Crime: Rape

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 22nd October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I fear that the drop in the number of rape cases being referred to trial is even greater than the noble Lord suggests. Current figures indicate that approximately half the number of cases is reaching court, from a peak in 2015. That is a matter of real and material concern and is why we have set up a cross-government working group—a sub-group of the Criminal Justice Board—to bring forward an action plan as soon as possible. We hope to have that plan in place by the spring of 2020.

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

My Lords, whether or not the Government’s review leads to a change in the law on rape, does the noble and learned Lord nevertheless agree that there is much more to be done to support and counsel victims at every stage of the criminal process, particularly in collecting and disclosing personal data, and in supporting victims giving their evidence, through to verdict and thereafter? Would such comprehensive support not encourage more victims to report rape and support prosecutions?

[Lord Keen of Elie]

My Lords, we recognise the significant importance of support for those who make complaints of all sexual offences, and rape in particular. It is necessary to look at taking forward further the scheme for the giving of evidence under Section 28. It is also appropriate to have in mind the use and application of Section 41 in relation to the potential for examining complainants about their sexual history. These matters have been under fairly constant review since Dame Vera Baird’s study in 2017, followed by the CPS study the following year and, more recently, in work done by the Criminal Bar Association. We do recognise the need for support and consideration in these cases.

Bailiff Reforms

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 17th October 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, there are regulations in place and there are those—a minority—who do not comply with those regulations. The position at present is that there are about 2,500 civil enforcement agents. They have to appear before a county court judge every two years, where their conduct will be the subject of consideration. We are looking at further regulation and at the means of ensuring that a small minority of enforcement agents do not break the law. Clearly, we do not condone aggressive and inappropriate behaviour, no matter what the circumstances may be.

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

My Lords, the Government are publicly committed to ensuring that enforcement agents treat debtors fairly, responsibly and proportionately. The proposed breathing space scheme, the Government’s civil enforcement project and, indeed, the Minister’s answers so far suggest that they also agree on the need for a sympathetic approach to problem debt. Will the Government therefore now consider requiring enforcement agents to advise debtors of the availability of the breathing space scheme and of debt management assistance more generally? Are the Government now more receptive to the call of many for independent regulation of all enforcement agencies?

[Lord Keen of Elie]

It would be premature to commit on a matter still under consideration by the ministry. We have proposed as a manifesto commitment to introduce the breathing space scheme, which will give debtors 60 days in which interest charges on their debts are frozen and in which they can seek further advice. We also established the Money and Pensions Service in January 2019, merging three former organisations to provide free-to-use financial guidance for those who find themselves in debt.

Prosecutions and Sentencing

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 3rd September 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, we are of course concerned to ensure that the criminal justice system is adequately funded. We do not consider that we are in the midst of a crisis so far as that is concerned. Indeed, we engage with both the CPS and counsel and solicitors engaged in criminal defence work to ensure that they are properly resourced.

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

My Lords, given the Prime Minister’s recent pronouncements on tackling crime more generally, are the Government abandoning previous policy on rehabilitation—of using prison less rather than more, reducing short sentences and increasing release on licence and home detention curfews? Are we moving towards a policy of harsher sentences based on the frankly false notion that prison works and, if so, on what evidence, particularly given the more liberal, evidenced-based policies on imprisonment and rehabilitation pursued by David Gauke, David Lidington and even Michael Gove as Justice Secretaries, and Rory Stewart and the present Justice Secretary as Prisons Ministers?

[Lord Keen of Elie]

My Lords, the Government recognise that prison alone is not the answer to crime. Prison must go hand in hand with rehabilitation and our policies are always pointed in that direction.

Crown Prosecution Service: Rape and Sexual Offences

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 23rd July 2019 Lords Chamber

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt the noble and learned Lord, but the problem that most of us have been concerned with on these consent forms is, first, the blanket nature of their use—the noble and learned Lord said something to respond to that—and, secondly, the implied threat that, if the consent form is not signed, no prosecution can proceed. That aspect of it is particularly worrying, and it is a matter that has been aired in the media quite heavily.

