Crime: Youth Justice

Lord Thomas of Gresford Excerpts

Monday 24th October 2011 Lords Chamber

[Lord McNally]

My Lords, perhaps fortunately, I am responsible for the Ministry of Justice, and, there, we have come to the clear conclusion that we can operate the responsibilities of the Youth Justice Board better by creating a new youth justice division, which will be a dedicated part of the MoJ sitting outside NOMS, and maintaining continuity and expertise by agreeing that John Drew, the current chief executive of the YJB, will lead the division.

We have indeed received a number of responses—70 in all, I think—to the consultation, which closed on 11 October. The department is studying those responses and will report in due course.

[Lord Thomas of Gresford]

My Lords, Mr Crispin Blunt, in his evidence to the Justice Committee in another place, said that there were complaints from youth offending team managers about the Youth Justice Board. How many complaints were there and what was the nature of those complaints?

[Lord McNally]

I have not seen in detail the evidence given by my honourable friend. I suspect that almost in the order of things there are occasional irritations between a central and a local body. Throughout the life of the YJB, there have been various debates about where the onus of responsibility should lie. We believe that by slimming down the central role of the YJB, we can give youth offending teams more responsibility, in keeping with the Government’s localism policy. I will investigate whether the exact exchanges that Mr Blunt was referring to are available on the public record and what they contain, and if I can reveal them to my noble friend, I will.

Crime: Home Protection

Lord Thomas of Gresford Excerpts

Thursday 20th October 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the House will be most grateful to the noble Lord, Lord Blencathra, for introducing this important subject. It was considered by the Law Commission in 2005, which stated in paragraph 4.19 of its report, headed “The threatened householder”, that,

“there is a strongly held view among many members of the public that the law is wrongly balanced as between householders and intruders. We think that much of that public anxiety is based on a misunderstanding of the present state of the law, contributed to by incomplete understanding of certain notorious cases”.

That is where we start in a consideration of this important question.

What is the law? I went back to the common law as enunciated by Blackstone in his Commentaries on the Laws of England in 1761. On self-defence, he stated:

“The defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens, is chargeable upon him only who began the affray. For the law, in this case, respects the passions of the human mind; and, when external violence is offered to a man himself, or those to whom he bears a near connection, makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force”—

that is the future process, the point made by the noble Lord a moment ago—

“since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay, even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor”.

That is almost the speech that the noble Lord has made this morning. It also happens to be the law of this country, dating back 250 years.

Of course, the matter has not been left there. It was considered again in 1879 under the chairmanship of Lord Blackburn. I will not weary your Lordships with a quote from that but it was to the same effect. Most recently, in the Court of Appeal in October last year, Lord Justice Hughes set out the very long established law, which has two or sometimes three stages into any inquiry into self-defence. First:

“If there is a dispute about what happened to cause the defendant to use the violence that he did, and there usually is such a dispute, then the jury must decide it, attending of course to the onus and standard of proof”.

Secondly:

“If the defendant claims that he thought that something was happening which the jury may find was not happening, then the second question which arises is what did the defendant genuinely believe was happening to cause him to use the violence that he did? That question does not arise in every case”.

In other words, the court will look at the honest belief of the defendant as to what he thought was happening. Thirdly:

“Once it has thus been decided on what factual basis the defendant's actions are to be judged, either because they are the things that actually happened and he knew them or because he genuinely believed in them even if they did not occur, then the remaining and critical question for the jury is: was his response reasonable, or proportionate?”.

That is a statement of the law made very recently.

Let me give your Lordships some examples from my own experience to indicate how the law has operated. I can go back to the 1970s, to a case where the defendant was a former military man in his 40s, who had retired from the Army—he was a warrant officer—to look after his sick father. In those days people wore their hair long—perhaps some of your Lordships wore your hair long in those days—but he of course had a short back and sides and he became a butt of the community. One day when he was looking after his father in the bedroom of a council house, a youth came up the path and threw a brick through the fanlight above the door, whereupon the defendant took a .22 rifle and from the bedroom window shot him through the head and killed him. The defence was defence of property—he was in no personal danger in the bedroom with his sick father. The jury considered all the circumstances, as the jury is bound to do, and acquitted him. He was not guilty of murder, he was not guilty of manslaughter; he walked free.

Another case I recall from the Midlands was when a person, again in his home, heard a noise outside and discovered that some drunken passing youths had turned his car upside down on the drive. He went outside and remonstrated with them. They started to shout and hurl abuse at him. He went back inside and picked up a knife. When he came out, the youths were picking fence staves up in order to attack him. They attacked him and he stabbed one of them with the knife. The jury heard all the circumstances. He was defending himself and his home. Again, the jury acquitted him. All together he was found not guilty of murder.

These cases are from my own experience but they are happening all the time. A third, more recent, case is from Trinidad. A police officer, surrounded by a crowd of youths at a music festival, felt that he was being attacked. It was his defence that one of the people attacking him had produced a knife. He produced his revolver and shot two people, one of whom he killed. In that case, a trained officer used a gun against someone whom he believed to have a knife in those circumstances. Unhappily, his counsel in Trinidad decided not to run the defence of provocation but to rely entirely on self-defence. The jury convicted the police officer of murder. In the Privy Council, it was pointed out that certainly the crowd around him and shouting at him were provoking. The case went back to Trinidad and, on a retrial, he was convicted of manslaughter on the grounds of provocation.

