Criminal Justice and Courts Bill

Lord Faulks Excerpts

Wednesday 22nd October 2014 Lords Chamber

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

My Lords, I am grateful to all those who contributed to this debate on these complex issues involving the conflict between a free press, the public’s right to know and the natural desire we have to protect young people from publicity to make sure that they do not suffer for life for any sins they committed in their youth. In acknowledging everyone’s contribution, perhaps I may single out the noble Lord, Lord Ponsonby, who I think, although I may be wrong, is making his debut from the Opposition Front Bench. Noble Lords are shaking their heads and I understand that he is not. Therefore, my congratulations are late but none the less sincere.

Amendment 139 provides the criminal courts with a discretionary power to order reporting restrictions that last for the lifetime of a victim or witness in criminal proceedings who is under the age of 18 at the time those proceedings commence. Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s from print and broadcast media to include online content as well. Amendment 139 tracks the circumstances in which a lifelong reporting restriction may be available to an adult witness. The criminal courts are therefore given an additional statutory discretion to order lifelong protection for victims and witnesses under the age of 18 to secure their best evidence or co-operation. However, if it is not reasonable or proportionate to make use of this power, the court may continue to rely on the existing youth reporting restrictions available to children and young people.

As these amendments have been tabled in response to the High Court judgment and the noble Lord, Lord Ponsonby, bringing it to our attention in Committee, consultation with the Scottish Government is ongoing and the government amendments are not intended to change the situation in Scotland. Some further technical amendments may be required at Third Reading in respect of territorial extent.

The issue of criminal investigations is covered by Amendment 122AA, which is tabled by my noble friend Lord Marks. This amendment seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999. It is similar to an amendment tabled by the noble Lord, Lord Ponsonby, in Committee. On previous occasions, I explained to your Lordships that, given the significant restriction that Section 44 potentially imposes on freedom of the press and the possibility that its aims might be achievable through other means, it was determined by the then Government in 1999 that Section 44 should be commenced in relation to victims and witnesses only after both Houses have been given the opportunity to debate the issue again.

I fear that I must repeat what I said in Committee. The Government do not believe that this is the right time to consider commencing Section 44 in light of the significant changes to independent press self-regulation that we have introduced. The Privy Council granted a royal charter that has been sealed. The Government believe that that is the best way to ensure that independent press self-regulation operates successfully and that we should give this new approach a chance to succeed. I am sorry that my noble friend Lord Marks does not have much confidence in this. Furthermore, we have some misgivings about Section 44 as drafted, as it imposes restrictions on the press that are so broad as to be potentially impractical.

However, I reassure my noble friend that it is unnecessary to amend Section 44 in order to extend it to online content as we believe that it already covers such media. Section 44 adopts a definition of “publication” that is wide enough to include online content. I will explain this further in dealing with the final set of government amendments and, in due course, I will ask the noble Lord to withdraw his amendment.

In respect of online content and youth reporting restrictions, Amendments 140, 141, 175, 183 and 184 widen the scope of reporting restrictions applying specifically to under-18s. Through these amendments, and by commencing Section 45 and the relevant parts of Section 48 of the YJCE Act 1999, restrictions will also be applicable to online content. The Government intend to commence the relevant provisions of the 1999 Act when the amendments to this Bill come into force.

Youth reporting restrictions will rely on an existing statutory definition of publication, which includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public, but does not include an indictment or other document prepared for use in particular legal proceedings. By using this definition of publication we will broaden the scope of youth reporting restrictions to create consistency with other reporting restrictions already on the statute book, such as those that apply to adult witnesses and victims of sexual offences. It would also be in line with the definition used in Section 2(1) of the Contempt of Court Act 1981 which the Law Commission recently concluded was,

“wide enough to cover the content of new media and probably in the future too”.

The Government agree with that interpretation and have therefore adopted the same definition of publication when extending the scope of youth reporting restrictions to online content. I hope that that reassures the noble Lord, Lord Ponsonby, that the purpose of his Amendment 123 has been met—and I would therefore ask him not to press it.

During the course of the debate there was some reference to whether there was any justification for the distinction between victims and witnesses and defendants. There are a number of statutory protections within the criminal justice system that are applicable only to victims and witnesses. One example is Section 46 of the YJCE Act 1999, which provides for the possibility of lifetime reporting restrictions for adult witnesses. The Sexual Offences (Amendment) Act provides for automatic reporting restrictions for victims of sexual offences. Similar statutory powers are not available for defendants.

