from the Government we have heard nothing, except that it would be figure of a few hundred pounds at most. That is not a significant concession.
What is necessary is that individual supporters providing small or medium sums, who are doing so genuinely to support the application—not as the real principals and not to try to control the litigation—should not be deterred from so doing by the costs threat involved in this clause. We need that as a statement of principle, but it needs to be a statement that shows that the principle has changed to meet the objective that I have just set out.
The Government’s stated aim in these clauses, restated by my noble friend, has been limited to ensuring that wealthy people do not use impecunious applicants to pursue litigation as fronts, with no risk in costs to themselves. He rightly used the argument of shell companies as supporting an argument that their promoters should not get protection. That is an understandable aim, properly expressed by my noble friend, which no one could sensibly criticise. However, I remind your Lordships that the court already has the power to require information and make costs orders against non-parties in such circumstances. However, if the Government wish to legislate to implement their stated aim, it would be entirely reasonable to expect them to limit the legislation to what is required to achieve that aim. That would mean a firm commitment to this House that the level set out in the rules would be such as to exempt from financial disclosure small and mid-range supporters of judicial review applications who were not seeking to control the litigation.
I have made it clear to the Government that I would be prepared to support the amendment in lieu if there were a clear statement that genuine supporters in this category who provided significant funds but did not wish to control the litigation would be protected. In the absence of such a statement, I feel obliged to support the Motion of the noble Lord, Lord Pannick, to insist on the Lords amendments. The Commons will then have to consider whether it is prepared to incorporate the sort of principle that I have enunciated to protect the financing of group litigation and incorporate it into an amendment in lieu when it is sent back to this House.
Lord Mackay of Clashfern
My Lords, I had understood the Government’s proposed amendment as conferring power on the rule committee to determine what the rules should be. There is, of course, an ultimate power but I would expect the rules to be fixed by the rule committee, after appropriate consultation and with a fair amount of knowledge of how the whole system works. This kind of amendment would deal with the sort of problem that the noble Lord, Lord Adonis, and I referred to in Committee. The Government’s amendment would be a sensible one to make and the Minister has explained the principle under which it would work. I am perfectly happy to leave that to the rule committee to determine, in the light of its great experience and knowledge of the situation.
Lord Faulks
That is entirely correct. The discretion would exist on whether to award costs. This is the discretion which is fettered, I entirely accept, to the extent that the Government think it is appropriate for it to be fettered because they consider that, because of what results from bringing a judicial review in terms of cost consequences, it is perfectly reasonable to provide within the realms of privacy the basis on which you are funding. That excludes those small contributors whom I have characterised, and whom I accept would be covered by the rules. Beyond that, however, we consider it to be an appropriate obligation. It is there to prevent what has been a potential evil. I will not go over the Richard III case again; the noble Lord, Lord Beecham, is relieved. Undoubtedly there have been cases where shell companies have been used; the case is lost; there is nobody for anybody to recover costs from and again the taxpayer loses. This can happen. This is not a draconian matter: we have made a concession which, I suggest, is a reasonable one. The rule committee can be trusted to come up, with its experience in the matter, with an appropriate compromise reflecting the principles that I have endeavoured to outline on the Floor of the House.
Lord Marks of Henley-on-Thames
I have two questions for the Minister. First, will he clarify that the figures for claimants’ costs—and it is, of course, the claimants’ costs that are important when considering financial information—are those related only to straightforward cases? Secondly, will he confirm that I am right in saying that the level that the Government intend as a matter of principle should be reflected in the rules is a level of only a few hundred pounds—in other words, very small contributions rather than significant contributions from larger contributors?
Lord Faulks
In answer to my noble friend’s first question, I did use the word “straightforward” and that is entirely correct; I adhere to that. On the second question, I am reluctant to give figures because, for the reasons I have given and in terms of what we are talking about, it relates to a small contribution to a fighting fund. That would not be £10,000 to £15,000. I do not think it is appropriate to go beyond that. That is a matter that I will leave to the rule committee: it will arrive at an appropriate figure in the light of its experience.
Public Protection Sentences
Lord Marks of Henley-on-Thames Excerpts(9 years, 5 months ago)
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Lord Faulks
We are aware of our obligation. NOMS has invested a considerable amount in a number of interventions. We are doing our best to provide a variety of courses in order to ensure that they have the opportunity of showing that they are ready for release.
Lord Marks of Henley-on-Thames (LD)
My Lords, this Government abolished new IPPs and at the same time introduced a power for the Secretary of State to change the release test. This matter has been raised endlessly in debate and in Questions. Can my noble friend now try to provide some justification for not implementing the power so as to ensure that prisoners whose release would be safer are released quickly?
Lord Faulks
I refer the House to the answer I gave to the noble and learned Lord, Lord Lloyd.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(9 years, 6 months ago)
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Lord Woolf (CB)
I am grateful to the noble Lord. I had prepared a speech of some length, but I realise, as did the noble Lord, Lord Pannick, that it is important to confine the argument at this stage of the Bill as far as possible. I detain your Lordships only because the Bill is extremely important so far as Part 4 is concerned. In deference to the eloquent speech we have just heard, I want to make a few submissions that are important for the context of why noble and learned Lords—who perhaps do not have interests of their own in raising this matter, which the noble Lord, Lord Horam, hinted at—are very concerned about the Bill.
The reason is that judicial review is the final resort available to the citizen to protect himself against unlawful action. It is a residual remedy and is not available in cases where a specific remedy is given, for example by statute. The only course it is then proper to take is the statutory route that has been laid down by Parliament. Having been a counsel for about five years who frequently was involved in the sort of planning and development matters to which the noble Lord referred, I can say that in most, although not all, of the areas we are concerned with there is specific legislation with specific provisions that explain the circumstances in which proceedings can be challenged before the court. The nature of those circumstances is carefully laid down and is now well known. I do not dispute that that may well need to be looked at again and taken through a critical examination.
However, I emphasise that what the noble Lord, Lord Pannick, was objecting to, and what I object to, is this limitation being placed on judicial review, which is part of the explanation of why in this country we have not needed an entrenched constitution that defines the responsibilities of the Executive and the judiciary and why in the United States they attach so much importance to the separation of powers, which is not part of our law.
We are dealing here with the residual remedy of citizens to deal with their fear of unlawful action by the Executive; that is what we are dealing with in most cases of judicial review. That being so, I suggest that the discretion of the judge to examine the position of the Government, the position of other public bodies and the position of the citizen, and then in accordance with the facts of each individual case decide whether it is appropriate to give relief and what relief should be given, is extremely important.
The amendments that bear my name, following that of the noble Lord, Lord Pannick, are designed not to tackle what is proposed root and branch, but to tackle those parts which say that a judge “must” do something as opposed to “may”. We do so not because we think that judges will be offended if they are told that they “must” do something. We do so because it is critical, if judges are going to get the right answer and do their best to get a just result, that they have the discretion to tailor their response to the facts of a particular case. However carefully we legislate, it is dangerous to go down the line of telling the judges what they have got to do. Everybody accepts that the independence of our judiciary is important. I emphasise the importance of that independence not because it is some right of the judiciary; it is important because the citizens know that a matter in issue, particularly in these important areas, will be considered by a judge who is independent. If we protest that we do not want the judiciary’s discretion cut away, we do so for that reason.
I will say no more because the other matters will, I know, be canvassed by others. However, I hope that I have made it clear why I think that this is a worrying piece of legislation, why I think that Part 4 needs to be carefully considered, and why I share the regret of the noble Lord, Lord Pannick, that although an array of legal talent spoke at Second Reading and explained their worries, it has not been felt right to consult them and try to find better ways of doing this, as has happened in many other parts of the Bill.
Judicial review deals with the public’s rights. In those circumstances, I suggest that if we are not going to fall into the trap indentified by Lord Hailsham in his Dimbleby lecture of 1976 of having an elective dictatorship in this country, we have to safeguard judicial review.
Lord Marks of Henley-on-Thames (LD)
I cannot support Part 4 of the Bill. I hope that the House will forgive me if I, too, make some general observations on the whole of Part 4, not limiting myself to Clause 70, to avoid taking up too much time later. As the noble Lord, Lord Pannick, says, there is much work to be done.
At Second Reading, the Minister assured the House that this package of proposals amounted to no more than “proportionate and common-sense reform” of judicial review. My noble friend Lord Horam called it a “small adjustment”. I regret that I see Part 4 as a serious infringement of the right of the citizen to challenge unlawful action by the Executive before the courts and thus, frankly, as an assault on the rule of law. This was the point made so eloquently and forcefully by the noble and learned Lord, Lord Woolf.
This part of the Bill aims to choke off challenges to unlawful action by the Executive. I fear that, if enacted, it will achieve precisely that. The degree to which it is proposed that judicial discretion be curtailed by these proposals is consonant only with a determination that judges should be limited so far as is possible in the exercise of their power to overrule unlawful government action. As the noble Lord, Lord Pannick, pointed out, the effect of Clause 70 would be to stifle any challenge right at the outset of permission stage, where the Executive may have acted unlawfully but where it appears highly likely that that unlawful action has not made any difference to the outcome for the applicant. Whatever superficial attraction there is for such a rule as between the parties to a particular application, the net effect on the public interest, in what are public law cases, would be that unlawful action by the Executive would go unchecked and unreversed.
Clauses 71 and 72 taken together would provide a code for ensuring that any person of means who is minded to support a challenge to an executive decision is to be obliged to provide information, again at the permission stage, about all his current resources and all his likely resources—full financial disclosure, in other words. The court is then to be told that it must consider making an order for costs against any such person based on that information. Many applications for judicial review are funded by public-spirited supporters seeking to have unlawful action by the Executive corrected. Frequently, such supporters have no financial stake in the litigation at all. No one can pretend that the provisions of these two clauses are not calculated to deter public-spirited individuals from lending financial support to judicial review applications.
Clause 73 on interveners provides for a draconian scheme of punishing those who intervene in costs. The general rule—subject to departure in only exceptional circumstances—would be that an intervener would be unable to recover costs from the losing party, win or lose, no matter how meritorious the intervention, how much the intervention is found by the judge to have assisted the court, and how far the intervener brought their broad experience in the field and new and telling arguments to the hearing of the application. Furthermore, and perhaps even more iniquitously, the court would have to order the intervener to pay all the costs of the other parties in the proceedings as occasioned by the intervention. Again, the court would be able to depart from this rule only in exceptional circumstances.
No one can fail to see that that code will deter interventions. It will make it very difficult for those many well known and thoroughly respected charities, and other campaigning organisations with relevant experience and a deep knowledge of their fields, to mount legitimate challenges to unlawful executive action. It will make it very difficult for those organisations to raise money in those circumstances.
At Second Reading, the Minister said in relation to interveners that the Government were,
“persuaded that there may be a case for some modification of the provisions”.—[Official Report, 30/6/14; col. 1542.]
and that he looked forward to “considering possible amendments”. As has been said, a number of amendments have been proposed by noble Lords, but none has been accepted for consideration by my noble friend and his colleagues in his department. The proposed rules on cost-capping in Clauses 74 and 75 again would severely restrict the ability of the courts to protect meritorious applicants in public interest cases from adverse orders for costs. Again, the effect would be to chill and to stifle such applications by the financial threat posed to those of limited means by the risk of an adverse costs order. The fact that a cost-capping order would be available only after permission was granted would only add to the overall effect.
I turn very briefly to my amendments to Clause 70, which are in my name and those of my noble friends Lord Carlile of Berriew and Lord Macdonald of River Glaven. All the amendments in my name should have my noble friend Lord Macdonald’s name to them as well, but for some reason his is not in the Marshalled List. He apologises that he is unable to be here at this stage but he will be here later. I should make clear at the outset that I support the amendments in the names of the noble Lords, Lord Pannick and Lord Beecham, the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, which import a general judicial discretion in this area. However, our amendments are designed to ensure that, even where unlawful executive action may have made no difference to the particular applicant before the court or tribunal, the court or tribunal will still be entitled to consider the lawfulness or otherwise of the executive action concerned, to rule on it and to hold the Executive to account accordingly if the public interest so requires it. That principle should apply at the permission stage as well as at the stage of final hearing. We should not forget that these are public law applications designed to protect the citizen and to hold the Government to account. We should be astute, in this House in particular, to ensure that where government acts unlawfully the courts are not debarred or otherwise prevented from saying so.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, support Amendment 157 for the reasons already given by the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. There are indeed currently real perils in Clause 71 in the way of the chilling effect that it must inevitably have. In Committee on 30 July, as reported at col. 1607, in relation to what was then Clause 65 and is now Clause 71, the Minister twice said that the senior judiciary welcomed this provision. I was troubled by that and looked at the response of the senior judiciary of last November. I hope that I have the right document and that I have isolated the right paragraphs; that is, paragraphs 34 and 38. I am sure that the Minister will correct me if I am wrong, They suggest that, in certain circumstances, there should be mandatory disclosure of financial circumstances. As I read that response—and I am unsurprised by this—the important point is that it refers only to when determining whether to make a protective costs order or when questioning,
“whether to make a costs order against a non-party”.
