Justice: Civil Litigation Reform
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, with the leave of the House I will now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice:
“With permission, Mr Speaker, I wish to make a Statement. I have today laid before Parliament two documents: the Government’s response to our recent consultation on Lord Justice Jackson’s recommendations for reforming no-win no-fee arrangements, and a fresh consultation document on proposals to overhaul the civil justice system. Copies of both documents will be available in the Vote Office and on the Ministry of Justice website. I hope to bring forward legislation on the Jackson reforms as soon as parliamentary time allows.
To many people in this country, the prospect of legal action is an expensive, daunting nightmare. One of the worst features of our compensation culture is that our justice system has increasingly become closed to vast rafts of the ordinary public by legal costs out of all proportion to the dispute or the claim. The proposals I am announcing today will, I hope, begin to restore proportion and confidence in our system of justice for both claimants and defendants.
First, following careful consideration of the consultation responses, I have decided to reform no-win no-fee arrangements to stop the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right. I can therefore announce that the Government will seek to legislate to return the no-win no-fee system to first principles. We plan to end the recoverability of success fees and insurance premiums which drive up legal costs, award claimants a 10 per cent uplift in general damages where they have suffered loss, and then ensure that they take an interest in controlling the bills being run up on their behalf by expecting them to pay their own lawyers’ success fee. We will also bring forward our plans to encourage parties to make and accept reasonable offers, to protect the majority of personal injury claimants from paying a winning defendant’s costs and to allow claimants to recover the cost of expert reports in clinical negligence cases.
Secondly, I am publishing a consultation paper which I believe paves the way for the most effective and efficient delivery of civil justice after 15 years of stagnation. The current system is slow, stressful and expensive and change is long overdue. My aim is to help people avoid court wherever possible while reducing costs where that is unavoidable. We are proposing that small-value cases should automatically be referred to mediation so that many people are able to avoid the experience of court entirely; the maximum value for small claims will be raised from £5,000 to £15,000 to enable more cases to be heard through the simple small claims process rather than a more costly, complicated trial; to increase the value below which claims cannot be brought in the High Court to £100,000 so that the county court jurisdiction is extended and the High Court is reserved for only genuinely complex or high-value cases; new measures which will improve the ability of courts to tackle those who evade payment of their debts even though they have the means to do so, while ensuring that those who cannot pay continue to be protected—for example, by setting a minimum level of consumer debt at which property could be put at risk for non-payment—and, my final example, the extension of a successful online system to cut waiting times and legal expenses in personal injury cases, as recommended by my noble friend Lord Young of Graffham.
We have a duty to deliver a civil justice system which is more equitable, accessible and just. Resorting to the law need not be the long, drawn-out, expensive nightmare which so many people experience today. It could become a sensible, affordable way of resolving disputes in a proportionate manner. I believe these reforms will help to restore those fundamental values of proportion and fairness in our civil justice system. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Bach, both for his welcome for the discussion on the county court proposals and for the general level of his questioning. I think that if we are to touch a system like this, there is bound to be some concern about whether there will be a reduction in access to justice. We are looking at that carefully in our impact assessment and in other approaches. On the question of legislation, we intend to legislate as soon as possible and as soon as there is a suitable vehicle.
I do not think that we have cherry-picked Lord Justice Jackson’s report. We have retained a certain hold-back on protecting clinical negligence claimants in the help that they will get. Lord Justice Jackson made 109 recommendations, and the Government are taking the reform of conditional fee agreements as a matter of priority because of the potential cost saving for the Government and others. He conducted a year-long review of current arrangements and considered the likely impact of these proposals. Much of the necessary data are held in private hands by lawyers and defendants in civil litigation. Data were provided during Sir Rupert’s review and further data were received by the Government during the consultation. The Government’s initial impact assessments were published alongside the consultation and comments were specifically sought on the assumption. A final impact assessment was published alongside the Government’s response. Our impact assessment shows that successful claimants in personal injury cases will generally end up in a similar position to now, although overall most will gain.
As the noble Lord said, the road traffic scheme, to which the noble Lord, Lord Young of Graffham, also referred in his report, seems to have been a considerable success, and we are examining ways of how it could be extended. On the impact on insurance it is difficult to be precise, but it is interesting that today the Association of British Insurers has issued a statement saying that it expects insurance costs to fall as a result of these reforms.
Why should claimants pay? Claimants with meritorious claims will still be able to bring them. The Government believe that it is important that people with serious injuries should be able to receive compensation for negligence. That will continue. Indeed, the general damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10 per cent under these proposals and there will be an incentive to reduce costs compared with now, such as improving incentives to settle. This will improve justice overall.
As the noble Lord will know, one of the main criticisms of the post-2000 operation of this scheme was that claimants had no real incentive to put a check on their legal costs on the assumption that they would never be responsible for it. The Government also believe that damage-based agreements will provide an additional method of funding for claimants. Like conditional fees, they are a type of no-win no-fee agreement under which lawyers are not paid if they lose a case but may take a percentage of the damages awarded to their client if their case is successful.
I hope that I have covered most of the points that the noble Lord covered. If I have not, I will give him opportunity to intervene again. In aid of these proposals, I call upon two statements. One was made by Mr Jack Straw, who originally commissioned the Jackson report.
Lord McNally
Did he not? Sorry. You were there; I was not. Thank you very much. Mr Straw said that the Jackson proposals,
“are designed to reduce the costs of civil litigation overall. Those costs have risen too high, and that is a bar to proper access to justice”.—[Official Report, Commons, 9/2/10; col. 740.]
Perhaps he was pointing to what the noble Lord, Lord Bach, just said. As the noble and learned Lord, Lord Neuberger—the Master of the Rolls—commented:
“Critics do not appear to have been able to provide an alternative model for a comprehensive package to tackle what seems universally acknowledged to be a non-sustainable problem of rising civil litigation costs. The time for analysing the problem has come to an end. The time for action has come”.
The Lord Chancellor has brought these proposals forward in that spirit.
Lord Lloyd of Berwick
My Lords, I welcome the review of civil justice. One problem with the civil justice system is that we have, over the past 10 years or so, succeeded in creating what amounts to a parallel system of criminal justice enforced by the civil courts, thus adding to the burden that already exists for the civil courts to discharge. I have in mind in particular the serious crime prevention order and the violent offender orders. Those are just examples of what we are doing; there are many others. Would it not be better for what are essentially matters of criminal justice to be dealt with in the criminal courts and not in the civil courts, thus relieving the pressure on the civil courts? Could the Minister see his way to somehow looking again at the serious crime prevention orders and the violent offender orders and repatriate them, if that could be done, to the criminal courts rather than the civil courts?
Lord McNally
My Lords, I will certainly not bluff the House that I am able, with no legal training, to assess the noble and learned Lord’s suggestion. These are still proposals, and his intervention will be reported back to the Lord Chancellor. If his suggestions have merit—and coming from that source, I have no doubt that they do—I am sure they will be given full consideration before we bring forward our final proposals.
Lord Thomas of Gresford
My Lords, centuries of English law produced a position whereby, in civil and criminal cases, it was a principle that the lawyer should not have a personal interest in the outcome of the case. In other words, he would be paid whether he won or lost. That was mitigated to ensure that there was proper access to justice by the introduction of the legal aid scheme. It was on that principle that during the previous Government’s period we on these Benches opposed the introduction of no-win no-fee schemes.
It is interesting to look at this Statement to see what are now said to be the problems resulting from the change from the basic principle that we had had for so long. The Statement refers to,
“the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right”.
