Powers of Attorney Bill

Lord Wolfson of Tredegar Excerpts

2nd reading
Friday 16th June 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, it is a privilege to follow the noble Viscount, Lord Stansgate, who introduced the Second Reading of the Bill comprehensively, fairly and persuasively. As he said, the bipartisan nature of the Bill is both striking and very welcome. It was introduced by Stephen Metcalfe MP, of my party, in the other place, and is now being championed in your Lordships’ House by the noble Viscount, of a different political persuasion, and that is very welcome indeed.

The purpose of a lasting power of attorney is to provide support and protection to the donor in the event that they lose mental capacity and are no longer able to make their own decisions in the future. Like the noble Viscount, Lord Stansgate, I have some personal experience of this. My uncle Bernard, of blessed memory, who was childless, asked me to take on these responsibilities and appointed me with a power of attorney. Like the noble Viscount, I never had to use it in the end, but I remember him telling me that knowing it was there gave him comfort, because he knew that if decisions had to be taken, they would be taken by somebody who knew him and what he wanted. Therefore, the Bill’s modernising of the process and the system for effecting an LPA is very welcome.

LPAs were introduced, as the noble Viscount said, by the Mental Capacity Act 2005. In addition to supporting this Bill in an unqualified way, the other purpose of this very short speech is to say a couple of words about the Mental Capacity Act 2005, because it is now nearly 20 years old. In that time, our understanding of mental health and its many challenges have increased. Technology has also advanced in that time, and indeed one of the advantages of this Bill is to bring in a digital system, although, as we have heard, a paper-based system will be retained. I am delighted to see that a digital process is being introduced. This is but one example, I suggest, of how much of our civil justice system and processes—this is ultimately part of civil justice—can be brought online and digitalised. We need more examples of this going forward.

One of the remaining problems, as we have heard, is delays in the Court of Protection process. Let me be very clear: that is not the fault of the judges. The judges in that court—indeed, all our courts, but especially in this court—work extremely hard and deal with some of the most difficult cases our judges have to consider. They are literally dealing with matters of life and death on a daily basis. But the court does need more resources, and I know my noble and learned friend the Minister is aware of that.

I have one final point, which arises in relation to LPAs, as well as other matters arising under the Mental Capacity Act, such as child trust funds, about which your Lordships’ House has heard on a number of occasions. It is always very tempting to make things easy, or easier, for the person who needs the assistance, whether that is the terminally ill patient or the mentally incapacitated child. However, there is a balance to be struck. On the one hand, we want to provide assistance to the person in need, but on the other hand, we also need to ensure that there is sufficient protection for that person. This Bill strikes that balance extremely well, and I am very happy to support it.

European Court of Human Rights: Rule 39

Lord Wolfson of Tredegar Excerpts

Tuesday 6th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, interim measures play a very important part in the international jurisdiction. I respectfully point out that as far as I know, the process by which the Strasbourg court grants interim measures is different from that of the International Court of Justice, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights, all of which provide for a proper hearing, a return date, and reasoned judgments—which are sadly lacking at the moment in the Strasbourg process in some cases.

[Lord Wolfson of Tredegar (Con)]

My Lords, the Minister is quite right to point out that there are important jurisdictional questions regarding the Rule 39 injunctions. However, focusing on the process, is it not a real problem that these orders are made by an unnamed judge? The state has little opportunity to make representations either before or after the order is made. As my noble friend Lord Hailsham said, the return date can be a long time in the future. The process surely needs reform. Does the Minister therefore agree that the Government are right to be engaging with the Strasbourg court to improve the processes of that court?

Jurors: Mental Health Impact

Lord Wolfson of Tredegar Excerpts

Tuesday 28th March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I will gladly look at what happens in Scotland—I believe there is a service provided through NHS Lothian. I am not sure I can undertake to follow a Scottish example; Northern Ireland has a counselling association associated with its employee assistance programme. We are exploring a number of options.

[Lord Wolfson of Tredegar (Con)]

My Lords, is not the criminal justice system unusual among public services because it depends on volunteers, or at least non-professionals, for the vast majority of the work? Jurors are present in our most serious cases and magistrates hear the overwhelming number of criminal cases. Will my noble and learned friend the Minister therefore ensure that His Majesty’s Government look at both these groups of non-professionals and ensure that they are given the financial and non-financial support they need?

[Lord Bellamy (Con)]

My Lords, lay participation in justice, whether through the jury, the magistracy or, I would add, membership of tribunals, is at the heart of the common-law system and the Government will fully support that participation.

European Court of Human Rights

Lord Wolfson of Tredegar Excerpts

Monday 5th September 2022 Lords Chamber

[Lord Bellamy (Con)]

I am afraid your Lordship’s question does not arise, since we are not withdrawing from the convention or indeed from the Council of Europe.

[Lord Wolfson of Tredegar (Con)]

My Lords, the Brighton declaration, which was agreed by all state parties to the convention in 2012 under the UK chairmanship of the Committee of Ministers of the Council of Europe, was a clear demonstration of our leadership of that organisation. That declaration set out plans to both reform the convention and improve the effectiveness of the Strasbourg court. Is my noble and learned friend the Minister able to update us as to how the Government are building on that legacy?

[Lord Bellamy (Con)]

We remain a leading force for human rights in the Council of Europe; I will give two examples in response to my noble friend’s question. We are supporting the development of a binding convention to protect the profession of lawyer and the right to practise the profession without prejudice or restraint, and we advocated among other member states for greater awareness of the convention rights among all state parties. This led to a new recommendation in September 2021 on the dissemination of the convention and other relevant texts. In addition, we will shortly participate in the Council of Europe’s Steering Committee for Human Rights, which will start a review of the system for the selection and election of judges to that court.

Judicial Pensions Regulations 2022

Lord Wolfson of Tredegar Excerpts

Wednesday 6th April 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the Regulations laid before the House on 17 March be approved. Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 4 April.

Motion agreed.

Judicial Review and Courts Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Wednesday 6th April 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

Clause 49, page 60, line 8, leave out “passed without” and insert “the Bill for which would not require”
Member’s explanatory statement
This amendment adjusts terminology relating to devolution in Northern Ireland.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, there is one minor and technical amendment in my name to Clause 49, which inserts a new clause to allow pro bono cost orders in tribunals. Specifically, the amendment is to the wording of the devolution carve-out, which ensures the clause applies only to tribunal proceedings that are reserved in Scotland and Northern Ireland. I have made this amendment following discussions between the Office of the Parliamentary Counsel and its equivalent in Northern Ireland, as the Northern Ireland equivalent felt the new words more accurately reflected the wording of its devolution settlement. However, the amendment has no impact on either the policy of the clause or how the clause will work in practice. I beg to move the amendment in my name.

[Lord Foulkes of Cumnock (Lab Co-op)]

I wonder why this was not picked up earlier. Does it reflect within Whitehall a lack of understanding of devolution and its impact yet again?

[Lord Wolfson of Tredegar (Con)]

My Lords, no; it reflects the extremely high standards of parliamentary counsel. If we had not picked this up, nobody else would have done, but we felt it was the right thing to do.

Amendment agreed.

--- Later in debate ---

Moved by

[Lord Wolfson of Tredegar]

That the Bill do now pass.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will speak very briefly on this issue. I want to say two things. The first is to express our gratitude to the Minister and the Bill team. The Minister has given all of us a great deal of time, both before Committee and on Report, and that has been used very successfully. I would also like to express my thanks to Opposition and Cross-Bench Peers, particularly those with legal and judicial experience, who have done a great deal of work in improving this Bill. The Bill team also has given us all a great deal of help.

The second point I want to make is that we have made a number of changes to this Bill after really serious consideration in Committee, on Report and following Second Reading. It would be nice to think that, when this Bill now goes back to the Commons, those changes will get some serious consideration, rather than simply being returned to this House after cursory consideration. They are important. We have deployed a great deal of expertise, knowledge and effort in making those changes, and they deserve a proper look from the other place. That said, I give my grateful thanks to everyone.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I echo the thanks of the noble Lord, Lord Marks. I also thank the Minister and his team for their support and the numerous meetings we have had as the Bill has progressed. I would also like to thank the outside organisations that I have found particularly helpful; I mention the Public Law Project, Justice, Inquest, Fair Trials, Transform Justice, Liberty and Amnesty International—I found their support extremely helpful. I would also like to personally thank Catherine Johnson, who has been of great assistance to me as this Bill has passed through this House.

I reinforce the point made by the noble Lord, Lord Marks, about the importance of the amendments we have passed. We have had a different approach from that taken in some other Bills. We have had only a small handful of amendments that have passed for the House of Commons to consider. They have been Cross Bench-led by extremely senior judges and they deserve serious consideration by the other House.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am conscious that the House has a lot of business before it today, but I will take just a few moments to say a few words to mark the end of the passage of the Bill through this House. Over the last few months, we have had some spirited discussions on our Courts & Tribunals Service and the relationship between the judiciary and Parliament. I am grateful to all noble Lords for their scrutiny of this Bill.

Of course, I was disappointed that the House voted, albeit narrowly, to remove the power for prospective-only quashing orders on Report. I will reflect further on the House’s decision on Report to remove the presumption in favour of using the new remedies from Clause 1. We had detailed debates over the merits or otherwise of the presumption. I can assure the House that I have heard and listened carefully to the arguments made to me both inside and outside the Chamber.

Parole System: Public Protection

Lord Wolfson of Tredegar Excerpts

Tuesday 5th April 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the Statement says that

“there is no such thing as a risk-free society; we cannot guarantee that no one released from prison will go on to commit a serious crime. Let us be very clear about that as we have a more honest debate about the assessment of risk”.—[Official Report, Commons, 30/3/22: col. 831.]