Those are not routine events, and they would not require, as the clause as it stands does, a disclosure of financial resources on all applications. If I am wrong about that the Minister will correct me, but if I am right, with respect, that wholly deprives him of the support on which he rested in Committee: the senior judiciary’s response.
Lord Marks of Henley-on-Thames
My Lords, I simply do not accept that it is right that a requirement for financial disclosure should be imposed before the permission stage in a judicial review application. The time for considering such information is when the order for costs is considered, and not before. At the costs stage—the stage with which Clause 72 is concerned—it is clear which side has won, and the judge knows who is and who is not vulnerable to a costs order. Only at that stage is the issue of financial support relevant, and at that stage the present position is that the judge already has the power to make a costs order against a non-party who has financially supported an unmeritorious application. There is no utility in expanding or developing that power further. But if there is to be legislation, I urge the House to accept that it should be left to the discretion of the judge as to what order for costs he makes. There may be some sense, however, in legislating for the court at that stage to have the power to require financial information in order to help the judge form a conclusion. That is the limited purpose of my amendments to Clause 72. With your Lordships’ consent, I shall detain the House no further.
Lord Mackay of Clashfern (Con)
My Lords, those of your Lordships who were present in Committee will remember that I read out a substantial section of a book by the noble Lord, Lord Adonis, in which he described what I understood to be the use of judicial review as a means of frustrating a government policy that had been passed by Parliament. I shall not repeat the detail now; it is in the book and I have put it on the record here. The problem on which the noble Lord focuses in that passage is that the arrangements made for pursuing this policy involved looking round for somebody who could be a legally aided litigant, and would therefore be provided with legal aid and also protected against costs in the event of his losing. The full detail is given in those passages.
It seems to me that some mechanism is required to enable the judges to deal with such points as part of the decision on whether permission will be granted to a particular individual to proceed. So far as I am concerned, judicial discretion in this area would be perfectly reasonable and, as has been said earlier, rules of court would be required to deal with it. There is definitely a problem here that needs to be dealt with at the opening stage of the proceedings in order that justice may be done in relation to that kind of campaign, which I have no reason to doubt is accurately described by the noble Lord, Lord Adonis, whom I am sure your Lordships know and respect.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(9 years, 6 months ago)
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“Capping of costs: environmental cases
(1) This section applies to judicial review proceedings which constitute or concern an Aarhus Convention claim.
(2) Sections 71, 72 and 73 shall not apply to proceedings to which this section applies.
(3) Notwithstanding anything in sections 74 and 75, in proceedings to which this section applies the court shall make a costs capping order in favour of an applicant for judicial review of its own motion or upon the application of any party in any case where the court considers that if a costs capping order is not made the proceedings are unlikely to be fair, equitable, timely and not prohibitively expensive as required by the Aarhus Convention.
(4) Rules of court may prescribe the terms upon which a costs capping order may be made in accordance with subsection (3) provided that such terms are calculated to ensure that the proceedings will be fair, equitable, timely and not prohibitively expensive.
(5) In determining whether proceedings are likely to be fair, equitable, timely and not prohibitively expensive, the court shall have regard to any relevant reports of the Compliance Committee established pursuant to the Aarhus Convention.”
Lord Marks of Henley-on-Thames (LD)
My Lords, I moved amendments in these terms in Committee and so I will try to be brief, although the area they cover is quite complicated. Clause 76 is in the Bill because the Aarhus convention of 1998, which was ratified by this country in 2005, committed the United Kingdom to ensuring that environmental litigation will be,
“fair, equitable, timely and not prohibitively expensive”.
My amendments are founded on the principle that Parliament has a duty to ensure that this country acts in a way that is compliant with its international obligations.
Clause 76 recognises that the restrictions on costs capping orders as proposed in the Bill have the effect of making environmental litigation prohibitively expensive in any case. That is true ex hypothesi, because in a case where a judge would decide that a costs capping order is needed in order to enable an applicant to pursue the application, it follows that the application, if pursued without such an order, would be prohibitively expensive. It is for that reason that rules of court have already introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums. Those sums are £5,000 against an individual applicant, £10,000 against a corporate applicant and £35,000 against a defendant.
However, the costs capping provisions are not the only provisions of the Bill that would put us in breach of the Aarhus convention: so would the provisions on disclosure of actual and likely financial resources and on the consequential orders for costs based on that information, as disclosed. Those provisions would have the effect that sources of support for judicial review applications would be choked off, making them prohibitively expensive for applicants without means, who would be left without the support of those people deterred from giving such support. The provisions on interveners and on costs capping would also have the effect of making environmental cases prohibitively expensive. Our amendments are therefore directed at broadening Clause 76 to exclude Clauses 71 and 72 on information about resources, and Clause 73 on interveners, for environmental cases as well as the costs capping provisions.
A further difficulty with Clause 76 is that it is permissive only and not mandatory, so that the Lord Chancellor is not required to make any regulations excluding the operation of the restrictions on costs capping. The provision is limited to ensuring that he is entitled to do so, if he chooses. Any such regulations that he chooses to make may also, under Clause 76(2), be as wide or as narrow as he chooses. Regrettably, this Lord Chancellor has given us little confidence that he is concerned to make challenges on judicial review less expensive.
Our amendments would also allow for costs capping orders in any case where the court considers that without such an order, the proceedings are unlikely to be,
“fair, equitable, timely and not prohibitively expensive”,
so as to bring the provisions squarely in line with our obligations under the convention. In our Amendment 174A, subsection (4) of the proposed new clause would introduce an objective test which would,
“prescribe … terms upon which a costs capping order may be made”,
to ensure compliance, once again by using the words of the convention. This is particularly important because the compliance committee established under the Aarhus convention has already found the United Kingdom to be non-compliant in a number of respects. The safe course is to ensure that the statute complies with the convention specifically and that there is a requirement that the regulations and rules of court do the same.
A further problem arises regarding definition. Clause 76(1) says that the definition of environmental cases is those cases which are environmental,
“in the Lord Chancellor’s opinion”.
Amendment 174B, which introduces a definition squarely based on the convention, is intended to address that difficulty and introduce an objective test. I beg to move.
Lord Faulks
My Lords, Clause 76 allows for judicial review claims on issues which relate entirely or partly to the environment to be excluded from the revised costs capping regime established by Clauses 74 and 75. This is to ensure continuing compliance with our obligations under the Aarhus convention and the various European directives which implement it. The requirements include that relevant procedures must not be prohibitively expensive. This is relevant to judicial reviews in certain environmental cases. Consequently, Clause 76 allows for environmental judicial reviews to be excluded from the approach in Clauses 74 and 75.
Lord Marks of Henley-on-Thames
My Lords, I am rather surprised that my noble friend regards my performance on this Bill as meriting promotion to “noble and learned Lord”.
We have both been brief. I rehearsed the arguments for the amendments in Committee and my noble friend rehearsed the arguments against. I will seek leave to withdraw the amendment but I say only this: I have a prediction that if these provisions are enacted in their present form, it will not be very long before the Compliance Committee established under the Aarhus convention draws attention to non-compliance by this country with its international obligations under Aarhus, not only in respect of Clauses 74 and 75 but in respect of Clauses 71 to 73 as well. I would regard that as a great pity because international obligations are a matter of great importance. With that observation, I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
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Lord Marks of Henley-on-Thames (LD)
My Lords, my Amendments 120A and 120B in this group both concern the use of force in secure colleges. Amendment 120B would delete paragraph 10 of Schedule 6 which provides—I say iniquitously—that:
“If authorised to do so by secure college rules, a secure college custody officer may use reasonable force … in carrying out functions”,
which include ensuring good order and discipline on the part of young offenders in custody and attending to their well-being. Amendment 120A would introduce restrictions on the use of force which accord with good practice, with the civilised treatment of young persons in custody and with the European Convention on Human Rights. Furthermore, my amendment accords very closely with the principles set out in the Government’s consultation paper published last week on the proposed secure college rules.
The authorisation of the use of force for the purpose of ensuring good order and discipline—said in the consultation paper to be clarified or modified by the proposed secure college rules—has been the subject of a judgment against the Government in the Court of Appeal in the case of C v Secretary of State for Justice 2008 concerning secure training centres. The clear view of the Joint Committee on Human Rights in relation to the Bill is that provisions authorising the use of force for the purpose of ensuring good order and discipline should be deleted. Those words can go without affecting the implementation of proposals for the sensible and modified use of force, suggested in the consultation paper. What is proposed is not a clarification but a departure—and if it is a departure, good order and discipline should disappear from the legislation altogether.
It is not right for the Government to say that merely because the use of force is authorised by the statute, as circumscribed by the rules, it would be appropriate for the legislation to authorise force for the purpose of enforcing good order and discipline. I believe that the correct conditions for the use of force should be plain in the Bill. There is no reason for not limiting the authorisation in the Bill to accord with what is appropriate. There should be no chance of any misunderstanding or misconception of what is and is not authorised and no internal inconsistency, apparent or real, between the primary and secondary legislation. The Joint Committee on Human Rights considered the Government’s case that there was a distinction to be drawn between the requirements for the Bill and those for the rules—and it rejected it.
On a practical note, as the noble Lord, Lord Ramsbotham, pointed out, the Government’s consultation paper on the secure college rules has only just been released. The Government’s response to the consultation cannot possibly come before Royal Assent for the Bill. That means that unless the Bill is clear about the restrictions that should be imposed on the use of force, the secondary legislation may not properly reflect the will of Parliament, even allowing for the affirmative resolution procedure being applicable to the rules—if it is.
My amendment would make the position clear. The first three purposes for the use of force are uncontroversial. They are to prevent injury to the young person concerned, to prevent injury to others and to prevent serious damage to property. The limitations on the use of force, as contained in the second to fifth conditions of my amendment, are also uncontroversial and in accordance with best practice. They are that force must be used as a last resort only, that the force authorised must be the minimum necessary to achieve its purpose, that it must be applied for the minimum duration necessary to achieve that purpose and that the techniques used should be in accordance with an approved system of restraint. Furthermore, it is important that all those authorised to use force should be properly trained in its application and in techniques of minimum restraint.
However, since Committee, and in the light of the publication of the consultation paper, I have been convinced by the two so-called “scenarios” set out in the consultation paper that there may be a need for force to be authorised also to maintain a safe and stable environment, subject to extra conditions. The first of the two scenarios is where an abusive young person in a secure college disrupts a visiting session for all those in the visiting room, including other detainees, their visitors and families, and simply will not move. The second is where an aggressive young person needs to be moved to protect another young person who is threatened by him, where that other young person is at unusual risk from that aggression. In both these cases I can see that some force may be required to move a detained young person. However, such force as may used in those circumstances—that is, to promote a secure and safe environment—should be limited to circumstances in which a young person poses a risk to the present safety or welfare of another person and should never involve pain-inducing techniques.
These restrictions represent the Government’s view, clearly expressed without reservation in the consultation paper. I simply cannot see why they should not be expressed in the primary legislation, particularly when the secondary legislation will come so late in the day.
The issue of the use of force in secure colleges is serious. We should not forget that in April 2004 at Rainsbrook secure training centre, 15 year-old Gareth Myatt was asphyxiated while being restrained in an approved hold; nor that in August 2004, 14 year-old Adam Rickwood committed suicide at Hassockfield secure training centre after being subject to the so-called “nose distraction technique”. Accordingly, I ask the Government to reconsider their position, to limit the use of force in the Bill in accordance with the principles set out in their consultation paper, and to accept either my amendments or those of the noble Lord, Lord Ramsbotham.