I respectfully agree with what the noble Lord, Lord Ponsonby, said about the position of someone who is 17 and then becomes 18. He asked why there should be a difference so that if someone is 17 they have lifetime anonymity. Of course, there are remedies available. If your Lordships accept the Government’s amendments, it is argued that the current position reflects a fair balance between the various considerations that apply in this field. More clarity may be needed in this area of concern, which we will be considering.

I understand that Impress, the second potential self-regulator, is currently appointing its board. We would respectfully suggest that these are matters for the industry and not for government. I also understand that David Wolfe QC has been appointed chair of the independent Recognition Panel and that the board appointment process is also under way. This is a matter for the Commissioner for Public Appointments and not for government. Therefore, for the moment the Government have done all that they need to do.

[The Earl of Listowel]

My Lords, I am grateful to the Minister for his reply. I note the emphasis he puts on the charter and the institution that is set in place to improve the way in which the media control themselves. From what he said, I take it that he has an open mind to a certain extent. These are new developments. The charter is a new thing. He will keep looking at it to see if it provides sufficient protection for young people. I am grateful for that open-mindedness.

I was grateful for what the noble Lord, Lord Ponsonby, said. He referred to 17 and a half and 18 year-olds and that it seemed unfair to distinguish so much between the two when there was such a small gap. My response might be: can we not be generous to children? They are still children until the age of 18: can we not err on the side of generosity towards them? I am grateful to all noble Lords who have taken part in this debate and I beg leave to withdraw my amendment.

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Moved by

[Lord Faulks]

124: Before Clause 44, insert the following new Clause—
“Time limit for bringing certain criminal proceedingsOffence of making improper use of public electronic communications network
(1) In section 127 of the Communications Act 2003 (improper use of public electronic communications network), at the end insert—
“(5) An information or complaint relating to an offence under this section may be tried by a magistrates’ court in England and Wales or Northern Ireland if it is laid or made—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.(6) Summary proceedings for an offence under this section may be commenced in Scotland—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.(7) A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.”
(2) The amendment made by this section applies only in relation to an offence committed on or after the day on which it comes into force.”

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[Lord Faulks]

My Lords, I am grateful for the speeches made by my noble friend Lord Marks and the noble Lord, Lord Ponsonby, in this group of amendments concerning the criminal courts charge. There was lengthy debate in Committee, and I responded at some length, so I hope they will not consider it any disrespect to their arguments if I summarise the Government’s position fairly briefly.

The question of discretion has arisen once more. My noble friend Lord Marks seeks to vary his original suggestion by fettering the discretion somewhat but nevertheless importing a degree of discretion, as was discussed at length. It is the Government’s position that that is inappropriate.

The point was made in Committee and this evening that many noble Lords consider the charge unfair in the case of poor offenders. The Government believe that it is right that all adult offenders, whatever their means, pay towards the cost of running the courts, alleviating the burden on the taxpayer. I know that noble Lords who are concerned about this area will have seen the figures published on the website before Committee stage about the charges by band. They are quite modest, but it is nevertheless hoped that they will reflect some compensation to the country for defendants who use the courts because they have committed offences. As I said previously, offenders can apply to vary payment rates if their financial circumstances change. In addition, offenders who comply with their payment terms and who do not reoffend can have their charge remitted after a specified period. The imposition of this charge is not designed to be a punishment, so confusing it with the various discretionary powers that the court has rather misses the point.

Amendment 125D would stipulate that the charge cannot exceed the amount specified by the Lord Chancellor in the regulations. The Bill is drafted so that a charge to be paid is of an amount specified by the Lord Chancellor, so I am sure that my noble friend Lord Marks will agree that this leaves no room for charges exceeding the amount specified to be imposed, which should mean that the amendment is unnecessary.

Amendment 126A would omit the requirement for a specified period of time to have passed before the court charge debt can be written off. If accepted, it would provide the court with wide discretion to remit the charge early, as and when it sees fit. The clause as it currently stands has the benefit of allowing a court to remit the charge where the offender has taken all reasonable steps to pay and does not reoffend. This is a powerful incentive for offenders to repay the charge and refrain from reoffending, ensuring that a specified period is a fundamental feature of the remission provisions—a key aspect of this policy which I hope the House will not overlook.

Amendment 125E seeks to specify that where a charge can be remitted it can include the remission of interest. I respectfully point out to my noble friend Lord Marks that Clause 42 gives the magistrates’ court power to remit the charge under particular circumstances. It is intended that this provision be used where an offender has paid accordingly and has not gone on to reoffend. It can also be remitted where the debt is unenforceable.