Well, let us have an honest debate. In 2020-21, the Parole Board conducted over 6,000 oral hearings and considered over 20,000 paper applications. A record 16,443 cases were concluded, and 4,289 prisoners were released, while 11,437 remained in prison for the protection of the public.

Who made these decisions? The Parole Board consists of over 300 members: 169 independent members from all backgrounds, all jobs and all parts of the country; 61 judicial members such as Crown Court judges or retired judges with a lifetime experience of the criminal justice system; and 68 psychologist members and 35 psychiatrist members with active careers in the prison system. It is, you may think, an experienced pool of people to assess risk.

What percentage of prisoners released by the Parole Board have committed further serious crime? The Parole Board itself said in an earlier report that the percentage of offenders who committed serious further offences in 2018-19 following a release decision or a move to open conditions was 1.1%. Can the Minister give a more up-to-date figure? If that is correct, it suggests that the professional and experienced Parole Board gets it as right as you would expect in its assessment of risk. As the Statement says,

“there is no such thing as a risk-free society”

and it cannot be guaranteed that no one will reoffend.

But the Parole Board, unlike a court or tribunal, is quasi-judicial. That means that politicians can interfere and get their hands on its decisions. That is what is happening here. The Government promise to provide

“further detailed criteria for … the statutory test.”

The statutory test is that the Parole Board

“must not give a direction”—

for release—

“unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

So my second question is: what “further detailed criteria”? Why are we not told today if this is necessary? This Statement, I suggest, is all bluster with nothing thought through.

The Statement goes on:

“In cases involving those who have committed the most serious crimes, we will introduce a ministerial check on release decisions, exercised by the Justice Secretary.”


Well, there have been nine Justice Secretaries since 2005, with an average tenure of 21 months and two of them for less than a year. Five of the nine were non-lawyers. When justice was in the hands of the Lord Chancellor in this House, it was the pinnacle of his career; he did not need to look for further ministerial office. Today, Justice Secretaries move on from their comparatively small departments: consider Liz Truss or Michael Gove, for example, whose political ambitions may not even now have been fulfilled.

The current Justice Secretary is a lawyer. His page on the government website says:

“Dominic started his career as a business lawyer at City law firm Linklaters, working on project finance, international litigation and competition law.”


He later worked in Brussels. You might think that that was not the best training for the assessment of the risk of reoffending by an offender. Let us contrast that experience with that of the Parole Board members, which I have outlined. Has Mr Raab ever been in a criminal court—except to close it down or, if it is new, perhaps to cut the tape—or a prison? Is he the man to second-guess the decisions on risk taken by the highly experienced Parole Board? That is what is being thrust upon us.

The Statement declares that only 5% of the Parole Board come from “a law enforcement background”. Well, they do include a number of retired chief constables and prison governors. What is the Government’s intention? They say it is that members will

“have greater first-hand operational experience of protecting the public from serious offenders.”

The Statement also suggests that one such law enforcement person should sit with two other members on each hearing to form a tribunal. Does that mean that we can now expect a flood of police and prison officers to be appointed? Is the whole purpose of this alleged reform to skew the Parole Board towards negative decisions?

An alternative apparently being considered is that the Justice Secretary should sit as a judge with two assessors when he makes his decision. Is he serious? Personally, I think it would be an excellent use of his time to have direct experience of all the things that he is responsible for: the delays, the listing, the adjournments, the frustrations and the raw emotions of victims and the families of defendants. He would then discover that he is dealing with real people, mostly from disturbed backgrounds—people with problems and illnesses. I think he would then turn for help to psychologists and psychiatrists, and perhaps even to experienced judges. Perhaps he would create his own personal parole board to advise him. “Sit, sit”—I invite him to do so.

So the truth is that this Statement is not oven-ready. It aspires to be half-baked, but the central filling has not been decided on. Still, we are coming up to the end of the Session, and a few headlines for the Justice Secretary are very acceptable when his career has not finished.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

Well, my Lords, I do not know whether my career has even begun, but I will respond to the points that were made, dealing first with the questions from the noble Lord, Lord Ponsonby of Shulbrede. I should say first that I am grateful for his broad support for the thrust of what we are seeking to do. As to consultation, the department has consulted extensively throughout the review. We had a public consultation on opening some parole hearings to the public, including discussions with a wide range of practitioners and experts. Round tables and individual discussions with stakeholders with in-depth knowledge and understanding of the parole process were held, and these informed some of the outcomes of the review.

Some of the consultation regarding the victims Bill was also relevant here because it went to the issue of victim participation. Regarding the number of officials who would be working on this, the cost thereof, and the resource points that the noble Lord made, I say that modelling and costs are to be worked through in detail as the legislation is developed. A full impact assessment will be published when the legislation is introduced.

So far as potential unfairness is concerned, a point which I will come back to when I respond to the noble Lord, Lord Thomas of Gresford, one of the issues here is that whichever of the two models to which he referred we end up putting in place, there is always court review. That is built in, to ensure that there is no substantive unfairness and that the system is compliant with our convention obligations, particularly Article 5.4.

Remote hearings were raised by the noble Lord, Lord Ponsonby, and in particular the involvement of victims. During the pandemic, the Parole Board made extensive use of virtual hearings and has indicated that it will continue the practice. It has also resumed traditional oral hearings and it will be for the Parole Board to ensure that all representations can properly be made. For example, if there were representations, or the victim wanted to say something either with or without the offender there, it would be up to the Parole Board to ensure that the proceedings were substantively fair to all parties.

I respectfully agree with the noble Lord that being moved to an open prison is indeed a privilege and not a right. They are a valuable resource supporting successful and safe resettlement into the community of prisoners who have been suitably risk-assessed, but only those prisoners identified as being appropriate to hold in lower security conditions should be moved to an open prison. Although in this context the Parole Board makes a recommendation, the final decision is for Ministers. In December, the Lord Chancellor took the decision to require greater scrutiny of Parole Board recommendations on open prison moves and will now oversee the decisions in the most high-risk cases personally, those being offenders who have committed murder, other homicide, rape, and serious sexual offences or cruelty against a child, and in cases where officials do not reject a recommendation from the Parole Board, Ministers will consider the recommendation of the Parole Board.

The final point that the noble Lord made was of the Secretary of State being the final arbiter and whether that meant that there was a reputational risk for the Secretary of State. There are two points. First, as to the ultimate arbiter, this brings into play the fact that there is a court oversight to ensure that the system is procedurally fair, so to that extent the Secretary of State is not the ultimate arbiter as there is court involvement as well. However, I respectfully take the noble Lord’s point about reputational risk. The flipside is that ultimately, it is Ministers’ responsibility to ensure that dangerous offenders are not released on to the streets and so, if I may put it this way, it is quite right that the buck stops with elected Ministers.

I turn now to the points made by the noble Lord, Lord Thomas of Gresford. I accept, as the Lord Chancellor made clear in the other place, that the Parole Board has a great deal of experience and generally does a good job. The majority of parole decisions are unproblematic. That is why these reforms apply only to offenders who have committed the most serious offences. However, there have been cases involving the release of the most serious offenders which have given rise to significant public concern and undermined confidence in the system: Pitchfork, Worboys and others. Therefore, this is not a case of politicians interfering, which I think was the verb used by the noble Lord. As I said a moment ago, politicians have a duty to protect the public and it is quite right that they step up, so to speak, and ultimately take responsibility for the system and those very risky or higher-risk decisions.

So far as a test is concerned, the test in legislation was set out in the substantive Statement but is worth bearing in mind. It says:

“The Parole Board must not give a direction”


for release

“unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

However, the courts have interpreted that and, to be fair, one can see why. In particular, in the case of Bradley in 1991, a court judgment stated that the role of the board is to

“carry out a balancing exercise between the legitimate conflicting interests of both prisoner and public”.

Therefore, the statutory test has changed to become a balancing exercise between the rights of the prisoner to be considered for release and the responsibility of the state to protect the public. I suggest that that was not the original intention of Parliament.

We propose to set out release test criteria. The noble Lord asked what they were. I could read them out, but, if he will forgive me, I will drop him a note setting them out, which will then be available, rather than read them all into Hansard, so to speak. I hope that is satisfactory.

Some Justice Secretaries may have political ambitions —I am responding as somebody with no political ambition and very little of a political career—but, as I said, the ultimate decision does not rest only with the Justice Secretary; there is court involvement. There are two models being looked at. The first would be for Ministers personally to take the decisions. In that case, there would be a route of appeal to the Upper Tribunal. The second would be to create a new review panel to take the decision, which would comprise the Secretary of State and two independent panel members. Decisions by this panel could be challenged through judicial review. Either option introduces ministerial oversight into the release decisions of the highest-risk offenders to keep people safe and to give public confidence in the system. Also, either alternative would be lawful under the convention, in particular Article 5(4), which says:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”


We are confident that either model would be consistent with those obligations.

I hope that I have responded to all the substantive points made, but I will check the Official Report and when I write with the criteria, if there is anything I have not picked up, I will add it to that letter.

House adjourned at 9.19 pm.

Judicial Pensions Regulations 2022

Lord Wolfson of Tredegar Excerpts

Monday 4th April 2022 Grand Committee

Moved by

[Lord Wolfson of Tredegar]

That the Grand Committee do consider the Judicial Pensions Regulations 2022.

Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, this statutory instrument establishes the judicial pension scheme 2022 and forms part of the Government’s commitment to delivering a long-term solution to attract and retain high-calibre judges. In turn, this guarantees the proper functioning of our justice system. The international reputation of our legal system is something that I think we are all proud of and is necessarily sustained by the continued recruitment of the finest candidates to judicial office.

The recent Public Service Pensions and Judicial Offices Act closed all existing judicial pension arrangements to future accrual. The purpose of this SI, therefore, is to establish regulations for the new judicial pension scheme 2022—a scheme that is both fair to the taxpayer and attractive to the judiciary. It will be the only pension scheme open to judges for accrual for service from 1 April this year; I will come back a little later to the slight backdating to the end of last week.

