(4 years, 12 months ago)
Lords ChamberMy Lords, I am grateful to the Minister for his answer. Does he agree that it is time to invest more in the justice system as a whole? Might he also agree that when Governments seek to encourage respect for the law in the country, they should begin by respecting the law themselves?
My Lords, this Government do respect the law. In addition, this Government understand the law and the distinctions that lie between matters of politics and matters of law. In some areas that is not properly understood. Of course, there is always room for further investment in the justice system, but the Government face an issue of priorities. The question of further investment must be balanced by other demands on government.
(5 years, 1 month ago)
Lords ChamberAs far as I am concerned, neither the DPP nor the CPS would endorse the implied threat that, if there was a reason for not signing a consent form for the disclosure of digital material, they would simply refuse to contemplate a charge on a case such as this, or indeed in any other case. I believe that the problem stems from the use of language, and that such terms as “digital strip search” merely seek to underline how it is possible for parties to misunderstand the scope of the inquiry that is being carried out here. What has to be emphasised is the need to secure justice for the complainant and for the accused.
On that point raised by the noble Lord, Lord Marks, could the Minister tell the House what the legal foundation for this form is? Does it have foundation in any statute? I think we can all agree that it at least to some extent creates an interference with privacy rights; if it does so, where is the foundation that makes it in accordance with law? If it is consent, and therefore not based on any statutory foundation, is that consent real if complainants fear that their case will not be taken forward?
In so far as I follow what the noble Baroness is saying, it requires first of all a balance between rights that arise under the European Convention on Human Rights—the right under Article 6 to a fair trial and the right under Article 8 to privacy—and the need to ensure that any intrusion into these matters is in the public interest and can be properly justified. As to the specific foundation for the consent form, in carrying through a prosecution it is necessary for reasonable and appropriate inquiries to be carried out in the public interest. A consent form is therefore produced for the complainant to consider signing. The situation is this: the complainant may refuse to sign that consent form, but in those circumstances that might well intrude upon the ability of the police properly to investigate a particular complaint.
(5 years, 5 months ago)
Grand CommitteeMy Lords, in an attempt once more to be succinct, I can echo the point that the noble Lord, Lord Thomas, was making. The concerns from this side are essentially about regulatory diversion. I do not think anybody is going to object to these regulations; the concern is with ongoing regulatory divergence and its potential impact, whether it is on unfair competition cases or IP cases and so on. Perhaps the Minister might consider briefly that risk of regulatory divergence in his reply.
In relation to insurance, the Explanatory Memorandum says:
“The Government engaged with representatives of the insurance industry”,
in relation to “insurance risks”. Can the Minister outline the types of risks identified in that engagement? We are told that banks and insurers are shifting hundreds of billions of pounds in assets out of the UK ahead of exit day to keep their contracts and policies within the EU area. We have learned that Aviva, Britain’s second largest insurer, will transfer around £9 billion in assets to a new Irish company, for example. Does the Minister agree with having that sort of risk to our economy? Does this reflect the concern about different outcomes that could result from insurance contract cases being resolved differently in our courts and those of our EU partners in the future?
As I say, my general proposition is on the risks of regulatory divergence, but one can hardly object to the instrument itself.
I am obliged to the noble Lord and to the noble Baroness for their observations. As the noble Lord, Lord Thomas, observed, there will no longer be scope for a reference to the Court of Justice of the European Union over the construction or interpretation of the convention. Given that the convention has been there since 1980, that may already have happened but we cannot say that it would never have happened again. But I say to the noble Lord—and I address this to the noble Baroness, Lady Chakrabarti as well—that, although there is no longer a basis for a reference by a UK court to the Court of Justice, the UK courts may of course have regard to the decisions of the Court of Justice going forward. Quite sensibly, they would have regard to decisions that bore upon the interpretation of the convention, or of Rome I and II as well. That would be of relevance to the incorporation in domestic law of provisions which had their genesis in those European Union provisions.
The immediate matter of insurance is quite narrow and concerns one of the limited derogations from the freedom to choose your own law, as it were. There is a limitation about choice of law where an insurance contract contains provision to cover risks located in the European Union. Essentially, there cannot be an insurance contract that covers risks in an EU member state where the law of Russia is chosen as the relevant law for resolving the contract. The difficulty faced in drafting these regulations was that the reference under the derogation was to a risk in an EU member state. We were going to be concerned not only with a risk in an EU member state but with a risk in the United Kingdom. This is why we have had to move from reference to “member state” to “relevant state”, which is, in turn, defined by reference to member states and the United Kingdom. It is a fairly narrow move, which I do not believe is, of itself, going to impact on the choice or application of law with regard to the type of contract to any material extent. I do not see how it would impact on the transfer of assets such as was referred to by the noble Baroness, Lady Chakrabarti. This is not what this regulation is addressing.
I acknowledge that, if we leave the European Union without a deal—which is not this Government’s preferred option—there will be issues for banks, insurance companies and others with regard to their future arrangements in the European Union. No one would take away from that. That said, this is essentially implementing an existing scheme with just those changes necessary to make sure it operates in domestic law. I do not believe this is going to take away from the attractiveness of English law—or, indeed, Scots law—as a system for the resolution of commercial disputes. English law in particular remains the lingua franca for charter parties, major commercial contracts and so on. Because of the flexibility of common law, it will continue to be used for this reason. I do not see that this is going to result in any major change. No doubt there are options when it comes to choosing a common law system—such as the law of Hong Kong, Singapore or New York, for example. That already exists and we deal with it.
Noting all the observations that have been made, I beg to move.
Motion agreed.