My point is that the facts can be completely different and the surrounding circumstances are completely different in every case. If, for example, a burglar is in the bedroom and my wife is on her own, and she uses excessive force by, let us say, shooting—not that she has a revolver, I have to say—and kills the person concerned, that is a very different situation than if I were there and in a position to deal with someone of a reasonable size in order to defend myself and my property in that way. The circumstances cannot be categorised in any particular way.

In 2005, there was an attempt to introduce a Bill—the Criminal Law (Amendment) (Household Protection) Bill—to amend the law. It was introduced by Mr Patrick Mercer, supported by Mr David Davis and various others, in the House of Commons. It wished to replace the term “reasonable force”, whether the jury were considering the force used in defence was reasonable, with the term “grossly disproportionate”. The Bill did not get very far and one only has to stop and think: a jury is considering a whole series of facts around a killing; it considers that the defendant has acted unreasonably, but has he acted “grossly disproportionately”? You can imagine a debate taking place in a jury room to decide on the difference between being unreasonable, acting beyond reason, and acting with gross disproportionality. That sort of debate should not be left to juries, which approach these matters in a completely common-sense way, having regard to all the facts and circumstances put before them. While I sympathise to a certain extent with those concerned with some cases that come before the courts which seem to be grossly unfair, the law covers the situation and has done so since 1761 and before that time.

What concerns me is the concept that the decision as to what was reasonable should be taken by the police—that a householder should never be arrested and questioned if he has killed someone who has been an intruder. That cannot be right. The death of a person is extremely important and, whatever he may or may not have done, it is right that he should be arrested and that he should be questioned. If he has genuinely been acting in fear and in self-defence, undoubtedly he will give his view and his account of what happened at that point, a circumstance which the jury will no doubt take into account.

A person who has killed somebody, whatever the circumstances, is liable to arrest and questioning and, if necessary, detention until the whole matter can be sorted out. It is right that the decision should not be taken by the police and not even by the Director of Public Prosecutions, to whom the file is sent. It is for 12 people drawn from all parts of the community who should have put before them on the evidence all the circumstances and who should decide, using their common sense, which they undoubtedly have, whether that person was acting unreasonably when he killed the deceased.

The problem is that Parliament has sometimes, and certainly over the past 13 years, failed to recognise the absolute value of having people from the community decide issues like this and has tried in various ways to put boundaries around the thinking of a jury, which is entirely inappropriate. Self-defence, that firm principle embedded in our common law going back centuries, is a matter for the jury to determine. Do not let us ever get away from that.

--- Later in debate ---

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

My Lords, I am extremely grateful to all noble Lords for their contributions to this debate. Although it has been a short debate, it has been extremely informative and worth while. I pay particular tribute to the noble Lord, Lord Blencathra, in introducing it. I have told him before that one of my very dear friends, now no longer with us, was Lord Gray of Contin. I remember Hamish telling me that he had found a bright, new young star for the Conservative Party for whom he predicted great things. I am sure that it would have given Hamish great pleasure to have been here today to hear the noble Lord introduce these matters with such authority and passion.

The noble Lord, Lord Bach, ended with some interesting quotes, including “state-sponsored revenge” and “sentencing … in the home”. It is worth while stating from the beginning that this is not the Government’s intention or the direction of travel. I hope that my reply to the contributions that have been made in the debate will make that quite clear.

I am not a lawyer, so, unlike the noble Lord, Lord Thomas, or the noble Lord, Lord Bach, I cannot unfortunately call on experience from various cases. My only experience is that I once chased a burglar down the street in my pyjamas in my bare feet. I was 21 at the time but I could not catch him even then, so I cannot tell what I would have done if I had caught up with him.

[Lord Thomas of Gresford]

Does the Minister accept that if he had chased after him and had beaten him up then, that would have been revenge and not self-defence?

[Lord McNally]

By the time I had reached the end of a rather long road near Archway, I was so exhausted that I doubt that I would have inflicted much damage on him.

However, I understand the point made by the noble Lord, Lord Blencathra. Someone breaking into your own home is a terrifying experience. A noble Baroness in this House—I will not name her because I did not get her permission—told me about a burglary and what a trauma it was for her. Interestingly enough, the healing for her came when the burglar was arrested later and she was asked whether she would like to meet him. Her reason for telling me the story was to advocate the benefits of restorative justice. She said that whereas what she had confronted in her flat was a terrifying situation and someone she was very frightened of, when she met a rather pathetic drug addict who had broken in in the hope of getting something to feed his drug addiction the terror somehow drained away. Her story was a little bit of anecdotal evidence of restorative justice in action and benefiting the victim.