[Lord Keen of Elie]

As 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.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Keen of Elie]

I am most obliged to the noble Lord for that.

Perhaps I may turn to manuscript Amendment 9A, as distinct from Amendment 9, in the name of the noble Lord, Lord Marks. Again, I thank him for his extensive engagement with me and the Bill team over the last few days to address these matters. As I have sought to underline, we are committed to providing support to those people who cannot easily access online services. We share the observations made by the noble Lord, Lord Marks, and others about the importance of this issue. In these circumstances, we are prepared to accept manuscript Amendment 9A, as tabled by the noble Lord. However, it has an impact on the two other amendments that were tabled; first, in the use of the words “providing for”. If we accept manuscript Amendment 9A, it appears we are making explicit provision—indeed, we will have an explicit duty to provide—for these services. It therefore appears unnecessary to move that further amendment in these circumstances.

I have discussed the removal of the word “technical” with the noble Lord, Lord Marks. At this stage, I am not in a position to accept that amendment. Again, I would like an opportunity to discuss further what to do with the precise wording, in the light of our accepting manuscript Amendment 9A. It is in that context that I would like to resolve the matter, because we are concerned about the width of the obligation in those circumstances. I hope the noble Lord, Lord Marks, appreciates that and understands that, in accepting manuscript Amendment 9A, it is necessary for me to give further consideration to the two minor amendments he referred to. I understand where he is coming from and am content to address with him how we can ensure that the width of that provision is appropriate and sufficient as we go forward to Third Reading.

I am also content to commit on the Floor of the House that the Government will lay in Parliament a report on the provision of support, every two years. That report will be on the levels of assisted digital support being provided, and will give noble Lords the opportunity to request a debate on the topic and test the availability of support. Again, I had the opportunity to discuss that matter with the noble Lord, Lord Marks. I hope he accepts that that commitment meets the further concerns he had about the implementation of these provisions.

I turn to Amendment 7, in the name of the noble Lord, Lord Beecham. I am obliged to him for his remarks and observations. We do not feel able to accept the amendment. I notice the reference to Article 6 of the European Convention on Human Rights but, as the noble Lord is well aware—as is the Law Society, no doubt—there is an established common-law right of access to the courts and to a fair public hearing. More recently, that was included in Article 6 of the convention, which is part of our domestic law by virtue of the Human Rights Act. The effect is that these matters are already available and in train. We do not see that it is necessary to make explicit reference in the Bill to those established and fundamental rights. To make a specific reference to Article 6 of the convention without making reference to, for example, the common-law right of access to justice could simply sow the seeds of uncertainty or confusion.

The second part of Amendment 7 would remove, from the appropriate Minister, the power to determine the circumstances in which proceedings should not be governed by the Online Procedure Rules. It would instead leave the matter to be determined by a court or tribunal in cases where the parties to the proceedings disagree. We consider that not to be appropriate at present. The present balance, as indicated in Committee by the noble and learned Lord, Lord Thomas, is the appropriate way forward in these circumstances. I therefore invite the noble Lord to not move Amendment 7.

[Lord Marks of Henley-on-Thames]

My Lords, I will briefly address the Minister’s comments on my amendments. I had understood that Amendments 2 and 3 were accepted, but that discussion was before my Amendment 9A was drafted or accepted. I can see the point that having “providing for” in Amendment 1 may be rendered otiose by the acceptance of Amendment 9A. However, I will discuss it between now and Third Reading with the noble and learned Lord, as he suggests. However, I take the view that the word “technical” is important, for precisely the reason given by the noble Baroness, Lady Drake, so I will be urging that on him in our discussions.

I should also say, which I did not mention in opening, that the agreement to have a biennial review and have that report laid in the way the noble and learned Lord said is very welcome and, I suggest, important for ensuring that digitally excluded people are always receiving the assistance to which they are entitled. As I said, I intend not to move Amendment 9 and to move Amendment 9A when the time comes. I beg leave to withdraw Amendment 2.