The judiciary has an essential role in upholding the rule of law. Every day, judges up and down the country take decisions on important issues that have a real impact on people’s lives, from delivering justice for victims through to deciding care arrangements for vulnerable children. The exceptional work of judges and others who work in the justice system to ensure that our courts and tribunals kept on functioning despite the ravages of the pandemic served as a reminder of the pivotal role that they play in the administration of justice.

However, over the last number of years, we have experienced unprecedented recruitment and retention issues across the judiciary. A lack of judges has significant and damaging operational impacts. Cases take longer, with serious consequences across all jurisdictions. Delays in the family courts and county courts have a significant impact on children and other vulnerable people, who may have to rely on a judge being available for emergency orders and injunctions.

Of course, the importance and influence of our judges reach beyond our shores. Their reputation for integrity and impartiality plays an important role in attracting international business to the UK, contributing to a legal services industry worth around £29 billion a year to our economy. Quite simply, if we do not have enough judges, that undermines our ability to compete internationally for legal services, which are important to our economy.

A two-year comprehensive review by the Senior Salaries Review Body linked the root cause of the recruitment and retention problems in the judiciary to the 2015 pension reforms. In particular, as the 2015 scheme was tax registered, judges were caught by annual and lifetime tax limits. The Government thereafter made a commitment to introduce a long-term solution through pension scheme changes for the entire judiciary.

It is fair to say that the changes made in 2015 were consistent with those made to other public sector roles, but they did not sufficiently take into account the judiciary’s constitutional role and, importantly, its unique career path. Judges, especially full-time ones, often become judges towards the end of their careers; the value of their pensions is therefore of particular significance. They have many years of training, and often successful private practice, behind them. Many will have taken a pay cut to join the Bench but will also have set up other pension arrangements.

It is against that background that it is important that the pension scheme can attract and retain the highest calibre candidates to judicial office. For this reason, the scheme will be tax unregistered, meaning that the benefits accrued will not be subject to annual or lifetime tax allowances. That returns the judiciary to the position before the 2015 reforms. Several of the features of the scheme, such as the member contribution rate, flow from that tax-unregistered status. There will also be no cap on the number of years for which a judge can accrue benefits, and there is an option for judges to give up part of their pension for a lump-sum payment.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed this afternoon. I will try to respond to the points that have been made because I apprehend that there was general support for the overall aims of the scheme. Therefore, I will not reiterate the points I made in opening.

One point I said I was going to come back to, but then remembered I had not, was on timing. I want to explain why we are using the “made affirmative” procedure. That is simply because it was considered—with hindsight, correctly—that it might be the case that we could not get this before the Committee until after 1 April. That would leave two alternatives. The first would be to have a gap in the scheme. Even I, who is pretty untutored in pensions—I am conscious that we have the noble Lord, Lord Davies of Brixton, here—know that that would not be a good thing. Alternatively, we could try to start the new scheme not on 1 April, but we were told that would not be a good thing either and would lead to complexity. That is why we are using this procedure. I therefore hope that the Committee is aware of that.

I will respond to the substantive points. The central point that the noble Lord, Lord Davies of Brixton, made was that judges might be in a special circumstance but it is not just them—other people can be as well. Indeed, it is fair to say that the noble Baroness, Lady Kramer, and the noble Lord, Lord Ponsonby of Shulbrede, made a similar point. As a Justice Minister, I should underline that judges are in a special position when it comes to their constitutional role, but that is not the basis on which the special treatment, so to speak, applies here. It certainly has nothing to do with denigrating the work of any other public servants, whether they be medical professionals, in the military or the police, nurses or anybody else.

The issue with judges is this: unlike in many other countries, we do not have a career judiciary. We have a system where people generally practise as lawyers—sometimes as aircraft pilots as well—and then become a judge. That means two things: first, that people become judges later in their career; and, secondly, that they are likely to have built up other pension provision because, when they were in their 20s, 30s or perhaps 40s, they did not know and certainly could not guarantee that they were going to become a judge.

The proof of the pudding was in the eating. In 2015, when we moved away from tax unregistered—I will call it that but I hear where the noble Lord, Lord Davies, was coming from—the feedback was that that was a real disincentive to recruitment and retention. Indeed, we had a number of competitions where we were not filling as many judicial posts as we wanted. Therefore, although I certainly do not want this to be seen as in any way denigrating anybody else, whether in the medical sector or the military, judges have a particular background before they become judges that sets them apart from other public sector workers.

The noble Lord, Lord Davies, also made a point about the Chancellor freezing lifetime limits. He then offered me a way out by saying that he noted this issue is not within my particular remit. I gratefully grasp that rope. I hear the point that is being made but this is obviously not the place to debate pensions policy generally. I am sure the noble Lord will pick this up with my Treasury colleagues in due course.

The noble Lord asked a specific question as to the number who have taken up the option I mentioned. The position is that the option is open until 30 June so I do not have a figure but, in any event, it would not be meaningful. I do not know whether that figure will be made public. I respectfully suggest that the noble Lord waits until after 30 June and then finds me, either formally or informally, and I will see what I can do.

The noble Baroness, Lady Kramer, made a few points. Obviously, she referred to the point about other professionals; I hope that I have dealt with that already.

I think the noble Baroness made two other linked points in some detail. The first was the retirement age changing from 70 to 75, and the second was diversity. She is certainly right that diversity remains an issue in the judiciary, particularly the higher judiciary. I would say, however, that diversity remains an issue in the legal profession generally. It is quite good at the lower end, among people going in, but there is a real problem with diversity among senior solicitors and senior barristers. That is not an excuse, but it is relevant to judicial diversity. If that is the pool you are fishing in for the more senior roles, it necessarily remains an un-diverse role.

[Baroness Kramer (LD)]

Unfortunately, I handed my notes to Hansard, but I think that if the Minister looks at the diversity report he will discover that yes, there are fewer people in the pool but those who are recommended from within the pool have a relatively low appointment rate—in fact, dramatically lower—than white male candidates, so it is not just a pool problem but what happens as people are selected, or put themselves forward, from that pool.

[Lord Wolfson of Tredegar (Con)]

I am very happy to accept that. I was not putting forward the point I just made as the only reason; there are a number of factors here. I know that the department and the Judicial Appointments Commission have been encouraging people to apply. Too few people apply, and of those who apply, the acceptance rate is also lower.

I do not want to throw statistics around, but there has been some improvement. For example, women now make up 50% of tribunal judges and, since 2014, the proportion of women judges in all courts has improved by nine percentage points to 34%. When it comes to minority ethnic background, however, there is still a long way to go. Black, Asian and minority ethnic judges are 9% of court judges. That is a three percentage point increase since 2014 but, as the noble Baroness pointed out, one problem in this and other areas of lumping together black, Asian and other minority ethnic is that particular problems for particular groups within that cohort can be overlooked. I heard what the noble Baroness said when she drilled down into the statistics. We are very conscious of that; there is more to be done, but it is an issue to which we are very alive.

However, I say respectfully that to link that too closely to the increase in retirement age is unwarranted. There was quite a lot of debate on this when the Bill went through. I do not have all the statistics at my fingertips, but I recall that the difference in diversity impact between, for example, 72 and 75 was, we estimated, pretty marginal. It is not really an either/or: it is not a question of saying that we can either have better diversity or increase the retirement age. The increase in the retirement age from 70 to 75 is expected to retain about 400 judges and tribunal members, in addition to about 2,000 magistrates, annually. That is very significant because, as I have said in other fora, the real issue we face at the moment, certainly when it comes to the criminal justice system, is judicial capacity—a lack of judges. We are very concerned to make sure that we have enough judges, and increasing the retirement age from 70 to 75 will, we hope, have a very significant impact in that regard.

The noble Lord, Lord Ponsonby of Shulbrede, also made the point that judges are a special case and reiterated the points on diversity I have just addressed. I am conscious that he put down that halfway house amendment suggesting 72. One issue that has an effect on this House—the noble Baroness, Lady Kramer, mentioned that we are fortunate to have a number of judges here—is that if we are to continue the position of not appointing sitting judges here, increasing the age to 75 will have an effect on the judicial input of the House. That is perhaps something we need to think about as well. As a Minister, I find their input extremely useful—I did not say helpful—informative and interesting.

I hope I have responded to the main points raised. I am conscious that each of them could be a debate in themselves, so I hope it is not taken amiss if I do not deal with them in any more detail. For the reasons I have set out, I commend this instrument to the Committee.

Motion agreed.

Judicial Review and Courts Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party supports the amendment from the noble Lord, Lord Anderson, to remove the statutory presumption and make it clear that judicial remedies should be restricted in this way only in exceptional circumstances. The clause’s effect would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision. At first glance, that might seem quite a small change to judicial review, but the effects, we believe, would be chilling.

There is widespread opposition to the clause, and the noble and learned Lord, Lord Etherton, quoted a number of the well-respected groups who oppose it. The noble Lord, Lord Marks, cited in particular environmental groups that are worried about the potential effects of the Government’s proposals. I listened very carefully to the noble Lord, Lord Faulks. It is my understanding that the Independent Review of Administrative Law did not recommend prospective-only remedies; it did not recommend presumption for suspended quashing orders; it did not recommend imposing on the courts a list of factors to determine their use; and nor did it recommend ouster clauses. Even the Government’s own consultation paper conceded that a prospective-only quashing order would impose injustice and unfairness on those who have reasonably relied on its validity in the past.

Suspended and prospective quashing orders offer delayed and forward-only remedies. Such remedies could allow environmentally damaging activities to continue in the period between a contested decision and the taking effect of a suspended or prospective-only quashing order.