New Section 21D(4) of the Prosecution of Offences Act 1985, inserted by Clause 46, makes it clear that interest payable under the regulations is to be treated as part of the charge. It therefore follows that any remission of the charge would comprise the whole debt, including the interest. I hope that reassures the House that the Government have carefully considered this provision and will satisfy my noble friend such that he might not press his amendment.

I stress, however, that this is a novel scheme and the Government have already agreed to review the policy after three years. Of course, we will monitor its impact closely until then. The Lord Chancellor must repeal the provisions if he considers it appropriate, having regard to that review. I am sure that the noble Lord will agree that this further safeguard demonstrates the Government’s commitment to getting this right.

I turn finally to the Criminal Procedure Rules and the amendments tabled by the noble Lords, Lord Ponsonby and Lord Beecham, which seek to widen the conditions that must be met for the courts charge to be remitted. The amendments would broaden the court’s power to such an extent that the charge could be remitted also in cases specified in those rules.

The effect of the amendments would be to confer on the Criminal Procedure Rule Committee a jurisdictional power by enabling it to set rules concerning substantive legal matters and by giving it a significant level of discretion to prescribe the circumstances in which the charge could be remitted. This would of course contravene the Government’s position that it is an administrative charge.

If I understand the noble Lord’s arguments correctly, he is seeking to afford the committee the power to determine the instances in which the criminal court charges might be remitted, although he does not give a clear indication as to which cases would be specified in the rules to which discretion may be applied.

The Bill as it stands already allows for the courts to cancel the charge, as I have indicated, but we submit that it is inappropriate to use these rules as a means to set the criteria for remission. I am sure noble Lords are aware that the function of the Criminal Procedure Rules is to govern the practice and procedure of the criminal courts. The responsibility of the Criminal Procedure Rule Committee is to make those rules. With great respect, this amendment would afford that committee a power beyond its current jurisdiction. The choice of criteria for remission should be one for Parliament itself. I fear I cannot agree that it is appropriate for this power to be attributed to the committee.

I understand the noble Lord’s concern about the impact of the charge on particular offenders whom he encounters in his capacity as a magistrate. The Government are aware of that risk and are monitoring any adverse impacts. I also confirm what the noble Lord said about his discussion with my officials in relation to Section 135 of the Magistrates’ Courts Act 1980. I hope that I have satisfied the noble Lord and that he will withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I will of course seek leave to withdraw the amendment in a moment. Very briefly, the point of tabling further amendments on Report, following the debate in Committee, which move slightly towards the Government’s position, was in the hope that the Government might have considered the debate and moved towards our position. So I make no apology for repeating the position that I took in Committee.

I also want to make it clear that I think all of us in this House agree with the general principles stated by my noble friend that there is a very strong case for ordering defendants who can pay a criminal courts charge on conviction so to pay it. Our concern is with those who plainly cannot pay it or cannot pay all of it. I entirely accept and appreciate the support of the noble Lord, Lord Ponsonby, for my position. However, I am not sure that the traditional punishment meted out to those who are drunk and brought before the magistrates’ court of £1 or a day—that kind of formulation of giving a period of custody in default of payment right at the outset—will mitigate the mischief at which my amendments are aimed.

I shall also simply say two further things. First, the point of my Amendment 125D and the words “no greater than” is to make sure that the amount specified in the regulations is the maximum that can be charged, but that the court would have the power to impose a lesser charge. I believe that the amendment, if implemented, would have achieved that end.

Finally, I suspect that when it comes to the review of the operation of this charge in three years’ time, Parliament and the Government may well find that the procedure for remitting the charge and having hearings as to whether or not a charge should be cancelled at a later date is unduly unwieldy, cumbersome and expensive. With those observations, I beg leave to withdraw my amendment.

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[Lord Faulks]

My Lords, I am most grateful to all those who have spoken in the debate. This is not, I readily concede, a straightforward provision. Our debates both in Committee and on Report have been illuminating. The stance taken by the noble Lord, Lord Beecham, tonight is somewhat different from that which he took in Committee—but I commend him on his mental agility in that regard. Of course, the fact that his arguments have somewhat changed—

[Lord Beecham]

My Lords, will the Minister take it from me that I can count?