(5 years, 5 months ago)
Grand CommitteeMy Lords, in all sorts of matters, particularly perhaps in matters Brexit, it is not as fashionable as we might like either to be succinct or fair to one’s opponents. So as not to exacerbate the Alice in Wonderland world described by noble Lords, I would say that the Minister is in an unenviable situation. Surely we all know that the problems are not with this draft instrument but with any possibility of exiting the European Union without a deal. It would be a disaster in all sorts of areas—trade and other aspects of co-operation—but in the context of criminal justice co-operation, we all ought to acknowledge that the idea of no deal is particularly disastrous and dangerous for people in this country and in the European Union, especially for victims of violent crime and survivors of domestic abuse.
Having said that at the outset, I invite the noble and learned Lord the Minister to agree and to do his best with particular questions about the various areas of policy and co-operation covered here. We acknowledge that it is not about the instrument. We are in an unenviable position. The clock is ticking down and we seem to be no closer to a final scheme for what criminal justice co-operation will be. The problem is that the political declaration is vague on matters of security and justice co-operation. As we have heard from noble Lords, access to Europol and European criminal records is essential, as is access to the extensive database system. Perhaps we can all agree on this. I am sure that, in due course, the Minister will do so as well and he will suggest that this instrument and its provisions are not an ideal alternative to having a proper scheme for co-operation after Brexit.
If the Minister is able to do so, I wonder if he might discuss what the total cost to the UK authorities might be from not having, for example, access to the system of formal communication in relation to compensation for victims of violent crime. The Explanatory Memorandum makes a lot of store about the total number of requests in each relevant case. Can he assist on the total amount of compensation that has resulted in the past three years in relation to this request? Thare might give more of a sense of the importance and severity of the matters we are dealing with.
In relation to European protection orders, paragraph 7.3 of the Explanatory Memorandum states,
“the UK will no longer be able to issue requests to other EU Member States and expect them to be acted upon”.
This is predominantly about domestic violence. Can the Minister confirm that this change could make life less safe for the survivors of domestic abuse after exit day? Could the Minister perhaps articulate how travel restrictions would be placed on the perpetrators of domestic abuse in such a scenario—for example, on a man who is an EU citizen with a woman victim who is a UK citizen—without an EPO? Similarly, on financial penalties, does the Minister have any idea what the potential cost would be to the UK authorities for losing access to the framework?
In all this, I am making the point that it is not really fair to impugn the instrument itself but, as there are people beyond this Room who are still advocating a no-deal Brexit, it is none the less important to try to get the Minister’s thoughts on some of these matters.
I am obliged to noble Lords for their contributions. I begin by observing that my noble friend Lord Deben has misunderstood the purpose of these regulations. They are not concerned with the transfer of data or information or with access to it; they are concerned with what the courts do with it once they have it. I will elaborate on that in a moment.
In light of the observations that have been made, particularly by the noble Lords, Lord Thomas and Lord Thomas—this is a bit like a rugby commentary featuring Joneses, but I will not go there—and the noble Baroness, Lady Chakrabarti, I shall take each of the five relevant regulations’ directives in turn, pick up each of the points that have been raised and then come back to the issue of data and how that is being addressed.
The first is the victims of crime compensation directive. Let us be clear: in the event of a no-deal exit—I am not seeking or advocating that; I am dealing with the situation that arises in that eventuality, as the noble Baroness observed—any EU citizen who is the victim of a violent crime in the UK will still be able to proceed to make an application under the UK scheme in respect of a violent criminal act in the UK. Conversely, even though we no longer have the relevant directive in place, where a UK citizen suffers such an act in a member state that has ratified the European Convention on the Compensation of Victims of Violent Crimes, which is the preceding European Council convention, they will also be able to access compensation, and there are 18 EU members that are signatories to that convention. In addition, there are some member states that are not signatories to the convention but whose criminal compensation schemes admit of applications just like the UK’s for any citizen who suffers that violent criminal conduct within their country. There are at least two which fall into that category; I believe that they are Ireland and Latvia. There are in fact a total of 20 existing EU member states where it will be possible to continue applying for compensation under these schemes.
To follow up the point from the noble Lord, Lord Thomas of Gresford, the intention is that the CICA will support victims in accessing compensation from those countries where an application can be made—in other words, it will do essentially what it does at present, which is to assist the victim in directing how and where the application should be made in the circumstances. I readily accept that that is not a complete answer to the existing scheme; it is deficient to the extent that at least seven existing EU member states will not facilitate such an application. That said, it is important to put this into context. As the noble Lord, Lord Thomas, observed, not every application has been notified to the CICA in the UK. In so far as it is notified, though, we are aware that in the past year, 2017-2018 to the end of February, there were 59 requests for assistance, 29 notified unsuccessful applications and only two notified successful applications. I readily accede that not all those who made an application notified that fact and not all those who made a successful application notified that, so the data is limited. As a consequence we do not know the sums that were awarded in these cases because there is no requirement for notification. It is a limited compass and what will be in its place is not as good as what exists at present. Nobody is pretending otherwise, but it is appropriate that we put the statute book into proper form in order that people are not confused when they come to determine what their rights are in this context.