The proposals are also said to,
“begin to restore proportion and confidence in our system of justice”.
What has happened in the mean time, over the past 10 or 12 years, is that advertising has been allowed to proliferate and non-lawyers have collected and farmed claims. By advertising, they have drawn to themselves hundreds and thousands of claims and have then farmed them out to various firms of lawyers. All these ills have done nothing to improve the lot of the claimant who has been injured or who has a grievance that he wishes to be resolved.
It is because I have such a basic objection to no-win no-fee that I cannot completely endorse these proposals, but they are undoubtedly an improvement on what has gone before and they redress some of the problems that have arisen. Success fees and insurance premiums are recoverable; that is to say that I as a claimant can insure myself against losing the case and then charge the insurance premium, which I know can be tens of thousands of pounds, to the defendant, provided that I am successful. I can do that not if the case goes to court but if the case is settled at some stage, so the cost of litigation has been a huge problem that has faced defendants and insurance companies.
Another problem that arises because of that is that a plaintiff has very little interest in the amount of costs in the case. He is insured against paying the defendant’s costs, he will recover if he wins and if he loses, and he has none of his own costs to pay. It has been very damaging to permit no-win no-fee cases to go in the way that they have. The proposal to ensure that claimants have an interest in the result and are restrained from allowing their lawyers to run up massive bills of cost, as proposed, is something that I, unlike the noble Lord, Lord Bach, think is a way forward.
The second part of the Statement dealing with the consultation paper on the improvement and efficient delivery of civil justice is also to be welcomed. The proposals to give greater jurisdiction to small value cases, for small claims cases to be heard through the simple small claims process and to increase the threshold for going to the High Court are all to be welcomed.
Lord Newton of Braintree
My Lords, I apologise. I was thinking it was a debate.
Lord McNally
In fact, we are trying to cut out the middle man, as my noble friend Lord Newton is now.
I could listen to my noble friend Lord Thomas of Gresford all day on these matters. On his comments about no-win no-fee, I recall very well the debates about that and about the removal of the principle of no self-interest on the part of the lawyer in the outcome and of it simply being a matter of delivering a professional fee. Against that was the very real motivation that the system could and would provide access to justice that might not otherwise have been there.
On balance, as I said in my response to the noble Lord, Lord Bach, we are trying to get the system back more to how it was when my noble and learned friend Lord Mackay of Clashfern introduced the system in the early 1990s and to avoid some of the inflation that has occurred in the past 10 years. For reference, a general liability insurer has indicated that in 1999 claimants’ solicitors’ costs were equivalent to just over half the damages agreed or awarded at 56 per cent. By 2004, average claimant costs were 103 per cent of damages. By 2010, average claimant costs represented 142 per cent of the sums received by the injured victims. The insurer also indicated that, while average damages paid had increased since 1999 by 33 per cent, average claimant costs paid, including disbursements and insurance premiums, have increased 234 per cent. It is that kind of inflation that we are trying to tackle in these proposals.
On the other point made by my noble friend, we are aware of concerns about referral fees. This matter was raised in a recent report by the House of Commons Transport Committee on the costs of motor insurance. The committee called for greater transparency in referral fees. The Government are now awaiting the legal services report on referral fees, which is due shortly.
Lord Beecham
My Lords, I declare an interest as an unpaid consultant in the firm of solicitors at which I was for many years a senior partner. Like the noble Lord, Lord Thomas, I am no great fan of the no-win no-fee scheme. I recall a discussion with the noble and learned Lord, Lord Woolf, on a social occasion many years ago at which I outlined some objections. He was much more confident about it. The problem is the disappearance of legal aid for so many of these claims, particularly in the realm of personal injury claims.
In a letter today in the Guardian, the president of the Law Society makes two points on which the Minister might like to comment. The first is in relation to the high costs incurred in clinical negligence claims. The president says that much of that is incurred because of the way in which the National Health Service contests these claims. It is very slow and, in far too many cases, the claims go right to the door of the court instead of seeking to settle them earlier. Savings could be made if those cases were better dealt with.
The second point relates to the thrust of the Government’s proposals today around mediation. Does the Minister agree with the president of the Law Society, or does he have a view about her comments, that mediation is suitable in cases where the parties are roughly comparable in their status, economic position and so on but much less so where there is a disequilibrium between the two parties? Is there not some danger in pressing the mediation route, as the Government seem intent to do with these reforms, at the expense of having matters properly adjudicated on with a determination that is perhaps more suitable in more cases than the proposals imply?
Lord McNally
My Lords, I take on board what the noble Lord has said about the way in which the NHS fights its cases. I am not sure whether I have the exact costs to hand but they are enormous. Certainly any way of making settlements easier and less costly will save literally hundreds of millions of pounds for the NHS. Certainly the lowest figure for the impact on these settlements would be £50 million a year, but many people believe it would be far more.
I agree that mediation will work in disputes only up to a point. However, many people find themselves drawn ever deeper into the litigation process, with its associated costs, when a matter might be dealt with much earlier. Mediation offers the opportunity to nip problems in the bud and to avoid the stress that can often accompany a drawn-out legal process. The noble Lord made a point about inequality of arms, and a great deal will depend on the quality of the mediator and their ability to judge these matters.
I now have the figures for the NHS. In 2008-09 the National Health Service paid out £312 million in damages, but it paid out far more in lawyers’ fees—£456 million. That is the wrong way round and it is not where the NHS should be spending its money.
I have the highest respect for the Law Society, which has an absolute duty to represent its members and to put forward its views. However, I am not sure that the invitation on its website at the moment is within the dignity of the profession. It states:
“Defending legal aid: send us your case studies … What we urgently need from you are cases studies of individuals with interesting stories that will chime with the general public. It is clear from our research that cases of medical negligence (especially obstetrics), education matters and private law family matters will resonate very well with the public. Those cases based on clients who are happy to discuss their case with the media and be photographed would be particularly helpful. High profile cases will also be gratefully received”.
That is one way of representing its members, but I would not describe it as research.
Lord Newton of Braintree
My Lords, first, in the light of what has been said, I declare an interest as the chair of a health trust. I have a good deal of sympathy with what has been said both on that front and about mediation. Secondly, I declare my solidarity with those on both Front Benches as they seem to agree that the underlying issue is access to justice. That means looking at the small print alongside the proposals for legal aid.
I have two, perhaps three, questions. First, do these proposals relate only to the civil courts or to other bodies that are, in effect, part of civil justice—namely, employment tribunals, land tribunals and others? Secondly, do they apply in any way to the great raft of tribunals that involve citizen v state and have not normally been seen as civil justice? Thirdly, how many people have recourse to the civil courts and how many people have recourse to tribunals?
Lord McNally
My noble friend is right that the proposals will be linked in with those for legal aid. The Government have still not made their final decisions on the legal aid package on which they have been consulting, although they have indicated that they want to make cuts on the civil side of legal aid and how they want to make them.
We are trying to reduce the cost of our legal services by reforming court procedures, by introducing mediation, which may avoid the greater costs of court, and by following Jackson and putting some responsibility on claimants for managing legal costs. I had better come clean with my noble friend about how far the proposals extend into the world of tribunals. I shall write to him on that, because I am not quite sure of the answer. I would imagine that they do, but I had better make sure and write to my noble friend.
Lord Laming
My Lords, the noble Lord, Lord Thomas, and the Minister referred to the rather seductive advertisements that appear very frequently in many places—the Minister gave a vivid illustration of one such advertisement. Is there anything in these proposals that will have an impact on that kind of advertising?