[Lord Faulks]

The noble Lord’s arguments do not deserve lesser consideration for their recent arrival in our debate. He asked, for instance, why personal injuries, rather than other fields, should be singled out for attention. The answer is simply this. Of course fraud has a role in the law of contract, the law of property and other areas of the law. But this is a provision to deal with a particular mischief, of which we are all aware in one form or another. Unfortunately, the explosion of claims, with dishonest claims and people calling others to invite them to participate in dishonest claims, has become widespread, and the Government are responding in a variety of different ways, including by regulating claims management companies—I am glad to see the reduction in the number of such companies—and by introducing this provision.

Amendment 128 was tabled by my noble friend Lord Hunt of Wirral, to whom the House listens very carefully on all things, but perhaps particularly in areas such as this. It would extend the scope of Clause 49 to cover claims for items linked to the personal injury claim. As he has indicated, this could typically include items such as damage to property and the cost of credit hire. The effect of the amendment would be that where the court was satisfied that the claimant had been fundamentally dishonest, its order would dismiss any such related elements, as well as the claim for personal injury—when, for example, a claim for personal injury is used as a vehicle for other fraud.

I understand precisely what my noble friend says, and I have considerable sympathy for what lies behind the amendment, which is to make the clause as strong a deterrent as possible. However, after careful consideration by my officials and myself, I believe, on balance, that it would unnecessarily complicate the clause, and could have unintended consequences that would not be desirable.

The types of loss that would be caught by the amendment arise primarily in motor accident claims, and in practice payments for such losses are generally made up front by the claimant’s insurer, and are then recovered by them from the defendant’s insurer in the event that negligence is admitted or proved. This means that the amendment could affect subrogated rights between insurers, and could operate to the disadvantage of the claimant’s insurer, who would find it much more difficult to recover such sums. That might in turn have the undesirable consequence of making insurers less inclined to make payments in respect of this kind of loss to genuine victims of accidents for whom, for example, the rapid replacement of a vehicle could be essential.

The complexity of the law on subrogated rights means that the potential for this type of unintended consequence would be high. In any event, I do not consider the amendment necessary. The existing focus of the clause on personal injury claims avoids complexities of this nature, and ensures that the core matter in relation to which the claimant has actually been dishonest, and where the main scope for dishonest behaviour arises—the personal injury claim—will be dismissed whenever the court considers it appropriate. We are confident that this should provide a sufficiently powerful deterrent to discourage claimants from seeking to bring fraudulent and exaggerated claims, and believe that the amendment could on balance run the risk of creating uncertainty in the law and would make the clause unnecessarily complex in practice.

On Amendment 128A, the noble Lord, Lord Beecham, said that it would be more appropriate to have not the civil standard of proof but the criminal standard of proof. I think that he refers—if not explicitly, implicitly—to a recommendation of the Joint Committee on Human Rights on this, which based its recommendation on the view that the inclusion of the relevant measure is indicative of the quasi-criminal nature of the sanction imposed by the dismissal of the claim. The Government strongly disagree that that is the case. Subsection (7) simply ensures that the order for dismissal can be taken into account by a court hearing any proceedings against the claimant in relation to the same dishonest behaviour, whether they be civil or criminal proceedings for contempt or a criminal prosecution. This is to ensure that the claimant is dealt with fairly and that any punishment imposed in those proceedings is proportionate given the overall effect of the consequences of the claimant’s dishonest behaviour upon him or her. This approach is also reflected in other aspects of the clause—in particular, subsection (5) in relation to costs sanctions.

As we have set out in the ECHR memorandum accompanying the Bill, we consider that the adoption of a civil standard of proof can be fully justified. The sanction of deprivation of property involved in the dismissal of the claim would occur in the context of civil proceedings in relation to civil compensation, proceedings which are brought by the claimant, not the state. No criminal conviction could arise from the dismissal process itself, and it does not involve anything that could be said to be a criminal charge. We consider that the analogy drawn in the ECHR memorandum with the approach of the European Court of Human Rights and the domestic courts to confiscation proceedings under the Proceeds of Crime Act 2002, in which a civil standard of proof has been upheld, is a valid one, and that the adoption of the civil standard of proof in Clause 49 is both fair and appropriate.

Amendments 128B, 128C, 128D, 128E, 130A and 130B tabled by my noble friend Lord Marks are similar but not identical to those tabled by him in Committee, save that the court is given a discretion to reduce the award of damages rather than dismiss the claim entirely, or, it would seem, take no action at all, in circumstances where the genuine part of the award is £25,000 or more. We do not believe that it is appropriate to impose a financial limit of this nature. I endorse what the noble Lord, Lord Beecham, said about this. Although the widening of the court’s discretion not to dismiss the claim is of a lesser extent to that which the noble Lord previously suggested, the amendments would still weaken the effect of the clause and interfere with its effective operation by imposing what is inevitably an arbitrary dividing line.