Turning to the European protection order and the point raised by the noble Baroness, Lady Chakrabarti, it is simply not possible to operate that scheme if we leave without a deal because under the terms of the relevant provision only the court of a member state can make a request and under the scheme it can make a request only to the court of another EU member state. In the event that we receive an application before exit, we will process it because it will have been competently made by the other member state and we will be receiving it at a time when we are a member state, but after exit we cannot make such orders because they will not be accepted as competent by the EU 27 states, and we cannot expect to receive any because they cannot competently make such a request of the United Kingdom once it ceases to be a member state. To put this into context, I should emphasise that this order is very rarely used. Four EPOs have been issued by the English and Welsh courts and the Northern Ireland authorities since this provision was implemented in 2015, and only two of those were recognised by the receiving EU state over a period of four years. In the same period, six EPOs were received by the courts from other member states of which four were recognised and two were declined, so we are talking about tiny numbers in this context.
On the European supervision order, I would, with respect, seek to correct the noble Lord, Lord Thomas of Gresford. The supervision order is directed to pre-criminal trial matters such as bail. It does not apply to any post-criminal trial order of the court. The reference to supervision is perhaps a little misleading in that context. It deals essentially with a situation in which somebody is placed on bail under bail conditions and the relevant supervision order can be enforced in another EU member state with the result that a citizen of an EU member state who is subject to bail may move into another EU member state without breaching the relevant conditions of their bail order. That is essentially what it deals with. It has again been very rarely used since implementation in 2015. The number we had received at the time the regulations were laid was four since 2015. Interestingly, a further six have emerged since the regulations were laid, I think five of which have come from Cyprus. I do not know whether they all pertain to the same group, but the numbers are very small. In turn, the courts in England and Wales have issued two such supervision orders, but neither is extant. They have both expired because the relevant parties have been discharged or have gone through the criminal trial process. We do not anticipate that this will have any major impact.
The financial penalties order came into force in 2012, since which time we have received about 3,759 requests for enforcement of civil penalties, most of them from the Netherlands, and we have issued about 3,400 requests for the recovery of financial penalties, most of them to Poland.
We have one point to bear in mind. Where we issue a request for a financial penalty to be recovered, we do not get the money. It is retained by the EU member state that makes the recovery. To that extent we do not get a financial benefit, but where we do benefit is in the event that we are requested to recover a financial penalty; we can then retain it. The sums involved are relatively modest. The average fine is in the region of £300 based on figures collected in 2015. If that is applied to the number of requests we are getting, we are still talking about a sum of approximately £100,000. However, I emphasise that these estimates are approximate. As I say, it is not a case of us recovering the money that has been imposed by a UK court for reasons best known to the European authorities, I am sure; rather, the proceeds go to the jurisdiction that actually recovers the funds in the event that they do so.
(5 years, 6 months ago)
Lords ChamberMy Lords, as we have heard, this instrument sits against a backdrop of completely inadequate planning for justice co-operation after Brexit. The danger is that that inadequate planning could put vulnerable people in our society at risk. Across Parliament, including from the Justice Select Committee, there has been concern that the Ministry of Justice has failed to provide sufficient detail or certainty about how co-operation on justice will be managed after we exit the European Union.
As we all know, we currently benefit from well-established, frequently updated and comprehensive reciprocal justice arrangements within the EU. Without an agreement with our European partners on what the future of those reciprocal arrangements looks like, people forced to go to court or mediation to protect their rights can face extremely damaging consequences.
We on this side of the House have consistently said that Brexit must not be used to lower standards or reduce rights. There is a fear of that. I know that the noble Lord, Lord Beith, is a little sanguine about how significant that is in this instrument, but I am a bit less so. It nevertheless breaches that principle about a reduction in standards and rights.
Noble Lords will recall that the instrument was laid for sifting by the Secondary Legislation Scrutiny Committee on 16 November last year. The European Statutory Instruments Committee recommended that it be upgraded to the affirmative procedure because of its large volume of amendments to primary and secondary legislation, but also because it could diminish rights by disengaging from European Union obligations.
I may have misheard the Minister. He referred to an impact assessment. I do not know whether that included a consultation or whether he is instead relying on the Government’s general civil judicial co-operation framework. If it is the latter, the European Union Sub-Committee on Justice found that the framework contained little detail on how the Government’s aims for co-operation would be achieved.
This statutory instrument will repeal legislation enshrining the mediation directive. The directive extends time limits for bringing some civil claims—including child maintenance claims and employment tribunals—to enable mediation. I am sure we all agree that this is a very good thing. The directive is one of many examples whereby we have raised legal standards and protections across Europe through co-operation with our European partners.
The European Statutory Instruments Committee considered whether this instrument could diminish rights and found that it repeals legislation that extends the time limit for bringing certain claims in civil courts and employment tribunals to enable mediation. Shortening time limits in that regard can have significant consequences, prohibiting parties from reaching mediated solutions in child contact cases, for example. This statutory instrument clearly breaches the principle that standards should not be lowered; it lowers the standards for enabling cross-border mediation from the higher EU standard to a lower international one.
The Government accept that the UK could unilaterally continue to apply the mediation directive post exit but have decided not to do so. The noble and learned Lord will correct me, but my understanding of the Government’s position is that, if someone wants to stop a time limit running in mediation, they should issue proceedings before a court and apply to stay or stop those proceedings. That is unfair and unrealistic for so many people in their current financial circumstances, let alone in the context of the obliteration of civil legal aid, which we have discussed in your Lordships’ House so many times.
Put simply, this statutory instrument does what Ministers promised—in this House and elsewhere—would not happen: it breaches the principle of not reducing standards in people’s access to justice. That is very disappointing.