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to three amendments in this group, and will focus particularly on some of the health aspects. The question of how these colleges will be run becomes critical.
In his response to the previous amendment, the Minister said that there would be assessment of those with acute needs and vulnerabilities. I suggest that the health needs are far greater than has previously been estimated. I declare an interest as president of the BMA. Our report Young Lives Behind Bars is due to be published on 4 November. I have had extensive discussions with my successor, Al Aynsley-Green, who was previously the Children’s Commissioner and who looked at length into the management of offending children. He was particularly struck by the smaller units in Spain, and was clearly persuaded that moving children away from their original area of domicile, to which they would eventually return, was potentially quite harmful because of the disruption to the support for their health and well-being.
Children in the offending group generally have a much higher incidence of serious problems. About 12% are known to have been bereaved of a parent or sibling; that is far higher than the incidence among children in the general population. About 60% have significant speech, language and learning difficulties, 20% to 30% are learning disabled and up to 50% have learning difficulties. Put simply, about one in four has an IQ estimated to be below 70 and over a third have a diagnosed mental health disorder. Over a quarter view drugs and alcohol as “essential” to their well-being.
When the House of Commons Justice Committee examined reports on acquired brain injury, which affects around 10% of the general population, it found that it typically affects between 50% and 80% of the offender population. A relatively small 2012 study, covering 179 male offenders, found that 60% reported some form of brain injury and 40% reported a loss of consciousness, which indicates probably quite severe brain injury.
Lord Marks of Henley-on-Thames
My Lords, I have two amendments in this group—Amendments 117A and 117B. I should have said at the outset today that the amendments in my name are all supported by my noble friends Lady Linklater, Lady Harris and Lord Carlile, who has just spoken. My noble friends would have added their names to the amendments had Monday not been such a busy day.
My first amendment is to the same effect as Amendment 109 in the names of the noble Lords, Lord Ramsbotham and Lord Beecham, and would prevent girls and younger boys—that is, those under 15—being held in secure colleges. The proposal for the first secure college at Glen Parva, just east of Leicester, is, as my noble friend made clear, a pathfinder proposal. It is intended to be experimental. I suggest that it cannot be right to experiment in this way with the lives of girls and young boys in custody. Widespread and deeply felt concerns are unanimously expressed in the many specialist briefings we have received, notably from the Standing Committee for Youth Justice, the Howard League for Penal Reform, the Children’s Rights Alliance for England and the British Medical Association, to whose impending report the noble Baroness, Lady Finlay, referred earlier. All oppose holding girls and younger boys in the same institutions as older boys.
The numbers alone are extremely telling. As we all are now aware, there are only 1,100 offenders in custody in the secure estate. We have made it clear many times how far we regard this as a great achievement of this Government in the field of youth justice—a point which the noble Earl, Lord Listowel, made earlier today. However, only about 45 of those young offenders are girls and, although the relevant numbers may vary, I think that fewer than 40 are under 15.
In the consultation paper on the proposed secure college rules, the Government have made it clear that they propose that there should be a rule to ensure separate accommodation for girls and boys. As my noble friend Lord Carlile just mentioned, the Government have also made it clear that the plans for Glen Parva disclose an intention that girls and younger boys should be housed in separate blocks, segregated from the main body of the secure college by a fence. However, they will share with the older boys the main education and health block at the site.
At the meeting the other day which my noble friend the Minister helpfully held with Peers to discuss secure colleges, a point was made that officials had seen co-education working well within the secure estate—boys and girls working together on, I think, decoration. That may be. However, the risks posed of occasional but very serious incidents occurring in such circumstances are severe. Furthermore, I do not believe that the Government have taken fully into account the inevitable feelings of intimidation and isolation likely to be felt by a small number of girls in an institution containing a large number of older boys. They will be a tiny minority at best, and the same goes for vulnerable younger boys. Nor should one forget that a large proportion of the girls have been victims of sexual abuse by older men. It is entirely wrong, I suggest, to force through this mixed education experiment. I believe that the experiment itself is unacceptable in this regard.
Places are available in secure children’s homes for this very small group of children. My noble friend and the noble Lord, Lord Beecham, speaking for the Opposition, were in rare accord in that both spoke well of secure children’s homes and of their future. The Government assure us that they intend to keep open secure children’s homes. They are small and provide a nurturing environment. Many provide a highly successful educational content. During the Recess I visited Clayfields House, a secure children’s home in Nottinghamshire. That home has secured a remarkable success with children in avoiding reconviction upon release. At Clayfields they provide not only education, achieving truly remarkable exam results in very short periods of time, but also effective vocational training, arranged by a local private sector employer, in motor mechanics and construction trades. It is a facility shared by the secure children’s home with local schools and others.
I fully appreciate that secure children’s homes are expensive, but we are talking here about housing a very small number of children in an appropriate environment. We are talking about turning around the lives of a group of extremely damaged children. If we do not spend now the resources necessary to ensure that they are held in suitable surroundings and given the opportunities afforded by a period of personal attention and tightly focused education, helping them towards gaining employment later, then we face the far greater financial burden of considerable extra expenditure in the future as they spend their lives in and out of the criminal justice system and dependent on the public purse for social services and welfare benefits.
My second amendment in this group is similar in terms to one that I tabled in Committee, which was kindly mentioned with approval by the noble Lord, Lord Ramsbotham. This amendment sets out the principles that should underlie the foundation of any secure educational establishment. I say again that we are completely in support of the Government’s intention to introduce more and better education for young offenders in custody. The present educational services in Feltham and other young offender institutions are inadequate and ineffective. The lack of education and training for the world of work is one reason for the appallingly high reoffending rates for young people. However, we should not lose sight of the fact that young offenders who are in custody are, for the most part, deeply troubled young people. Very often, their contact with the education system prior to their being sentenced has been limited at best.
The evidence convinces me that the best way in which to provide education for young offenders and improve their chances of rehabilitation is to provide establishments that are small enough to guarantee individual attention from staff; are easy to visit for their families; are designed to assist rather than impede continuity of supervision following release; and offer education and other facilities that are sufficiently focused and supportive to ensure that the different needs of individual offenders with different problems, and who are sentenced and due to be released at different times, can be suitably met.
In this regard, I have added to my Committee stage amendment the need to ensure adequate mental and physical healthcare facilities for young offenders. The need for such extra attention to these issues has been highlighted by the BMA briefing on its impending report on these issues, and my noble friend Lord Carlile has spoken about that. The BMA points out, tellingly, that the state takes over responsibility for these offenders precisely at the point when their needs are most acute. The BMA’s support for the principles of these amendments is only one area of support among many. I again ask the Government to reconsider their proposals, to look at the principles advocated by all those who have done years of research upon this subject, to think again about the Glen Parva proposal and to reject the idea that girls and younger males under 15 should be held in detention in that institution.
The Earl of Listowel
My Lords, it seems wiser not to keep girls in this proposed new pathfinder institution, in part because, as I said in Committee, some of them will be pregnant, giving birth or just have given birth. If they are to be housed there in those conditions, the utmost consideration needs to be given to their needs because, as a society, we are becoming increasingly aware that the attachment that a mother makes to an infant is vital to that child’s later life. Indeed, I am sure that it is often because their mothers were in poverty, alcoholic and unable to form a bond with their child that these young women have followed this course in life. Whatever health provision is offered at the institution to these girls—these mothers—their perinatal needs should be considered.
My noble friend makes an extremely important point about access to psychotherapy for staff members. So often that can be seen as a luxury but, given the relationships that members of staff make with these troubled children, such access is the absolute key in getting the best behaviour from them and avoiding the use of force. If staff can build a good relationship with these troubled young people, force will not be necessary and can be avoided. Staff need expert support in thinking about these children and the relationships they form with them. I therefore thoroughly endorse my noble friend’s point.
Finally, the Children’s Commissioner has produced important reports about the sexual exploitation of girls by gangs. Thought needs to be given to the implication for girls who are placed in establishments where large numbers of gang members may be around. I am thinking of the case of a 14 year-old girl who was raped by a gang member, became pregnant and was very concerned to keep her anonymity. It should be possible to keep girls’ anonymity so that a gang member cannot pass information back to another gang member and say, “The girl you knew is now pregnant”, and so on. That can be a difficult scenario.
Criminal Justice and Courts Bill
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The Earl of Listowel (CB)
The amendment stands in my name and in that of the noble Lord, Lord Carlile of Berriew. I am afraid that it is a little technical, and I may have to speak for seven or eight minutes. I apologise for that, and I will try to be as quick as possible at this hour.
Amendment 122A proposes a solution to the problems that we face concerning anonymity for children in court proceedings. It creates a default anonymity into adulthood, and allows the court to remove this where it considers necessary. I welcome the amendments that the Government have tabled in this group, but I feel that they do not go quite far enough, and I hope to persuade your Lordships, and the Minister, that perhaps he might like to look at this area again before Third Reading and table something to meet some of the concerns that I, along with the noble Lord, Lord Carlile, are about to raise.
Since the Children and Young Persons Act was passed in 1933, children in court have been entitled to remain anonymous, whether they are defendants, victims or witnesses, and Sections 39 and 49 of that Act impose different reporting restrictions, depending on whether a case is in the youth court or a different court. These prevent information being published that could lead to the identification of a child. However, whether those restrictions must be respected after a child turns 18, when proceedings have been concluded before then, is a complex question, which seems to have caused great confusion.
So far as I am aware, media organisations have generally respected reporting restrictions even after a child has reached 18, where the proceedings had concluded before then. So children who had historically been involved in court proceedings have not been named in practice, even after they have reached adulthood, whether they were victims, witnesses or defendants.
However, in a recent judgment, Lord Justice Leveson interpreted a Section 39 order to expire once a child reaches 18, as there is nothing specifically stating that anonymity should extend into adulthood. The same analysis would apply to Section 49. The case, which is being appealed, has serious consequences. First, the implication of the judgment is that criminal courts have no power to provide child victims, witnesses or defendants with anonymity into adulthood. As Lord Justice Leveson himself pointed out, this leaves child victims and witnesses with less protection than vulnerable adult victims and witnesses, who can be granted anonymity. Secondly, because the judgment has drawn attention to the law, it is likely that we will see children who were historically involved in court proceedings being identified by the media after they reach 18.
The question that Parliament now has to answer is what to do about this state of affairs. In Committee we debated one solution to the problem, and amendments were tabled that would have set it in statute that Section 39 orders and protection under section 49 would last for a child’s whole life, subject to applications to the contrary. The Government said that there were technical flaws with the amendments, and promised to return to the issue on Report. Last week the Minister, the noble Lord, Lord Faulks, duly tabled Amendment 139, which sets out an alternative. It would create an entirely new order, which could provide child victims and witnesses with anonymity into adulthood—but only if they can show that failure to do so would diminish the child’s evidence or co-operation in the case. Defendants cannot be the subject of the new order at all.
There are two serious problems with the Government’s amendment. First, it introduces a high test, which victims and witnesses must pass if they are to access this anonymity; that is, the test of diminished evidence and co-operation. Sections 39 and 49 of the Children and Young Persons Act do not require a child to meet any kind of test to be granted anonymity. As I have said, prior to the Leveson judgment, Sections 39 and 49 seem generally to have been respected by media organisations after a child turned 18. Why should it now be necessary for victims and witnesses to meet this test, before being granted anonymity? I feel it is unhelpful. Coming forward as a victim or a witness takes real courage, particularly as a child. Making anonymity harder to access is unlikely to encourage anyone to come forward.
My second concern with the Government’s proposal is the distinction that it makes between victims, witnesses and child defendants, and the fact that it excludes children who are defendants from the new anonymity orders. Their amendment would leave criminal courts with no means to provide a child defendant with protection after they turn 18. The only way for a child defendant to remain anonymous after the age of 18 would be for a civil injunction to be sought. This is unsatisfactory.
I see that the rest of my briefing paper has now disappeared from my iPad, so I shall refresh it and hope that the briefing will return. I may have to ask the noble Lord, Lord Carlile, to take my place for a moment. I have it back now; there is a little lacuna in it, but I do have some more of it here. I apologise for the break, my Lords.