As I explained in Committee, the sanction imposed by this clause—the denial of compensation—is a serious one, and will be imposed only where the claimant’s dishonest behaviour goes to the heart of the claim. If the court, having heard all the evidence, is satisfied that that is the case, I believe that it is right that it should be required to dismiss the entire claim unless doing so would cause substantial injustice to the claimant. People who behave in such a way should not be able to get compensation regardless, whatever the amount involved.

The amount of compensation which the claimant would otherwise have been awarded, and the proportion of the overall claim which that represents, will, of course, be matters that the court may wish to take into consideration in deciding whether the claimant has been fundamentally dishonest and, if so, whether its discretion not to dismiss the claim should be exercised. Where the effect on the claimant might be particularly harsh or unfair on the facts of the case, the substantial injustice test will provide sufficient protection. The addition of a further discretion simply waters down the deterrent effect of this provision.

On Amendment 129, during the debate in Committee some uncertainty was expressed about the policy intention underlying subsection (5) of Clause 49, and whether the existing drafting of the subsection clearly and accurately captured that intention. In the light of those concerns, we have tabled government Amendment 129, which clarifies the position by replacing the existing subsection with a new subsection. This provides that when assessing costs in the proceedings, a court which dismisses a claim because of the claimant’s fundamental dishonesty must deduct the amount of damages that it would have awarded to the claimant from the amount of costs which it would otherwise order the claimant to pay in respect of the defendant’s costs. The intention underlying this provision is, as I have previously explained, to ensure that claimants are not excessively sanctioned by both losing the genuine element of the award of damages and having to pay the defendant’s costs without any credit for what the defendant has saved by avoiding payment of the genuine element of the award. I should add that one of the main intentions behind this provision is to deter people from bringing these claims at all, or at least deter them from being dishonest when advancing them.

Beyond that, it is not our intention to interfere more generally with the court’s discretion on whether to make a costs order and, if so, in what terms. We believe that the court should be able to make whatever orders it considers appropriate. In many cases the court will doubtless decide to award the defendant’s costs in full, apart from the sum deducted under this subsection. However, in some cases, it may decide only to award the defendant some of its costs in circumstances where it considers that certain costs have been unnecessarily incurred—for example, where the defendant had spent money pursuing an irrelevant issue.

Amendment 129 preserves the court’s discretion to do this, or indeed to decide, in the circumstances of a particular case, to make no award of costs at all. We believe that it is important for a provision on this issue to remain in the clause to ensure that it operates in a fair and proportionate way, and I am therefore—although I do not think my noble friend is pursuing it with any vigour—unable to accept Amendment 128F, which would remove it altogether.

My noble friend Lord Hunt has indicated that he remains concerned that Amendment 129, the government amendment, may still create some confusion, and has proposed Amendment 130 instead. While I share my noble friend’s concern to ensure that the provision is as clear as possible, on careful consideration, we do not believe that his fears about our amendment are justified.

In particular, I should point out that, even if the actual assessment of the amount of costs payable is undertaken by a different judge or officer at a later date, as would normally be the case in a detailed assessment of costs, assessment is still being undertaken by the same court that has dismissed the claim, and so the requirement to deduct the amount recorded in subsection (4) from the ultimate costs “bill” that the claimant may have to pay applies regardless of the point of time at which, or judge by which, the costs payable are determined. I am also concerned that my noble friend’s amendment simply restates the existing law confirming the discretion of the court to award costs. On balance, we feel that it is unnecessary to restate this in legislation, and it might be taken to imply that this was not already the position, or that special rules regarding the court’s discretion as to costs are required in these cases. That would be contrary to the policy, which is not intended to make any changes to the rules on costs themselves.

On reflection, I consider that government Amendment 129 makes it amply clear that if the court decides to order costs against the claimant, it must deduct the amount of the damages it would have awarded but for the effect of Clause 49, so that the claimant has to pay whatever costs, if any, that are ordered net of that amount. I believe that the Government’s amendment clarifies this policy intention in a way that removes any ambiguity that might have arisen from the previous text of the subsection. However, I remain extremely grateful to my noble friend for drawing that to the attention of the House. I am sorry that I detained the House a little longer than might be desirable at this time but these are complex provisions, and it may be helpful if I provide a little detail about this.