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[Lord Keen of Elie]

With great respect to the noble Lord, I do not consider that I am dealing with an implied limitation. If one construes the Bill as a whole, one begins with Clauses 2 and 3, which set out the framework within which the Online Procedure Rule Committee will be able to operate. That framework is subject to the concurrence of the Lord Chief Justice; that is quite clear. To read Clause 8 as though it stands entirely alone and independently of the rest of the Bill is not, I submit, at all appropriate. The circumstances in which Clause 8 directions may be given clearly apply to the rule-making power of the committee. The committee has no rule-making power except in respect of proceedings of a specified kind as provided for by Clauses 2 and 3. I do not suggest that an implication is necessary there; it is simply a matter of statutory construction. I hear what the noble Lord says and will give further consideration to the point he makes in light of it, but that is my position at present.

[Lord Marks of Henley-on-Thames]

Accepting what the Minister says about the framework, there is nothing in Clause 8 as I read it—he will no doubt correct me if I am wrong—that prevents the Lord Chancellor giving a Clause 8 direction in the context of rules already within specified proceedings, where the rules required to be made by the Lord Chancellor’s direction are offensive to the Lord Chief Justice.

[Lord Keen of Elie]

If they were offensive to the Lord Chief Justice, that would emerge in the course of consultation. I am glad that the noble Lord accepts my point about the proper construction of the statutory provisions as between Clauses 2 and 3 and Clause 8. What he is concerned about is an entirely distinct issue: that the Minister gives a direction for the making of rules in respect of proceedings of a specified kind, pursuant to Clauses 2 and 3, which the Lord Chief Justice might not like. If he does not like it, he can express that view during the consultation. If he is deeply disturbed by what is proposed, he can have recourse to Section 5(2) of the Constitutional Reform Act 2005 to make a report to Parliament, but that will not arise. One has to see these powers in their proper context.

I would add that, in the course of looking at the proposed amendments to the Bill, we have engaged with the Judicial Office to try to ensure that the Bill reflects constitutional arrangements consistent with those of the existing civil committees. That is precisely what Clauses 8 and 9 do and I am not aware of any objection from that source to the way in which those committees already operate, and in which it is intended that this committee should operate in respect of the same matter. I will come on to explain why, constitutionally as well as with reference to precedent, we consider that appropriate. I underline the point that the existing proposal in Clause 8 in no way takes away from or abrogates the provisions in Clauses 2 and 3, which establish quite clearly those proceedings, and only those proceedings, in respect of which the committee itself can make rules. It cannot make rules for something else entirely.

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[Lord Keen of Elie]

My Lords, regarding Amendments 11 and 12, let me restate the point I sought to outline in Committee. In his final review of the civil justice system in 2016, Lord Briggs—or Lord Justice Briggs as he then was—anticipated a committee of experts from across various disciplines that would reflect the needs of users. Amendments 11 and 12 seek to increase the size of the committee to include respectively four more legal members and one additional other member. Combined with Amendment 13, which has the effect of adding a further member who must have experience of representing the views of people who are digitally excluded, this would add four members to the committee.

We have been clear all along that we want an Online Procedure Rule Committee that is small and agile. This will mean that it has the flexibility to make and adapt rules quickly to meet circumstances that might change rapidly. As Clause 7 makes clear, before making or amending rules the committee must consult such persons as they consider appropriate. The committee will therefore be able to benefit from the contributions of people with expertise relevant to specific matters, rules and proceedings as referred to by the noble Lord, Lord Beecham. This would include people with specific legal experience in a particular area, such as that of the disabled.

One consequence of adopting these amendments would be creating not only a much larger committee, but a much greater imbalance in the number of members appointed by the Lord Chancellor in comparison to the number appointed by the Lord Chief Justice. It would therefore defeat the very purpose of the amendments we have sought to move. At present, we have a committee of six on which there are three judicial appointees made by the Lord Chief Justice, one of whom is the chair. In the event of a rule being signed off by a majority, with three judicial appointees wishing to sign off the rule, the chair would have what is in effect a casting vote. These amendments would therefore take away entirely from the very force of the amendments the Government are moving.