I listened to the debate with great interest. It was particularly interesting to hear senior lawyers and former judges disagreeing on the points which we have just heard. The noble and learned Lord, Lord Judge, as is typically the case when he speaks, very simply explained his perspective. I think his point was that judges already have broad discretion. They do not need a presumption. A presumption is the only guidance put in the Bill and it is not necessary. He went on to laud the huge benefits we have seen through judicial review and seemed to think that the guidance of the word “presumption” in the Bill would be disproportionately influential, if I may put it like that. That was contested by other noble Lords, including the noble Lord, Lord Sandhurst, but surely if that serves as guidance in the Bill, it will be followed unless there is good reason not to—that is the way I understand it.

So we will certainly support the amendment in the name of the noble Lord, Lord Anderson. We will also support the noble Lord, Lord Marks, if he chooses to press any of his amendments to a vote. We see the amendment from the noble Lord, Lord Anderson, as a compromise amendment that is more in the spirit of the recommendations of the independent review. Nevertheless, the more profound points made by the noble Lord, Lord Marks, are views which we would support if he chose to press his amendments to a vote.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I begin by wishing the noble Lord, Lord Anderson, well and the noble Lord, Lord Pannick, a safe trip home.

This clause aims to reform remedies on quashing orders in judicial review proceedings so that more flexibility is available to the courts. As my noble friend Lord Faulks noted in Committee, the key for the Independent Review of Administrative Law was that there should be some flexibility to stop some of the “hard edges” that can arise with a quashing order, which operates ab initio, such that the decision is struck down with retrospective effect. This clause is designed to do just that.

I am grateful to the noble and learned Lord, Lord Judge, for his kind words—dare I say that I wish his cat well?—but I confess that I think he expressed the reasons for the remedial flexibility better than I will. I shall come to the presumption point on which we regrettably differ a little later.

The proposed effect of the clause is twofold. First, it allows for the effects of a quashing order to be suspended, or delayed, for a period. Secondly, the clause enhances the flexibility of the court in allowing it to decide whether the retrospective effect of a quashing order should be removed or limited—that is what we are calling a prospective quashing order. As a number of noble Lords referenced, both in Committee and in indeed in print last week in the Times law section, the noble and learned Lord, Lord Brown, who has not participated for reasons which have been explained, has set out clearly the arguments for this additional remedial flexibility. The way he put it in Committee, where he said that Clause 1 confers on the judiciary a power

“to do justice not just to the claimant in a particular case but on a wider basis”—[Official Report, 21/2/22; col. 57.]

really captures what the clause is intended to achieve.

Against that background, I come to Amendments 1, 2 and 3 in the name of the noble Lord, Lord Marks, which would remove prospective-only quashing orders. The noble Lord made a point which has been made before in this regard, which is that there could be situations where a prospective quashing order could cause significant injustice if used incorrectly. The short answer to that point is that we are not forcing the court to use these orders in any case. Just because a power is capable of being exercised, it does not follow that it will be used inappropriately. That is the short answer to the tax case example. It is the answer I gave in Committee, and I stand by it. I say respectfully that I do not think that that sort of example proves any wider point of principle; it is merely an example of a case where this particular remedial order would be inappropriate—in which case the court would not use it. I suggest that that is a complete answer to the tax case example.

The principle of the matter was also covered in this debate. Where we have reached essentially a disagreement is on the constitutional propriety of a court deciding that an unlawful action should nevertheless have some effect and be treated as if it were valid. The short point there is that a judge does not need to go outside their remit of doing justice to the claimant and to the public interest in deciding to use a prospective quashing order. I set out in Committee how such an order could deliver a much fairer and appropriate result in a range of circumstances. I invite the House to consider whether there is a principled distinction between a suspended order and a prospective order. I suggest that the matter comes down to this: you are either in favour of remedial flexibility or you are not. Both proposed new remedies seek to give the courts remedial flexibility. As I shall mention later in the context of Canadian jurisprudence, what we see there are strong conceptual links between the suspended order and the prospective-only order.

Amendment 4 would remove subsections (9) and (10), known as “the presumption”, the intended effect of which is to ensure that the courts will use either prospective or suspended quashing orders if—and this is an important “if”—doing so would provide adequate redress, and unless the court considers that it has “good reason” not to do so. We have heard in this debate good examples of where these remedies would be useful. Against that, two arguments are put with regard to the presumption.

The first argument is that presumption is harmful because it impinges on judicial discretion, and the second is that it is entirely unnecessary because it does not constrain the court in any material manner. The court will use these remedies anyway when it wants to do so. The first point, which is obvious, is that both those points cannot be right: they are materially inconsistent. If I may so, respectfully, only the noble and learned Lord, Lord Etherton, could have managed, with his customary skill, to put both points against me in the same speech. They are inconsistent; I will, nevertheless, take them in turn.

First, I do not accept that the presumption is in any way dangerous or harmful. It is, I repeat, a low-level presumption. The presumption applies only, according to subsection (9) of the new clause inserted by Clause 1,

“unless it sees good reason not to do so”;

the court does not have to use these remedies. Therefore, I respectfully disagree that there is any attack here on the rule of law. Indeed, to respond to the point made by the noble Baroness, Lady Jones of Moulsecoomb, the effect of these new remedies—as I think I said in Committee—might be that the Government lose more judicial reviews, because the court might be more prepared to interfere in circumstances where the consequences of the court’s ruling is not a complete ab initio uprooting of the decision. Therefore, far from limiting judicial review in favour of the Government, if anything, this actually helps applicants in their judicial reviews against the Government.

The other argument, that it is unnecessary, does have more force. Here I come back to the point made by the noble and learned Lord, Lord Judge. We heard an example from the noble Lord, Lord Faulks, about washing powder. Dare I say that what follows now is not meant to be “soft soap”, if I can continue that metaphor? The noble and learned Lord, Lord Judge, said that my argument on this point was the least attractive argument that I have ever made either in the court of Parliament or in the Law Courts. I am not sure that he appreciates just how high a bar he set by that test.

The purpose of including a low-level presumption is to do just that: it is to nudge the court to consider and use these new remedies where they are appropriate, and to build up a strong body of case law to increase legal certainty. In Canada, as I mentioned earlier, there are the Schachter categories, which have established guidelines for the use of suspended quashing orders. Their use actually encompasses what we would call prospective quashing orders as well. We envisage that this presumption in subsection (9) will nudge the courts into that more rapid accumulation of jurisprudence.

I think that if I were to say any more, I really would be repeating arguments with which the House is now familiar. For the reasons that I have set out, I invite the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we strongly support Amendment 5, moved by the noble and learned Lord, Lord Etherton, which is really an alternative Clause 2. It offers a much improved and fairer alternative to the Government’s proposal to remove Cart reviews entirely. Cart judicial reviews should not be abolished. These are most often used in serious asylum and human rights cases. Cart is a vital safeguard. There is already a high threshold for bringing them and the proposed saving is tiny compared with the human cost of abolishing them.

There are two principled points to make. The first concerns the constitutional role of the High Court in guaranteeing justice in a tribunal system, and the second concerns the constitutional role of the High Court as the guarantor of the lawfulness of any of the acts in any public body. The noble and learned Lord, Lord Etherton, gave a forensic examination of the figures. I was writing down some of his numbers. The central point was to cast doubt on the benefit which the Minister claimed in Committee.

The noble Lord, Lord Faulks, described the amendment as a fudge. The noble Lord, Lord Marks, described it as a compromise, which I prefer. Many cases come before the court. I recognise that a relatively large number of them are unmeritorious. As I mentioned in Committee, a number of legal advisers who sit in the magistrates’ court go on to work in the High Court—it is a sort of career progression. They will look at those cases when they prepare for the judges to examine the papers. They have told me that a lot of the cases that they deal with are, in their view, unmeritorious, although they use less diplomatic language. Nevertheless, the route is still there. The High Court is the highest court in the country and the compromise put forward by the noble and learned Lord, Lord Etherton, retains that stamp of approval through his proposed amendment, so we support it.

My Amendment 6 would require the Lord Chancellor to carry out and publish a review of the operation of the Cart judicial provisions within Clause 2 not more than two years after the passing of this Bill. The noble Lord, Lord Faulks, said that he thought that this may be an expensive and fruitless exercise. I will not be moving this amendment to a vote. Part of its purpose is to ask the Minister to explain how the Government will monitor the operation of the JR system, including this element of it, because the central point is to retain confidence that the system is working adequately. It is to that end that I tabled this amendment.

[Lord Wolfson of Tredegar (Con)]

My Lords, a Cart judicial review is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. A Cart judicial review therefore gives the losing party another—or yet another—chance to challenge a decision to refuse permission to appeal, this time by way of judicial review to the High Court, which then opens a further route to the Court of Appeal if permission for the judicial review is refused by the High Court.

The long-established precedent in our judicial system is to have two appeal tiers and for a case to be considered for permission to appeal by two different judges. This is seen with the First-tier and Upper Tribunal system that we have. In this example, the applicant will have lost in the First-tier Tribunal, will have been refused permission to appeal by the First-tier Tribunal, and will then have been refused permission to appeal by the Upper Tribunal, and that should be an end of it. However, a Cart judicial review offers the applicant a third attempt to gain, effectively, permission to appeal, an anomaly not seen in the criminal or civil court systems. It is this third bite of the cherry that we seek to remove. The Bill does this through an ouster clause.

In Committee, we had a short debate about the constitutional propriety of ouster clauses which I will not go into again today, since it was not raised in today’s debate. Whatever position we take on ouster clauses as a matter of principle, I would hope that everyone in the House would agree that we must keep the court system efficient. When we think about efficiency, we look at the nature of the courts and tribunals that we have at different levels of our system. The Upper Tribunal is a senior court with a specialist jurisdiction, so it is well suited to determining questions of law authoritatively and accurately. The fact that it appears to get 96% of its determinations on permission to appeal right re-enforces its place as the best jurisdiction to settle those issues.