The noble Lord, Lord Bach, asked about the Human Rights Act and the ECHR. As he well knows, any proposals that we would have to make—

Industrial Tribunals: Fees

Lord Thomas of Gresford Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord McNally]

My Lords, there is no aim to go back to what the noble Lord, Lord Martin, could rightly describe as the “bad old days”. The industrial tribunals system will remain and people will still have access to it. We expect that the tribunals will have the power to order that unsuccessful parties reimburse the fee paid by the successful party so that costs are ultimately borne by the party which causes the system to be used. There is nothing in the system that does not say that a small proportion of the costs cannot be charged. We do not believe that that would fundamentally undermine the very good work that the tribunal system does.

[Lord Thomas of Gresford]

My Lords, does my noble friend accept that meritorious claims will be as much discouraged by the imposition of fees as vexatious ones? The Government should not base their policy of charging fees on trying to limit the number of cases that come to the tribunals. My noble friend will recall the discussion that we had about this in the immigration appeals tribunal last week.

[Lord McNally]

My Lords, I suspect that we will have discussions along these lines over a range of issues. I suspect that small charges for access to courts such as the tribunal service will not have a deterrent effect on meritorious cases. One small range of consultations suggested that there might be a small fall-off in applications with the introduction of fees. As part of the consultation that will take place in December, we hope to widen that impact assessment to make sure that we are going down the right road. Between 2001 and 2010, there was an 81 per cent increase in cases going to employment tribunals. There is a limit to what a free service at the taxpayers’ expense can bear.

Legal Aid

Lord Thomas of Gresford Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord McNally]

My Lords, I can not give a precise answer to that, but the LSC has taken a number of steps to expedite payments to contracted providers and is committed to investigating any claim where a bill is not paid within the correct timescale. While there have recently been some delays in civil bill processing, the LSC maintains that the vast majority of payments are being made within their published target times. I will, however, look at the matter of quarterly payments.

[Lord Thomas of Gresford]

Is my noble friend aware that the Law Society has had to write to banks, asking them to treat legal aid practitioners with special care, because of a backlog in payments by the Legal Services Commission, and is his response—that they are all paid on time—not a little disingenuous? Is there not a very considerable backlog at the moment?

[Lord McNally]

My Lords, I did not say that they were all being paid on time, but I did say that the Legal Services Commission is addressing the problem that has arisen. A backlog had built up and the commission faced criticism, but it has addressed the problem and is moving to cut the backlog. So I am not being disingenuous in any way. I am acknowledging that there has been a problem, which the commission is addressing. It maintains that the vast majority of payments are being made within their published target times.

First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

Lord Thomas of Gresford Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, my noble friend said in introducing this order that many of the appeals are “wholly without merit”. The question is, which? That is what the tribunal exists to determine. It is impossible to start off on the basis that an awful lot of these appeals are without merit. My noble friend said that this bright idea came forward as a response to the spending challenge that was put out by the coalition Government when they came into power. It is a terrible idea when it is examined. The Explanatory Memorandum makes that quite clear.

The first point that has to be made is that it is one thing to fund the civil courts of this country by fees where a person brings an action—that is, he takes a decision to start a case by the issue of a writ or a summons—but, as the Explanatory Memorandum makes clear, this is the first instance of fees being imposed in tribunals where there has been action by the state against the individual. This is not an individual who started things up himself, as happens in High Court or county court proceedings; this is where the state has taken some action against which the individual wishes to appeal. The power to impose fees in tribunals has previously been exercised only in the areas of gambling and land.

We move from gambling and land to an extremely sensitive area of policy, immigration and asylum. Why? Paragraph 3.1 of the Explanatory Memorandum says that,

“the Government considers that it is not reasonable for the state to continue to fund the remaining cost of the appeals system. The Government believes that it is appropriate that users of the Tribunal contribute towards the cost of their appeal where they can afford to do so”.

However, as I say, this is not a situation where the appellant in one of these tribunals has initiated things; it is a case where he is appealing against an action that the state has taken.

It is not surprising, as paragraph 8.2 of the memorandum reveals, that:

“Respondents to the consultation were generally opposed to the introduction of fees”.

Indeed, when it came to the suggestion of imposing fees for the Upper Tribunals, they were,

“unanimous in their view that appellants should not pay”.

The Government have indeed responded to that.

One looks at the impact assessment to see how viable this scheme is. It really is very interesting. Under “Key assumptions” it says:

“It is unknown how prospective appellants will respond to fee-charging. A number of assumptions have therefore been made to produce illustrative estimates”—

it is a guess, in other words. It goes on to say:

“The Home Office is implementing significant changes to the UK’s immigration regime in 2011, which may affect the volume of appeals in future years and thus the costs and benefits of this proposal”.

The Government’s own proposals for changing the immigration regime will have an unknown impact. One would have thought that where there are changes to the regime, appeals will follow as people who are subject to orders made by the state test the boundaries of those changes as they have been made. It then says:

“The future success rate of appeals is unknown in which a cost award is made against UKBA”.

We are still in the realms of complete ignorance as to the effects of these proposals.