Lord McNally
No, not in these proposals, but, as I said earlier, we are waiting for a report on that matter. It must be at least 10 years ago, and perhaps more, that I raised from the Benches opposite the fact that you have only to watch the television any afternoon at home—I know that noble Lords do not often do that—to see those adverts, which make the winning of a case seem akin to winning the lottery. You see a smiling client with a large cheque, having successfully referred their case to some organisation or another, without the general public being aware that the organisation with which they were in contact would not have dealt with their case but farmed it out to a solicitor, thereby only adding to the costs. My right honourable friend the Lord Chancellor is very well aware of this and we await the report. I suspect, knowing him as I do, that he will want to take action on something which irritates and angers a lot of people.
The third question of my noble friend Lord Newton was how many people have recourse to the civil courts. In 2009, some 1,460,000 money claims were issued. I hope that helps my noble friend.
Prisons: OPCAT
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Lord Ramsbotham
To ask Her Majesty’s Government what action they propose to take in response to the recommendation on gaps in the national preventive mechanism made in the first annual report of the United Kingdom’s Preventive Mechanism under the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government welcome this report and are studying its recommendations carefully. MoJ officials are in discussion with Her Majesty’s Chief Inspector of Prisons, Her Majesty’s Courts Service and the Provost Marshal—Army—to look at any ways of closing gaps that have been identified.
Lord Ramsbotham
My Lords, I thank the Minister for that reply. I am very glad to see that there is a report because while this protocol was signed in December 2003, it was not until March 2009 that the national preventive mechanism was set up. It has an extremely important role, not just in prisons but with immigration detainees. The coalition, as noble Lords will know, has 18 members, but what is worrying them all is that in addition to the gaps that have been identified, about which the Minister spoke, there is a problem of resources. They have to resource those extra inspections from their own budgets. Can the Minister assure the House that cuts will not affect the operation of this protocol?
Lord McNally
My Lords, the Government are committed to the operation of this protocol. All the bodies covering it have had to take their share of cuts, but they should keep in mind the overall commitment to honour the protocol when they apply those cuts.
Lord Corbett of Castle Vale
My Lords, the Minister will be aware that the report also reflects concerns about the length of time that some detainees are kept in immigration removal centres. What is being done to keep their number to the absolute minimum for the shortest possible time?
Lord McNally
My Lords, there is concern, and the UK Border Agency regularly reviews all cases where people are detained under immigration powers. It will consider for release all those who have been assessed as presenting a low risk of harm to the public and/or who are unlikely to abscond. However, there will always be some detainees who need to be detained.
Lord Dholakia
My Lords, one area of concern is the fate of deportees when they are returned to their homeland. How often are the in-country reports updated to ensure that the political situation is taken into account? Secondly, what mechanism exists to ensure that they suffer no harm when they are returned?
Lord McNally
My Lords, that goes slightly wider than this Question. Rather than trying to busk it, I will make sure that I get the correct information and write to my colleague.
Baroness Stern
My Lords, is the Minister aware that one of the bodies in this mechanism is the Care Quality Commission and that last year it inspected 1,700 wards in hospitals where people are detained under the Mental Health Act? It was very concerned about children and adolescents being held in mixed wards because that threatened their privacy, their dignity and their safety. Do the Government have any plans to respond to that concern as a matter of urgency?
Lord McNally
Yes, my Lords. This is being kept under particular review since how young people with mental health conditions are being kept is of concern. As far as possible, the issues identified will be addressed.
Lord Hunt of Kings Heath
My Lords, perhaps we might return to the issue of resources. The noble Lord referred to the UKBA but would he acknowledge that, in the past few weeks, Ministers have referred to an increasing number of responsibilities being given to the UKBA at the same time as 5,000 staff are being taken off its head count? What we have not had is an explanation of how the UKBA is meant to manage these new responsibilities.
Lord McNally
Cuts are being made right across government. I will not go through the mantra of why that is so, as those on the noble Lord’s side know it only too well. However, all departments in which the cuts are being made are looking at how to maintain delivery under a much more difficult regime. That is one of the facts of life that we face as a country.
Baroness Farrington of Ribbleton
My Lords, would the Minister care to answer the second part of my noble friend’s question? How can the Government justify putting more responsibility on the UKBA when the Minister acknowledges that it is making reductions in effect by putting more responsibility on those staff? Surely a responsible Government would take account of this and not give extra workloads to those whose numbers are being severely reduced.
Lord McNally
The noble Baroness obviously sees herself as the minder of the Front Bench as she often pops up with questions that suggest, usually quite unjustifiably, that I have not answered the question. If she wants it more bluntly, we inherited an economic disaster. Every government department has had to take its hit, including mine; yet there are people within the public service grappling with those realities—in a way, may I say, that the last Government avoided. Those people will continue to do so, and I have every confidence that the UKBA will do that too.
Lord Low of Dalston
My Lords, getting back to the report to which the noble Lord, Lord Ramsbotham, referred in his original Question, the report raised significant concern about detainees with mental health problems, who often do not receive the support and treatment they need when in prison and are often held for long periods in segregation units. Even when they are held in more appropriate settings, they still experience difficulties in accessing mental health services. Can the Minister tell the House what efforts are being made to ensure that all detainees are able to access the services that they require regardless of where they are detained?
Lord McNally
My Lords, mental illness is being addressed by the Government in a new cross-government mental health strategy that was launched in February. On the segregation units, for prisoners for whom segregation is considered to be the only option an initial segregation health screening must be carried out within two hours of the prisoner segregation. In addition, for prisoners in an open mental health situation a mental health assessment must be undertaken within 24 hours. We are taking mental health in the prison population extremely seriously and we will be bringing forward positive proposals to divert those who need mental healthcare away from prison and into the appropriate conditions.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011
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Lord McNally
That the draft orders laid before the House on 3 and 28 February be approved.
Relevant documents: 16th and 17th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 23 March.
Public Bodies Bill [HL]
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Baroness Scotland of Asthal
My Lords, I suppose that I, too, should declare an interest as someone who has practised in the field of family law dealing with children for the past 34 years and who has had the privilege of being one of Her Majesty’s deputy High Court judges of the Family Division.
On the last occasion that we met to discuss this issue, the noble Lord, Lord McNally, told me that I had been shooting at an open goal. Well, the goal has not got any narrower. However, if I may respectfully say so, I think that the nature of this debate has been slightly different from that of the debate that we had last time. There is now a degree of sadness and almost disbelief that there has been no material change in the approach taken by the Government. At the end of Committee, the noble Lord, Lord McNally, said, in essence, “Give me time. Don’t shoot me today. Postpone the execution until Report. Give me time to think again and to persuade my Government”. The noble Lord, Lord Warner, with the generosity of spirit for which he is renowned, did so; as noble Lords will remember, he said that recidivism could be addressed and that there was still time for repentance. However, there always comes a time when repentance appears not to have transpired and the judge has to make a decision.
The House has now spoken twice. It is important that in this debate there was not one dissenting voice urging on the Minister the wisdom of going forward with the current plan. If I may respectfully say so, I think that it was poignant to hear the noble and learned Lord, Lord Woolf, say that this was—he used a strong word—“sacrilege”. Why is that? Those who spoke on the last occasion and who have spoken today struggled and suffered in order, together with the young people, to try to create a system that is able to deliver change in a material way. The system that we had before the Youth Justice Board was agreed by all not to have worked. It was expensive and dysfunctional and it produced poor outcomes. For all its flaws, the Youth Justice Board has created something of real merit and worth.