I remind those Members of the House who might be saying, “What about the other 4%”, that in every other jurisdiction we do not know the error rate because we only allow two bites of the cherry, and therefore do not know how many of those second bites, if I may put it that way, would have tasted different if a third judge had taken a bite. This clause restores balance in the proper functioning of the tribunal system and fixes a serious inefficiency. I welcome particularly what the noble Lord, Lord Faulks, said about the background to it.

Turning to Amendment 6, in the name of the noble Lord, Lord Ponsonby of Shulbrede, I heard what he said about the purpose in tabling the amendment and will try to respond to that. This is the amendment requiring the Lord Chancellor to carry out and publish a review. The Government have committed, in our impact assessment, to monitoring the new system, and in particular, the impact on those identified as affected groups within that document.

While I agree that it is important that the Government do not simply legislate to make changes to the justice system and then neglect to assess the actual effects of those changes to the system, creating a duty in legislation to review and publish the outcome of that review within two years would be disproportionate, particularly given that commitment to monitor the effect of this change. Further, it is unlikely that we would see the full effect of this change just two years after its introduction, as the legislation does not apply retrospectively. For those reasons, I cannot accept the amendment, but I hope that I have explained to the noble Lord, and the House, why.

Turning to Amendment 5, in the name of the noble and learned Lord, Lord Etherton, replacing Clause 2, rather than ousting the High Court’s jurisdiction over the Upper Tribunal, the new clause would essentially move the ouster one step up the court system. It provides that the decision of the High Court or other relevant supervisory court in reviewing an Upper Tribunal permission-to-appeal decision is final, preventing any escalation to the Court of Appeal but introducing a rather unusual, if not entirely novel, appeal path directly from the supervisory court to the Supreme Court in cases involving a point of law of general public importance. That was the tweak by the noble Lord, Lord Pannick, to the amendment, that we saw in Committee.

With or without that tweak, my concern is that the amendment does not address the main problems, which are, first, that approximately 750 Cart cases per year place a burden on the High Court, and, secondly, that the Cart decision and approach undermines the tribunal system and the proper relationship between the Upper Tribunal and the High Court. I recognise that there is a burden on the Court of Appeal at present, as some Cart cases will be appealed to that court. I do not have precise figures, but I understand that those to the Court of Appeal are substantially less than 750 cases of this kind per year. The burden of the current system falls on the High Court and, for reasons of its resourcing and efficiency, that is where we need to concentrate our efforts.

I am very grateful to the noble and learned Lord, Lord Etherton, for his engagement with me and my officials on the underlying data. Although there appear to remain some differences between us, I think we have come to a closer understanding on the data point. Let me clarify just one point for the record, which is that the 180 days of judicial time was always estimated as around 150 days of High Court time and the remaining 30 days or so in the Upper Tribunal.

Turning to one of the other substantive points made by the noble and learned Lord Etherton, he mentioned that his position goes further than mine in limiting the exemptions for onward appeal, and that he is concerned that the exemptions in the current Clause 2 will be insufficient to prevent many applications to the High Court. I understand the genesis of that concern but, with respect, I think it is unfounded. The exemptions are narrow and focused. We have seen from failed ouster clauses in other circumstances that clear words are needed for an effective ouster clause. In this case we think that we increase that clarity by some limited exemptions, appropriate to the proper relationship between the Upper Tribunal and the High Court.

The exemptions create a clear and simple distinction: questions of fact and law go to the Upper Tribunal, which is a senior and specialist court, and review is retained in the High Court for jurisdictional or procedural matters. That is a neat and robust delineation. I respectfully say that the dichotomy that the noble and learned Lord presents—that we should either have Clause 2 with no exemptions or take his halfway house—is a false dichotomy. I suggest that the current Clause 2 is a sufficient and well-crafted approach to the problem.

Finally, the halfway house put forward by the noble and learned Lord would perpetuate the current oddity of Upper Tribunal decisions being reviewed by the High Court on grounds not limited to extreme jurisdictional or procedural matters. We should trust the Upper Tribunal to get these decisions right and, as I have said, it does so, to an extraordinarily high percentage. The halfway house therefore does not satisfy the Government’s policy position of correcting the Cart decision. Cart was, with great respect, a legal misstep. We heard in Committee from the noble and learned Lord, Lord Hope of Craighead, who was party to the decision; he accepted, with hindsight, that it was a legal misstep. We should overturn it effectively, which is what the current Clause 2 does. The halfway house put before us by the noble and learned Lord, Lord Etherton, would, I fear, leave us in a legal no man’s land. For those reasons, I respectfully invite him to withdraw the amendment.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.

I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.

The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.

That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for putting down these amendments which, as he says, are probing amendments. I am also grateful to him for his time in discussing all of these points, I think, in a number of meetings we have had.

What I will seek to do—and I hope the House will forgive me if I do not go into too much detail—is respond to them point by point. I will try to strike a balance between giving a proper response here and not unduly delaying the House with points of detail. It may be that there will be points on which I might write further, but I will try to get the main points on the record, so to speak, because these are probing amendments.

I will start with Amendment 7 to Clause 3 on the new automatic online conviction procedure. This amendment would limit the application of this procedure to non-recordable offences only. I can assure the House in terms that we have no intention of extending this new procedure to any recordable offences. This is a new approach for dealing with certain minor offences, which is why we have committed to reviewing this procedure before considering whether to extend it to any further offences. Any extension of the procedure to additional offences would have to be both debated in and approved by Parliament.

Amendment 8 would allow the Criminal Procedure Rules to make provision about information that should be made available to the media and public on cases heard under the automatic online procedure. Amendment 13 would make a similar provision to Clause 6 for cases dealt with under the new online indication of plea and allocation procedure. This is already provided for in legislation. In fact, current provision in the Criminal Procedure Rules goes further. Rule 5.7 of the Criminal Procedure Rules sets out the basic open justice principle that courts must—that is a “must”, not a “may” as in the amendment—have regard to the importance of dealing with cases in public and allowing a public hearing to be reported. Rules 5.8 to 5.11 set out the process for providing that information and the types of information that should be provided.

The court will therefore provide the media with information about the outcome of these proceedings via the court media register within 24 hours of the case being dealt with. In the case of the automatic online procedure, this would include the conviction and fine imposed. That extends the arrangements currently in place for the single justice procedure for defendants who choose this new option.

In the case of the online indication of plea and allocation procedures, the information on the register would include the alleged date and details of the offence, the indicated plea and whether the case was being sent for trial. Any subsequent hearings for case management, trial or sentencing would be listed as normal and defendants would still be required to appear at a hearing in open court after they had proceeded with the online indication of plea and allocation procedures in order to confirm and enter their plea. I underline that this is because we are dealing here with an indication of plea.

Amendment 9 to Clause 4 deals with the guilty plea in writing. It seeks to raise the age of eligibility for the Section 12 plea, as it is called, by post procedure from 16 to 18 years. However, in distinction to some of the matters I have just referred to, this is not a new procedure. It has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. That is rather a long time. As I said in Committee, I am not aware of any particular issues of concern being raised for children. Clause 4 will ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station and will, if they do that, maintain the same age criterion that already exists for prosecutions initiated by summons or postal charge. This would provide defendants and prosecutors with the option of resolving more types of less serious, summary-only cases without having to spend time and resources attending a court hearing. It is subject to a range of safeguards, which I think I set out in some detail in Committee; I hope the House will forgive me if I do not repeat them all this afternoon.

Amendment 12 to Clause 6 proposes a new written procedure for indicating a plea to a triable either-way offence online. It would require a written invitation from the court to inform the defendant about the real-world consequences of pleading guilty to a crime and getting a criminal record. So far as that amendment is concerned, Clause 6 already states that the court must provide important information about the written procedure when writing to a defendant, including the consequences of giving or failing to indicate a plea online. Clause 6 will also enable secondary legislation under the Criminal Procedure Rules to require or permit the court to provide additional specified information where it is deemed necessary.

Importantly, any indication of plea provided through the new written procedure will not be binding on a defendant until they appear before the court at a subsequent court hearing to confirm it. They can also change or withdraw their indicated plea and, again importantly, if they do that, the indicated plea of guilty cannot be used against them in the proceedings that follow.

[Lord Ponsonby of Shulbrede (Lab)]

Just to explore that point a little more, does that mean that somebody who changes their plea to guilty, for example, when they physically turn up in court will get the full 30% discount on any sentence that may be given in the court?

[Lord Wolfson of Tredegar (Con)]

I think that is correct, but let me write to the noble Lord on that point. My understanding is that the indicated plea of guilty cannot be used against them. I appreciate the noble Lord’s point is slightly different. I think the answer to it is yes, but I will write to him so that he is in possession of accurate information before the Bill comes back to this House. He will get a written response from me on that point, unless I get the answer electronically before I sit down—that is a challenge to the team.

Amendment 11 seeks to guarantee that defendants will have access to legal advice before they indicate a plea. As I think I said in Committee, we believe this concern is addressed by the fact that defendants will be able to access the new online procedure for indication of plea and allocation only through their legal representative. This is because the new procedure will be available only through the common platform, which is restricted to qualified legal professionals. I have no objection to making the requirement to seek legal advice clear in legislation, but the right place for this would be in the Criminal Procedure Rules, remembering that this will be a plea indication only, not the entry of a plea at court.

Amendments 14, 15 and 18 seek to remove children from the new written procedures and powers relating to pre-trial plea and allocation proceedings for offences triable either way. So far as Clause 8 is concerned, the same safeguards as apply to Clause 6 apply here. Like adults, children will be able to proceed with the new written procedure for online indication of plea and allocation only through a legal representative, and they will be required to make a subsequent court appearance to confirm their plea. This will provide the same opportunities for the court, as we have heard from the noble Lord’s experience, to satisfy itself that the child has understood the position that currently applies.