Paragraph 2.19 of the impact assessment, which refers to the principal groups impacted by the final proposal, says, under “Appellants”:

“Fees for Family Visit Visas were introduced in 2000 and subsequently reduced and then abolished in 2002. Research published by the Home Office in 2003 did not find conclusive evidence that these fees were a significant deterrent to legitimate FVV appeals. However, it is accepted that some individuals may currently choose to appeal because it is free but would not do so if a fee is payable”.

That assertion does not follow from the research that was done in 2003.

Paragraph 3.4 in the “Economic rationale” section says:

“The absence of fees means that the service is ‘over-consumed’”—

in other words, too many people appeal. It goes on to say that the users,

“are not exposed to any of the costs that the Tribunal incurs as a result of the appeal. A possible indicator of this ‘over-consumption’ is the failure rate of appeals, which represented a majority in each of the four main appeal types … disposed of in recent years”—

because there is a failure rate of appeals representing the majority, that shows that too many people apply. I go back to my original point that if many of the appeals are wholly without merit, the purpose of the tribunal is to determine which do have merit and which do not. You have to have a system that can come to that conclusion.

Paragraph 4.2, under “Cost Benefit Analysis”, says:

“We have no information on the scale of”,

fees for appeals that,

“will be paid by people living outside of the UK”.

Paragraph 4.3 says:

“We cannot predict how appellants will respond to the introduction of fee-charging”.

It goes on to say:

“For those appellants who will pay the fee, we assume that some of these appellants will decide not to appeal, but we cannot predict the size of this effect”.

Paragraph 4.6 points out that,

“there are no rules precluding individuals from submitting a new visa application rather than appealing an existing one”,

and it is cheaper to put in a new application under these rules than to appeal an adverse decision that has already been made. This means that instead of appealing, you pay a lesser fee and start an application all over again. That seems to me to be absolute nonsense.

When we look at ongoing costs, paragraph 4.27 says:

“These costs are likely to involve dealing with an increased volume of customer enquiries … and with the operation of a contract to collect, bank and administer the fee”.

There is a cost of administration there because you have to decide who is exempt and who is not. Someone has to make a decision: that is a person who is employed and paid a salary. Having done that, you then have all the business of collecting the fees. Paragraph 4.28 says:

“We expect that around three-quarters of asylum appellants would be exempt from paying fees, so debt recovery would never arise in any of these cases”—

that is regarded as a saving. In addition it says in paragraph 4.31 that,

“it has been agreed that HMCTS would pay any judge-ordered cost award to successful appellants and then recoup this sum of money monthly in arrears from UKBA. … However, it has not been possible to estimate these financial impacts at this time”.

Then, in paragraph 4.32, it says:

“UKBA would incur extra costs if some FVV appellants decide to re-apply for a visa instead of appealing because the visa fee would be less than the paper and oral appeal fee”.

Then, in paragraph 4.37, we see what the fee is to go towards. It is not going towards fixed costs, the buildings, but to variable costs, the fee paid judiciary. It says:

“In the short term only the variable cost element can be saved when the volume of appeals decreases, compared to the status quo. The Tribunal’s operating cost savings are based on”—

various estimates. I will not go into the detail of it. The point is that the whole purpose of these fees is to reduce applications and then some savings will be made in judge time.

I support my Government, of course, but I find it extraordinary that this tribunal order should have been brought forward in the way that it has. I think I have said all that I need to say on the topic.

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly with a few things that will not surprise my noble friend on the Front Bench at all. The first is that, having made a speech in support of the Government in a rather different atmosphere in the House earlier on, I now wish to revert to type. The second is that I was around in 2009 when there was consultation on some earlier proposals. I think that I may even have spoken against them. I certainly did not like them then and I do not like these now. The third is that I pricked up my ears when he mentioned the body that I used to chair, the Administrative Justice and Tribunals Council, which, not to my surprise, has expressed some reservations about these issues. I have got them somewhere but, having been preoccupied on other matters, I have not studied them as carefully as I should. The last thing, as I have already indicated, is that I am not very happy with them, particularly in respect of the family matters to which he referred and asylum seekers.

That said, and bearing in mind that it would be rash of me to call a vote against these proposals, which I would not want to do, I acknowledge that significant efforts seem to have been made to meet some of the concerns expressed, in terms of exemptions, the removal of the Upper Tier from these proposals, and the statement that appeals will be heard, presumably even if the money is not found up front. However, that does give rise to the question of the expense of collection after the event which was implied, or indeed explicit, in my noble friend’s speech just now.

I draw some comfort from all that, and also from the fact—which I probably have in common with the noble Lord on the opposition Front Bench—that there was an indication that some of these matters will be stirred up again by the legal aid Bill, on which I plan to stir up a bit of trouble myself if I get the opportunity. So I shall rest at this moment and wait for future occasions before pressing the matter any further.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011

Lord Thomas of Gresford Excerpts

Wednesday 20th July 2011 Lords Chamber

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

My Lords, with the leave of the House, I beg to move the four Motions standing in my name on the Order Paper en bloc.