When we talk about costs, we need to think about the real cost of the demolition of the Youth Justice Board. It does not come in money; it comes in the pain, injury and suffering that will flow not to us but to the young people who have been so advantaged by the board’s work. As the noble Lord, Lord Elton, said so eloquently, it comes in the pain that will be inflicted on us all if vulnerable young people and their dysfunction are not dealt with robustly, carefully and successfully.
This House has a choice. There is a moment when we get to say to the Government and to the other place, “This far and no further”. I repeat what many have said. This is not an issue over which the House has divided on political lines. Every person who has spoken has done so with the same voice, because this House cares passionately about young people and about reducing the pain that is caused to them. We should look at the YJB’s work not just in terms of the reduction of recidivism among young people. We just need to glance at the fact that there has already been an encouraging sign that the reduction in juvenile crime is effecting a reduction in the reoffending figures that we now see for young people between 18 and 20 and between 20 and 24. The noble Lord knows well that 13 to 24 is the most active age group for criminal behaviour. Therefore, reducing the number of those who enter the criminal justice system, and then reducing reoffending, is very significant.
There is evidence that accountability from a ministerial point of view is delivered very successfully by the method that we currently have. On the previous occasion, the noble Viscount, Lord Eccles, and the noble Lord, Lord Newton, made that point so powerfully; it is not about removing ministerial accountability because that ministerial accountability currently exists. We need strong, national, co-ordinated accountability through a dedicated body, and that dedicated body is the Youth Justice Board. We know how difficult it is to create a piece of machinery that works. The Youth Justice Board works. It works in its current form. The opinion of the House is clearly that it should remain in its current form. An executive agency would be the least bad option if it has to go, but it is certainly not the preferred option.
I gain comfort from what the noble Viscount, Lord Eccles, has said. We need to understand him as saying: “If we lose today, we will come back and defeat you—we hope—on another day, but through a statutory instrument”. I would not like to put the House through that pain. I invite the House to vote on this issue, if my noble friend presses his amendment, and say decisively that it does not agree with the removal of the YJB. If the Government need real encouragement to think again, we should ask them to do so by voting in favour of the amendment, as we on these Benches will do in, I hope, great numbers.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I thought of leaving a long pause to wait for one of my supporters to stand up and make his or her speech. At the end of my remarks I will not appeal to the noble Lord, Lord Warner, not to test the opinion of the House. I did that in Committee because I thought that it would be useful to allow my colleagues to read his speech before coming to a conclusion. Rather than just reading the speech, perhaps seeing the result of the vote—whichever way it goes—will also be an opportunity for them to do so.
At the start of the remarks of the noble and learned Baroness, Lady Scotland, she echoed the noble and learned Lord, Lord Woolf. Using the word that they both used, the House is being asked to vote on sacrilege. Essentially, that is the case for the prosecution: we are about to destroy something of real merit. That is certainly not the intention of the Government. We do not intend to dismantle the youth justice system. We want to build on what has been achieved over the past 10 years. I agree that this debate has been dominated by well informed, experienced speakers who care passionately about youth justice. My experience in my department is of finding similar qualities in the people dealing with this. It is not a matter of uncaring bureaucrats and caring Peers; those qualities exist across the board.
The noble Lord, Lord Warner, suggested that what has happened sounds like an episode of “Just William”. Unlike Violet Elizabeth Bott, I promise that I will not “scweam and scweam and scweam” if things go wrong. As with earlier debates, I will report back the result of this one to colleagues. However, I will not hold noble Lords in suspense: my brief does not allow me to make any concessions today.
The noble Lord, Lord Ramsbotham, slightly overeggs the pudding in that the separation between strategic and operational matters is not as clear as he made out. I think that the noble Viscount, Lord Eccles, made that point. There is real benefit in the department and the Minister providing strategic leadership while retaining the real success of the MoJ—the holistic, local response to youth offending. In referring to the situation in young offender institutions and advocacy, the noble Earl, Lord Listowel, may have been trying to return to a matter raised in Committee. We recognise that advocacy and social work provision in youth offender institutions is important. There are legal responsibilities on local authorities and prison governors to safeguard and promote the welfare of young people in custody but we realise that responsibility for funding these services is complex. We have been working on a solution and I expect that I and my colleague, Mr Crispin Blunt, will receive official advice on funding soon. I will write to the noble Lord later this week or next week, putting forward solutions on that point, which he raised in Committee.
I echo the noble Earl’s tribute to Frances Done and her chief executive. They have behaved exemplarily throughout in steering the organisation through a period of uncertainty while maintaining the high quality of service which we expect. It is interesting that the noble Earl mentioned the need for local authority initiative. The thrust of the policy the department is putting forward in these new arrangements is that we keep the best of the localism of the youth justice system but encourage local authority initiative and co-operation even further.
I suggest to the noble and learned Lord, Lord Woolf, that undoubtedly the YJB has had an impact but that the holistic approach of the youth offending teams may best explain the success gained during the past 10 years, which has been mentioned on a number of occasions. I emphasise again that we are not going to abandon the lessons learnt in the past 10 years but will build on them. It is worth pointing out that youth policy is not the only policy that the MoJ looks after. I think that the noble Baroness, Lady Linklater, and the noble Lord, Lord Beecham, mentioned this. One might equally ask whether one needs a similar arm’s-length body for women, the mentally ill or an educational training body. I see lots of nods across the House. Perhaps that is where we have an ideological difference—“When in doubt set up an arm’s-length body, or, if not, a tsar”; that was very much part of another age. It is worth pointing out that Ministers and departments can be responsible for distinctive policies that they can pursue successfully, without necessarily setting up an external body to help them to do that.
Lord Mackay of Clashfern
My Lords, in view of what has been said, perhaps I may take this opportunity to indicate that this amendment is eminently supportable and that I hope the Minister will respond positively to it. I felt that I did not want to make two speeches; I thought that I had made one already. Anyway, that is my position.
Lord McNally
My Lords, that convinces me only that the noble and learned Lord, Lord Mackay, can resist anything except temptation.
The noble Baroness gave some reasons why the Government should give themselves time to think on these matters. She pointed out that this is only enabling legislation, but, as I said in the previous debate, it is better that we have some clarity in what we wish to do. We are aware that the proposed changes to legal aid will put pressure on parts of this sector of justice, and that is why a concerted effort has to be made to drive up the quality of original decision-making. It is the departments and public bodies that make the original decisions that have the primary responsibility to ensure the quality of decision-making. However, this work with the decision-makers will continue, so as to improve getting it right first time. To drive up standards, we will seek to spread lessons learnt among relevant decision-making bodies.
The noble Lord, Lord Borrie, gave the game away when he said that the amendment and the consequential amendments were a perfectly legitimate and ingenious way of asking the House to reconsider a decision it had already made in Committee. However, the department has never hidden the fact that one of the reasons for the decision was saving money. However, as in the recent debates, almost throughout the Bill, opponents to what the Government propose seem to put enormous emphasis on the benefits that arm’s-length bodies can deliver and give no credit at all to the fact that one of the beauties of our system was that one check and balance on the delivery of policy was the direct line of responsibility running from Ministers in their departments through to the Floors of both Houses. We do not accept the idea that all these things have to be done by arm’s-length bodies, nor do I accept that the Ministry of Justice knows nothing and cares less about the wider issues of administrative justice. It is unfair to keep on throwing these attacks on civil servants who, in my experience, show an extraordinary commitment in their areas of expertise and are extremely willing to speak truth to power.