Clause 9 creates a new clearly defined set of circumstances that would enable a court to allocate a child’s case in their absence. Again, I explained these conditions in some detail in Committee. The key point is that they are far more stringent than those prescribed for adults, even though children cannot elect for jury trial. Those safeguards guarantee that a child will engage with the court before and during the allocation hearing. Even where that does not happen for some reason, the new power will provide courts with the flexibility to progress the case, but only after they have taken significant steps to confirm that it is appropriate and in the interests of justice to do so.

The new overarching safeguard for written proceedings created by Clause 14 will exist alongside the current legal requirements for a parent or guardian to attend at court during all relevant stages of the proceedings. Therefore, Clause 8, read together with Clause 14, will provide more opportunities to ensure that parents and guardians are involved in children’s cases before the first hearing at court.

Over and above that, the courts have a statutory duty to protect the welfare of children and prevent them offending. Clauses 8, 9 and 14 should help ensure that cases are progressed more expeditiously. That means that interventions designed to tackle offending or reoffending can be made at the earliest opportunity. I also point out that these provisions can help reduce the undoubted stress of travel, with a child having to go to court physically, or the disruption of a child having to miss school to attend preparatory hearings at court, because they reduce the overall number of occasions when the child has to be physically present in court.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, when the Minister says “monitor” and “publish”, what we need to see is proper, in-depth analysis so that one can see what happened—or would have happened had it been dealt with in the Crown Court—and what is now happening. It is not enough to go on with what we already have.

[Lord Wolfson of Tredegar (Con)]

My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.

Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.

I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.

I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.

There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.

I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I beg leave to withdraw Amendment 7.

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Moved by

[Lord Wolfson of Tredegar]

16: Clause 13, page 34, line 24, leave out “by section 224(1A)(b)” and insert “in respect of the offence by section 224(1)”
Member’s explanatory statement
This amendment allows subsection (3) of Clause 13 to operate before and after the other provisions of that Clause come into force (see the amendment in the name of Lord Wolfson of Tredegar at page 59, line 4).

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Moved by

[Lord Wolfson of Tredegar]

19: Clause 39, page 53, line 27, leave out “follows” and insert “set out in subsections (2) and (3)”
Member’s explanatory statement
This amendment is consequential on the amendment at page 53, line 33 in the name of Lord Wolfson of Tredegar.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am sorry but one of the problems of doing this online is that, when the system freezes, you do not have any notes.

[Lord Cormack (Con)]

Put not your trust in tablets.

[Lord Wolfson of Tredegar (Con)]

Keep taking the tablets, my Lords. When we last debated these clauses, a number of noble Lords, including the noble Baroness, Lady Chakrabarti, invited and urged me to meet Inquest. I am grateful for that urging, because I had a very productive and informative discussion with it last week on the measures in the Bill and some wider measures. In fact, Justice also attended the meeting. While it is fair to say that there are differences of opinion between us, I assured them that the Government’s priority remains to make certain that the bereaved are at the centre of the coronial process. The measures in the Bill support this priority. We seek to reduce unnecessary procedures in the coroners’ courts and that will, in turn, reduce delays in the inquest process, and reduce again the distress to bereaved families.

The amendments in my name in this group are minor and technical. They are consequential on Clause 39, which allows a coroner to discontinue an investigation should the cause of death “become clear”, and they remove some obsolete references to post-mortems from existing legislation.

Those are the government amendments. However, I am conscious that the noble Baroness, Lady Chapman, and the right reverend Prelate the Bishop of St Albans have other, more substantive amendments in this group. Perhaps the noble Lord, Lord Ponsonby, will speak on the noble Baroness’s behalf. I will let them propose their amendments before I respond to them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 21 would ensure that certain safeguards were met before a coroner could discontinue an investigation into a death. Family members and personal representatives of the deceased must be provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, helping to ensure that family members make an informed decision as to whether to consent to the discontinuation.

Amendment 22 would provide that the Lord Chancellor should establish an appeal process for families who disagree with a decision to discontinue an investigation. Amendment 23 would ensure that inquests were not held without a hearing if that was against the wishes of the deceased’s family. Amendment 24 would ensure that certain safeguards were met before a remote inquest hearing is held and that interested persons were provided with the reasons why a remote hearing is to be held. I am glad that the Minister met Inquest and Justice. The amendments, which are in the name of my noble friend Lady Chapman, would address the various perceived shortcomings within the coronial system. I look forward to the Minister’s answer to them.

Amendment 28 would allow coroners to record risk factors relevant in a death by suicide and require the Secretary of State to issue guidance on the risk factors that the coroner must consider and the form in which they are recorded. The right reverend Prelate will speak to his amendment in due course. It is part of his attritional campaign for, often, young men who commit suicide because of gambling habits. I support his intention.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I shall respond to the amendments in the name of the noble Baroness, Lady Chapman. Amendments 21, 22, 23 and 24 all seek to introduce further conditions into Clauses 39, 40 and 41 relating to coroners’ courts. The Government’s position on these amendments is that, while we understand and sympathise with the intention behind them, we do not consider them necessary.

As I said in Committee, I have concerns about amendments that would cut across the independence of coroners. As the House has just heard, they are a very ancient form of office, but they are a judicial office. How coroners conduct inquests and investigations is a matter—properly, I would say—solely for them. We do not want to introduce concepts such as consent from other parties which would cut across or fetter their judicial discretion.

For example, Amendment 21 seeks to require the coroner to provide interested persons with a provisional reason for discontinuing an investigation, enabling the interested persons to make an informed decision on whether to consent to the discontinuance. We would not expect judges or other tribunals to seek consent from others, especially from people who are not actually party to the proceedings, before taking this sort of decision and I suggest that we should afford coroners, as judicial officeholders, the same constitutional courtesy.

Moreover, necessary safeguards are already in place. Section 4(2) of the Coroners and Justice Act 2009 is clear on instances where a coroner may not discontinue an investigation, including violent or unnatural deaths, or deaths in custody or other state detention. They would also not be able to discontinue investigations which raise ECHR Article 2 considerations, even if the death is suspected to be from natural causes. Over and above that, Section 4(4) of the Act provides that where a coroner discontinues an investigation into a death, they must, if requested to do so in writing by an interested person, provide a written explanation as to why the investigation has been discontinued. We think that is a sufficient mechanism for interested persons to request an explanation for a discontinuance.

Amendment 22 seeks to provide a mechanism to challenge a coroner’s decision to discontinue. Again, routes are already in place. The challenge can be made by way of judicial review or, sometimes, through application to the High Court with the authority of the Attorney-General.

Giving coroners the flexibility to discontinue an investigation where there is clear evidence that the cause of death is natural eliminates the need for an unnecessary investigation and reduces distress for the bereaved, as well as freeing up resources to be deployed on more complex cases. Coroners will of course work sensitively with bereaved families and take their views into consideration. As I said in Committee, I would expect the Chief Coroner to provide guidance for coroners to accompany any changes in the law, to make sure that practice is consistent across coroner areas.

Amendment 23 would require the coroner to seek consent from interested persons before making a decision on whether to hold an inquest without a hearing. The same point on judicial independence applies. Clause 40 is designed to give coroners flexibility to determine when an inquest can be held without a hearing. It might be used where a family have indicated that they have no wish to attend the inquest, for example, or in cases where the coroner has no concerns as to the cause of death. Of course, we would expect coroners to use their discretion judiciously and judicially when applying this provision.

All these measures are designed to support the drive to remove unnecessary procedures from the coroners’ courts. That will help them in delivering recovery plans as they tackle the post-pandemic backlog of inquest cases.

Amendment 24, similarly, deals with remote hearings. The House may be aware that in fact, coroners’ courts have always been able to conduct virtual hearings, but there has been one proviso: that the coroner and jury—if there is one, because often there is not—must be present in the courtroom. That means that under the current law, everyone participating in an inquest can be remote except the coroner, who has to be physically present in a courtroom with nobody else there at all. I suggest that that is somewhat odd, and this provision enables all participants, including the coroner and any inquest jury, to participate remotely, and it brings coroners’ courts in line with other courts and tribunals.

I should add, however, for clarity that where an inquest jury is participating remotely, all members of the jury—which can be from seven to 11 people—must be physically present in the same place and at the same time. They cannot participate remotely from their individual front rooms, for example. We saw during the pandemic how remote hearings ensured that the wheels of justice kept turning, and we anticipate that remote hearings can continue to play a very useful role in coroners’ courts.

The amendment would also out in primary legislation the requirement for coroners to obtain consent before making a decision on whether to conduct an inquest hearing remotely. As to that, my same point about judicial independence applies.

For those reasons, I invite the noble Lord, Lord Ponsonby, speaking for the noble Baroness, Lady Chapman, not to press those amendments.

I turn finally to Amendment 28, tabled by the right reverend Prelate the Bishop of St Albans. He is absolutely right: we debated this only a few days ago, as matters have turned out. I appreciate that this is, as we have heard, somewhat of an attritional campaign, and he has moved the focus of the amendment slightly to deal with some of the points I made last week, and for that I am very grateful. Of course, we recognise the importance of collating quality information on the circumstances which lead to suicide, including gambling-related factors, but we think that the amendment would not deliver that outcome.

As I think I said last Friday, current legislation focuses the coroner on the question of who the deceased was and when, where and how they died, not why they died. That often strays into determining liability, which Section 5(3) of the 2009 Act expressly forbids. I appreciate that, as the right reverend Prelate informed us, some coroners have started to collate that information, but that is really one of the problems. We are very concerned that information collated in a somewhat haphazard manner would not be a sufficiently robust basis on which to base government policy. Furthermore, even if all coroners were asked to do it, we must recognise that coroners get information from a range of sources: family, partners, friends, police, et cetera. All those sources might give the coroner differing motivating factors which could have led to the suicide.