[Lord Thomas of Gresford]

My Lords, in relation to the Rehabilitation of Offenders Act order, the Minister will recall that when we discussed the matter in Grand Committee we raised very considerable difficulties about owners and managers not having clearance with regard to convictions. Can my noble friend assist with the worries raised at that time?

[Lord McNally]

My Lords, my noble friend is referring to the new alternative business structures for legal firms. It is true that both he and my noble friend Lord Hunt raised these points in Committee, and I agreed to take the matter back to ministerial colleagues if they would allow this order to proceed. I have done so, and Ministers have agreed that consideration and a decision in respect of the business case for the inclusion in the exceptions order of owners and managers of alternative business structures should be made as soon as possible. In the event that the Ministers agree that any addition should be made to the exceptions orders, I assure Members that this work will be expedited and an amendment will be prepared as a matter of urgency. On that basis, I hope that the House will allow the order to go through.

Legal Aid

Lord Thomas of Gresford Excerpts

Thursday 7th July 2011 Lords Chamber

[Lord McNally]

My Lords, I will certainly take back the points raised by the noble Lord on child cases. As far as possible, our intention is that, where children are involved, legal aid will still be provided.

On the broader point of impact, it is partly our intention to divert family and welfare cases away from outright litigation towards mediation and less confrontational ways of settling disputes. That may—and, we hope, will—change the pattern of demand in this area. That is the basis on which the Government are bringing forward their proposals. However, on the issues raised by the noble Lord, I will come back to him.

[Lord Thomas of Gresford]

Does the Minister agree that applications for legal aid in exceptional circumstances are likely to increase considerably? How does he propose to handle it? Does he not think that a court would be better able to assess exceptional circumstances than a Minister and his civil servants?

[Lord McNally]

It is an interesting idea. As this legislation goes through both Houses, I am sure that suggestions of that kind will be made. At the moment, our proposal is that this matter will be in the hands of Ministers.

Land Registration (Network Access) (Amendment) Rules 2011

Lord Thomas of Gresford Excerpts

Tuesday 5th July 2011 Grand Committee

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

My Lords, the noble Baroness, Lady Royall, beat me to the punch by whispering across the point that I was going to make. Looking at her sitting in solitary splendour, I am reminded of the advice that you face your opponents but your enemies are behind you.

The rules before us today amend the Land Registration (Network Access) Rules 2008, which make provision about network access agreements. These are agreements with the Chief Land Registrar conferring authority to have access to the Land Registry’s electronic network on a person who is not a member of the Land Registry.

The purpose of these draft rules is to ensure that the criteria that applicants for a network access agreement must meet are consistent with the terms of the Legal Services Act 2007, which makes provision for the regulation of persons who carry on certain legal activities.

It may be helpful if I say something about land registration legislation and the Legal Services Act before considering these rules in more detail. The Land Registration Act 2002 enables the Chief Land Registrar to set up a land registry network to be used for electronic conveyancing. It provides that a person who is not a member of the Land Registry staff may have access to the network only if authorised by a network access agreement entered into with the Chief Land Registrar. The Land Registration (Network Access) Rules 2008 provide the criteria to be met by an applicant for a network access agreement, and also some of the terms that a network access agreement must contain. A conveyancer with a network access agreement can make electronic applications to the Land Registry that may result in a change to the register of land.

The Legal Services Act 2007 regulates the provision of legal services in England and Wales. Among its provisions, it sets out which legal activities are “reserved”, and who can carry out those reserved legal activities. One category of reserved legal activity is “reserved instrument activity”, which includes preparing certain conveyancing documents for the purposes of the Land Registration Act 2002, and making applications or lodging documents for registration with the Land Registry. Under the Legal Services Act, only an “authorised person” is allowed to carry out a reserved legal activity. “Person” includes a body of persons. The authorised person may be authorised to carry out all or only some of the reserved legal activities. It is a criminal offence to carry on a reserved legal activity if a person is not authorised to do so.

Much of the Legal Services Act 2007 came into force in 2010. Later this year, it is expected that further sections of the Act will come into force that will allow for the introduction of licensed bodies, which are commonly referred to as alternative business structures. The purpose is to relax the statutory and regulatory limitations on the ownership and management of legal practices to allow for greater flexibility and choice in the provision of legal services.

The Land Registration (Network Access) Rules 2008 came into force before the changes made by the Legal Services Act. At that time, the provision of reserved legal activities was subject to the provisions of the Solicitors Act 1974 and various other enactments. The network access rules were drafted to be consistent with those enactments. At that time, the regulation of legal services was based around the regulation of individual solicitors, barristers, licensed conveyancers and notaries. Under the Legal Services Act, there is a move towards the regulation of bodies that deliver legal services.

Now that the Legal Services Act has made changes to the regulation of legal services, and more changes are on their way with the introduction of alternative business structures, it is necessary to amend the network access rules for consistency with the new legislation. It would be inappropriate for the Chief Land Registrar to enter into a network access agreement with a person or body that was not authorised under the Legal Services Act to undertake land registration activities.