The Government have made clear that they consider reducing reoffending a priority, particularly among children. This is a laudable aim, which I am sure that we all fully support. I believe that achieving that aim will be hindered by refusing anonymity to child defendants as soon as they turn 18. My Amendment 122A puts forward an alternative solution to the problem— one that seeks to overcome the difficulties with the Government’s proposals. Like the government amendment, my amendment introduces a new order that would provide all children in court proceedings with anonymity into adulthood, unless an application were made to vary it. It therefore reverses the burden.
My amendment would be available to child victims, witnesses and defendants, and does not contain the high-threshold test included in the government amendment. Like the government amendment, my amendment would still require the court, when making an order, to consider,
“the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings”.
It cannot therefore be said to constitute an undue interference with open justice or press freedom.
We should not underestimate the impact of this matter on child victims, witnesses and defendants, or on the operation of the youth justice system itself. I very much hope that, for the reasons that I have outlined, the Government will agree that my proposed solution is a more productive way forward, and accept my amendment.
I now turn briefly to government amendments 140 and 141, which also relate to anonymity for children in court. I welcome the principle of ensuring that reporting restrictions cover social media, which I understand is the intention of those two amendments. I note that Amendment 140 would prevent Section 39 of the Children and Young Persons Act applying to proceedings in criminal courts. Can the Government explain why this provision is necessary? I imagine that they intend to bring Section 45 of the Youth Justice and Criminal Evidence Act 1999 into force to replace Section 39. Can the Minister confirm whether that is the case, and if so, give us an indication of when they plan to bring Section 45 into force? If I am speaking too quickly, I am very happy to repeat anything that I have just said.
The government amendments do not mention Section 49 of the Children and Young Persons Act 1933, so far as I can see. Section 49 provides default anonymity for proceedings in the youth court. I am anxious that this is preserved. Will the Government reassure us that they have no plans to alter the default anonymity in the youth court and clarify whether their amendments extend Section 49 so that it explicitly covers social media?
To go back briefly over what I have said, I am concerned that when a person who has committed a crime in his childhood turns 18 and perhaps goes into higher education or university or starts a career, he may find that the facts of his past emerge, which may cause great impediment to achieving success in his career and seriously hinder his rehabilitation. I would appreciate reassurance that the Government have considered that point. I look forward to hearing the Government’s position on these matters. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group I will speak only to Amendment 122AA standing in my name. This amendment deals with preserving the anonymity of children who are subject to a criminal investigation but who have not yet been charged with any offence. The lack of anonymity for such children is an anomaly in the law as they are protected from being named once they are charged, as the noble Earl, Lord Listowel, has just explained.
This anomaly was to be addressed by Section 44 of the Youth Justice and Criminal Evidence Act 1999, which would apply to reporting in respect of persons under 18 after a criminal investigation into an alleged offence has begun. However, that section has not been brought into force. My amendment would amend the section to add its application to sound and television broadcasts or public electronic communications networks and would bring it into force on the passing of the Bill.
The undesirability of the present position was graphically illustrated when the Sun published the name of the boy later to be accused of murdering the Leeds schoolteacher Ann Maguire before he was charged. It is, of course, now illegal to name him as he is a party to court proceedings. It is obvious that if a child is named pre-charge, that undermines any anonymity later afforded by court proceedings.
In Committee, my noble friend the Minister said that,
“in the light of the significant changes to press self-regulation recently introduced by the Government … Both the industry and the Government agree that independent self-regulation is the way forward. … We should therefore give this new approach a chance to succeed”.—[Official Report, 23/7/14; col. 1198.]
I regret that I do not share my noble friend’s optimism as to the present effectiveness of self-regulation. Furthermore, even if press self-regulation may work for newspapers in future, it has no effect on preventing pre-charge publication in the social media.
This is, of course, a probing amendment. It has been agreed that Section 44 will not in fact be brought into force unless it is debated by both Houses and subject to affirmative resolution. Nevertheless, I would ask my noble friend to make clear in this debate whether he agrees that pre-charge anonymity ought to be guaranteed—and, if so, will he please say how he proposes that it should be achieved?
Lord Marks of Henley-on-Thames
My Lords, my amendments in this group, which largely repeat the amendments I put down in Committee, have a simple purpose, which is to permit the court a discretion as to whether or not to impose the criminal courts charge. Because they largely repeat earlier amendments, I will be brief.
Under the new Section 21A proposed in Clause 46, the court has no discretion but to order a person over 18 convicted of an offence that is not excluded by regulations to pay the charge. Since Committee, I have moved towards the Government’s position by suggesting in these amendments that a relevant court must “consider ordering” that the criminal courts charge be paid, so that while they would have a discretion, the courts would receive a clear message that such a charge should be expected in the generality of cases, and the legislation would act as an indication as to how the discretion should generally be exercised.
However, I maintain the general position I took in Committee in suggesting that it would be completely senseless to make an order that a criminal courts charge be paid in every case. There would be many cases heard every day in criminal courts where orders were made and everyone in the court would know that there was not the slightest chance of the charges ever being paid. That would make a nonsense of the provisions, I suggest, and would risk bringing the courts into disrepute. Relying on a later power to remit the charge in such cases is unnecessarily burdensome on the courts and wasteful of everybody’s time.
Furthermore, I am concerned that imposing a charge upon offenders who are already without means and often in serious personal and financial difficulties is likely to reduce their chances of rehabilitation. The outstanding charge may have a significant impact on their ability to secure work and to meet necessary expenses, particularly where they need credit in order to do so and the outstanding charge will impede their obtaining such credit. For those reasons, I suggest that the imposition of a criminal courts charge needs to be discretionary.
I further suggest that it is not sensible to deny the court any discretion as to the level of the charge to be imposed. That is the reason for my Amendment 125D. New Section 21C would require the amount of the charge to be the amount specified in regulations. My amendment would simply make that amount a maximum. There will be cases where offenders of limited means will wish, or at least be prepared, to meet their obligations and pay the charge if they can afford it. I suggest that a sensible way of dealing with such offenders is for the court to set the charge at a level the offenders can afford, rather than charging them the full amount specified in the regulations and forcing them to come back on an application to remit the charge at a later date or, worse, leading them to the position where they do not pay anything. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, I shall speak to my amendments in this group. I support 100% what the noble Lord, Lord Marks, has said. I moved similar amendments in Committee and the amendments that I am putting forward on Report are by way of a compromise. I regard my position as a fallback position and the position of the noble Lord, Lord Marks, as the primary position on judicial discretion.
My Amendments 125, 126 and 127 would allow the Criminal Procedure Rule Committee to specify the circumstances in which the charge should not be imposed. The idea behind this group of amendments is that it would provide an opportunity for the CPRC to ensure appropriate judicial discretion, while providing greater clarity than a more permissive wording, which is what the noble Lord, Lord Marks, is seeking. Of course, the CPRC operates independently of government.
I also thank the Minister’s officials for clarifying to me in the past few days that the court’s charge can be treated the same way as the victim surcharge under Section 135 of the Magistrates’ Court Act 1980, which gives magistrates a general power to order a brief period of detention when a defendant is in default of any fine imposed by the court, particularly when that defendant is homeless and cannot pay. This, as any magistrate or lawyer will know, is a regular occurrence in London magistrates’ courts. This is the only practical way of dealing with this type of case.
I conclude on a wider point, by reiterating some of the points that the noble Lord, Lord Marks, has made. Notwithstanding the people who are homeless and literally do not have any money in their pockets, there are many other people we regularly see in courts who are on benefits, perhaps because of disabilities. Any additional cost that is given to them will remain unpaid and accrue as a greater debt. Every day of the court’s week, magistrates and judges impose fines where they have discretion and come up with appropriate fines that they believe are realistic. They put in place tough measures, namely collection orders, to recover those fines, so magistrates and judges are well able to exercise discretion, and they should be given the opportunity to do so over the court’s charge.
Lord Faulks
My Lords, I am grateful for the speeches made by my noble friend Lord Marks and the noble Lord, Lord Ponsonby, in this group of amendments concerning the criminal courts charge. There was lengthy debate in Committee, and I responded at some length, so I hope they will not consider it any disrespect to their arguments if I summarise the Government’s position fairly briefly.
The question of discretion has arisen once more. My noble friend Lord Marks seeks to vary his original suggestion by fettering the discretion somewhat but nevertheless importing a degree of discretion, as was discussed at length. It is the Government’s position that that is inappropriate.
The point was made in Committee and this evening that many noble Lords consider the charge unfair in the case of poor offenders. The Government believe that it is right that all adult offenders, whatever their means, pay towards the cost of running the courts, alleviating the burden on the taxpayer. I know that noble Lords who are concerned about this area will have seen the figures published on the website before Committee stage about the charges by band. They are quite modest, but it is nevertheless hoped that they will reflect some compensation to the country for defendants who use the courts because they have committed offences. As I said previously, offenders can apply to vary payment rates if their financial circumstances change. In addition, offenders who comply with their payment terms and who do not reoffend can have their charge remitted after a specified period. The imposition of this charge is not designed to be a punishment, so confusing it with the various discretionary powers that the court has rather misses the point.
Amendment 125D would stipulate that the charge cannot exceed the amount specified by the Lord Chancellor in the regulations. The Bill is drafted so that a charge to be paid is of an amount specified by the Lord Chancellor, so I am sure that my noble friend Lord Marks will agree that this leaves no room for charges exceeding the amount specified to be imposed, which should mean that the amendment is unnecessary.
Amendment 126A would omit the requirement for a specified period of time to have passed before the court charge debt can be written off. If accepted, it would provide the court with wide discretion to remit the charge early, as and when it sees fit. The clause as it currently stands has the benefit of allowing a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This is a powerful incentive for offenders to repay the charge and refrain from reoffending, ensuring that a specified period is a fundamental feature of the remission provisions—a key aspect of this policy which I hope the House will not overlook.
Amendment 125E seeks to specify that where a charge can be remitted it can include the remission of interest. I respectfully point out to my noble friend Lord Marks that Clause 42 gives the magistrates’ court power to remit the charge under particular circumstances. It is intended that this provision be used where an offender has paid accordingly and has not gone on to reoffend. It can also be remitted where the debt is unenforceable.
New Section 21D(4) of the Prosecution of Offences Act 1985, inserted by Clause 46, makes it clear that interest payable under the regulations is to be treated as part of the charge. It therefore follows that any remission of the charge would comprise the whole debt, including the interest. I hope that reassures the House that the Government have carefully considered this provision and will satisfy my noble friend such that he might not press his amendment.
I stress, however, that this is a novel scheme and the Government have already agreed to review the policy after three years. Of course, we will monitor its impact closely until then. The Lord Chancellor must repeal the provisions if he considers it appropriate, having regard to that review. I am sure that the noble Lord will agree that this further safeguard demonstrates the Government’s commitment to getting this right.
I turn finally to the Criminal Procedure Rules and the amendments tabled by the noble Lords, Lord Ponsonby and Lord Beecham, which seek to widen the conditions that must be met for the courts charge to be remitted. The amendments would broaden the court’s power to such an extent that the charge could be remitted also in cases specified in those rules.
The effect of the amendments would be to confer on the Criminal Procedure Rule Committee a jurisdictional power by enabling it to set rules concerning substantive legal matters and by giving it a significant level of discretion to prescribe the circumstances in which the charge could be remitted. This would of course contravene the Government’s position that it is an administrative charge.
If I understand the noble Lord’s arguments correctly, he is seeking to afford the committee the power to determine the instances in which the criminal court charges might be remitted, although he does not give a clear indication as to which cases would be specified in the rules to which discretion may be applied.
The Bill as it stands already allows for the courts to cancel the charge, as I have indicated, but we submit that it is inappropriate to use these rules as a means to set the criteria for remission. I am sure noble Lords are aware that the function of the Criminal Procedure Rules is to govern the practice and procedure of the criminal courts. The responsibility of the Criminal Procedure Rule Committee is to make those rules. With great respect, this amendment would afford that committee a power beyond its current jurisdiction. The choice of criteria for remission should be one for Parliament itself. I fear I cannot agree that it is appropriate for this power to be attributed to the committee.
I understand the noble Lord’s concern about the impact of the charge on particular offenders whom he encounters in his capacity as a magistrate. The Government are aware of that risk and are monitoring any adverse impacts. I also confirm what the noble Lord said about his discussion with my officials in relation to Section 135 of the Magistrates’ Courts Act 1980. I hope that I have satisfied the noble Lord and that he will withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I will of course seek leave to withdraw the amendment in a moment. Very briefly, the point of tabling further amendments on Report, following the debate in Committee, which move slightly towards the Government’s position, was in the hope that the Government might have considered the debate and moved towards our position. So I make no apology for repeating the position that I took in Committee.