I repeat what I said on Friday: we will be publishing a White Paper in the coming weeks on the Gambling Act review, following the debate on the tragic death of Jack Ritchie, which the right reverend Prelate mentioned last week. We are committed to understanding the circumstances which lead to self-harm and suicide, including gambling addiction. We have commissioned the University of Sheffield to do some work in this area, and the Office for Health Improvement and Disparities has likewise committed to work with government departments and other stakeholders to improve data in this area.

I gave some more information last Friday about what the Government are doing in this area. I will not detain the House by repeating it, but I assure the right reverend Prelate that we are treating the issue with importance. However, we do not, respectfully, think that this amendment is the right way to deal with it. I therefore urge him not to press his amendments. I was going to say that I am very happy to continue the conversation, but I anticipate that this conversation will be continuing, whether I am happy to or not. In any event, I look forward to continuing it with the right reverend Prelate.

Amendment 19 agreed.

Moved by

[Lord Wolfson of Tredegar]

20: Clause 39, page 53, line 33, at end insert—
“(4) In the following provisions of the Births and Deaths Registration Act 1953, for “revealed by post-mortem examination” substitute “becoming clear before inquest”—(a) in section 2(1), paragraph (ii) of the proviso;(b) in section 16(3), paragraph (ii) of the proviso;(c) in section 17(3), paragraph (ii) of the proviso;(d) section 29(3B).(5) In section 273(2)(a) of the Merchant Shipping Act 1995, for “revealed by post-mortem examination” substitute “becoming clear before inquest”.(6) In Schedule 21 to the Coroners and Justice Act 2009 (which, among other things, makes amendments to the Births and Deaths Registration Act 1953 that have yet to come into force)—(a) in paragraph 10(5), in the inserted subsection (2)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(b) in paragraph 11(2), in the substituted section (A1)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(c) in paragraph 16(2), in the substituted paragraph (a), for the words from “there has” to “the death,” substitute “—(i) there has been no investigation under Part 1 of the 2009 Act into the death, or (ii) such an investigation has been discontinued under section 4 of the 2009 Act (cause of death becoming clear before inquest) other than as mentioned in paragraph (b),”.”Member’s explanatory statement
This amendment adds consequential amendments to Clause 39.

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[Baroness Jones of Moulsecoomb (GP)]

I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.

I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.

I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.

Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.

We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.

I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, as of January this year, there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted.

Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.

For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate and have supported these amendments. The opening line from the noble Lord, Lord Thomas of Gresford, was that the Government should not hide behind the inquisitorial defence, if I can put it like that, and that is exactly what we have heard from the Minister today.

He chided me for limiting the amendments to public bodies. I accept that criticism to a certain extent; nevertheless, this is an opportunity for a radical improvement of the inquest system to provide a genuine public service. I absolutely agree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, about the importance of public service, and this is a route to do that to the benefit of people in a distressed situation.

The noble and learned Lord, Lord Thomas of Cwmgiedd, gave a historical perspective, if I can use that expression, saying that coroners have changed and adapted over the years. Here is another opportunity to change and adapt for the public good. I think that if the Government are not willing to make that change, I would like to test the opinion of the House on Amendment 25.

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Moved by

[Lord Wolfson of Tredegar]

29: After Clause 47, insert the following new Clause—
“Payments in respect of pro bono representation
(1) In section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation in civil proceedings in England and Wales)—(a) in the heading, at the end insert “: civil courts in England and Wales”; (b) in subsection (8), for “by order made by the Lord Chancellor” substitute “under section 194C”;(c) omit subsection (9);(d) in subsection (10)—(i) in the definition of “civil court”, omit paragraph (a);(ii) omit the definition of “relevant civil appeal”.(2) After section 194 of the Legal Services Act 2007 insert—“194A Payments in respect of pro bono representation: tribunals(1) This section applies to relevant tribunal proceedings in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is provided—(a) by a legal representative acting free of charge, or(b) by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or(c) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Procedure rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the rules;(b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section “relevant tribunal proceedings” means proceedings in—(a) the First-tier Tribunal,(b) the Upper Tribunal,(c) an employment tribunal,(d) the Employment Appeal Tribunal, or(e) the Competition Appeal Tribunal,but does not include proceedings within devolved competence.(12) For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.(13) The Lord Chancellor may by regulations—(a) amend subsection (11) so as to add a tribunal to the list in that subsection, and(b) make consequential amendments of the definition of “procedure rules” in subsection (14).(14) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative” means a person who is—(a) entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation,(b) a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980,(c) a member of the Faculty of Advocates in Scotland,(d) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990,(e) a member of the Bar of Northern Ireland, or(f) a solicitor of the Court of Judicature of Northern Ireland,irrespective of the capacity in which the person is acting in the proceedings concerned;“prescribed charity” means the charity prescribed under section 194C;“procedure rules” means—(a) Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal,(b) Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or(c) rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal;“tribunal” does not include an ordinary court of law.(15) An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.” (3) After section 194A of the Legal Services Act 2007 (as inserted by subsection (2)) insert—“194B Payments in respect of pro bono representation: Supreme Court(1) This section applies to proceedings in a relevant civil appeal to the Supreme Court in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The Court may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the Court would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the Court must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The Court may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is—(a) provided by a legal representative acting free of charge, or(b) provided by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or(b) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Supreme Court Rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the Rules;(b) make provision about the procedure to be followed in relation to such orders;(c) specify matters (in addition to those mentioned in subsection (6)) to which the Court must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative”, in relation to a party to proceedings, means— (a) a person exercising a right of audience, or conducting litigation, on the party’s behalf pursuant to an entitlement under section 13, or(b) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, practising or acting as such on the party’s behalf;“prescribed charity” means the charity prescribed under section 194C;“relevant civil appeal” means an appeal—(a) from the High Court under Part 2 of the Administration of Justice Act 1969,(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,(c) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005 or section 42 of the Judicature (Northern Ireland) Act 1978, or(d) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court.(12) An order under this section may not be made in respect of representation in proceedings in a relevant civil appeal—(a) from a court in Northern Ireland, or(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,if (or to the extent that) the representation was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.”(4) After section 194B of the Legal Services Act 2007 (as inserted by subsection (3)) insert—“194C Sections 194 to 194B: the prescribed charity(1) The Lord Chancellor may by order prescribe a registered charity for the purposes of sections 194 to 194B.(2) The charity must be one which provides financial support to persons who provide, or organise or facilitate the provision of, legal advice or assistance (by way of representation or otherwise) which is free of charge.(3) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“registered charity” means a charity registered in accordance with—(a) section 30 of the Charities Act 2011,(b) section 3 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10), or(c) section 16 of the Charities Act (Northern Ireland) 2008 (c. 12 (N.I.)).(4) An order under section 194(8) that was in force immediately before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force—(a) remains in force despite the amendment by that section of section 194(8),(b) has effect as if its prescription of a charity for the purposes of section 194 were the prescription of that charity under this section for the purposes of sections 194 to 194B, and(c) may be amended or revoked by an order under this section.”(5) For the purposes of sections 194A and 194C of the Legal Services Act 2007 (as inserted by subsections (2) and (4)), sections 204 and 206 of that Act extend to Scotland and Northern Ireland as well as England and Wales.(6) In paragraph 17(1) of Schedule 4 to the Enterprise Act 2002 (rules that may be made about procedure of Competition Appeal Tribunal), omit paragraph (ha).(7) In paragraph 32 of Schedule 8 to the Consumer Rights Act 2015 (amendments of paragraph 17 of Schedule 4 to the Enterprise Act 2002), omit sub-paragraph (a).”Member’s explanatory statement
This new Clause allows certain tribunals to order a person to make a payment to a legal assistance charity where a party to proceedings has been represented pro bono and the person would otherwise be liable for that party’s costs. It also allows the Supreme Court to make such orders in appeals from Northern Ireland or from the Upper Tribunal.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am conscious that this is the last group, and I hope that we can end Report on a point of unanimity across the House. In Committee, I welcomed the proposal from the noble and learned Lord, Lord Etherton, to allow pro bono costs orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. I am now very pleased to bring forward a government amendment that achieves this.

There are some differences in the way that this amendment is drafted. I have discussed these with the noble and learned Lord but, to point them out to the House, the reasons for these changes from the original draft are to ensure that we do not prescribe rules for tribunals outside of the Government’s control, nor trespass on the competence of the devolved Administrations. The amendment captures the majority of tribunals in which costs orders might be made and creates a power for the Lord Chancellor to bring additional tribunals within the scope of this power through secondary legislation.

In some respects, we are in fact going further than the original text from the noble and learned Lord, Lord Etherton, by ensuring that, where the tribunal is reserved and provision regulating the tribunal’s procedure could not be made by any of the devolved Assemblies—as, for example, when the Immigration and Asylum Chamber of the First-tier Tribunal or the employment tribunal sits in Scotland—the tribunal can, under this amendment, none the less make a pro bono costs order regardless of where the tribunal is sitting within the UK. I suggest to the House that this is a positive step for two reasons. First, it will provide additional funding to the Access to Justice Foundation, I hope in a material manner. Secondly, it will level the playing field between parties where one is represented pro bono.

There are also some consequential amendments in this group as to the extent and commencement clauses of the Bill. I beg to move.

[Lord Etherton (CB)]

My Lords, I am extremely grateful to the Minister for tabling this amendment. I strongly support it, and it is warmly welcomed by the Access to Justice Foundation, which is the prescribed charity in the new amendment. As the Minister has said, it replaces my own amendment along generally similar lines, which I tabled earlier. It would not have come without the active support of the Minister and his very helpful engagement with me both in meetings and in correspondence. I urge all Members of the House to support it.

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[Lord Hacking (Lab)]

My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?