Amendment 13 would add a member of the rule committee capable of representing the views of people who are digitally excluded. As I have already sought to explain, we consider that there are significant advantages in a small committee. Where it requires expert input, it has the power to seek that. Since we have brought forward amendments to ensure that all members of the committee always consider the needs of those who struggle to engage digitally—the amendments we dealt with earlier—and while I fully agree that digital support for those who want to access online services is absolutely paramount to the effectiveness of this system, we do not consider it necessary to achieve those objectives to have this addition to the committee. It is also important to remember that Clause 6 provides a power to vary the membership of the committee as and when required.

Finally, on Amendment 14 and the matter of gender balance, as I sought to emphasise in Committee, the Government of course support the wider aim of ensuring diversity among senior appointees to public bodies. When appointing members to the committee, the Lord Chancellor and the Lord Chief Justice are already bound by guidelines and statute relating to matters of diversity. Appointments to various procedure rule committees are governed by the Governance Code on Public Appointments, which sets out the principles that underpin public appointments, including openness, ministerial responsibility and integrity. It also includes a commitment to diversity:

“Public appointments should reflect the diversity of the society in which we live, and appointments should be made taking account of the need to appoint boards which include a balance of skills and backgrounds”.


Additionally, public appointments are regulated by the Commissioner for Public Appointments. He or she, in turn, may make audits of departments to see that they are complying with the principles.

Furthermore, Ministers are subject to the public sector equality duty set out in the Equality Act 2010. We therefore consider the matter of diversity to be well dealt with. It does not have to be brought within the four walls of this Bill; it is already addressed in statute and by other means. Also, as I have mentioned before, applying this specific statutory duty to this committee would differentiate it from the other civil committees—the Tribunal Procedure Committee, the Family Procedure Committee and the Civil Procedure Committee—and there is no compelling reason to do so. In these circumstances, I invite the noble Lord to withdraw the amendments.

[Lord Marks of Henley-on-Thames]

Can the Minister clarify a point he made in relation to Amendments 11 to 13? Having regard to the amendments which have already been accepted, the balance of the committee at the moment is three judicial appointments and three appointed by the Lord Chancellor, with the Lord Chief Justice having the power to appoint the chairman from the judicial appointments, and that chairman having a casting vote. The Minister commented on the effect of the proposed Amendments 11 to 13 on that balance. Is that right?

[Lord Keen of Elie]

The noble Lord is entirely correct in his summary of the position if we apply the government amendments that have been moved. The result is that, in light of the government amendments, we will have a committee constituted as he indicated. That balance would be removed by the amendments proposed by the noble Lord, Lord Beecham.

Justice: Private Sector

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 18th June 2019 Lords Chamber

[Lord Keen of Elie]

The noble Lord raises a pertinent point. One of the objectives of the recent publications is to ensure that there is sufficient expertise to review and consider such contracts. Examples are: the need for pilots when the Government are outsourcing a service for the first time; the production of assessments of should-be costs; the need to produce resolution planning information lest a private contractor fail; the need to publish key performance indicators so that we have an objective means of determining the delivery of these services; and the requirement for the Civil Service and the Government to understand financial distress guidance when entering into these contracts. These are all being addressed in the light of the recent work done in the Cabinet Office.

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

My Lords, can the noble and learned Lord assure us that in future contracts, in view of the failures there have been, far more attention will be given to specifying requirements for service providers in terms of the numbers and professional qualifications of the personnel involved in delivering those services?

[Lord Keen of Elie]

My Lords, of course we will carefully review the ability of any proposed private contractor to deliver the services they are being contracted to provide. I shall not go into the minute detail of that examination but, as I say, it will include the need, first of all, to identify key performance indicators and ensure that they are adhered to.