I also want to make it clear that I think all of us in this House agree with the general principles stated by my noble friend that there is a very strong case for ordering defendants who can pay a criminal courts charge on conviction so to pay it. Our concern is with those who plainly cannot pay it or cannot pay all of it. I entirely accept and appreciate the support of the noble Lord, Lord Ponsonby, for my position. However, I am not sure that the traditional punishment meted out to those who are drunk and brought before the magistrates’ court of £1 or a day—that kind of formulation of giving a period of custody in default of payment right at the outset—will mitigate the mischief at which my amendments are aimed.
I shall also simply say two further things. First, the point of my Amendment 125D and the words “no greater than” is to make sure that the amount specified in the regulations is the maximum that can be charged, but that the court would have the power to impose a lesser charge. I believe that the amendment, if implemented, would have achieved that end.
Finally, I suspect that when it comes to the review of the operation of this charge in three years’ time, Parliament and the Government may well find that the procedure for remitting the charge and having hearings as to whether or not a charge should be cancelled at a later date is unduly unwieldy, cumbersome and expensive. With those observations, I beg leave to withdraw my amendment.
Lord Hope of Craighead (CB)
My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:
“The duty under subsection (2)”—
which is one to dismiss a primary claim—
“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.
It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.
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.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(9 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“(c) include provision for the court to decline to make an electronic monitoring condition in any case where the court considers that it would be unjust, unnecessary or impractical to do so.”
Lord Marks of Henley-on-Thames (LD)
My Lords, Amendment 6 is an extremely modest amendment. Your Lordships will appreciate that Clause 7(3) permits the Secretary of State to make electronic monitoring conditions compulsory. I spoke on this issue in Committee, arguing that the imposition of an electronic monitoring condition should remain a matter for the court. I argued that the power to impose such a condition on a prisoner’s release on licence was, indeed, a desirable and sensible power, and that such a condition should be imposed where appropriate. However, I also argued that there may be circumstances in which it would be impractical or unnecessary to impose such a condition, for example where an offender was disabled or was to be hospitalised upon release.
In response to my amendment, my noble friend Lord Ahmad said that he was aware of the concerns that physical or mental health issues or possible practical problems might make compulsory electronic monitoring conditions unsuitable. My noble friend also gave, as an example of impracticality, a case where arrangements could not be made for recharging the battery in the tag—he was right to do so and there may be many other examples of impracticality. However, my noble friend contended that there was flexibility in the order-making power under the subsection that would enable these cases to be taken into account. I am concerned about that. My noble friend said that the Secretary of State would be able to,
“provide for cases in which the compulsory condition should not apply”.—[Official Report, 14/7/14; col. 402.]
I regret that I do not read the clause in that way. While there would, under subsection (3)(3)(b), be power to make provision in relation to persons selected on the basis of criteria specified in the order or on a sampling basis, that is not the same as enabling cases to be dealt with on a case-by-case basis.
The amendment would, quite simply, enable the Secretary of State to incorporate into the order a small element of judicial discretion, whereby, in a given case, a court could decline to make an electronic monitoring condition if it considered it would be unjust, unnecessary or impractical to do so. It would be for the Secretary of State to decide whether to incorporate such provision as I suggest in the order he makes. For that reason, I reiterate that my amendment is modest and limited. It is intended to be helpful. I beg to move.
Lord Ponsonby of Shulbrede
My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.
Lord Faulks
I hope to come to that in a moment.
As was explained in Committee, the code will not only encourage the use and enforcement of contractual provisions to ensure that current FoI obligations about information held on a contracting authority’s behalf are met but will promote the voluntary provision of other information where this would help to provide a more meaningful response to requests. The success of this approach will, as was also made clear in Committee, be monitored by both the Government and the Information Commissioner. If it does not achieve sufficient transparency, we will consider what other steps, including the possible formal extension of FoI to contractors, are required. Once the code of practice is issued, it is important that we give it the opportunity to prove its worth before deciding whether further measures are necessary. I therefore invite noble Lords not to press Amendments 7 and 120.
We also debated Amendment 8 in Committee, and I sought then to explain why it is not appropriate. We agree that the code of practice is a necessary and important document. It is intended to make sure that the necessary safeguards are in place for the proper management of the data gathered by electronic monitoring conditions. It will, of course, comply with the Data Protection Act. However, it is for operational purposes and will not introduce any new legal requirements. That is why we do not propose to agree its content through parliamentary procedure.
I should remind the House that it passed the provisions in the Crime and Courts Act 2013 that inserted new Section 215A into the Criminal Justice Act 2003. This also provides for a code of practice relating to the processing of data from electronic monitoring and is linked to provisions allowing location monitoring of offenders as a community requirement. This provision was approved by Parliament with no requirement for the code to be subject to affirmative secondary legislation. The amendment would, therefore, be inconsistent with the provisions already approved for a code of practice.
I should perhaps add a little more about the scrutiny that has been undertaken in relation to electronic monitoring and the approach to contract management that has informed the new contracts. Within the MoJ, and specific to electronic monitoring, this has meant the new contracts being drafted and let with key elements such as open-book accounting being critical. Accountability for contract management will be much clearer, with contract owners called regularly to account for their detailed knowledge of the contracts and their operational assurance that services are properly assured and audited.
On the amendment, I can only reiterate the assurances that I have given previously. We have committed to consultation on the code of practice, which will include consulting the Information Commissioner. I also confirm that the code of practice will be published. I do not have, at the moment, a specific date for publication of the code of practice but we hope to issue guidance to the standard contract clause by the end of 2014. If I receive further information on the probable date for the code of practice, I of course undertake to inform the House, and certainly the noble Lord, Lord Beecham.
I hope that I have satisfied the House on these issues of concern. Electronic monitoring would naturally be a matter of concern, but it is also a valuable tool in the detection and prevention of crime. I therefore ask the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, in relation to Amendment 6, I accept my noble friend’s point that it is for the Secretary of State rather than the court to deal with electronic monitoring conditions. He is right about that. He was also right to recognise the concerns as to whether such conditions could be imposed inappropriately or where unnecessary, unjust or impractical.
I understand him to have given an assurance that he understands that the power to make an order which makes,
“provision by reference to whether a person specified in the order is satisfied of a matter”,
enables the order to ensure that the person is satisfied that it would not be impractical to impose such an electronic monitoring condition. On that basis, I join in his observation that it is not entirely clear, even though it may be clear from the Explanatory Notes, which of course form no part of the statute. Those who are left with the difficult task of unravelling this arcane piece of drafting will no doubt be able to read the report of that assurance. On that basis, I beg leave to withdraw this amendment.
Lord Marks of Henley-on-Thames
My Lords, our amendments in this group on Clause 27 regarding compulsory custodial sentences for second offences of possession of a knife would have three effects. The first, and by far the most important, would be to exclude 16 and 17 year-olds from the ambit of the compulsory custodial sentences proposed in the clause. The second would be to ensure that the circumstances the court might take into account in deciding not to impose a custodial sentence would include the likely impact of the sentence on the offender. The third would be to ensure that those circumstances would include not only the circumstances of the offence for which the offender was being sentenced at the time he came before the court, but also the circumstances of the previous conviction that brought him or her within ambit of the clause in the first place.
I turn first to the amendments excluding 16 and 17 year-olds from the operation of the compulsory sentence regime. Your Lordships will no doubt remember that in Committee this House declined to remove the whole of this clause under my stand part debate, but by a fairly narrow margin, considering that the Conservative and Labour parties whipped their Back-Benchers in favour of the retention of the clause, notwithstanding that the Government Front Bench abstained. It was nevertheless abundantly clear from the debate that there was a very strong feeling in this House that compulsory sentences for children were undesirable and damaging to the children concerned.
I should remind your Lordships that this clause was not and is not government policy. It was introduced in the House of Commons by the Conservative Back-Bencher my honourable friend Mr Nick de Bois, and carried in that House. That is how it came to be included in this Bill, notwithstanding the opposition of the Liberal Democrat Benches.
On Report, the House has before it in the next group amendments in the names of the noble Baronesses, Lady Browning and Lady Berridge, which would oblige courts to have regard to their duty under Section 44 of the Children and Young Persons Act 1933 when implementing this clause. That would mean that a court would have to have regard in every case to,
“the welfare of the child or young person”,
and would be required “in a proper case” to,
“take steps for removing him from undesirable surroundings and for securing that proper provision is made for his education and training”.
Baroness Berridge (Con)
My Lords, I shall speak briefly on the amendment proposed by my noble friend Lord Marks. First, on a point of agreement, he will have seen that under Amendment 65 in my name and that of my noble friend Lady Browning it would of course be possible for the court to take into account the circumstances of the previous offence that was what I will call the “trigger” for this provision. Those circumstances could be taken into account.
With regard to the second point, we outlined in Committee that under new Section (6B) in Clause 27(4) there is a judicial discretion not to impose a mandatory sentence unless there are particular circumstances that relate to the offence, the offender or the previous offence and it would be unjust to do so in the circumstances. I would be interested to know the Minister’s opinion on whether the likely impact on the child of the offence would be included in the consideration of the welfare of the child, which is part of the other amendments that my noble friend and I have tabled.
In relation to a third point, the imposition of a mandatory requirement on young people aged 16 and 17—
Lord Marks of Henley-on-Thames
Before my noble friend gets on to her third point regarding 16 and 17 year-olds, may I just ask her whether she was saying in her previous remarks that if it is the case that the likely impact of the offence is not caught within the phrase,
“the circumstances of the offender”,
she will therefore support that amendment of mine?
Baroness Berridge
No. In relation to the likely impact, my point was whether that is considered under the requirement in the Children and Young Persons Act to take into account the welfare of the child.
With regard to 16 and 17 year-olds, it is already the position that they are covered under the mandatory sentencing provisions if they are convicted twice of the offence of threatening with a knife, so it would be inconsistent not to include 16 and 17 year-olds under these provisions where there will be mandatory provisions when you are twice convicted of the offence of the possession of a knife.
I understand that there is not a clear age of majority in this country, but when you can marry and join the Army at age 16, if you have been found in possession of a knife and convicted of that offence and then been found in possession of a knife again by the time you are 17, I do not think it is unduly harsh to say to those young people that a prison sentence is to be imposed unless the provisions of proposed new Section (6B) are found to apply by the judge.
Finally, in relation to the disproportionality issue for black and ethnic minority young people which I have mentioned previously in your Lordships’ House, it is clear that it is also the case that those young people are disproportionately the victims of knife crime. If one is going to plead disproportionality, one has to look not only at offenders but also at victims. The use of knives on young black people—particularly men—is an issue of grave concern in that community, so one has to look at both sides of that issue and not just at the disproportionality of offenders.
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.
Lord Marks of Henley-on-Thames
I hesitate to interrupt. My noble friend knows full well that that section merely requires the court to have regard to the welfare of the child and therefore is not an impediment to imposing the compulsory sentence. My point is that the circumstances that the court may take into account in declining to impose the mandatory sentence are so circumscribed that that runs counter to the spirit of the provision mentioned.
I assumed I was interrupting, but perhaps that is not the case and my noble friend has finished. I do not propose at this late hour to press these amendments to a vote because I do not suppose they would produce a conclusive result in favour of the amendment, although those in my party feel extremely strongly about this. We deeply regret that the Labour Party has decided not to support our position on 16 and 17 year-olds in particular, and the reason for that regret is that in the lead-up to this debate, and indeed in the lead-up to the debate in Committee, I saw not one shred of evidence from any professional body supporting the imposition of compulsory custodial sentences for 16 and 17 year-olds in these circumstances. We on these Benches believe that maintaining judicial discretion is vital to the administration of justice and we are deeply concerned by its reduction in this and other sections of this Bill. I beg leave to withdraw this amendment.
The Deputy Speaker
The amendment has already been moved and the Minister has responded, so it is for the noble Baroness now to decide what she wishes to do with the amendment.