[Lord Wolfson of Tredegar]

My Lords, I am grateful to everyone and look forward to the noble Lord’s support on issues where it might matter more that he is on my side, but I am always grateful for any support that I get from any quarter.

More seriously, I am grateful to the House for what seems to be unanimous support for this amendment. We have made good progress timewise this afternoon and I will not detain the House for very long, but I would like again to place on the record my personal thanks and the thanks of my department to the noble and learned Lord, Lord Etherton, for his engagement on the issue and for proposing it in the first place. He had a number of meetings both with me and officials, and I am really pleased that we have got to a good result here. I also thank the Access to Justice Foundation, which has worked with the noble and learned Lord and with my team to make sure that the amendment works in practice as effectively as possible. For those reasons, I invite the House to support the amendment.

Amendment 29 agreed.

Clause 49: Extent

Amendments 30 and 31

Moved by

[Lord Wolfson of Tredegar]

30: Clause 49, page 58, line 24, leave out “and” and insert “to”
Member’s explanatory statement
This amendment is consequential on the amendment at page 58, line 32 in the name of Lord Wolfson of Tredegar.

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Moved by

[Lord Wolfson of Tredegar]

32: Clause 50, page 59, line 3, at end insert—
“(za) section 11;”Member’s explanatory statement
This amendment provides for Clause 11 to come into force on Royal Assent.

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Moved by

[Lord Wolfson of Tredegar]

38: Clause 50, page 59, line 21, at end insert—
“(5A) The coming into force of paragraph 20(b) of Schedule 2 results in the provision it inserts becoming subject to section 417(1) of the Sentencing Act 2020 (power to commence Schedule 22 to that Act).” Member’s explanatory statement
This amendment clarifies the prospective effect of paragraph 20(b) of Schedule 2.

--- Later in debate ---

Moved by

[Lord Wolfson of Tredegar]

39: Schedule 2, page 76, line 4, at end insert—
“19A_ In section 42 of the Gambling Act 2005 (offence of cheating at gambling)—(a) in subsection (4)(b), for “51 weeks” substitute “the general limit in a magistrates’ court”;(b) in subsection (5), for “51 weeks” substitute “the general limit in a magistrates’ court”.”Member’s explanatory statement
This amendment brings the maximum term of imprisonment on summary conviction of an either-way offence under section 42 of the Gambling Act 2005 into line with the maximum term generally available in such cases.

Prisons: Death Statistics

Lord Wolfson of Tredegar Excerpts

Wednesday 30th March 2022 Lords Chamber

[Lord Harries of Pentregarth]

To ask Her Majesty’s Government what assessment they have made of the statistics in the report by the Ministry of Justice Safety in Custody Statistics, England and Wales: Deaths in Prison Custody to December 2021, Assaults and Self-harm to September 2021, published on 27 January; and in particular the finding that the number of self-inflicted deaths in prison custody had increased by 28 per cent in the 12 months ending December 2021.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, every death in custody is a tragedy. Although in 2021 there were more self-inflicted deaths than in 2020, the number was the same as in 2019. The number of self-inflicted deaths in 2020, used in this Question as a benchmark, was in fact the lowest since 2012. However, each death is one too many. We continue to do everything we can to ensure and improve the safety of those in our care.

[Lord Harries of Pentregarth (CB)]

I thank the Minister for his Answer. As he says, every suicide is an occasion of great sadness. That there were 86 in prison—an increase of 28% on the previous year—is seriously worrying. Does he agree that the figures reveal something interesting and important? All 86 were males, nearly all were white and they were predominantly in the age groups 21 to 25 and 30 to 39. So many of these deaths occurred in the first 30 days in prison—15 in the first week. The rate was particularly high among prisoners on remand. In the light of these figures, what precautions will Her Majesty’s Government take to address people who fall into this profile, because it seems clear that a particular group of people is at risk?

[Lord Wolfson of Tredegar (Con)]

My Lords, I accept there are particular risks with people on remand, and with those who have just come into or been recalled to custody. We do focus on those particular groups. However, I point out that, although they were all men, as the noble and right reverend Lord said, that is because there were no self-inflicted deaths of women in custody that year. Historically, we have had female deaths in custody, so the figures also show an improvement because of the work we have been doing in the female estate.

[Viscount Hailsham (Con)]

My Lords, one factor that may have contributed to the increase is the extended period in cells in custody due to the pandemic. If that is correct, does it not strongly argue that, if we are to reduce the number of suicides, it is important to increase the amount of meaningful out-of-cell activity for prisoners?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend is right and we do want to do that. We also want to do two other things: to increase videoconferencing, so to speak, between prisoners and their families, as we found during the pandemic that it has been very successful; and to make sure that trials come on more quickly, so that people are on remand for a shorter time. That is why, next year, we are planning to hold 20% more jury trials than before the pandemic.

[Lord Morris of Aberavon (Lab)]

My Lords, in my various capacities, I have had a lifelong concern for all deaths in custody. Since death by hanging accounts for 83% of self-inflicted deaths and that bedding is the most commonly used ligature and a window is the most commonly used ligature point, what lessons do the prison authorities learn from these statistics and what steps are being considered to take account of the availability of these trigger points?

[Lord Wolfson of Tredegar (Con)]

My Lords, we are aware of that extremely important point. As we set out in the Prisons Strategy White Paper at the end of last year, we have committed to delivering 290 ligature-resistant cells, the architecture of which prevents prisoners hanging themselves. That is in addition to the other interventions about which I have already spoken.

[Baroness Burt of Solihull (LD)]

My Lords, the Prison Service is in the midst of a perfect storm, with high volumes of staff shortages and a projected increase in the number of prisoners. How will the Government improve this situation for the people who have to suffer the consequences, both prisoners and officers, including in privatised prisons?

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not recognise the phrase “staff shortages” when put in context. Between the end of October 2016 and the end of December last year, the number of prison officers increased from just under 18,000 to over 22,000. That is about 4,000 additional full-time equivalent officers.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, is the Minister as concerned and unsurprised as I am that the highest rate of self-inflicted deaths, and indeed of other instances of self-harm, is among the indeterminate prisoners, the IPPs—higher even than life prisoners and getting higher as the period of their post-tariff detention extends, so that the vast majority have done more than 10 years than their punishment required?

[Lord Wolfson of Tredegar (Con)]

My Lords, we have discussed IPP prisoners on several occasions. I acknowledge the work the noble and learned Lord has been doing in this area. As he knows, the Justice Select Committee has been looking at this issue. I have already committed to reviewing the position as soon as we receive its report.

[Lord Lexden (Con)]

Do prison chaplains keep a particularly careful and watchful eye on the prisoners in the categories to which the noble and right reverend Lord, Lord Harries, made reference?

[Lord Wolfson of Tredegar (Con)]

My Lords, prison chaplains do a lot of very good work. They are astute at looking out for signs of prisoners who are at greater risk of self-inflicted harm, but that is something that prison officers are doing as well. We have put in place a strategy to identify on a prisoner-by-prisoner basis those who are at higher risk, and we focus more on them.

[Lord Harris of Haringey (Lab)]

My Lords, it is almost seven years to the day since I submitted to the Minister’s department a report on the self-inflicted deaths of young people in the prison estate. Since then, all the figures seem to have got worse. An increasing number of people are self-harming. What has been done in the intervening seven years, primarily to stop young men entering the criminal justice system and to ensure that, when they are in prison, they are properly supported, supervised and advised? That is what is lacking.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am sure the Prisons Minister will be familiar with the document; I confess that I am not. However, with respect, it is not right to say that the number of self-harming incidents has gone up. In the female estate, it is right to say that the rate of self-harm is higher than it was pre-pandemic; in the male estate, it is lower. Therefore, one has to look at the figures carefully.

[Baroness Hussein-Ece (LD)]

My Lords, the Minister just mentioned the rise in female self-harm in the prison estate. The figure I saw for up to October last year was a 47% rise in self-harm among women and a rise of one-fifth for young people. Does he accept that this is a failure of the duty of care? What is being done to review mental health services and support for women and young people in prison?

[Lord Wolfson of Tredegar (Con)]

My Lords, without getting into the statistics too much, comparing the 12 months to September 2021 with the 12 months to September 2019—post and pre pandemic—it is 23% higher. On the female estate, which is quite small, we acknowledge that female prisoners are overwhelmingly those who have had significant problems in their lives pre prison, and they are therefore a particularly vulnerable group coming into prison. That is why we focus on the female estate in particular. I am very pleased that, as I pointed out earlier, we had no self-inflicted deaths in the female estate last year.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in the 12 months to December 2021, there were 371 deaths in prison, including the suicides referred to earlier. This is despite recent reductions in the prison population. Over about the same period, there were 7,780 assaults on prison staff, which is an 8% reduction on the previous year. Does the Minister think that those two statistics are connected to each other? Does he agree that the key to improving prisoner and staff safety is the recruitment and, crucially, the retention of prison staff?

[Lord Wolfson of Tredegar (Con)]

My Lords, the figures are perhaps connected in this way: we want to make sure that we have as few self-inflicted harm incidents as possible and as few assaults on staff as possible. On staff, we have rolled out body-worn video cameras and we have better drug testing coming into prisons. But I and the Government are far from laid back about the current situation; we want to get these figures down further. But I point out to the House that we have seen some significant improvements in the figures recently.

[Baroness Butler-Sloss (CB)]

My Lords, what training and support are prison officers given to deal with these appalling problems?

[Lord Wolfson of Tredegar (Con)]

My Lords, prison officers go through rigorous training and are given significant support. We have put in place a system whereby prison officers who are working with particular prisoners who are perceived to be at risk of self-harm have time in their schedules to sit down and focus on those prisoners. As opposed to having to fit this in among their other tasks, particular time is set in their programmes so that they can devote it to their prisoners.