Probate: Delays

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 12th June 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, historically the time taken for a personal application for probate has been about four weeks. In the recent past, due to a number of factors, that period increased to about eight weeks. The department then applied additional staffing to the matter of processing probate applications, and on average present grants are being issued within six to eight weeks. We anticipate further improvements as we roll out the online system of probate applications, and by October this year we anticipate that all forms of probate application will be available online.

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

My Lords, delays in grants of probate are causing frustration and hardship, not only for bereaved families, but for many people caught in sale and purchase chains whose property purchases cannot proceed. Does the Minister accept that the current delays result from a rush of applications brought on by the threatened increases in probate fees to which the noble Baroness referred? What consideration has been given to abandoning those increases since this House passed the regret Motion last December?

[Lord Keen of Elie]

My Lords, there were essentially two features that impacted upon the timing of probate applications earlier this year. First, as the noble Lord alluded to, there was a marked increase in the number of applications—about 22%—in March of this year. It is perceived that that may have been in response to the anticipation of fee increases for probate. A second, more immediate, factor was the move over in respect of the digital probate service from three probate registries to the Courts & Tribunals Service centre in Birmingham towards the end of March. To facilitate that move, it was necessary to transfer cases, both digital and paper, from the legacy system on to a new single system called CDM. During the first few weeks after the changeover, there were difficulties with the CDM system, which have now been overcome. There was also the need to further train staff in that new system, resulting in pressures on the service during that period. We have now met those pressures, we have stopped the increase in time taken for the processing of probate applications and we now hope to see it reduce.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Keen of Elie]

I am afraid I cannot accept that. There is nothing in the Bill that would prohibit the employment of such a paper process once the online procedure is up and running. Indeed, the noble Lord will appreciate that, when it comes to the making of rules by the relevant committee, the process will involve the judiciary as well as the Executive.

We have heard reference already to the idea of consultation, and we will in due course look at amendments to the Bill that seek to shift the question of consultation to one of concurrence. Therefore, we will be in a position to rely on not only any decision-making on the part of the Executive but also the contribution of the judiciary to how it sees that these processes should best be applied in the interest of all litigants. I emphasise “all litigants” because, when we seek to simplify the court process and reduce its potential cost, we are doing so for the benefit of litigants in general. We will come to concurrence and consultation later.

We must bear in mind that this is not a case of Ministers dictating what the relevant rules will be. It is a case of the Executive setting out the machinery by which a rule committee can come into place and set out appropriate rules and regulations for the online procedure, in consultation with the judiciary and with its input, and potentially with its concurrence.

[Lord Marks of Henley-on-Thames]

I am sorry to press the point, but does the Minister accept that without the guarantee in the Bill of his intention, we could lose this procedure at some stage in the future, and that this House may well wish to see that guarantee entrenched in the Bill, so that primary legislation would be necessary to remove the procedure?

[Lord Keen of Elie]

I quite see that this House might wish to see it in primary legislation, but the position is this: a committee will be formed to put forward appropriate rules and regulations for the online procedure, under the essential supervision not only of the Executive but of the judiciary. There may come a point, at some unforeseeable time in the future, where the judiciary is of the view that it is no longer necessary to employ paper as a form of application or entry into the judicial process. I do not anticipate that happening—there is nothing here to suggest it will happen—and I do not see that there is a requirement for such a guarantee in the form of primary legislation. We intend to form an Online Procedure Rule Committee that will be well qualified to determine the appropriate routes into the online procedure for all parties concerned, including those perhaps not digitally competent or confident. That remains the position.

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[Lord Keen of Elie]

My Lords, I begin by saying that I entirely agree with noble Lords that digital support for those who want to access online services will be paramount to the effectiveness of the proposed changes in civil procedure. We are of course conscious that not all court and tribunal users have the confidence or ability to use digital channels unaided.