Young People: Custody
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Baroness Walmsley
To ask Her Majesty’s Government how they will respond to the report by the Office of the Children’s Commissioner on the restraint of young people in custody.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, we consider this a thought-provoking piece of research that will be fed into our wider-ranging independent review on restraint. I should point out, however, that the authors themselves say that the size of the sample of young people they talked to—89—was not high enough to be statistically significant and therefore not necessarily representative of young people across the secure estate.
Baroness Walmsley
I thank my noble friend for his reply. In his review, will he bear in mind the inconsistency of the types of restraint and pain distraction that can be used in different kinds of children’s settings, with an objective of producing consistent standards to the highest international level and compliant with the UN Convention on the Rights of the Child? What arrangements are being made to provide independent legal advice to the young people who gave an account to UserVoice, which was published in the report, of treatments that might be unlawful, to ensure that they have the advice that they need to be able to challenge those treatments?
Lord McNally
My Lords, on the first part of the noble Baroness’s question, the whole thrust of departmental policy is to try to ensure that in all parts of the secure estate there is consistency of training and application in these matters. We are continuing to take advice on this. On the matter of legal advice, the Youth Justice Board commissioned Voice and Barnardo’s to provide an advocacy service in every part of the secure estate. Secure children’s homes also have advocacy services under contracts held by the relevant local authorities.
Lord Bach
My Lords, does the Minister agree that the Youth Justice Board is a crucial player in this whole difficult area of young people and custody? The Government intend to abolish the YJB and take its functions into the Ministry. The Minister uses the strange but certainly novel argument that it should be abolished not because it has been a failure but because it has been too successful. Is it not time to stop this nonsense and accept that Her Majesty's Government have got this wrong and that the independent Youth Justice Board should be allowed to get on with its vital job?
Lord McNally
That is a little wide of the mark, but I am very happy to say that we will return to this matter on Monday next, when I am sure that that question will be in the noble Lord’s opening speech. He can look forward to my response on what the Government’s policy will be.
Baroness Stern
Could I ask the Minister, in order to put this matter beyond doubt, whether the technique of inflicting pain on young people to make them comply, by hitting them on their nose, has now been banned, and whether the techniques of bending back the thumb and hitting them in the ribs is still being used or whether those have also now been stopped?
Lord McNally
The nose technique has certainly been banned. My knowledge of the other two pain techniques that she mentioned is not as in-depth. However, I must emphasise that the whole thrust of advice and development, not only under this Government but over the past two or three years, has been, as I said in my opening remarks, to make sure that there is good training and consistency of staff attitudes in this matter. It is a difficult matter and I understand the concern, but it is a concern that I have detected in the staff and administration of the secure estate as well as around this House. The big problem, as successive Ministers have found, is that we also have a duty of care to staff and other inmates, as well as the desire to secure a safe and secure estate. Dealing with some of the most difficult and complex young people is very difficult, but reliance on administering pain is a very last resort in very difficult circumstances.
Baroness Farrington of Ribbleton
My Lords, the Minister referred to the fact that government policy on the Youth Justice Board will be revealed on Monday. Is that because the Government do not have a policy today, or would he care to answer the question from my noble friend Lord Bach?
Lord McNally
The Government’s policy is as in the Bill. An amendment on it is to be debated on Monday. This is far off the question before the House. Two old experienced campaigners such as the noble Lord, Lord Bach, and the noble Baroness know full well when they are wandering wide of the mark. I will see them on Monday.
Baroness Linklater of Butterstone
My Lords, this report by the Children’s Commissioner is most powerful in its first-hand descriptions of how restraint techniques in secure settings are actually experienced by children themselves. It makes quite distressing reading. It is followed by the commissioner’s unambiguous recommendation that the use of pain to enforce control and order should be prohibited and that internationally agreed standards, as set out by the UN and the UN Convention on the Rights of the Child, should be used as a benchmark. Will the Minister please undertake to ensure that there is rigorous, thorough and better training of all staff in the children’s secure estate who deal with these most damaged and difficult children, so that the use of pain during restraint ceases? Will he undertake, with the help and advice of the YJB, to ensure that greater consistency is established across the estate and that more effective and rigorous monitoring is in place throughout?
Lord McNally
I fully appreciate and have benefited from my noble friend’s deep knowledge of these affairs. However, as I said earlier, I also have a duty of care to staff and other inmates and the people she refers to as “children” are often 16 or 17 years of age, six foot in height and 14 stone in weight. In such circumstances, keeping a safe and secure estate becomes a real problem. That is the problem that we are wrestling with in the study that we are undertaking.
Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2011
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Lord McNally
That the draft Regulations laid before the House on 2 February be approved.
Relevant documents: 16th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 16 March.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011
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Lord McNally
My Lords, these statutory instruments are necessary to support the implementation of the Family Procedure Rules 2010, which will come into force on 6 April 2011. The Family Procedure Rules are being made as required by the Courts Act 2003, which gives power for new rules to be made for all family proceedings. This means that one unified set of procedures can be applied to all types of family proceedings in all types of courts dealing with such cases. The Courts Act provides that the rule-making power is to be exercised with a view to securing that the rules are both simple and simply expressed.
The Ministry of Justice and the Family Procedure Rule Committee—the body established to make the rules—have developed a set of rules to cover all family proceedings in the High Court, the county court and the family proceedings court. The new rules will bring a number of benefits, including modernisation of some language, a single unified code of practice for all family courts and, where appropriate, harmonisation of the procedure in family proceedings with the provisions of the Civil Procedure Rules. In fact, the approach followed in the Family Procedure Rules is already being applied to adoption proceedings. The Family Procedure (Adoption) Rules 2005 used the new approach to support those proceedings. When the new Family Procedure Rules come into force on 6 April 2011, they will help fulfil the Government’s intention that the new approach should be extended to all family proceedings.
The two instruments we are considering today are critical to the operation of the new Family Procedure Rules. They ensure that the new rules will operate as intended, and that other enactments will refer appropriately to those rules. I hope that the Committee will support their approval. I will take each instrument in turn.
The Family Procedure (Modification of Enactments) Order 2011 makes amendments to other legislation in consequence of the coming into force of the Family Procedure Rules. For example, Article 6(b) of the order inserts a new subsection (3) into Section 54 of the Magistrates’ Courts Act 1980. That new subsection provides:
“In family proceedings a magistrates’ court may stay the whole or part of any proceedings or order either generally or until a specified date or event.”
This gives magistrates' courts the same power to stay—in effect, halt—proceedings that the High Court and county courts already have. As a result, the procedural rules referring to such stays in the Family Procedure Rules can apply to all courts dealing with family proceedings. The order also amends various enactments which currently refer to rules which are to be superseded by the Family Procedure Rules 2010. This means that, from 6 April 2011, those enactments will refer to the 2010 Rules or to specific provisions within them.
The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011—the destination of appeals order, as it is known to its friends—makes various minor amendments to the routes of appeal. It provides that appeals from decisions made by a district judge of a county court will lie to a judge of that court and that appeals from decisions made by a district judge of the High Court, a district judge of the principal registry of the Family Division or a costs judge will lie to a judge of the High Court. It puts in place provisions in existing rules regarding the destination of appeals from a district judge which would otherwise be lost as those rules are replaced by the Family Procedure Rules. The new destination of appeals order consolidates these provisions with the provisions from an existing destination of appeals order, so that the routes of appeal in family proceedings are dealt with in one place. This is in line with our policy of simplifying the way in which rules for family proceedings are presented. Part 30, “Appeals”, of the practice direction that supplements the Family Procedure Rules sets out all the routes of appeal and the practice steps that people will need to take, which will provide considerable assistance to a person who wants to appeal against a court’s decision.