The rules before us today amend the criteria to be met by applicants for a network access agreement to bring them into line with the Legal Services Act and to make adjustments to take account of alternative business structures. These rules will allow for a person or body that is authorised under the Legal Services Act to carry on legal activities relating to land registration, or a person or body that employs such an authorised person who will undertake those activities or direct and supervise them, to enter into a network access agreement, provided that they also meet other criteria set out in the network access rules. One class of body that can currently enter into a network access agreement will be unaffected—a government department. This is because of the exemption for public officers from the provisions of the Legal Services Act.

In addition, amendments have been made to the definition of “intervention”, and “disciplinary proceedings” to include reference to licensing authorities which will regulate alternative business structures; and the insurance criterion has been amended so that the words correspond with wording used in the Legal Services Act.

Members of the Committee will see that the amendments will come into force on the day that Section 71 of the Legal Services Act comes into force. That section will allow for the commencement of alternative business structures. In drawing up the amendments, the Government intended to ensure a level playing field for all legal service providers—whether traditional conveyancing practices or alternative business structures. This reflects the policy behind the Legal Services Act.

The Lord Chancellor must consult such persons as he considers appropriate before making rules relating to access to the Land Registry’s electronic network. An impact assessment was also undertaken. The majority of those who responded to the consultation and impact assessment supported the proposals.

In summary, the rules update the criteria for entitlement to a network access agreement with the Chief Land Registrar, reflecting provisions already made by the Legal Services Act. I therefore commend these draft rules to the Committee.

[Lord Thomas of Gresford]

My Lords, the important point that should be appreciated—I am sure that it is—is that when a title is registered, it is an absolute title. It can be obtained by fraud or by any other means, but it is an absolute title, once registration has been granted. That means that the person who owns that title can sell it on and deal with it as if it were his own. Any issue as to how that registration has been obtained is left for litigation. Therefore, it is crucial that the integrity of the register is maintained. So much depends on trust. We trust that the people who make these applications will do so honestly, with proper consideration of all the issues and in the interests of their clients. That is why we have all these rules, which endeavour to ensure that the very competent staff of the Land Registry are not deceived by applications from outside.

What is this all about? It brings the alternative business structures system into the position of being an authorised applicant to deal with the Land Registry. I have expressed my views on these alternative business structures so often that I sound a little like Cassandra. However, I foresee trouble. If there is trouble in the future, it is not the lawyers who will suffer; they will do very well. It is the consumer and the customer who will suffer.

There is a lack of confidence in the way that this has been put forward. The summary of the impact assessment says on page 3, under the heading “Other key non-monetised benefits by ‘main affected groups’”:

“The proposals will avoid the potential costs to Land Registry customers outlined in the base case by ensuring only persons authorised to prepare and make applications relating to land registration are able to do so”.

That states the obvious; it is the position at the moment. The summary goes on:

“Land Registry customers may further benefit if the new definition of ‘conveyancer’”—

that is, these rules—

“leads to better quality conveyancing practices compared to current levels”.

Why it should lead to better conveyancing practices than the current system, under which conveyancing is carried out by qualified lawyers or managing executives, I do not know. The summary continues:

“Ensuring ABS firms fall within the definition should also lead to increased competition in the conveyancing market, which may provide efficiency benefits for society, and direct benefits for Land Registry customers in the form of lower prices and/or increased choice”.

The sort of situation that I envisage, particularly in a tight housing market, is that developers will offer a conveyancing service, or an ABS. They will have an interest in the outcome of the conveyance of their own homes and access to the registry. They may act for both parties. All the checks and balances that have developed over the years to protect the consumer and householder will be weakened.

I have had my usual rant on this subject, so I shall leave it at that. I cannot say that I welcome this measure.

[Lord Hodgson of Astley Abbotts]

My Lords, I had not intended to intervene on this matter but since “network access” appears in the title of the rules that we are discussing, I seek reassurance from my noble friend about the checks that are being made to ensure that those who are not authorised do not obtain access. Something that has recently come to public notice is the ELMER database, which is operated by the Serious and Organised Crime Agency. This is where reports of suspicious activity are collected for purposes of investigating money laundering. It appeared that the rules were perfectly tightly drawn, and that only SOCA and police forces throughout the country could obtain access to the information that is contained there. There are now 1.2 million records on the suspicious activity report database. Subsequently, now it transpires that actually all sorts of social security departments and other operations are able to get into the database. Given the importance of this, and the critical nature of the functions being carried out, it would be good to know that careful checks are being made to ensure that people who are not entitled to access do not get it.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2011

Lord Thomas of Gresford Excerpts

Tuesday 5th July 2011 Grand Committee

[Lord Thomas of Gresford]

My Lords, I support my noble friends in their comments. On the previous occasion, as I am sure the noble Lord will recall, I used the illustration of having appeared in Hong Kong in a case where I was instructed by what turned out to be a Triad-backed solicitor’s firm. The solicitor was merely the front man. Therefore, the owners and managers of a firm must be of a proper standard.