On the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, HMCTS already has an assisted digital strategy in place quite independent of the Bill. For simple support needs, HMCTS staff will talk users through queries over the telephone. In cases of more complex needs, there is provision for face-to-face support, currently being piloted by the Good Things Foundation, which is a charity that specialises in digital inclusion. That means that people can be taken through a digital process step by step. As the noble Lord, Lord Beith, noted, that support is being piloted in 18 locations throughout England and Wales, and in fact will now be rolled out across the country, in order that there is general access to it. We have that digital assistance in place and want to see it developed. We understand the need to ensure that such assistance is available.

We are also seeking to simplify some online forms, essentially by way of a “save and return” process. One frustration encountered by some users of online forms has been that, when they find themselves half way through a form, they decide to consult an appropriate oracle about how to complete the second half of the form but, by that time, the first half has disappeared. Simple steps like that can enable people to use these systems far more easily. We are entirely conscious of the need for such assistance.

I hear what noble Lords say about wanting to see some expression of willingness or intent in the Bill; I would be happy to discuss that further with them before Report. I cannot accept the proposed amendments in their present form—I will not seek to detail why at this stage—but we are willing to discuss an expression of intent that may appear in the Bill. I will leave the matter there at this stage.

Amendment 14, in the name of the noble and learned Lord, Lord Mackay of Clashfern, concerns fraudulent activity from persons perhaps pretending to act on behalf of the court. Of course, we take cybersecurity and online fraud extremely serious across all government services. We have cybersecurity professionals involved in the development of all our systems, including new digital services. Those are assessed by the Government Digital Service before they are ever rolled out for public access, so we have a means of ensuring that these systems are fit for purpose. Of course, we understand the importance of building appropriate data security and privacy measures into all such technological systems. Indeed, our systems are subjected to regular checks to ensure that there is no improper access or misuse. HMCTS has developed a risk assessment framework aligned to Government Digital Service standards. My understanding is that, on the basis of the present offerings online, it is unaware of any fraudulent websites claiming to offer access to such sites. Of course, we will maintain vigilance in that regard.

There is perhaps a distinction to be drawn here between some scams and the sort of online scam where somebody claims to be from Her Majesty’s Revenue & Customs and invites you to send them your bank account details so that you may be the happy recipient of a tax rebate, but you then discover that your bank has inadvertently been emptied rather than credited. In the context of the court process, we are vigilant against fraud but there is no scope there for that sort of fraud. As I said, we have not encountered fraudulent use, or attempts at fraudulent use, of the websites in so far as we already have certain online channels with HMCTS, so we would not consider it appropriate to accept the noble and learned Lord’s amendment at this stage. That said, I would be happy to discuss further the other amendments in the group. In the meantime, I invite the noble Lord, Lord Marks, to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to all noble Lords who have spoken in the debate. It appears that we are all committed to seeing a modernised and simple online procedure that enhances, rather than damages, access to justice. We regard it as essential that there should be a statutory commitment to designated assistance for the parties. For that reason, I am extremely gratified to hear the Minister say that he will discuss such a commitment in some form with myself and other noble Lords between now and Report. Of course, we welcome that invitation and will accept it.

I will just say one further thing in answer to the point made by the noble and learned Lord, Lord Mackay, about the providers of such assistance. As the Minister said and as the noble Earl, Lord Listowel, pointed out, we have in place not only the service provided currently by HM Courts & Tribunals Service but also by such law centres as still exist and by charities such as the Good Things Foundation and the charity mentioned by the noble Earl. I am wary of being too dogmatic about the providers that could by agreement with HM Courts & Tribunals Service provide designated assistance in the future. I hope that, when the Bill leaves this House, we have an acceptable commitment to designated assistance to help litigants in the future. With that, I beg leave to withdraw the amendment.