Lord Marks of Henley-on-Thames
My Lords, before my noble friend formally concludes speaking to the amendment in response to the Minister, perhaps I might indicate that in our view it is unsatisfactory that an amendment is reaching the statute book with very detailed amendments proposed by the noble Baronesses, Lady Berridge and Lady Browning, without the Government having expressed any view as to the degree to which they work. If what I suspect is now going to happen does happen, these amendments will be carried and this is the way that the Bill will go on to the statute book. We regard that as unsatisfactory. Perhaps consideration should be given to procedure on a Bill of this sort in future.
Lord Faulks
The Government’s position has not changed. Parliamentary counsel assisted the noble Baroness in making sure that the necessary amendments were properly and accurately drafted. I hope that that assists the noble Lord.
“Publication of private sexual images
(1) It shall be an offence for a person to publish a private sexual image of another identifiable person without their consent where this disclosure causes distress to the person who is the subject of the image.
(2) A person is not guilty of an offence under subsection (1) if he or she-—
(a) reasonably believed that the person who is the subject of the image had consented to its publication;(b) reasonably believed that the publication of the image would not cause distress;(c) reasonably believed that the image had previously been published; or(d) did not intend to publish the image. (3) For the purposes of this section it is immaterial who owns the copyright of the published image.
(4) An offence under this section is punishable by—
(a) on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine (or both);(b) on summary conviction, imprisonment for a term not exceeding 6 months or a fine (or both).
Lord Marks of Henley-on-Thames
My Lords, Amendment 98 stands in my name and in the names of my noble friends Lady Grender, Lady Brinton and Lady Barker. I shall address the entire group of amendments, in particular the amendments tabled by my noble friend Lord Faulks.
Your Lordships may remember that in Committee I and colleagues on these Benches moved an amendment to criminalise the practice of posting so-called “revenge porn” on the internet. This thoroughly nasty behaviour, where the perpetrators post sexual images of former lovers after the breakdown of their relationships in order to hurt their victims, has become all too common. There are a number of sites with names like “MyEx.com” where such images abound.
Unsurprisingly, the publication of such images causes untold distress, embarrassment and humiliation. Such publication has the potential to create havoc with victims’ mental and physical health, their happiness and self-esteem, their future trust in others, their ability to form relationships and their present and future relationships—social, within their families and at work. Publication by a former lover in these circumstances is a gross breach of trust. The images are taken in the privacy and trust of an intimate relationship, with the consent of the victim. They are then deliberately and callously displayed to the world without their consent, in a malicious attempt to cause distress.
The Government’s response to our amendment in Committee was to promise to consider the issues that we raised. I have been delighted by the way that such consideration has led to the tabling of the Government’s amendments in this group. They start with Amendment 103, which would establish the offence of, “Disclosing private sexual photographs and films”, widely defined, “with intent to cause distress”. I am aware that at the early stages of the Government’s consideration there was a view within the Ministry of Justice that no new offence was needed, on the basis that existing offences largely covered the evil with which we were concerned. However, further consideration has led the department to the conclusion that a new offence is indeed needed. That recognition is right and I commend and thank my noble friend, and all those who have worked with him on this within his department, for the extremely hard work that they have undertaken in the short time since Committee to develop these proposals.
The three essential elements of the new offence will be, first, that the image must be,
“a private sexual photograph or film”,
widely defined; secondly, that it must be published “without the consent of” the victim and, thirdly, that “the intention of” the publisher must be to cause the victim “distress”. Those elements largely mirror those of the offence mentioned in our amendment and we are content that the government amendments represent an effective way of dealing with this despicable behaviour.
We have had one concern as to the definition of sexual, which our amendment left undefined. The Government have sought to define it in Amendment 105. Subsection (3)(a) of their proposed new clause is clear, referring precisely to,
“an individual’s exposed genitals or pubic area”.
Paragraphs (b) and (c) of that subsection go wider. They refer to an image being sexual if, in paragraph (b),
“it shows something that a reasonable person would consider to be sexual because of its nature”,
and, in paragraph (c), if,
“its content, taken as a whole, is such that a reasonable person would consider it to be sexual”.
My noble friend and officials within his department helpfully held a meeting with us, at which they explained the difficulties that they faced in defining a sexual image. Colleagues were concerned that a topless photograph should be capable of being within the definition of “sexual”, in appropriate circumstances, and particularly where photographs of younger women were concerned. On consideration, we have come to the conclusion that paragraphs (b) and (c) enable the contents of such an image to be considered widely and that a successful balance is struck by the proposed wording. However, I should be grateful if my noble friend would confirm that he considers that paragraphs (b) and (c) considerably widen the ambit of paragraph (a).
I conclude by paying tribute to all those colleagues who have campaigned for the criminalisation of revenge porn. I particularly mention in this context my honourable friend Julian Huppert MP, who raised this issue in the other place and has worked hard on it. In view of the commendable position taken by the Government, we will not be pressing Amendment 98.
Baroness Brinton (LD)
My Lords, I, too, have my name to Amendment 98 and wish to echo the points made by my noble friend Lord Marks on government Amendments 103, 104 and 105. I also support his comments about the definitions of private and sexual, and look forward to hearing the Minister’s response.
In recent years, a new series of unpleasant crimes relating to technology have developed. Cyberstalking, cyberbullying, sexting and now revenge porn are all about abuse of power and spreading information widely on the net. I shall focus on the devastating effects of the circulation of these images, and why the three criteria outlined in the government amendments are inextricably linked and why the presence of all three demonstrates the state of mind of the perpetrator. The proposed offence is vile. It is not just blackmail, although it has been used by some for that effect. It is not just the betrayal of trust and confidence of a former partner, but about the long-term damage on the partner who has been exposed. It is an abuse of power designed to cause distress, and with the nature of social media today, the perpetrator can hand it on and on to others, including professional revenge porn sites whose participants often then choose to troll the original victim, their family and their work colleagues.
Many victims of revenge porn are too scared and humiliated to speak out but a few brave individuals do. Hannah Thompson has and is now a leading campaigner for the new law. Here is what she had to say about why she thinks the law needs to change:
“For those who don’t know, revenge porn is non-consensual pornography. It’s where a person uploads an explicit image of somebody without their permission. Often the victim’s name and contact details are attached. Not only is it humiliating but it has the potential to reach out of the screen and destroy people’s lives … Of course, there is nothing inherently wrong with sharing private images of yourself but you do so with a reasonable expectation of privacy. There is, however, something intrinsically wrong with using explicit images as a tool to harass and humiliate someone. As a victim of revenge porn, I can’t even begin to explain how relieved it makes me to think that Parliament is seriously considering these proposals. Most victims of revenge porn are shamed and forced into silence for fear that more people will find their images. They’re made to tolerate the abuse and forced to suffer through tedious copyright claims because it’s the closest they can get to having something done. I’ve spoken to victims who were suicidal, whose images were taken on a Polaroid camera before they had any concept of the Internet, who have lost their careers and whose relationships have been ruined. All the while, those who have published the images are free to sit back and revel in the pain they’ve caused to someone whose only crime was to trust them”.
Celebrities have been caught too. Photos of Jennifer Lawrence were found by a hacker, and Rihanna and Tulisa Contostavlos have had private nude photos released by former partners. But we do not know the size of the problem because only eight out of 43 police forces collect data. The Huffington Post said:
“The data that was available suggests revenge porn is on the rise: there were 35 reported incidents in 2012, jumping to 58 in 2013, and there have been 53 in the first half of this year alone”.
Tonight, Hannah and the other victims are in the public gallery watching our proceedings. Their bravery in fighting for revenge porn to be made a criminal offence would also mean that our police forces will start to catalogue this offence more carefully. Most of all, it will send a message to former partners who commit this appalling act that the effect it has on the victims is not one that our wider society is prepared to accept.
Lord Marks of Henley-on-Thames
My Lords, in withdrawing Amendment 98, I simply say that I am grateful for my noble friend’s clarification that he agrees with our view that proposed new subsections (3)(b) and (3)(c) in Amendment 105 do indeed add to the rather definite description of “sexual” in subsection (3)(a).
At the meeting that we have mentioned, we discussed whether we should include a non-exhaustive list of factors that might be taken into consideration when coming to a conclusion as to whether an image is sexual. I have reached the clear view that the Minister and his officials are right to conclude that such a list would not be helpful; indeed, it might have the effect of limiting the ambit of the offence. I beg leave to withdraw the amendment.
“Public interest defence to Computer Misuse Offence
In the Computer Misuse Act 1990, after section 1(2) insert—“(2A) Subsection (1) does not apply to a person who shows—
(a) that the conduct which would otherwise be an offence under subsection (1)—(i) was necessary for the purpose of preventing or detecting crime, or(ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court;(b) that he acted in the reasonable belief that he had in law the right to carry out that conduct;(c) that he acted in the reasonable belief that he had relevant authority;(d) that he acted in the reasonable belief that in the particular circumstances the conduct was justified as being in the public interest; or(e) that in the particular circumstances the conduct was justified as being in the public interest.””
Lord Marks of Henley-on-Thames
My Lords, this group comprises Amendments 106A to 106D and 181A and is the last group at the end of a long day.
Amendments 106A to 106C would introduce new defences to criminal offences under three statutes, the Computer Misuse Act 1990, the Bribery Act 2010 and the Data Protection Act 1998.
I turn to Amendment 106A. Section 1 of the Computer Misuse Act creates an offence effectively of using a computer to secure unauthorised access to data or to a program—in other words, what is conventionally called hacking into other people’s computers. The amendment would create a public interest defence to that offence. The defence proposed is directly in line with a defence that already exists under Section 55(2) of the Data Protection Act 1998, to which I will return in respect of Amendments 106C and 106D.
The amendment would place the onus squarely on the defence, stating:
“Subsection (1) does not apply to a person who shows”.
The defences are that the conduct which would be an offence was necessary for the purpose of preventing or detecting crime or was required or authorised by or under any enactment, a rule of law or by order of a court; or that the defendant acted in the reasonable belief that he had the right to carry out that conduct; or that he acted in the reasonable belief that he had relevant authority; or that he reasonably believed that the conduct was justified as being in the public interest; or that in the particular circumstances the conduct was justified as being in the public interest.
Lord Marks of Henley-on-Thames
My Lords, I say at the outset that I entirely accept the point made by both the Minister and the noble Lord, Lord Beecham, so elegantly and in such a restrained fashion, about the lateness of these amendments. I entirely accept that the complexity of these amendments, and the fact that the Government and the Opposition have had so little time to consider them, means that it would be wrong of me to press them to the vote today.
Nevertheless, in encouraging my noble friend and his department to give further consideration to the points raised by the amendments, I will deal briefly with some of his points. He mentioned the need for consultation under Section 77 of the Criminal Justice and Immigration Act, affecting Section 55 of the Data Protection Act—as it would be with the amendment—and he deduced from that that it would be wrong to proceed without consultation. The fact is that there have been two consultations on this issue by the previous Government, and furthermore we now have the clear recommendations of the Leveson report that both of these provisions should now be implemented. In those circumstances I find it hard to understand why he expresses the view so clearly that all Leveson’s proposed changes on data protection have to be understood together. The proposals on the new defence are not subject to a consultation requirement; that refers only to the new penalties, for which there is a crying need.
I will also deal with what my noble friend said about the existing defences, particularly his reference to the Bribery Act. He mentioned that there are defences under the Bribery Act which cover conduct by the intelligence services or the Armed Forces on active service. That may be right, but it is hardly relevant to the question of whether responsible journalism should give rise to an entirely separate defence. He also mentioned the Computer Misuse Act including a saving provision for law enforcement—again, hardly relevant to whether a public interest defence should be allowed in respect of that Act.
My noble friend is right to say the purpose of these amendments is to provide a defence for journalists acting in the public interest. It is always an important issue for the public to be protected. I suggest that the balance that needs to be struck, between journalists being able to carry out investigative work for a genuine public reason and the need to protect the public from computer misuse and unlawful conduct offering financial advantage, is one which needs a great deal of attention. He is of course right that the Crown Prosecution Service has to take the public interest into account. However, the fact that it has to consider whether a couple of further defences would succeed before making its decision is not a reason for the Government not to take these amendments forward at a later stage. I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Marks of Henley-on-Thames Excerpts(9 years, 9 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I said a great deal of what I intended to say on Clause 65 when I spoke to the amendment moved by the noble Lord, Lord Beecham, to the clause on Monday. My position, as I explained, is that I regard the requirement for any supporter of an application for judicial review to disclose the extent of his actual or likely financial resources as being contrary to justice and likely to deter or even stifle legitimate applications for judicial review.