While my noble friend was replying to the previous debate, I suddenly recalled that within the past three years I have represented someone charged with stealing a house. It was a fairly unlikely charge, which I had not come across before, but there were two solicitors in the dock with the person in question. This is the real world. This is where people who are undesirable can move in and take advantage of the legal system if it does not contain all the safeguards. The necessity for owners and managers of alternative business structure firms to be subject to the same checks as every other solicitors firm is essential, so I support my noble friend.

[Baroness Royall of Blaisdon]

My Lords, I also support what noble Lords opposite have said. Of course, as the Minister said, we have to be careful not to jeopardise the workings of the Rehabilitation of Offenders Act 1974, but there clearly have to be exceptions. Like noble Lords opposite, frankly I do not understand why this order does not encompass ABS firms, or the head of legal practice and head of finance administration, to which the Minister referred. In view of the strong feelings that have been expressed in Committee this afternoon, I wonder whether the Minister would consider taking back this order and relaying it once proper consideration has been given to the inclusion of the owners of ABS firms. I think that all noble Lords present would like to see one single set of regulations. That would make for much better government and much better governance, and I should be grateful for the Minister’s views.

If the noble Lord is not able to take back this order—and he may not be able to do so—I should be grateful for an assurance that he will come back in the very near future with another order that encompasses the ownership of ABS firms. I quote from his honourable friend Jonathan Djanogly, who, when speaking for the Conservative opposition in the House of Commons—I am afraid that I do not have the words of the noble Lord, Lord Hunt of Wirral, in front of me—said:

“The effectiveness of fitness-to-own provisions is a crucial element of the public protections that need to be in place before external ownership of ABS firms can safely be permitted. It is essential to avoid the spectre of law firms being owned by criminal elements”.—[Official Report, Commons, Legal Services Bill Committee, 22/6/07; col. 300.]

I think that, unless we have an order before us in the very near future that encompasses ABS firms, we will indeed have that spectre before us.

Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 3) Order 2011

Lord Thomas of Gresford Excerpts

Tuesday 5th July 2011 Grand Committee

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

My Lords, the commercial order would implement Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007. The amendment order would add two categories of person to the list contained in Section 2(2) of the Act. These are persons owed a duty of care by virtue of either being held in the custody area of UK Border Agency customs facilities or being held in Ministry of Defence service custody premises.

The purpose of the commencement order is to implement Section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007—which I shall refer to as the “custody provisions”. The amendment order will extend the provisions to facilities not already covered in the Act; namely, Ministry of Defence service custody premises and customs custody facilities which have now become the responsibility of the UK Border Agency.

Before going into the detail of the orders, I shall briefly remind Members of the Committee of the context surrounding the custody provisions. The Corporate Manslaughter and Corporate Homicide Act 2007 created an offence whereby an organisation could be found guilty of corporate manslaughter if the way in which its activities were managed or organised resulted in a death and amounted to a gross breach of a relevant duty of care to the deceased. The breach must be grossly negligent and a substantial part of it must have been in the way activities were managed by senior management.

The offence was created to deal with the problem of obtaining convictions of corporate bodies because of the operation of the identification principle, which required the prosecution to show that the offence was in essence committed by the “directing mind” of an organisation. This meant that, in some instances, because of the complexities of the decision-making process in big companies, it was not possible to identify a single individual—that is to say, the directing mind—with specific responsibility for the failing. The new offence allows an organisation’s liability to be assessed on a wider basis, providing a more effective means of accountability for very serious management failings across the organisation.

The majority of the Act came into force on 6 April 2008, with the exception of the custody provisions, whose implementation Parliament agreed would be delayed by three to five years. During the final stages of the Bill’s passage through Parliament, a lengthy discussion took place as to whether deaths in custody should be covered by the Act. After much debate, the then Government were finally persuaded to accept clauses that would extend the Act to the management of custody, but argued that custody providers would need time to prepare. A compromise agreement was reached to the effect that the custody provisions would be implemented between three and five years after the Act came into force. The Bill was passed on this basis. Custody providers have since indicated their readiness to implement the provisions in two reports to Parliament, published in 2008 and 2009.

The custody provisions do not create additional duties. All custody providers already owe duties of care to detainees. The commencement order makes these duties of care relevant for the purposes of the offence in the Act, which means that, once commenced, an organisation responsible for the management of custody, including a government department, could be convicted of corporate manslaughter if its management failings led to a death.

The commencement order simply illustrates the coalition Government’s long-standing commitment to commence a provision which we fought for during the passage of the Bill. We felt then, and still do now, that there is no good reason why a victim of a failing by a government department should not be afforded the same protection as the victim of a failing by a private corporation. We believe that the state has a particular responsibility to those for whom it has a duty of care, such as persons held in custody, and should lead by example. Having established that custody providers are ready to comply with the custody provisions in the Act, we are here today to debate commencement of the provisions at the earliest available opportunity.

We are here today also to debate an amendment order which brings military and customs facilities into the scope of the Act. This is an important amendment that ensures that the law will be applied consistently to all custody providers. The intention to extend the Act is nothing new; it was signalled in the annual progress report that I have already mentioned, and we have been assured by the relevant departments that the custody providers concerned are ready for implementation.