On that last issue, I am somewhat puzzled by the points that the noble Baroness, Lady Chakrabarti, is endeavouring to make in this context. The time limits we are talking about are measured in years—three, four, six or 10 years. If a party is intent on mediation before they raise proceedings, it is unlikely that they will be so disinclined or uninterested in the issue that they will wait years before even attempting to go forward with mediation. Let us be realistic and practical. However, where they have already commenced proceedings, they may then be directed by their lawyers or others to consider mediation as an alternative means of resolving the dispute. In those circumstances, they have already dealt with the time limit by raising the legal proceedings. Pending mediation, all they need to do, if necessary, is stay those proceedings—or sist them, in Scottish terms—putting them on hold while the mediation process is carried on. I do not see that this is a diminution of rights at all.
I come to the points raised by the noble Lord, Lord Beith. On the question of no deal, I understand his point entirely. If no deal occurs—which nobody wants—it will not be a case of switching off the lights and leaving the building. Clearly, we will want to continue discussing with our immediate European neighbours how we can best resolve any differences between us on judicial co-operation. One would hope that that would happen in any event, but I note the noble Lord’s point and cannot disagree. It might be more difficult in a no-deal scenario than during an implementation period, when we are negotiating a future agreement between ourselves and the EU 27.
On another point, it is not an issue only of preferential treatment—that is, the idea that parties from the EU would somehow have preference over those in the UK. There is a danger that we might mislead people if we do not deal with the directive provisions in this way. People may continue to believe that they are protected from having to raise proceedings beyond a limitation period because of the EU directive. We will have to make it clear to people that this will not be the case.
There is not the same issue with regard to confidentiality. The absolute confidentiality imposed by the directive is not immediately replicated in the law of England and Wales, but there is the usual provision for contractual agreement of confidentiality of the mediation process. In any event, as I sought to indicate, there is at least one High Court decision from 2009 that says that, even in the absence of an express contractual term, the court would readily imply an issue of confidence with regard to mediation.
In a way, then, the impact will be minimal, but I do not dismiss it out of hand. We are conscious that we are moving away from an EU-wide provision on mediation and we have to accommodate that at present. Our hope is that we will move into an implementation period when we continue to enjoy this reciprocity. We hope that, in due course and in the course of such an implementation period, we will agree future judicial co-operation, but that will require reciprocity. In these circumstances, I beg to move.
(5 years, 6 months ago)
Lords ChamberIt is not the intention of the Government to seek to change the law in this area. I emphasise that every case has to be considered according to its own particular facts and circumstances. I readily acknowledge that many of these cases are extremely tragic.
My Lords, whatever the conflicting views—and there are many—on public and prosecutorial policy in this area, I hope we can all agree that the current situation presents loved ones of people with motor neurone disease and similar conditions at the end of their lives with an emotional, ethical and legal minefield. Is the Minister confident that these people, at a very difficult time, are getting the advice and support they need to navigate that?
I am not in a position to say where such people seek advice on these matters, but such advice is available, and the policy of the CPS with regard to this matter is publicly available.
(5 years, 7 months ago)
Lords ChamberI beg to move that the Bill do now pass.
My Lords, at the risk of my complete and utter humiliation, I rise in these difficult and fractious times to celebrate a moment of genuine positivity, collaboration and leadership in this place and beyond it. I pay tribute to the campaigner Gina Martin, whose original indignity was converted into a powerful campaign to do something important that we can all agree on. I also pay tribute to her lawyer, Ryan Whelan, for that campaigning partnership and to parliamentarians on all sides of both Houses who made it possible—even at the expense of rivalries and through self-censoring—to allow a speedy and successful passage of this Bill. I particularly thank the government Bill team, the Minister and his colleague, the noble Baroness, Lady Vere. This was good work and very well done.
I am obliged to the noble Baroness, Lady Chakrabarti, for her observations. I, too, extend my thanks to all who were engaged in bringing this Bill to fruition. I thank in particular the Bill team, which did so much work to ensure that the passage of this Bill was as simple and swift as we would all wish.
(5 years, 7 months ago)
Lords ChamberLegitimate means and democratic means—let us put it that way. They went to the country in the general election as well and returned with 12 seats in the House of Commons; the Scottish Conservatives returned with 13 seats in Scotland, a part of the United Kingdom that voted to remain. But then perhaps people had intelligently understood that the outcome of the referendum should be respected and that they should support those who were prepared to respect it.
We see reference to a second referendum. That would be seen by many as a constitutional outrage. The United Kingdom voted, by a majority of about 1 million people, to leave the EU. The noble Lord, Lord Grocott, touched upon this point: people such as myself from north of Watford understand the meaning of “leave”. It is not a factual question; it is more philosophical. Their reasons for voting leave cover a spectrum, from the sublime to the ridiculous and from the laudable to the laughable. But it was this Parliament which decided that that was how the issue should be determined, so look to yourselves.
A democratic decision can be reversed. If you choose a party in a general election, you may decide that you are not entirely impressed by it and, at a second general election, decide on a new party of government.
I hear the noble Baroness, Lady Chakrabarti, saying that that is a good idea, but of course it has no comparison with the present situation, if we want to reverse the decision made in a referendum when it has never even been implemented. That is why people would regard it as something of an outrage.
As my noble friend Lord O’Shaughnessy observed, there are issues with the call for a second referendum. Indeed, many people would regard it as a charade, because those calling for it, or at least many of those calling for it, do not want the people to decide. They want the people to give them what they regard as the correct answer, because they did not give it last time. And there is no reason they would not ignore a second leave vote just as readily as they ignored the first leave vote. Of course, they seek to dress it up as the “people’s vote”. Who do they believe voted in the first referendum—sheep? It was the people’s vote.