I accept that there is a case for ensuring that applicants with means do not hide behind applicants with no means or shell corporations to bring a judicial review application without facing, or being prepared to face, the costs consequences of its failure. However, the provisions proposed by Clauses 65 and 66 are far wider than is necessary simply to limit that practice where it exists. As the noble Lord, Lord Pannick, pointed out, the courts already have ample powers to order costs against non-parties under Section 51 of the Senior Courts Act and under Rule 46.2 of the Civil Procedure Rules. Third parties who support litigation can be ordered to pay the costs of that litigation if they are effectively the real applicants and the applicants on the proceedings are mere nominees. That is just and as it should be. However, I suggest that Clause 66 as it stands—which goes far wider—is unnecessary and, in its mandatory effect, unduly dirigiste.
Lord Faulks
The problem was that there was nobody to enforce an order for costs against, effectively. That was the disadvantage that accrued to the taxpayer. Clause 65, which was welcomed by the senior judiciary, provides for information about financial resources to be provided and for that information to be used. The problem was that that case proceeded and there was no way of recovering the costs when it concluded.
Lord Marks of Henley-on-Thames
I am sorry to take up the Committee’s time, but I am not sure that the Minister has answered the point made by the noble and learned Lord, Lord Woolf. First, there is clearly a power to order the backers of a shell company to pay the costs if a shell company is put forward as the applicant. The question to which the noble and learned Lord, Lord Woolf, wanted an answer was whether the Minister agreed that in the exercise of that power, or in considering the exercise of that power, the court would not have ample power to require information about the nature and extent of the backing and then to consider orders accordingly. I suggest that it is quite clear that the court has that power.
Lord Faulks
The court certainly has power to make orders against non-parties in appropriate circumstances under the existing law. It is not normally the case that that is happening. The purpose of these clauses is to provide a statutory framework in which the court can find the information and use it if it thinks appropriate while retaining the discretion.
Lord Marks of Henley-on-Thames
Presumably my noble friend would concede that the claimant who fills out the form is only going get the information from the supporters who are proposing to support him.
Lord Faulks
Quite so, but I thought that the inference was that some full disclosure of all financial circumstances was going to be required of third parties, and that is not what the rules suggest.
We suggest that these clauses are not making a radical change in the existing law. They are not, in fact, removing the capacity of those who should be able to bring claims for judicial review; they are simply placing on the statute book what some of the senior judiciary wanted, which was a degree of transparency to stop those rare cases where the taxpayer is having to pay for judicial reviews in circumstances where the true funders are managing to obscure the position in a way that no one in this Committee would like.
Baroness Lister of Burtersett
My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:
“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;
and, as has been pointed out:
“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.
It went on to say that,
“it is not clear to us at what mischief this clause is aimed”,
a point made with regard to the previous group of amendments. The committee goes on to say:
“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.
In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.
The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:
“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.
I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.
Lord Marks of Henley-on-Thames
My Lords, as the noble Lord, Lord Pannick, pointed out, Clause 67 proposes, first, that an intervener cannot get its costs except in exceptional circumstances; and, secondly, that an intervener must pay the costs of all the parties occasioned by its intervention except in exceptional circumstances. Both of these propositions—but particularly the second—are extraordinary. They are plainly designed to deter interventions by making them possible only if the intervener can fund all parties’ costs occasioned by the intervention.
If an intervener finds evidence, all the other parties’ evidence in reply will be at the cost of the intervener. If an intervener’s counsel speaks for half a day and the other parties’ counsel reply for a day and a half, they do so at the intervener’s cost. All that is on a win-or-lose basis, so even if the intervener is proved right and the government department or departments are proved wrong, and even if the judge has been greatly assisted by the interveners, the interveners will still pay all the parties’ costs occasioned by the intervention. This is against the background that, far more often than not, interveners do indeed help the court. After judgments, one frequently sees judges expressing their gratitude for the assistance of interveners, who, as has been said, often bring a broader experience to a particular judicial review application than an individual applicant can bring. The Committee was greatly assisted by the first- hand evidence of the noble and learned Lord, Lord Carswell, as to how helpful interventions often are.
The arguments in favour of this clause appear to be based on the proposition that interveners are often campaigning organisations with an agenda that is—in the widest sense of the word, at least—political or quasi-political. So they are, but such campaigning organisations have considerable expertise in their fields, as noble Lords have pointed out, and noble Lords benefit regularly from briefings from such organisations. If those interventions lack merit, the courts already have discretion to make orders for costs accordingly. However, these provisions would threaten not only the right to intervene but also the ability of the organisations which currently intervene habitually in judicial review cases to raise funds for their activities. That is a threat, I suggest, to the functioning of civil society. I will not name particular organisations because a number have already been named in this debate. I believe that to inhibit the activities of those organisations would be profoundly wrong. I do not believe that any body of credible evidence has been advanced in support of this clause to support the proposition that interventions have caused a problem that needs correcting. Still less do I believe that the courts’ existing powers to make costs orders are inadequate.
Our Amendments 74A, 74C and 74D preserve the courts’ general discretion to order a party to pay an intervener’s costs if the courts consider it just to do so. Amendments 74H and 74K preserve the general discretion of the courts to order an intervener to pay another party’s costs. I can see no possible basis, in either justice or common sense, to interfere with the existing court process and to deter interventions in the way that Clause 67, as drafted, is bound to do.
Lord Woolf
My Lords, I was hesitant to add to this debate by yet another intervention, but perhaps I may draw attention particularly to subsection (6), which says:
“In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (3) or (5), the court must have regard to criteria specified in rules of court”.
I would like the Minister’s help as to what matters can properly be said to be criteria, as opposed to matters that are not. “Exceptional circumstances” would not normally, for example, provide any protection—this is the important point—to the position of the charitable organisations which, at the present time, intervene.
Lord Faulks
Since we are in Committee, perhaps I can try to assist the Committee.
The power derives from restatements of principles which, as the noble Lord said, are inherent in the court’s processes. In the Court of Appeal case Regina (on the application of Corner House Research) v the Secretary of State for Trade and Industry in 2005—EWCA Civ 192—the Court of Appeal considered that Corner House, which was an anti-corruption NGO, should, if unsuccessful in the judicial review, exceptionally be protected from being liable for the defendant’s costs because,
“the issues of public importance that arose in the case would have been stifled at the outset, and the courts would have been powerless to grant this small company the relief that it sought”.
It also set out the general principles for when a protected costs order should be granted: first, the issues are of general public importance; secondly, the public interest requires that those issues should be resolved; thirdly, the claimant has no private interest in the outcome of the case; fourthly, the financial means of the claimant mean that the protected costs order is fair and just; and, finally, if the order is not made, the claimant will probably discontinue the proceedings.
Lord Marks of Henley-on-Thames
On Clause 68, there is only one amendment in my name, Amendment 75F, which removes subsections (6) to (11). The reason for that is we firmly believe that the making of costs capping orders should be left to the discretion of the court in appropriate circumstances. Of course, those depend on the financial circumstances of the parties, which are mentioned in subsection (5), so they should stay in Clause 68. However, the factors that are set out in subsections (6), (7) and (8) relate to public interest proceedings and might legitimately influence the decision of the court in an appropriate case.
By Amendment 80A in relation to Clause 69—I am proceeding on the basis of a suggestion that Clauses 68 and 69 should be debated together—which is in my name and that of my noble friends Lord Lester of Herne Hill and Lord Carlile of Berriew, further factors are listed as factors that the court should take into account.
In relation to the explanation that the Minister has just given of the origin of the costs capping jurisdiction, I fully accept that the Corner House principles limit the jurisdiction to public interest proceedings. I am not sure that that limitation is legitimate or necessary, although it is plainly relevant. The reason I suggest that it is not necessary to limit it in that way is that there may be unusual cases where an individual is so justifiably aggrieved by an unlawful decision of a public body in a case which does not have universal or public importance that a costs capping order or a protected costs order might be appropriate, even though there is no wider public interest.
I fully support Amendments 75 and 75A in respect of Clause 68, which would remove the bar on making a costs capping order until after the permission stage. For my part, I can see no reason for such a bar, unless it were to choke off applications for leave to apply for judicial review for fear of an uncapped costs order. That, I suggest, is an unacceptable reason for stifling proceedings at that stage.
Our Amendments 77A, 80A and 80C to Clause 69 would restore the position that costs capping orders in judicial review proceedings are discretionary. Amendment 77A would require the court, when considering making such an order and then in considering the terms of any such order, to have regard to all the circumstances of the case. There would then follow a list of circumstances to which the court should have regard. This is a common enough formulation: in the provision of a non-exhaustive list, Parliament gives an indication to the courts as to the factors that should be considered. However, in its acknowledgement of the fallibility of lawmakers, and of the range of possibly unforeseeable circumstances, as mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the requirement that the court should have regard to all the circumstances of the case is, I suggest, a just and sensible one, which would allow judges to make the right decision in the particular cases that come before them.
As I have said, Amendment 80A would add to the list of factors that the courts should take into account all the factors drawn from the present proposals in Clause 68. These factors would not—and, I suggest, should not—be ranked in any particular order of importance. The court would be entitled to have regard to them as it thought appropriate. As I have also said, this does not require public interest considerations to be a precondition for a costs capping order.
Amendment 80C would remove the requirement that a costs capping order in favour of an applicant would necessarily import a requirement that the court make a costs capping order in favour of the defendant at the same time. It would make the imposition of such an order discretionary in any given case. This was the present position, as outlined by the noble Lord, Lord Pannick, in answer to the question posed by my noble and learned friend Lord Mackay of Clashfern. It does not seem to me that there is anything sensible or justifiable in an automatic rule that what is sauce for the goose is sauce for the gander. It may sometimes be appropriate to make a costs capping order in relation to a defendant’s costs—more rarely, I suggest, because of the nature of the parties, than it is to make such an order in respect of an applicant’s costs. But again, I see no reason for interfering with the discretion of a court to make whatever orders appear to it to be just.
Baroness Campbell of Surbiton
My Lords, I also wish to speak—[Interruption.]. Sorry, I did not intend to knock over the microphone. Let me begin again.
My Lords, I support all the amendments in this group, in particular Amendments 75 to 77 and Amendment 81, in the name of my noble friend Lord Pannick, and I oppose the Question that Clause 68 stand part of the Bill.
The proposals are yet another barrier to access to justice. While we are talking about barriers to access to justice and people’s access to advocacy, I hope that the Minister will humour me—unfortunately, I have not yet figured out a way to intervene when he is speaking, apart from waving my arms about—and allow me to come back to him on the subject of the importance of cases and of intervening in such cases. Cases are often not all about winning or losing; they are about what we all gain from the proceedings. Yes, Leslie Burke lost on appeal, but his was the first case that prompted the GMC to change the guidelines on issues of life and death, and to begin to change the nature of the involvement of patients in their treatment. So we gained from that case, even though it was lost on appeal. That shows us how important access to justice is—not necessarily just for the particular case, but for what it offers us all in society.
The Government’s proposals on costs capping are deeply worrying in two respects. As I understand it, under Clause 68 the court can make an order only if the claimant already has permission to ask for judicial review. This will have a dramatic effect on access to justice. At present, an order can be made before the claimant asks for permission, so the claimant knows from the outset how much they will be liable for. This is vital, because most of the work is done in the early stages before the permission hearing. The Government themselves have said their costs can amount to £30,000. Without the protection of an order, most charities will simply not be able to seek permission. The risk is too great.
The clause defines “public interest proceedings” and sets out the matters the court must consider in deciding that question. But the Lord Chancellor can change those matters by regulations. That cannot be right. In effect, the Lord Chancellor is surely then able to dictate to the court what is in the public interest—when it is the Government who are most likely to be the target of such proceedings.
These proposals have to be seen in the context of the whole package of increasingly worrying legal reforms. As legal aid is withdrawn in cases of significant public interest, costs capping becomes even more important. In a recent case that I know of, a disabled and destitute man from Nigeria, who had been living on the streets, was denied legal aid and was able to get his case brought before the courts only because he got a protective costs order. If costs capping is severely restricted, what chance will individuals have of holding public bodies to account? I am mystified. This is yet another barrier in the way of ordinary people getting access to justice at every level—and it is the marginalised who will be most affected.