These orders have already been debated in the other place and have been approved. Members were generally supportive of the Family Procedure Rules and approved these provisions which support the implementation of those rules. The two statutory instruments are important to make it possible for the new Family Procedure Rules to operate as intended, and to ensure that other legislation is properly amended in consequence of the coming into force of those rules. The rules will bring considerable benefits to people involved in family proceedings. I hope that noble Lords will approve these two draft orders so that the benefits of the new rules can be fully achieved.
Lord Marks of Henley-on-Thames
My Lords, we plainly welcome the move towards uniformity of procedures among the High Court, the county court and the magistrates’ court and the move to a single code of practice and harmonisation where possible, although it is not always completely possible, between family proceedings and other civil proceedings under the CPR. I particularly welcome the provisions that will give magistrates’ courts the power to stay proceedings and to make orders for costs in a way that they have not been able to do so in the past.
Also of considerable importance is the move to give magistrates’ courts the power to make an order of disclosure against non-parties. The lack of such a provision for the magistrates’ courts has been, and is, capable of giving rise to delay. When witnesses turn up, the documents are not in court and there has to be an adjournment in order for them to be obtained. For that provision to be effective, it should be borne in mind that the burden is on solicitors and litigants to ensure that they use the order and the provision by applying for orders for the production of documents in good time so that, when matters come for a hearing, all the documents are before the court.
The destination of appeals order is also extremely helpful in dividing appeals from the junior judges in the High Court to High Court judges from appeals from junior judges in the county courts to county court judges. However, one further point that I would make, which is a matter for listing officers rather than for the legislation, is that those of us who practise in family proceedings will well know that we have extremely experienced district judges at both levels, but we also have a number of rather less experienced deputy High Court judges and deputy county circuit judges sitting as circuit judges. It is a matter of importance that we do not list appeals from very experienced district judges before very much less experienced deputies at the senior level. That is not a point for the order, but it is a point of some importance in practice.
Lord Bach
My Lords, I thank noble Lords who have spoken in the debate and I congratulate the Minister for the succinct way in which he put these orders. It is not always easy to put orders before the Committee so succinctly, but he has managed it with great élan this afternoon. It is very good to have the noble Lord, Lord Marks of Henley-on-Thames, with his experience of the family courts, joining in the debate even on fairly uncontested orders. His experience will be very valuable to the House. I am also grateful to my noble friend Lord Jones for his staunch defence of the magistracy and the detailed questions that he asked about the orders. Let me say straight away that we do not oppose the orders at all; indeed, they seem to demand support and to make sense. As I understand it, they had general support from the other place and from the outside world.
The whole area of family law policy is being examined by the Norgrove committee as we speak, of course. We began that in government and the present Government have wisely carried it on. It is an important committee; we look forward very much to its report and the Government’s decisions on that report. Some of us feel that our family law needs to be brought up to present times and that many changes could usefully be made, but that is not the issue for today. These orders deal with procedure and rules and are a vital and much respected part of our legal system, which is widely—and rightly—admired elsewhere. Our procedures and rules must be known, exact and kept up to date; these orders certainly do that.
There is an interesting argument around family proceedings courts in the magistrates’ courts. I understand that the orders give the equivalent power to those courts as they do to the county court and the High Court. That is no doubt a good thing, but will the more serious cases still go to either the county court or, if they are even more serious, the High Court? I am sure that it is still the position; it ought to be, and I would not want any change to it.
My query is about Article 38 in the Family Procedure (Modification of Enactments) Order. This is not a trick question, and the noble Lord is welcome to answer at his leisure if he wants. The Explanatory Note states that:
“The amendment removes the reference to the exercise of the power to transfer where there is a real risk that a party to proceedings may lack mental capacity within the meaning of the Mental Capacity Act 2005 as the FPR now make provision (in Part 15) for protected parties in relation to all three levels of court including the magistrates’ courts”.
Do I take it that, where that issue has arisen until now, the family proceedings court has not been seen fit to be an appropriate venue or forum for those cases? Obviously, the cases are made more difficult if someone lacks mental capacity within the meaning of the Act. Is it really appropriate that those cases be heard in the family proceedings court?
Apart from that, we support the orders and are grateful to the Minister.
Lord McNally
My Lords, the House is extremely generous in its comments about my command of the subject. I am not a lawyer, so I feel like a lion in a den of Daniels when I look round and see the contributors. I am grateful for the comment of the noble Lord, Lord Bach, about the Norgrove review. We hope that Mr Norgrove will give an interim report in March and his final report in the autumn. I agree with the noble Lord that it will be a useful opportunity to review family law.
I also agree that we will be well aided in that review by the presence of my noble friend Lord Marks, who has already made his impact both in the Chamber and here in the Moses Room. His contribution today might be better read by the practitioners than by the House, in that he said that due notice for documents required would speed up and simplify processes. In looking at our criminal justice system over the last 10 months in my limited experience, I have frequently been amazed at how easy it is to disrupt the smooth running of the system. I hope that we can make the system work more efficiently. I am sure that his fellow practitioners will duly note his opinion about the value of the experienced district judges compared with others.
The noble Lord, Lord Jones, asked whether the destination of appeals order will apply to appeals from district judge magistrates’ courts, and whether magistrates’ courts have been consulted. The draft order relates to family proceedings in the High Court and county court only and does not apply to magistrates’ courts. On the wider issue that he raised, both the Magistrates’ Association and the magistrates’ clerks body responded to the consultation and were fully consulted. The draft destination of appeals order applies to all family proceedings, including adoption proceeding, and revokes the 2005 destination of appeals order. If that does not cover the points raised, I will gladly find out more.
The noble Lord, Lord Jones, widened his remarks a little more to ask about the magistracy. That gives me an opportunity to say that we have carried out a rationalisation of the number of magistrates’ courts. I believe that we have retained the essential strength of magistrates’ courts and of the magistracy, which is their localism. This is the 650th anniversary of the magistracy, which we will be celebrating later this year in Westminster Hall. On the attitude of the Ministry of Justice, my right honourable friend the Lord Chancellor is certainly looking very actively at how magistrates can be given more work—not less—and take on more responsibilities. We will be looking at that in various pieces of legislation later in the year.
Regarding the query on Article 38, prior to the coming into force of the Family Procedure Rules 2010, magistrates’ courts did not have the power to appoint such representatives. Only the High Court and county courts had such powers. However, under the 2010 Rules, magistrates’ courts will be able to do so. Therefore, the fact that a person lacks capacity will not require a transfer of proceedings so that a representative can be appointed. It follows that it is appropriate to omit sub-paragraph (h) from Article 15(1) of the Allocation and Transfer of Proceedings Order 2008. The Family Procedure Rule Committee considers that it is appropriate that magistrates’ courts should have these powers to avoid unnecessary transfers. However, complex cases can still be transferred in accordance with the allocation order. I have taken note of the concern that the noble Lord, Lord Bach, raised, which I hope is covered by that assurance about complex cases.
I hope that my response has covered the points that were raised during the debate—if it does not, perhaps colleagues would remind me. Like others who have spoken, I think that the order provides for a welcome consolidation of the courts and a welcome increase in responsibility for the magistrates’ courts, and I hope that, as in the other place, we can adopt these measures.
Family Procedure (Modification of Enactments) Order 2011
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Lord McNally
That the Grand Committee do report to the House that it has considered the Family Procedure (Modification of Enactments) Order 2011.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments
Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011
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Lord McNally
That the Grand Committee do report to the House that it has considered the Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011.