I conclude by dealing with the question of where parts of a claim may be involved. The noble and learned Lord, Lord Hope, pointed out a possible ambiguity. It may be that this is what he has in mind. I shall answer the question: why does the court have a discretion not to dismiss the claim when the claimant would suffer a substantial injustice? We believe that an element of discretion is necessary because difficult cases may arise where depriving the claimant entirely of damages may cause substantial injustice. This might be the case, for example, where a claimant had genuinely been very seriously injured through another person’s negligence, perhaps requiring substantial ongoing future care and support as a result, but stupidly colluded in a bogus minor injury claim by a family member in relation to the same accident. We do not, however, think there is any need to amend the provisions. We think that judges will be able to work with these provisions and that the Government’s intention and, I hope, that of noble Lords from all around the House, will be achieved by these important provisions. I hope that all noble Lords who have tabled amendments will agree to withdraw or not move them.

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Moved by

[Lord Faulks]

129: Clause 49, page 48, line 26, leave out subsection (5) and insert—
“( ) When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.”

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Moved by

[Lord Faulks]

131: Clause 50, page 49, line 10, at end insert “or is treated as doing so under subsection (3A)”

[Lord Faulks]

My Lords, I am grateful once again to my noble friend Lord Hunt of Wirral for raising this issue in Committee. During that debate, I indicated that we would consider his amendment further. There has been widespread support for the ban on offering inducements to bring personal injury claims in Clauses 50 to 52, but I am concerned to make this as effective as possible. Having reflected over the summer—I have been given a great deal on which to reflect over the course of the Bill—I agree with my noble friend that we should seek to prevent regulated persons avoiding the ban by offering an inducement through third parties.

The noble Lord’s amendment was prompted by a concern that it is now increasingly common for solicitors to operate as part of larger groups of companies, or to have subsidiary or linked companies offering services alongside them. Those subsidiary or linked companies are not always regulated, and it would be relatively easy for, say, a solicitor simply to route an inducement through an unregulated company, thus avoiding the ban.

For the avoidance of doubt, I add that we do not wish to regulate third parties, only to prevent regulated persons from avoiding the ban by offering an inducement via an unregulated subsidiary or a linked business or individual. I believe that this amendment is a proportionate means of making the necessary ban on inducements more effective, and I beg to move.

[Lord Hunt of Wirral]

I am very grateful to my noble friend the Minister.

[Lord Beecham]

I am afraid I cannot beat the brevity of that. I would like a little guidance from the Minister about the nature of the regulation. Can he give any indication of how effective whatever the regulatory body is—I confess that I do not know which it is—in overseeing this practice? I am entirely with the Government in wishing to ensure that such practices are limited as much as possible, for precisely the reasons that were mentioned by the noble Lord, Lord Hunt, and with which we all concur: the promulgation of false claims, which is wrong in itself and, of course, a drain on the economy generally. I am not clear what the regulatory system currently is, or how effective it is. While supporting the Government’s intentions in the amendment, it would be helpful to have an impression of that.

[Lord Faulks]

I am happy to write to the noble Lord with as much detail as we have. In the mean time, I can tell him and the House that anecdotal evidence shows that the practice is more prevalent among solicitors than non-regulated persons. However, once there is a ban in place preventing legal services providers from offering an incentive to issue claims, there is a possibility that non-regulated persons offering inducements to issue claims with legal services providers will be used as a way around the ban.

As to what types of third party rather than regulated persons might offer a benefit, these are likely to be but not restricted to those working in what are described as “first notification of loss teams”. The teams are used by insurers and are the central point that clients contact when they wish to make a claim on their insurance policy. The intention is to ban any inducement which encourages or might have the effect of encouraging a person to make a claim or seek advice about making a claim, including so-called welcome payments, free gifts and cash advances.

The noble Lord will know that there is far too much by way of unsolicited phone calls going on in relation to personal injury claims, which is another matter we take seriously. It is a complex issue that requires action on a number of fronts, both legislative and non-legislative. We have taken a number of measures as set out in our nuisance calls action plan of 30 March. I can give the website address if necessary. It includes increasing the fines that Ofcom can issue from £50,000 to £2 million, enabling the Information Commissioner’s Office to issue fines of up to £500,000, and providing simple and consistent information to consumers on preventive action that they can take and how they can complain about unsolicited phone calls via Ofcom.