Both the Joint Committee on Human Rights and the Constitution Committee of this House have expressed concerns about these proposals. Their effect will be to drive away all but the wealthiest of claimants. The one route available for righting wrongs will be eroded for those who most need it. I do not feel that we can allow this to happen.
“( ) Subsection (1) shall apply subject to the requirement imposed by section 70(3) in proceedings to which that section applies.”
Lord Marks of Henley-on-Thames
My Lords, this group of amendments concerns environmental judicial review cases and relates principally to Clause 70.
Under the Aarhus convention—or, to give it its full title, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters—made in 1998 and ratified by the United Kingdom in 2005, the United Kingdom committed itself to ensuring that environmental litigation will be,
“fair, equitable, timely and not prohibitively expensive”.
Compliance with the convention is monitored by a compliance committee to which Governments and the public, whether individuals or corporate bodies, can complain of non-compliance with the convention provisions. By rules of court contained in the Civil Procedure Rules—at Rules 45.41-44—the courts in England and Wales have introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums: currently, £5,000 against an individual claimant, £10,000 against a claimant which is a business or other legal person, or £35,000 against a defendant. There are, I understand, similar provisions in Scotland.
There is a detailed but relatively simple and quick procedure under the rules for a defendant to challenge a claimant’s contention that a claim is indeed an Aarhus convention claim. Clause 70 is an attempt to enable the Lord Chancellor, by regulations, to comply with the Aarhus convention by providing for the costs-capping restrictions in Clauses 68 and 69, which we have just discussed, to be excluded,
“in relation to judicial review proceedings which, in the Lord Chancellor’s opinion, have as their subject an issue relating entirely or partly to the environment”.
I regret that, as an attempt to comply with the Aarhus convention, Clause 70 is, as drawn, inadequate in a number of respects. First, the clause is merely permissive and not mandatory. It states:
“The Lord Chancellor may by regulations provide”.
For so long as the Lord Chancellor fails to exercise his power to make regulations under the clause, it is self-evident that the United Kingdom will be in breach of the Aarhus convention by its restrictions on costs capping in applicable cases.
Secondly, the clause would apply only to exclude or restrict the application of Clauses 68 and 69, limiting costs capping or protective costs orders. For all the reasons given to this Committee in earlier debates, the effects of Clauses 65 and 66 would be to expose anyone lending financial support to judicial review proceedings to an application for the whole cost of the proceedings if they are unsuccessful, with what amounts to a presumption that such a costs order is likely to be made against any such supporter. It is completely clear that the effect of such clauses is to make such litigation prohibitively expensive within the meaning of the Aarhus convention.
Furthermore, as has been explained at length today, Clause 67, if enacted, would have the effect of exposing interveners to a costs order against them in any case in which they intervene, win or lose. It would prevent them from getting their costs, however good their case and however helpful their intervention, even from a thoroughly unmeritorious defendant, unless the court could find “exceptional circumstances”. I submit that it is clear beyond argument that those clauses would make environmental judicial review cases prohibitively expensive, just as devastatingly as the restrictions on costs capping to which Clause 70 is presently limited in its application.
The next problem with Clause 70 is that it refers only to environmental judicial review cases. The Aarhus convention itself is not so limited. The compliance committee found, as long ago as 2008, in a case concerned with odours emanating from the defendant’s waste site, that private nuisance claims relating to environmental matters were also cases to which the Aarhus convention applied. Indeed, only last week, in the case of Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012, the Court of Appeal ruled, in a judgment given by Lord Justice Elias with which Lord Justice Pitchford agreed, that the court did not,
“see why in an appropriate case a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3”,
of the Aarhus convention. In that case, a protective costs order was not made on its facts, but the principle was clearly established that private nuisance cases could fall within the Aarhus convention.
The Public Bill Office has taken the view that the Long Title of this Bill is insufficiently wide to encompass amendments that deal with the applicability of the Aarhus convention to proceedings that are not claims for judicial review. I therefore invite my noble friend the Minister—if he does not already have enough business with his sun cream and his red pen—to consider widening the Long Title to enable the Government to introduce or consider amendments on Report to address non-compliance by the United Kingdom with the provisions of the convention outside the scope of judicial review, in particular in private nuisance claims.
A further weakness of Clause 70 is in the definition of its applicability. It applies to claims which are,
“in the Lord Chancellor’s opinion”,
environmental claims. That test both fails to tie the applicability of the clause to the terms of the convention itself and leaves the definition of what is or is not a claim within the clause entirely to the opinion of the Lord Chancellor. I fail to see why that should be thought an appropriate way of drafting the clause, given that rules of court have already established, in CPR 45.41 and 45.44, both a satisfactory definition tied precisely to the convention, albeit limited to judicial review claims—which I dispute—and a quick and effective method of determining whether a claim lies within that definition. I add in parenthesis that it is quite unclear from Clause 70 whether the existing rules of court would survive—or, if not, what would happen to them.
The convention compliance committee made findings in 2010 that the United Kingdom was in breach of the convention by reason of the general principle in our courts that costs follow the event. It made those findings despite the UK Government’s submissions that the availability of legal aid, conditional fee agreements and protective costs orders, and the wide discretion given to judges on costs, limit the severity of the general principle that costs follow the event in its application.
Those findings by the compliance committee of course predated the restrictions on legal aid, which were limited in the way that was correctly described by my noble and learned friend Lord Mackay earlier today. They also predated the restrictions on the recoverability of success fees and ATE insurance premiums and, of course, the restrictions on protective costs orders that are proposed by this legislation in the two clauses that we have just considered. At the very least, to even approach compliance with the convention, it is necessary to introduce exceptions, in cases to which the convention applies, to the restriction on the availability of legal aid at the permission stage and to the restriction on the recoverability of success fees and ATE insurance premiums.
Lord Faulks
My Lords, I am grateful to both noble Lords—my noble friend Lord Marks and the noble Lord, Lord Beecham—for their contributions to this debate. Clause 70 enables provision to be made to exclude judicial reviews about issues which relate entirely or partly to the environment from the revised costs capping regime established in Clauses 68 and 69, which we debated in the previous group. Clause 70 is to reflect our obligations under the Aarhus convention and the various European directives which implement it, which set out requirements for access to justice concerning environmental matters. This includes a stipulation that such procedures must be,
“fair, equitable, timely and not prohibitively expensive”.
This is relevant to judicial reviews in certain environmental cases. Allowing for such environmental cases to be excluded from the costs capping regime in Clauses 68 and 69 allows the Secretary of State enough flexibility to meet future changes in the international landscape. A separate regime has already been established in the Civil Procedure Rules to govern costs capping orders in such cases in England and Wales. It applies a fixed costs framework under which, in a claim raising issues that fall under the Aarhus convention, the liability of the claimant to pay the defendant’s costs is automatically capped at certain levels. This regime is simple to operate and understand.
Amendments 81C and 82B would seek to exclude certain types of judicial review from the provisions in Clauses 64 to 69. Those claims might be considered very broadly as “environmental”. Amendment 81C defines those cases that are excluded by reference to the Aarhus convention and introduces a requirement that, provided certain conditions are met, costs capping orders should be made in these cases.
Amendment 81C also aims to restore the full recoverable success fee and after-the-event insurance premium structure that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed, implementing the Jackson reforms to reduce excessive costs in civil litigation. Amendment 82C would seek to define what would fall within the definition of an Aarhus convention claim. Amendment 81A is contingent on Amendment 81C. Its effect is to make Clause 69 subject to the changes to Clause 70, which I have already discussed.
Attempting to define these claims in statute risks either being too generous and gold-plating the Aarhus requirements, or alternatively being too restrictive and missing out claims which should be caught by the Aarhus regime. The definition as set out in the proposed new clause is very broad, and appears to err on the side of gold-plating. In particular, we would not necessarily accept that all private law claims falling within the new clause should come under the term “Aarhus Convention claim”.
The Government see no reason for excluding additional cases, particularly such a broad range of cases as would be covered by these amendments. Too broad a definition would create an incentive for claimants to characterise their claims as “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability. In the Government’s view Clause 70, which allows for the exclusion of certain environmental judicial reviews from the new protective costs order regime which Clauses 68 and 69 will establish, is sufficient to ensure compliance with our obligations under the Aarhus convention and the directives which implement it. The proposed new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental and other matters and ensuring that judicial review is not misused.
I turn now to Amendment 82D. The new clause seeks to amend Section 10 of the LASPO Act, which makes provision about exceptional case determinations for individuals, and Schedule 3 to that Act, which makes provision about exceptional case determinations for legal persons, so that Section 10 and Schedule 3 would both refer explicitly to claims for judicial review related to the Aarhus convention. The Government do not believe that such an inclusion is necessary. First, funding would already be available to bring a judicial review with a potential benefit to the environment, subject to the merits and means test. This is in the scope of the general civil legal aid scheme by virtue of paragraph 19 of Part 1 of Schedule 1 to LASPO. Section 10 of LASPO provides for exceptional funding in cases that are outside the general scope of civil legal aid. Secondly, along with the provisions of the Aarhus convention, this amendment is concerned with reflecting EU directives. The current provisions under Section 10 and Schedule 3 already provide for legal aid to be granted where it is necessary to make the services available to the individual or legal person because failure to do so would be a breach of the individual or the person’s enforceable EU rights.
The noble Lord, Lord Marks, referred to reviewing the CPR. The Government have committed to reviewing the costs regime for environmental cases when the European Court of Justice handed down its judgment in the Commission v the United Kingdom case. Following that judgment in February this year, and recent case law, we are reviewing the current costs regime. As part of that review, we will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters, look at what scope there is to amend the current cap—which is currently £5,000 for individuals and £10,000 for businesses—and consider the principles determining what level of costs in a particular case would be prohibitively expensive, as set out in Edwards v Environment Agency and reiterated by the European Court of Justice in its various infraction judgments, and whether they could be included in the costs regime.
The Government do not accept that all private nuisance claims are caught by the convention requirements. They tend to focus on enabling those with interests in land to protect their private property rights rather than enabling members of the public to challenge environmentally deleterious acts. However, on the occasions where a private nuisance claim relates to actions which do not merely harm the claimant’s private property rights but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which may be relied upon by members of the public.
The Aarhus convention protects the right of environmental NGOs to bring judicial proceedings. It is not necessary to intervene in existing cases, so Clause 67 does not put the UK in breach. As to reviewing the application of LASPO to this area, I recall that during the debate when the LASPO Bill was going through Parliament there was an attempt to carve out an exception for cases of this sort. As the noble Lord, Lord Marks, and the Committee will have heard me say, the Government are committed to reviewing the effect of the LASPO provisions, but it is far too early to do so in this particular context. The review will take place within five years—perhaps sooner than five years, but certainly not much sooner—so as to allow a full review of the effect, bearing in mind in particular that there was a large spike in cases before April 2013, the cut-off date, which may make it very difficult to analyse satisfactorily the effect of LASPO.
Of course, I will reflect carefully on the observations of my noble friend Lord Marks and the noble Lord, Lord Beecham, but I gratefully decline my noble friend’s invitation to amend the Long Title of the Bill as currently advised. It is our view that these provisions are sufficient to ensure compliance with our obligations under the convention and the EU directives. I therefore respectfully invite the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am bound to say that I am not greatly surprised by my noble friend’s declining to amend the Long Title of the Bill. I merely say that the amendments that I and others have put forward are directed only at making the United Kingdom’s procedures compliant with the Aarhus convention. I entirely take on board what he said about the impending review of the rules in the light of the European case, and I understand what he said about private nuisance claims. It is certainly not the case, and I never suggested that it was, that all private nuisance claims are covered. I am merely repeating the decision of the Court of Appeal that there is no reason why private nuisance claims relating to environmental matters should not be Aarhus convention claims. At the moment we have no costs regime to enable compliance with the convention in respect of those.
As far as legal aid is concerned, I entirely take my noble friend’s point about the review of LASPO that is due. My point is directed only at the fact that at the permission stage there is now a restriction on legal aid for judicial review claims that ought not to apply to Aarhus convention claims. In those circumstances I of course beg leave to withdraw my amendments at this stage, but I do rely on my noble friends having an opportunity to consider what I have said during the Recess and to come back and report.