I come back to the issue of trust. We have the withdrawal agreement and the backstop, which are and are intended to be temporary means for us to actually exit the European Union and do not, by themselves, determine our future relationship. That is outlined in the political declaration. If we do not trust the party with whom we are engaging, then all forms of agreement and negotiation are simply worthless. At the level of international law you cannot—short of war or gunboat diplomacy—force a nation or an international body to implement a promise or obligation if it decides not to do so. Whether it is an oral promise, a written assurance, a solemn undertaking, an international treaty or something written in blood on vellum, if they are determined to lie to you, to mislead you, to change their minds, you are simply going nowhere.
We hear references to the EU wishing to punish us, wishing to put us into a triple lock, wishing to hold the backstop in perpetuity. Yet the European Union says, entirely candidly, that it wants a fruitful future economic, security and social relationship with the United Kingdom, so why would it want to punish us? It does not want to enter a backstop and if it does, it wishes to do so for the shortest time possible. Nobody appears to have acknowledged that, in fact, great advances were made over the backstop in the negotiations. It was proposed originally for Northern Ireland only, which would have had the most profound consequences for our constitutional situation in the United Kingdom, but that is no longer the case. It embraces the entirety of the United Kingdom and by doing so it breaks the four freedoms that the European Union said would never be broken and produces the very cherry picking that it said it would never contemplate.
In addition, the European Union has made it clear that it wants to implement the terms of the political declaration as soon as possible. If we do not believe it, we should stop now, but if we trust it, then we can place faith in these expressions, whether in a formal treaty, a written declaration or correspondence from the President of the Commission and the President of the Council. If we trust the integrity of our interlocutors, we may better understand the motives of those with whom we negotiate and the extent to which they are truly willing to compromise. We often see the European Union as concerned with economics, social policy and politics, but in reality I suspect that it considers its priorities to be political, social and economic. That is one reason so many people in the United Kingdom chose to leave: they were against the notion, that underpins even the original treaty of Rome, of ever-closer political union.
The withdrawal agreement and political declaration have to be read together and in good faith. We have to trust the promises that are made in good faith and understand the need for compromise on both sides.
Looking to ourselves, we perhaps need to remind ourselves that the referendum was not a choice between good and evil or between ruin and redemption. My noble friend Lord Forsyth of Drumlean suggested at one point that the most reverend Primate the Archbishop of Canterbury had implied that all those who voted leave would go to hell. I do not believe that he suggested any such thing.
(5 years, 8 months ago)
Lords ChamberMy Lords, I am genuinely grateful to the Minister for that Answer which clears up the apparent lack of clarity from the Prime Minister yesterday on the legal force of the 21 January deadline and the lack of certainty from the leader of the House of Commons yesterday on the ongoing force of Dominic Grieve’s amendment. However, six weeks is still a very long time for the errand of collecting mere assurances, not least when the Prime Minister openly contemplates,
“the risk of an accidental no deal”.—[Official Report, Commons, 10/12/18; col. 25.]
The clearest thing of all is that yesterday’s House of Commons vote was pulled in pure, blind panic with little regard for the economic and constitutional consequences for our country.
My Lords, I do not accept the allusion to uncertainty that the noble Baroness referred to. We are following a discernible course of action in order to implement a demanding issue in accordance with the will of the people of the United Kingdom. As regards the idea that it will be six weeks, no time limit has been fixed for the period in which this matter will be the subject of further assurance and in which it will be brought back to Parliament. What we have said is that 21 January is a date beyond which we will not go.
(5 years, 9 months ago)
Lords ChamberMy Lords, I am grateful to the Minister for that Statement, but with the greatest of respect, what have the Government to hide? The Motion passed in the other place the other week was completely unequivocal. It demanded the full and final advice provided by the Attorney-General to the Cabinet in relation to this deal which Parliament is being asked to approve. Surely it would be nothing short of contempt for Parliament not to disclose the full and final advice without delay.
My Lords, the observations of the noble Baroness simply underline the prematurity of this Question. A Statement is going to be made by my right honourable and learned friend the Attorney-General on Monday. To anticipate the content of that Statement in the way proposed by the noble Baroness is wholly inappropriate. As regards the suggestion that the Government are hiding anything, perhaps I may quote the noble and learned Lord, Lord Goldsmith, who said that advice from the Law Officers is,
“covered by legal professional privilege, and is subject to a long-standing convention which prevents disclosure of the advice (or even the fact that the Law Officers have been consulted)”.
That explains why it is not appropriate for me to go further. However, to anticipate a Statement that has not yet been made is, I suggest, wholly inappropriate.
(5 years, 9 months ago)
Lords ChamberMy Lords, I shall not trouble the House for long. Notwithstanding some differences of principle between us, I am very grateful to the Minister and his Bill team for the limited movement towards safeguards in the Bill, but it is a shame that the Bill was not a possible vehicle for the prohibition of cross-examination of domestic violence victims in the family courts. It is government policy and it would surely command cross-party and non-party support, so I hope the Minister will talk to his colleagues in government and make time for this discrete but vital measure before too long.
My Lords, we are conscious of the need to address this measure and have of course addressed it in the past. I note what the noble Baroness, Lady Chakrabarti, has said on that topic but, nevertheless, I beg to move that this Bill do now pass.
(5 years, 10 months ago)
Lords ChamberOne obvious example is the issuing of a summons. Such persons issue about 2.5 million summonses at the instigation of public authorities each year. If every one of those applications for a summons was the subject of judicial reconsideration, with the kind of time limits alluded to in Amendments 8 and 11, the delays involved would be enormous. There are other means by which, in due course, a party may seek to challenge the issuance of such a summons. I take that as one clear example of where it would not be appropriate for there to be judicial reconsideration.