If the noble Lord is having particular difficulty with being asked to make fraudulent claims, which I am sure we have all encountered, he may wish to know that he can register with the Telephone Preference Service, which should result in his avoiding such claims. I hope that that provides some further information, but I undertake to give more information in due course.

[Lord Beecham]

I thank the noble Lord for providing further information, but it is not terribly helpful because the Telephone Preference Service seems to be totally useless. Apart from anything else, it does not seem to work with a BlackBerry these days. It is quite extraordinary. Having appreciated that regulated persons include members of my profession and that of the noble Lord, Lord Hunt, I am sure that he will agree that it is a very sad commentary on the current state of what was a profession and is now increasingly descending, if I may put it that way, into a rather unscrupulous business —which is a matter I think we would both deplore.

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Moved by

[Lord Faulks]

132: Clause 50, page 49, line 18, leave out “by a regulated person”

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Moved by

[Lord Faulks]

136: Clause 51, page 50, line 9, after second “person” insert “or is treated as having done so under section 50(3A)”

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Moved by

[Lord Faulks]

137: Clause 52, page 50, line 33, after “The” insert “Chartered”

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Moved by

[Lord Faulks]

138: Before Clause 54, insert the following new Clause—
“Appeals from the Court of Protection
(1) Section 53 of the Mental Capacity Act 2005 (rights of appeal from the Court of Protection) is amended as follows.
(2) For subsection (2) substitute—
“(2) Court of Protection Rules may provide that, where a decision of the court is made by a specified description of person, an appeal from the decision lies to a specified description of judge of the court and not to the Court of Appeal.”
(3) Omit subsection (3).
(4) In subsection (4)(d), omit “higher”.”

[Lord Faulks]

My Lords, I shall speak to three amendments tabled in my name on behalf of the Government. We have the pleasure of the noble and learned Lord, Lord Hope, in the Chamber in respect of these amendments and I thank him for his patience for remaining for so long. Amendments 138 and 181 seek to rectify an omission in relation to appeals from decisions at lower levels in the Court of Protection, which was not addressed when the range of judicial officeholders able to sit as judges of the Court of Protection was expanded in the Crime and Courts Act 2013.

The need for the amendment does not only arise from, but has been starkly highlighted by, the decision of the Supreme Court in what has become known as the Cheshire West case. That decision required a radical reassessment of cases in which it may now be considered that a person who lacks mental capacity to consent to care arrangements is deprived of liberty as a result of those arrangements, so that the authorisation of the court is required for such a deprivation of liberty.

As a result, it is predicted that there will be a significant increase in the number of cases coming before the Court of Protection for declarations authorising deprivation of liberty in cases where, prior to Cheshire West, no such authorisation was considered necessary. It is considered that the figure may well be in excess of 28,000 additional applications annually. To deal with this increase in workload, deputy district judges and judges from other jurisdictions are being deployed to the Court of Protection for the first time. The Crime and Courts Act 2013 allowed for this wider range of judges to deal with Court of Protection cases but did not address the question of appeals.

The current provision in the Mental Capacity Act 2005 governing the route of appeal from decisions in the Court of Protection allows for decisions of specified judges to lie to a higher judge in the Court of Protection rather than directly to the Court of Appeal. However, the judges specified are limited to district judges and circuit judges, and the provision does not cover decisions of any of the wider range of judicial officeholders now able to sit as judges of the Court of Protection. The Crime and Courts Act omitted to amend it to align with that wider range. Without this amendment, appeals from decisions of judges in that wider range—even though they are decisions of the same sort as those of a district judge at present, for example—would have to go to the Court of Appeal, thereby increasing workload in the appeal court. This amendment makes good the omission.

The judges whose decisions may be appealed within the Court of Protection and the higher judges to whom appeal against those decisions will lie within the Court of Protection will, as now, be specified in Rules of Court, namely the Court of Protection Rules. This will prevent the Court of Appeal being unnecessarily burdened by a significant increase in cases and allow the Court of Protection the flexibility to deal with resources efficiently. This, in turn, will reduce delays and the need for cases to be transferred to a different court. It will also provide greater consistency in how appeals are managed across other jurisdictions.

Members of the House of Lords Select Committee on the Mental Capacity Act 2005—I should declare an interest as having been a member of that committee for some time—were given written notice of this proposed amendment which was made available in early August to allow time for consideration.