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[Lord Marks of Henley-on-Thames]

My Lords, our Amendments 31 to 33 in this group require a statutory review between three and four years from the date on which the Bill becomes law. They also require a report to Parliament from the appropriate Minister, prepared in consultation with the Lord Chief Justice and the Senior President of Tribunals, both of whom will be able to contribute independently to the report, should they wish to. The Minister’s answer to these suggestions to date has been that the Government will carry out a post-legislative review, so there is no need to incorporate a requirement for such a review into the Bill. Once again, I regret that we do not agree. Non-statutory promises have a nasty habit of being fulfilled well outside the time limits promised. Indeed, such reviews often seem to have as many delays as Crossrail. Statutory time limits, while not fool-proof, at least concentrate the minds of Ministers and officials. Furthermore, without further primary legislation, they do not bind future Governments. In any case, the requirement to review and report guarantees a certain thoroughness to the review and resulting report that might not otherwise have existed.

We regard as particularly important the requirement for the Government to consult the Lord Chief Justice and the Senior President of Tribunals in preparing the report and to have the opportunity to report to Parliament. That will guarantee that a judicial perspective is brought to bear on the review and formal report to Parliament. In this case, we regard the combination of judicial and political input as very important. Reviewing the operation of the legislation makes that combination important, as with making the changes and decisions that we discussed in the group of the amendments of the noble and learned Lord, Lord Judge. We also support the amendments in this group on further piloting these online procedures. Careful piloting and a staged introduction could avoid costly mistakes and improve the procedures as they are developed. Both providers and users will be able to see and report on what works and does not.

[Lord Keen of Elie]

I first turn to Amendments 22 to 24, tabled by the noble Lord, Lord Beecham, and address the issue that the rules should be piloted by the Online Procedure Rule Committee before they come into effect. I will then come on to Amendments 31 to 33, moved by the noble Lord, Lord Marks, and supported by the noble Lords, Lord Beith and Lord Pannick, and the noble and learned Lord, Lord Judge.

I assure the noble Lord, Lord Beecham, that when services are introduced, they are already subject to ongoing testing. HMCTS is rapidly testing and adapting new online services, based on user feedback and service data. That is important because it ensures flexibility and improvements in practice and procedures that enhance access to justice. Piloted online services cannot be rolled out to the public more widely without such rigorous independent assessment carried out by the Government Digital Service, and then confirmation that they are fit for purpose. In addition, some projects are also being more formally evaluated through their development by HMCTS itself.

Reference was made to a number of piloted measures in the existing digital portal for debt actions. The difficulty is that, if we accept measures of the kind proposed in these amendments, we will add a layer of bureaucracy to the rule-making process beyond current practice, thereby reducing the flexibility to respond to user needs and technological changes. The Bill permits the use of practice directions, which can support projects through development before formal rules are set out in statute, so one does not have to go to a formal set of rules immediately; one can simply have a practice direction that assists the piloting of particular projects.

I mentioned before the example of online civil money claims and the pilot that went live in March 2019, which is underpinned by practice directions that require the consent of the Master of the Rolls and the appropriate Minister. Such a project worked closely with the judicial sub-committee to develop the pilot. I emphasise that there is already a clear process in place through which such proposed rules are tested, piloted and reviewed. To that extent, we consider Amendment 22 unnecessary.

Amendment 23 would again limit the flexibility of the OPRC to make the small, minor changes required to respond quickly to changes in user needs or perhaps new technology. It would add time and consequently cost to the development of the online process. We do not consider it appropriate to go down that route.

Amendment 24 would require us to publish six-monthly reports. We regard that as simply unmanageable given the number of pilots across the services that we are in the course of transforming. Again, there is the issue of cost, so we are not persuaded of the need for such steps to be taken.

Amendments 31, 32 and 33 would place in the Bill a requirement for a formal review of the Act to which the Lord Chief Justice and Senior President of Tribunals were able to contribute independently. Clearly, reviewing legislation which has been passed by this House is of great importance. That is precisely why the Government already require departments to carry out post-legislative scrutiny of all Acts within three to five years after Royal Assent. We therefore consider this amendment unnecessary because post-legislative scrutiny of this legislation will be conducted—I emphasise, will be conducted—within that timescale.