My Lords, I shall speak to Amendment 8 and to Amendment 11, which is consequential, both of which were drafted by the Bar Council.
Clause 3 and the Schedule to the Bill provide for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. This would allow decisions that are currently made by independent judges to now be made by employees of Her Majesty’s Courts & Tribunals Service. The Bill provides that authorised staff will be independent of the Lord Chancellor when carrying out these delegated judicial functions, but they will remain court staff and will not take the judicial oath of independence.
Amendments 8 and 11 would ensure that a party to any decision made by an authorised person in the execution of relevant judicial functions or of a tribunal—by virtue of Section 67B(1) or paragraph 3 of Schedule 5 respectively—may apply in writing within 14 days of the service of the order to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.
A statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge was recommended by Lord Justice Briggs in his 2016 report Civil Courts Structure Review: Final Report. That right is currently already provided for, for example, in the tribunal procedure rules. Lord Justice Briggs said:
“The creation of an extensive right to have the decisions of Case Officers considered by a judge has from the outset been regarded as the natural safety valve for concerns about what was … described as the delegation of judicial functions to persons who are not judges”.
As a minimum safeguard, the right of consideration has the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if the right of appeal were, for example, created. It is important to point out that this consideration on the papers by a judge is not the same as a full right of appeal. It has the additional benefit of going further than a right of review, guaranteeing judicial oversight of a decision which a right of review would not ensure.
Crucially, this statutory right would also ensure compliance with Article 6 of the European Convention on Human Rights—the right to a fair trial—surrounding decisions affecting people’s rights by an independent and impartial person, which is not a member of court staff. It is a proportionate safeguard relevant to the new powers created by the Bill. Your Lordships are aware that Article 6 provides that the determination of a person’s civil rights and obligations or any criminal charge against them must be undertaken by an independent and impartial tribunal established by law.
The requirements of independence apply not only to the tribunal but also to any judge or other officer authorised by law to exercise judicial power. As the Ministry of Justice acknowledges in its memorandum on the Bill,
“In considering independence, … guarantees against outside pressures are relevant – as is the question whether the body presents an appearance of independence”.
In that human rights memorandum, the MoJ suggests that it is intended that,
“case management decisions which it is proposed these authorised members of staff will be able to take will be uncontentious and not of sufficient importance to engage Article 6”.
However, case management decisions can have a significant impact on shaping the issues, progress and ultimate outcome of the case. For example, a decision on the appropriate timescales within which a party should take a step in proceedings may be significant, as failures to comply with that timescale can subsequently lead to some or all of the party’s case being struck out.
Furthermore, the Ministry of Justice’s fact sheet on the delegation of functions to non-judicial staff states:
“In future, we expect that authorised staff will be able to carry out a range of functions and responsibilities, including case management powers and some mediation roles”.
This suggests that it is envisaged that such staff will have a role beyond merely making non-contentious decisions on purely procedural matters in future.
The Government’s welcome amendment excludes some functions from delegation, but there are still others that may be significant to the progress and outcome of an important case. Such functions—for example, the issuing of an arrest warrant to secure a person’s attendance in court—can still be delegated to non-judicial staff.
In Committee, the Minister argued that a blanket right to reconsideration across all jurisdictions will not work in practice, as it will add significant cost and delay to the process on the basis that a dissatisfied party will inevitably apply for reconsideration by a judge, thereby negating the benefits of delegating decisions to staff. However, this objection was dealt with by Lord Briggs in his Civil Courts Structure Review: Final Report. He accepted that,
“an unfettered right of reconsideration will be a necessary long-stop”.
He also cited evidence from real-life precedents, suggesting that where such a right exists elsewhere, the number of reconsideration applications is low. Surely that should continue to be the case, particularly if, as the Ministry of Justice suggests, the decisions being made by authorised staff are properly non-contentious.
The Government’s concession, placing an obligation on the relevant rule committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns than their concession on delegated functions themselves, such as the safeguard in relation to a person’s liberty in their home. In fact, the Government’s concession here replicates the fundamental problem with the effect of the Bill. Placing the obligation on the rules committee, which ultimately does not have the budget to fund the Courts Service, delegates a legislative duty to an unaccountable body.
We on this side of your Lordships’ House strongly believe that Parliament has a legitimate role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection for the right to a fair trial. Consequently, I urge noble Lords to support our amendments, which have already been endorsed by the Law Society, the Bar Council and the Equality and Human Rights Commission. They propose a statutory right to judicial reconsideration for any party to a judicial decision made by an authorised person, or non-judge. This would afford stronger protection for the right to a fair trial and guarantee the independent and impartial determination required by Article 6.
(6 years, 1 month ago)
Lords ChamberMy Lords, as the noble Baroness said, this amendment would require the Lord Chancellor to publish, within 12 months of Clause 1 coming into force, a report on the availability of training for judges that will enable them to be flexibly deployed.
As has been noted, the Lord Chief Justice and indeed the Senior President of Tribunals already have far-reaching powers of deployment. The measures in the Bill seek to amend and build on existing powers in legislation. Of course, it is the Lord Chief Justice and the Senior President of Tribunals who are responsible for arrangements for the training of the judiciary. As the noble and learned Lords, Lord Judge and Lord Neuberger, observed, it will be for the Lord Chief Justice, who is responsible for training, to report on these matters, as he seeks to do in his annual report. It would not be appropriate in these circumstances for that responsibility to pass to the Lord Chancellor.