Amendment 142 would have the effect of allowing the President of the Supreme Court of the United Kingdom to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom can do already under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales. This amendment would give the President of the Supreme Court the same avenue to raise similar matters to Parliament. The proposed amendments were initially tabled by the noble and learned Lord, Lord Hope of Craighead, and I am grateful to him for bringing this matter to our attention. The Government have considered and reflected further on the implications of this proposal and agree that the change is justified,

Amendment 143 was also tabled in Committee by the noble Lord. This amendment would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the Supplementary Panel within two years of their retirement, provided that they are under the age of 75. At present, it is impossible for the Supreme Court to identify particular skills or expertise which might be of use in the future—particularly without knowledge of future workloads. This makes it difficult to identify which qualifying judges should be added to the Supplementary Panel before they retire from full-time judicial office. The amendment provides greater flexibility in this respect.

These are minor but sensible amendments which I hope the House will agree to. I beg to move.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.

I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.

[Lord Faulks]

I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.

Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.

Amendment 138 agreed.

Moved by

[Lord Faulks]

139: After Clause 68, insert the following new Clause—
“Reporting restrictionsLifetime reporting restrictions in criminal proceedings for witnesses and victims under 18
(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 45 (power to restrict reporting of criminal proceedings involving persons under 18) insert—
“45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18
(1) This section applies in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales, and(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.(2) The court may make a direction (“a reporting direction”) that no matter relating to a person mentioned in subsection (3) shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
(3) A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—
(a) a witness, other than an accused, in the proceedings;(b) a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.(4) For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
(a) the person’s name,(b) the person’s address,(c) the identity of any school or other educational establishment attended by the person,(d) the identity of any place of work of the person, and(e) any still or moving picture of the person.(5) The court may make a reporting direction in respect of a person only if it is satisfied that—
(a) the quality of any evidence given by the person, or(b) the level of co-operation given by the person to any party to the proceedings in connection with that party’s preparation of its case,is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.(6) In determining whether subsection (5) is satisfied, the court must in particular take into account—
(a) the nature and alleged circumstances of the offence to which the proceedings relate;(b) the age of the person;(c) such of the following as appear to the court to be relevant—(i) the social and cultural background and ethnic origins of the person,(ii) the domestic, educational and employment circumstances of the person, and(iii) any religious beliefs or political opinions of the person;(d) any behaviour towards the person on the part of—(i) an accused,(ii) members of the family or associates of an accused, or(iii) any other person who is likely to be an accused or a witness in the proceedings.(7) In determining that question the court must in addition consider any views expressed—
(a) by the person in respect of whom the reporting restriction may be made, and(b) where that person is under the age of 16, by an appropriate person other than an accused.(8) In determining whether to make a reporting direction in respect of a person, the court must have regard to—
(a) the welfare of that person,(b) whether it would be in the interests of justice to make the direction, and (c) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.(9) A reporting direction may be revoked by the court or an appellate court.
(10) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction.
(11) The court or an appellate court may only make an excepting direction if—
(a) it is satisfied that it is necessary in the interests of justice to do so, or(b) it is satisfied that—(i) the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(ii) it is in the public interest to remove or relax that restriction.(12) No excepting direction shall be given under subsection (11)(b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(13) In determining whether to make an excepting direction in respect of a person, the court or the appellate court must have regard to the welfare of that person.
(14) An excepting direction—
(a) may be given at the time the reporting direction is given or subsequently, and(b) may be varied or revoked by the court or an appellate court.(15) For the purposes of this section—
(a) criminal proceedings in a court other than a service court commence when proceedings are instituted for the purposes of Part 1 of the Prosecution of Offences Act 1985, in accordance with section 15(2) of that Act;(b) proceedings in a service court commence when the charge is brought under section 122 of the Armed Forces Act 2006. (16) In this section—
(a) “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;(b) “appropriate person” has the same meaning as in section 50;(c) references to the quality of evidence given by a person are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a person’s ability in giving evidence to give answers which address the questions put to the person and can be understood both individually and collectively);(d) references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.”(3) In section 49 (offences under Chapter 4)—
(a) after subsection (1) insert—“(1A) This section also applies—
(a) in England and Wales, Scotland and Northern Ireland, if a publication includes any matter in contravention of a direction under section 45A(2) made by a service court;(b) in England and Wales, if a publication includes any matter in contravention of a direction under section 45A(2) made by a court other than a service court.”, and(b) at the end insert—“(7) Schedule 2A makes special provision in connection with the operation of this section, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in relation to persons providing information society services.”
(4) In section 50 (defences)—
(a) after subsection (6) insert—“(6A) Where—
(a) a person is charged with an offence under section 49, and(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.(6B) Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.”, and
(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to (7)”.”