Relevant documents: 16th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, never underestimate the value of the Whip because, but for the intervention of my noble friend Lady Northover, I would have been well into this speech and would not have moved the Motion on the previous order. I am most grateful to her.
Lord McNally
The draft order before us today amends an order made in 2000 with regard to the data protection rights of individuals in the context of social work. Specifically, the order brings the data protection obligations of the Children and Family Court Advisory and Support Service in Wales—CAFCASS Cymru—into line with those of its counterparts in England.
The purpose of the draft order is to ensure that officers of CAFCASS Cymru are exempted from the requirement to disclose personal data to an individual—known as a “data subject” in the Data Protection Act 1998—when they consider that to do so would be likely to prejudice the conduct of social work by causing serious mental or physical harm to the individual or a third party. As a result of an order made in 2005, CAFCASS Cymru’s counterparts in England can already use this partial exemption when replying to requests for personal data made under Section 7 of the Data Protection Act 1998. In 2000, when the DPA came into force, the Government brought forward such an exemption by order, which could be relied upon where the disclosure of the information would prejudice the carrying out of social work by causing harm to an individual or a third party.
I should explain that, even without this exemption, in certain situations data controllers may be able to rely on the principle that information shared with a social worker was given in confidence. Therefore, it might not be fair, or even lawful, to release the information, as to do so would be in contravention of the first data protection principle in the DPA. However, the social work exemption in the 2000 order gave a strong, certain and very explicit legal basis to withhold information and ensure that social work is not prejudiced. The schedule to the 2000 order listed those organisations and functions to which the exemption could be applied. This important exemption—the subject of our debate today—ensures that individuals’ rights to see their personal data do not inadvertently prevent social work from being carried out effectively.
With that background in mind, I will turn to the reason for the order before us today. In 2005 an order was approved by Parliament which added certain functions of CAFCASS in addition to those in the 2000 order. The 2005 order allowed CAFCASS to apply the social work exemption in appropriate cases. As Members will know, CAFCASS works with children and their families who are involved in family proceedings, and advises the courts on what it considers to be in the child’s best interests. Matters in which CAFCASS may become involved include where parents are separating or divorcing and cannot agree on arrangements for their child. The role that CAFCASS officers perform means that they routinely process information related to social work.
On 1 April 2005, the functions of CAFCASS in Wales were devolved to the Welsh Assembly, making CAFCASS in Wales—CAFCASS Cymru—a separate organisation to that of CAFCASS in England. Unfortunately, this was not taken into account at the time of the 2005 order, and therefore CAFCASS Cymru has not been able to apply this exemption, although its counterpart in England has. As a result, the intention behind the 2005 order that this exemption should apply across England and Wales, as agreed by Parliament, has not been fulfilled. It is important that this inconsistency in the subject access regime between England and Wales is rectified and that CAFCASS Cymru is able to use this exemption as was originally intended.
CAFCASS Cymru has told us that, between 2007 and 2009, there were 23 cases where it would have considered using this exemption, had it been available. In these cases, CAFCASS Cymru relied on the principle, mentioned at the start of my remarks, that there would have been a reasonable expectation that information that children share with a family court adviser would remain confidential and therefore would not disclose the information because it could give rise to an actionable breach of confidence. However, this approach has not been tested, either by the courts or by the Information Commissioner. The extension of this exemption to cover CAFCASS Cymru will provide it with parity and will ensure a stronger, more certain and explicit legal basis to withhold information if CAFCASS Cymru considered that this would be likely to prejudice the carrying out of social work, by causing serious harm to the physical or mental health of a child.
I want to emphasise here that the Government take the issue of individuals’ rights to access their personal data very seriously. Just as we have made clear our commitment to transparency in terms of public data and official information, we are also committed to upholding people’s rights to see what information is being processed about them in both public and private sectors. Indeed, the Ministry of Justice’s recent call for evidence sought views on how the current subject access regime is working. Responses to this confirmed that individuals see this as an important right and that data controllers by and large take their responsibilities in this area seriously. But there can be no doubt that in certain, specific circumstances, such as those we are considering today, releasing information may not be in the interest of an individual, or indeed of others, including the children of the individual concerned, or those involved in protecting them.
I should make clear to noble Lords that a right of appeal remains for those individuals who believe that a subject access request has not been complied with fully. As with any subject access request, there is a right of appeal through the courts under Section 7(9) of the Data Protection Act. Alternatively, individuals may approach the Information Commissioner, who may investigate whether the data controller has complied with the obligations under the Act. In addition, this order, should it be agreed, will add employees and contractors of CAFCASS Cymru, acting in their professional capacity, to the list of “relevant persons” in the 2000 social work order, as is the case with CAFCASS in England.
Section 7 of the Data Protection Act acknowledges that there may be times when the personal data of another person may be released as the result of a subject access request. In most circumstances, the data controller will need to seek the consent of that other person or assess the reasonableness of disclosure before giving out the data. However, the personal data of a “relevant person”, as defined by the 2000 order, is not subject to these conditions of consent or reasonableness. This means that CAFCASS Cymru must disclose personal data given by its employees in the course of their professional duties if this is required to provide the data subject with personal data under the terms of a subject access request. Consent and the reasonableness test are not factors in the disclosure.
A concern was raised in another place about how relevant persons will be protected from harm by having to release their personal data to others. It is important to remember that this draft order would allow CAFCASS Cymru to withhold information if social work was to be prejudiced by causing harm to the individual or any third party. This could include those who work for CAFCASS Cymru. CAFCASS in England, which must already adhere to this when replying to subject access requests, has told us that it is not aware of any harm caused to employees. In all cases so far it is only the name of the employee that has been released and it is highly unlikely that the individual making the request will not already know the name of that person—most likely to be a social worker—who has been dealing with their case. As such, it would probably raise more suspicion if the name of the employee in question was redacted and therefore the name is almost always released. Officials in CAFCASS Cymru have said that their approach would be similar to that of CAFCASS in England. Again, this provision would bring CAFCASS Cymru into line with CAFCASS in England to ensure consistency in the two bodies' approach to releasing personal data.
The principles about the need to maintain a strong subject access regime while protecting individuals were agreed by all parties in 2005 and these principles still hold firm. In any case, there is no reason why they should apply in England but not in Wales. Including CAFCASS Cymru in the list of organisations able to apply the exemption will not only protect individuals and ensure that social work can be carried out effectively; it will also ensure coherence and consistency between the organisations in England and Wales, and correct the error made in 2005. I therefore commend this draft order to the Committee.
Lord Thomas of Gresford
My Lords, I would not necessarily agree to the principle that something that applies in England must necessarily apply in Wales. That is the whole point of devolution, which I am sure that the noble Lord has foremost in his mind. However, I support this provision.
The noble Lord referred to the call for evidence. He made a statement in July 2010 about the call for evidence, which he said was to be,
“assessed and used to inform the UK’s position in negotiations on a new EU instrument for data protection, which are expected to begin in early 2011”.
He also said that there would be a,
“Post-Implementation Review of the DPA, with a view to publishing a full impact assessment by the end of the year”.
Have those time limits been complied with? I was not able to find anything to indicate that they had. What is the position in relation to the negotiations with the EU for a new instrument in this field?
Lord Bach
My Lords, I thank the Minister again for explaining these orders—perhaps not quite as succinctly as in the previous case, but I understand why—and I am grateful to the noble Lord, Lord Thomas of Gresford, for raising the point that he has raised.