As with commencement, the question is not so much why extend but what possible reason can there be not to extend. I put it to the House that there is none. I believe that both orders constitute positive and necessary developments, and I trust that the members of this Committee will agree.

[Lord Thomas of Gresford]

My Lords, it is helpful to put this order into some context. The corporate manslaughter provisions were considered by the Independent Advisory Panel on Deaths in Custody. When one looks at the statistics on page 9 of the report, which was a joint Ministry of Justice and Home Office report, one sees that in 1999 there were 643 deaths in state custody. That number has reduced in the past two years to 483 and 366, but that is a lot of people who have died in custody. It is important that there should be corporate responsibility, not simply for claims of negligence but for criminal claims. We are very pleased that this order is now being introduced.

I have two questions for the Minister. One relates to service custody. Do I take it that the Ministry of Defence could be criminally liable for a death in service custody abroad? The other matter that concerns me is whether the private organisations that provide prison accommodation and in particular transport come within the provisions of the Act, so that any default on their part means that they will be subject to criminal liability as well as to liability in civil law.

[Lord Goodhart]

My Lords, I would like to step in briefly on this matter. The law dealing with the liability of corporations for offences, or matters for which the corporation has been responsible, has been inadequate in recent years. In particular, to make the corporation liable for homicide, as in this case, or for other purposes, it has been necessary for it to be shown that not only was the corporation itself negligent but that negligence could be attributed to a directive member of the corporation. Therefore, I very much welcome this particular piece of this particular order.

I should mention also that a recent and important change in this law came into effect a couple of days ago with the Bribery Act, which makes liability for bribery subject not to any particular identification of any particular individual who is responsible but simply to the incompetence of the corporation itself. Therefore, I very much welcome this particular amendment.

--- Later in debate ---

[Lord McNally]

I thank all noble Lords who have contributed to the debate and for the general welcome that has been given to the orders.

On the question asked by my noble friend Lord Thomas of Gresford, Section 28 provides that the Act extends only to England, Wales, Scotland and Northern Ireland; it will not apply to Ministry of Defence facilities abroad. If I am wrong about that I shall write to my noble friend. However, I believe that to be correct.

On the issue of private providers, which was referred to by both the noble Baroness, Lady Royall, and my noble friend Lord Thomas of Gresford, the Act applies to contracted services. Contracted service providers of custody will continue to be responsible for their actions in delivering safe custody. The Act does not place new duties on them. We will retain residual responsibilities in relation to the management and monitoring of the contractual arrangements, and they will be covered by the Act in this respect. They will have the same duties of care.

On the issue of inspection, in respect of the Border Agency customs facilities, a review relating to the care of an arrested teenager was initiated as a result of a death in custody in 2007 and is due to be finalised by the Chief Medical Officer. Once the recommendations have been finalised, the UKBA will be reviewing its processes and initiating an implementation programme.

In respect of the MoD, the Army has reviewed its need for service custody facilities and in September 2010 endorsed some recommendations, including an immediate reduction of authorised unit custodial facilities from 67 to 22.

The points made by the Committee have been extremely relevant, not least the rather chilling figures of the number of deaths in custody. Over recent years—this applies also to the record of the previous Administration—there has been a consistent attempt by government to address the problems. My noble friend Lord Thomas will agree that the bald figures cover a range of reasons for death in custody. Nevertheless, in recent years the police, prison authorities and all those who have a duty of care have made a real effort to address the reasons for deaths and to prevent them wherever possible. They have changed techniques for dealing with violent prisoners, changed the furniture in cells and limited opportunities for suicides. They have introduced a whole range of activities and initiatives to tackle the problem.

There is no doubt that the Government, as the state, freely accept in this order the responsibilities that they imposed on the private sector with the initial Act. I remember my noble friend Lord Goodhart and others pressing these matters when we were in opposition and I am pleased that we are able to bring these orders together.

Criminal justice is devolved in Northern Ireland and the local Minister and Assembly have the relevant commencement powers under the Corporate Manslaughter and Corporate Homicide Act, which we understand the Assembly is looking at. I am the Minister in the MoJ responsible for contact with the devolved Assemblies and Administrations and I shall make sure that our views on and experiences of this aspect are made available to our colleagues in Northern Ireland.

[Lord Thomas of Gresford]

In relation to private provision of prison and transport facilities, what is the relationship between those private facilities and the department? Could the department resist a charge under the Corporate Manslaughter and Corporate Homicide Act on the basis that the responsibility has been contracted out? My noble friend may not be able to answer straightaway, but I would be grateful if he could clarify that at some stage.

[Lord McNally]

I certainly cannot answer that directly; I will have to write. It is an interesting point. I shall not mention providers by name, but if a private prison or a private transporter of prisoners was guilty of corporate manslaughter, would the line of responsibility run back to the MoJ? I take it that that is the point. It is an interesting point. I suspect that, on the one hand, the suggestion would be that the responsibility for the corporate manslaughter would be that of the provider and that the provider would be charged; on the other hand, there is the argument that the MoJ should never have given the contract to such a body in the first place. This is what makes this job both interesting and frightening at times. I shall write to my noble friend to clarify.