With regard to funding for training, the Lord Chancellor is committed to providing suitable funding for the judiciary; that includes funding in the area of training, particularly by the Judicial College. I add only that that is in accordance with the arrangements that have to be made for resourcing under the Constitutional Reform Act 2005. As I indicated, the Senior President of Tribunals has an equivalent responsibility in relation to judges and members of the tribunals within the scope of the Tribunals, Courts and Enforcement Act 2007. Those responsibilities are exercised through the Judicial College.
The report that the Lord Chief Justice provides with regard to judicial training is a report to Parliament, so it will be available to Parliament in due course. Therefore, it would be inappropriate for the Lord Chancellor to report to Parliament on the availability of judicial training, a matter that is properly for the senior judiciary.
In these circumstances, I venture that the amendment is unnecessary. We can be confident that all our judges are recommended for appointment by the Judicial Appointments Commission following a rigorous process. At a minimum, they will have met the statutory eligibility criteria for the relevant office. In relation to the offices in Clause 1, in many cases the judges will have already met the statutory eligibility criteria. In addition, when it is required, they will have also demonstrated specialist expertise—for example, where judges are appointed or authorised to specific jurisdictions, such as the Commercial Court, the Media and Communications List and the Technology and Construction Court or TCC.
The Judicial College strategy for 2018-20, published in December last year, states:
“All newly appointed and newly assigned judicial office holders will receive induction training”.
It says that, over this period:
“The College expects to deliver more induction training to support increasing flexibility of judicial deployment across courts and tribunals when workload fluctuates”.
The Judicial College has also been devising more cross-jurisdictional training in skills required for all jurisdictions because of the flexibility in deployment that will be available.
On whether or not the provisions in Clause 1 will make a significant contribution to what has been referred to as the recruitment crisis, I cannot say that on its own it will make a significant contribution to recruitment, but certainly the flexibility that is being introduced into the system may assist in that regard. We recognise that more needs to be done with regard to that matter. The noble Lord, Lord Pannick, will be aware that the terms and conditions of the senior judiciary will be the subject of a report later this year. I look forward to that so that we can consider how the matter can be taken forward.
The noble Lord, Lord Beith, raised the rollout of digitisation with regard to the court process. Of course, we hope eventually to bring all these developments together. They are complementary to each other. I acknowledge that we have not yet been able to introduce further provision within the narrow confines of this Bill, but it is our intention that the provisions anticipated by the Queen’s Speech, and indeed laid out in the original Prison and Courts Bill, will be brought forward when legislative time allows.
I hope that I have gone some way to reassuring the noble Baroness, Lady Chakrabarti, that the appropriate training arrangements are in place to support flexible deployment of the judiciary and that she will see fit to withdraw her amendment. I pause to observe that the points raised by the noble Baroness, Lady McIntosh, arise in respect of later groups. Perhaps I may address them at that time.
I am grateful to the Minister for that reassurance as to process and to other noble and learned Lords for their exposition of the responsibilities on the Lord Chief Justice, the Judicial College and so on. I have yet to be reassured, however, about the adequacy of funding for this training or the adequacy of funding to the MoJ to deal with, among other things, this recruitment crisis. I fear that we may have to return to this matter but, for the moment at least, I beg leave to withdraw Amendment 1.
My Lords, Amendment 3 relates to the power in Clause 3 for the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to the authorised staff provisions by way of regulations. It provides that they are subject to a process of negative resolution by Parliament, while the amendment seeks to apply the affirmative resolution procedure.
We believe that it is necessary to take the power in Clause 3(2) to avoid any implementation difficulties or legislative inconsistencies that could arise from changing the law. We have already identified consequential amendments to primary legislation and have made provision for them in the Schedule to the Bill. The necessary changes to secondary legislation may not become apparent until after the provisions in the Bill are implemented; therefore, this power is needed so that the authorised staff provisions can be given full effect. However, I emphasise that it is not concerned with making consequential amendments to primary legislation, for which provision is already made in the Schedule, and so this is a narrow power. As I indicated, the power cannot be used to amend primary legislation, so in these circumstances we considered that the negative resolution procedure is entirely appropriate.
I hear what noble Lords and noble and learned Lords have said about moving from the negative to the affirmative procedure, and I will give further thought to that. However, at this stage I invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment.
My Lords, I am grateful to the Minister, and in particular to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for their kind encouragement. In the light of all that, I am happy at this stage to beg leave to withdraw the amendment.
Again, I am obliged to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Neuberger, and other noble Lords for their contributions on this matter. Of course, the purpose of the amendments is to give a party in a case the right to request in writing that any decision of an authorised person exercising the functions of a court or tribunal be considered afresh by a judge.
The Schedule to the Bill ensures that the functions of a court or judge that authorised staff may exercise will be determined, and be given appropriate scrutiny, by experts in the form of the independent procedure rule committees. The purpose of these provisions is to enable authorised staff to undertake straightforward case management and preparation duties, thereby freeing up judges to focus on more complex and contentious matters. We are not proposing that these officeholders will undertake, for example, the determination of the final outcome in a contested case. It is our view that a statutory right set out in the Bill to have any decision made by an authorised person considered afresh by a judge would be inappropriate and disproportionate.
I have some sympathy with the intention behind the amendments and the desire to provide protections for court users. Our view, which I believe is reflected in the observations of the noble and learned Lord, Lord Neuberger, is that a decision about whether a right to reconsideration is needed should be left to the experts on the rule committees who are best placed to understand the circumstances in which a review mechanism may be required in their particular jurisdictions. It is not a case of one size fits all. To that extent, I would take issue with the observations of the noble Lord, Lord Marks. The committees should also consider any appropriate time limits for review and the way in which any application should be made. Again, that is essentially a matter for the committees.