Of course, whenever exemptions are made to data protection regarding people’s fundamental right to know what data are held about them, how those data are used and what safeguarding processes there are, it is right that they should be very carefully examined. This order has been examined very carefully in another place and I have read the transcript of those proceedings. On that occasion, the matter was tested by a number of questions, particularly about the frequency of exemption already in place for England. However, Members of the other place were content and satisfied with the answers that were given; in my view, we should also be content with the order and with the way in which the Minister has outlined the order today.
There are occasions when it is not just right but important that exemptions are made to the normal rights under data protection legislation. That is common sense and is appropriate. What makes the exemption satisfactory is that, first, there is a right of appeal, which is very important in our view. Secondly, it is absolutely right that social workers, who are not very well paid but who do a pretty demanding job that is absolutely crucial and much underrated by the rest of society, should get the protection that they deserve, and anything that can make their difficult task easier should be done by Parliament, if possible. I believe that that is what these exemptions have done so far in England and will now do in Wales. Our view is that this order is sensible, reasonable and absolutely appropriate.
Lord McNally
My Lords, I am sorry that my explanation of this instrument was succinct. I turned over in my mind whether to adopt the attitude exemplified by my noble friend Lord Sassoon and the noble Lord, Lord Davies, in the earlier debate by reducing the issue to some party barn-storming by announcing that this was the coalition cleaning up a mess left by the previous Government, but I have been around this place long enough to know that we will probably make similar mistakes in legislation.
Lord McNally
This just shows how these matters are dealt with in the justice system. I also note that, as one QC eased himself out of the Benches, another QC eased himself in. I deal with these matters with great trepidation.
On our call for evidence, the preliminary result was published in January of this year and I shall ensure that my noble friend receives a copy. We are undertaking an interesting exercise in trying to future-proof as much as we can the whole of data protection. The call for evidence will be extremely useful in making what we hope will be a positive contribution to the review of the European directive. The capacity of data protection of the exchange of data has changed dramatically, even in this still young century. Therefore, the need to take a new look at data protection is extremely timely. We shall be making a contribution to the review going on in Europe and we shall also review exemptions and applications under the Data Protection Act as part of that process.
Perhaps I might associate myself with the points made by the noble Lord, Lord Bach. One was that it is important that there should be a right to access data. Successive Governments have now been committed to greater transparency, but there have to be safeguards along with that. I also therefore associate myself very much with his tribute to social workers—a group sometimes quite outrageously pilloried in our popular press—who carry out extremely difficult responsibilities on behalf of our whole society. If they are to carry out such responsibilities, the kind of protection that this order provides for them is no more than they deserve. Certainly, in this case it should apply both in England and Wales.
Justice: Judicial Appointments
Lord McNally Excerpts(13 years, 1 month ago)
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Lord Marks of Henley-on-Thames
To ask Her Majesty’s Government what progress is being made in improving gender and ethnic diversity in judicial appointments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in February 2010, the independent advisory panel on judicial diversity published its report, which detailed a number of recommendations to deliver speedier and sustained progress to a more diverse judiciary without diminishing appointments on merit. In response, the judicial diversity taskforce was established to oversee the assessment and implementation of those recommendations. The taskforce met last Monday to review what has been achieved to date, and will publish its report on progress shortly.
Lord Marks of Henley-on-Thames
My Lords, I thank my noble friend for his helpful Answer, but given the lamentably low number of women judges and the virtual absence of ethnic minority judges among our senior judiciary, which bears a very poor comparison with those of other European and other common law jurisdictions, does he agree that it is time for urgent and effective action and that all necessary steps should be taken to ensure that the recommendations of the taskforce that he mentioned, set up as a result of the recommendations of the advisory panel chaired last year by my noble friend Lady Neuberger, are implemented in full and without delay?
Lord McNally
My noble friend makes a correct assessment of the figures for judicial appointments. The meeting last Monday was my first with the diversity group, and I made it very clear that as far as I am concerned, the concept of trickle-up is not a response to the diversity problem that we face in the judiciary.
Baroness Kennedy of The Shaws
Given the nature of the issue, I think that giving way was appropriate.
I remember that when I started at the Bar there were sets of chambers that used to say, “We don't take women”. We then made a great advance where chambers would say, “Women? We've got one”. We now have one woman in the Supreme Court. That has been the situation for seven years. It is not good enough. What is being done? There are four wonderful women in the Court of Appeal. Why is not one of them, such as Dame Mary Arden, being promoted to our Supreme Court?
Lord McNally
My Lords, I understand that there are two imminent vacancies to the Supreme Court. I am sure that everyone will be watching as to what happens with those appointments. The noble Baroness touches on another point. The professions themselves— the Bar, the Bar Council, the Law Society and their members—should show leadership in encouraging more women into the legal profession.
Baroness Prashar
My Lords, does the Minister agree that the establishment of the Judicial Appointments Commission acted like a litmus paper in highlighting the barriers which impede progress in this area? Does he further agree that more concerted action is needed by the Ministry of Justice, the judiciary and the professions in order to make a difference?
Lord McNally
I most certainly agree with the noble Baroness and I pay tribute to her contribution to making the Judicial Appointments Commission so valuable. I recently met the new chairman, Mr Christopher Stephens. As well as many other attributes, he is the son of a former Clerk of the Parliaments, which should reassure this House.
Lord Morris of Aberavon
My Lords, while giving every welcome to the much needed improvements in diversity over recent years, will the Minister ensure that, in the pursuit of these very proper and important aims, quality and merit will never be sacrificed by those who are responsible for appointments? Further, does the Minister agree that all these aims, including quality and merit, should apply to those who are responsible for the appointment of Queen’s Counsel as well?
Lord McNally
I hear what the noble and learned Lord said. I can only say that 30 years ago when I was in government in the Foreign Office, women advisers were a rarity at any meeting. Returning to government 30 years later, I quite often sit in meetings where the majority of my advisers are able and talented women. I wonder why the legal profession has not made the same progress in the past 30 years as has been made in public appointments. I suspect that, perhaps not intentionally, the idea of quality and suitability is embedded in the thought “people like us”.
Baroness Falkner of Margravine
Does the noble Lord agree that the previous question implied that women and ethnic minorities possibly do not have the merit or the suitable qualifications, which should not be allowed to stand? Will he tell the House whether the judicial appointments review will set targets? If that other bastion of male privilege, the City of London, can have targets, is it not time that the senior judiciary did as well?
Lord McNally
I think that targetry would be the wrong approach but it is worth remembering the figures. Just over 20 per cent of our judges are women. Even in the magistracy under 8 per cent represent black and ethnic minorities. I understand selection on merit but there are still signs of old selection prejudices that produce these appalling figures. They have to be broken into.
Baroness Scotland of Asthal
My Lords, I declare an interest as a deputy High Court judge of the Family Division. The noble Lord will know that that appointment was a very long time ago and that the opportunity to be a deputy is very important. Will the noble Lord tell me how many other ethnic minority women of some quality are now appointed in relation to the deputy’s role?
Lord McNally
My Lords, I do not have the figures here, but I will write to the noble and learned Baroness. Let me say this about quality. This is not an attack on our judiciary. One of my other responsibilities is as deputy to the Lord Chancellor in his international role. Time and time again, we find ourselves in areas where the judiciary is corrupt and the justice system deeply flawed. I pay tribute to the quality of our judiciary, but I must say that, when the figures show that it is 80 per cent male, we are wasting half our talent. Other professions have shown the ability to change. It is time for the legal profession to change as well.