These provisions already exist in our procedure rules. Practice Direction 2E of the Civil Procedure Rules makes express provision for review in civil money claims of a decision by a legal adviser. Under the tribunals procedure, in accordance with Rule 4(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008, there may be a review of a decision made by a caseworker. In the magistrates’ court, there is provision for an application to be renewed before the magistrates where it has been dealt with previously by a caseworker. In the Crown Court, there is an inherent jurisdiction to hear such applications at the time of an appropriate hearing. I seek to emphasise that there is a diversity of approaches, all of which generally apply their mind to the question of the review of the decision of a caseworker, and those reflect the views of the relevant rule committee as to what is appropriate for the particular tribunal, court or level of court. That is what we feel should be left open and which would be lost by this amendment.
I go back to an observation that was made earlier, quoting the noble and learned Lord, Lord Thomas, at Second Reading, that,
“detailed restrictions on procedure are a very real fetter on the administration of justice”.—[Official Report, 20/6/18; col. 2039.]
That is what we want to free up here. It is appropriate that these decisions should be made by the procedure rule committees. I hope that in the light of those observations, the noble Baroness, Lady Chakrabarti, will see fit to withdraw her amendment.
Once more, I am grateful to the Minister and other noble Lords for engaging with this argument. I do not wish to bore your Lordships’ with this, but there are some really serious concerns at play. I am told to be reassured by the rule committees, and of course I hold the rule committees in enormous esteem, but the rule committees cannot provide the funding that would avoid pressure to overdelegate to underqualified people in the future. When I raise these concerns, I am told that I must not worry because of the rule committees.
My second concern is that the public have a real and reasonable expectation that significant contested decisions in a court will be made by a judge; or, if not, at least that there would be a right of appeal or review before a judge. In the light of the repeated reassurances in the context of different attempts to constrain delegation in the Bill, we will have to return to this issue on Report. For the time being, I beg leave to withdraw the amendment.
(6 years, 4 months ago)
Lords ChamberMy Lords, in circumstances where a person accepts a sum of money which is beyond reasonable indemnity for any loss they have suffered on the grounds that they will not disclose wrongdoing or a criminal offence, they themselves are liable to commit a criminal offence.
My Lords, the Minister will remember, I think, a very similar Question being asked on 22 January. It is now a glorious May Day. Given the complexities and competing public concerns around this issue, might the Government not consider setting out a clear timetable for clarity in policy and potential legislation in this area?
My Lords, the House of Commons Women and Equalities Select Committee is currently conducting an inquiry into sexual harassment in the workplace and has taken evidence about the misuse of NDAs in that context. The Government want to see what the committee has to say about that before reaching their own conclusions. In other words, we will make an informed decision on the matter.
(6 years, 7 months ago)
Lords ChamberMy Lords, clearly the development of digital media has increased the demands made on both the police and the prosecution service in the investigation of crime. Indeed, in their most recent report, National Disclosure Improvement Plan, the National Police Chiefs’ Council, the College of Policing and the Crown Prosecution Service indicated that they will develop a joint protocol by March 2018 for the examination of digital media.
My Lords, on the one hand we have urgent crisis reviews of pending prosecutions for fear of potential non-disclosure and unsafe trials and, on the other hand, we have various women’s groups telling us that the existing law designed to protect women from degrading questioning about their sexual histories is not being applied, and that causes fear as well. To add insult to injury, a notorious sex offender will be released on parole without rhyme or reason and without a voice for the victims of crime. Will the Minister please agree that it is time for the Government to give urgent attention, if not resources, to restoring faith, trust and confidence in our criminal justice system?
My Lords, what is necessary is that a responsible Government should not arm wave but, instead, respect the rule of law.
(6 years, 7 months ago)
Lords ChamberThe Government are conscious of the importance of confidentiality clauses, particularly between employers and departing employees. It may, for example, be important to protect confidential information material to a business. But we are equally concerned to ensure that the limitations are legitimate and that it is not possible to exploit such clauses in order to turn them into what are sometimes termed gagging clauses.
My Lords, I think all of us, including the Minister, can agree that there are certain clear examples of cases where no court or tribunal should attempt to enforce one of these clauses, because it would be contrary to public policy. For example, the victim of a sex offence should be able to go to the police without anyone enforcing a clause against her. But it gets more complex beyond that. Does the Minister agree that if there are victims who are, de facto, chilled from coming forward, the Government have a role in clarifying and possibly legislating in this area?
My Lords, the Government have committed to consider the report of the committee that is looking into this issue, and will then determine what further steps should be taken. We would prefer to react to the outcome of that report rather than anticipating it.
(6 years, 8 months ago)
Lords ChamberMy Lords, disclosure in the context of criminal cases has not gone backwards since 1998. There is no present intention to set up an inquiry of the type referred to by the noble and learned Lord.
My Lords, I think we can all agree that early and adequate disclosure is at the heart of a fair criminal justice system. Given that the senior independent prosecutor at the Bar who averted a recent miscarriage of justice, in addition to being a senior and experienced prosecutor, is a former Conservative MP, who described a system “creaking” for lack of resources, will the Minister please consider my noble and learned friend’s request and, in any event, return to this House with a Statement after more full and adequate consideration of what happened here?
My Lords, the matter to which the noble Baroness, Lady Chakrabarti, alludes was a recent case in which the Crown withdrew and the matter did not proceed. There is to be a joint internal review by the CPS and the police to determine what occurred in that case. With regard to the case that she alludes to, the CPS has acknowledged that its standards may have fallen below what is expected and it has apologised to all the parties involved.