Regarding the reference to the Lord Chief Justice and Senior President of Tribunals, of course, their views are incredibly important and are taken seriously. There would be no question of us laying a report on this or other courts legislation without taking account of their opinions. Again, we consider the amendments unnecessary, understanding the importance of what underpins and has prompted them. I hope that, with these assurances, noble Lords will accept that the amendments are unnecessary and I invite them not to press them.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 7th February 2019 Lords Chamber

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

My Lords, after a delayed process that took an entire year, we now have the post-implementation review of LASPO. I will focus on legal aid.

Of its four stated objectives, the MoJ claims success in just one: significant savings have been made. Well, we know that. As the noble Baroness, Lady Chakrabarti, pointed out, the savings wildly exceeded what was expected. However, on each of the other three objectives—discouraging unnecessary and adversarial litigation at public expense; targeting legal aid at those who need it most; and delivering better overall value for money for the taxpayer—the answer is an unimpressive “Don’t know”, dressed up in weasel words such as, “It is impossible to say with certainty”. I suspect that an independent review would have come to clearer conclusions.

The review identifies six themes echoing the experiences of all of us involved in the justice system. First, these changes in the scope of legal aid undermine value for money, particularly by preventing early intervention. Secondly, financial eligibility and operational requirements limit access to legal aid too harshly. Thirdly, the exceptional case funding scheme is not working well. Fourthly, legal aid fees are now so low that future provision by practitioners is at risk. Fifthly, increasing numbers of litigants in person increase costs and risk the perception of a two-tier justice system. Finally, advice deserts across our country threaten access to justice.

The legal support action plan seeks to address those issues, at least in part. I am more hopeful than the noble Baroness in saying that the action plan is welcome. Among the Government’s pledges, some of which were mentioned in the Statement, they promised to review eligibility requirements, increase public awareness of how to access legal aid, broaden the scope of legal aid in some immigration and family cases—that will not go nearly far enough—improve the exceptional case funding scheme, review criminal legal aid, widen access to the telephone gateway, increase support for litigants in person and examine complementary ways of providing legal support. Both those pledges and the others made must be kept and implemented soon. We will have further demands for improved support. We will hold the Government’s feet to the fire.

Can the Minister do two things today on this vital topic? Together, the four documents represent a massive report. Will he please use his influence to secure a debate, with adequate time and soon, on the reports and the action plan? Secondly, will he reassure us that where the promises in the action plan are not backed up by implementation dates—and some are—the MoJ will treat them with urgency?

Notwithstanding the warnings in the paper and in the Statement that all this cannot be delivered overnight and is the first step in the process, the rescue of our legal aid system and the improvement of our legal support system needs more urgency than was ever accorded to this review.

[Lord Keen of Elie]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Marks, for their contributions. I am a little disappointed by the response of the noble Baroness. These reports have been welcomed in many quarters, although not universally and not without qualification. However, that is hardly a surprise because, let us be clear, this is a difficult and controversial area.

Let us look for a moment to the background. We had a financial crash in 2008. It is easy to say that austerity is a political choice but essentially it is not; austerity is a consequence. Furthermore, after that financial crash, which impacted right across our society, we had the party manifestos for the election in 2010. The Labour manifesto said explicitly that it would be necessary to address the cost of legal aid provision, and that was its intent—the cost was too high. That was recognised by other parties and indeed by the coalition Government themselves, who brought forward the LASPO Act to try to bring some degree of control over the ever-spiralling actual financial cost of legal aid. The noble Lord, Lord Marks, acknowledged this.

We not talking just about the immediate cost of legal aid but about the wider issue of access to justice and the means by which we can ensure that there is legal assistance as well as legal aid for all in our society, but particularly for the most vulnerable, who truly require it. That is why I am thankful that the noble Lord has welcomed the action plan which is designed to look not only at the provision of financial resources for legal advice and assistance but the manner in which we can deliver legal support for people at the right time and in the right place. To do that, we want to see the development of web-based products, for example. We want to see proper signposting and advice for people. Moreover, we want to encourage that sort of advice and signposting at an early stage because there is a belief that if we can do that, we can help resolve people’s issues before they develop into major and costly litigation. All of that is to be considered.

In addition, we are going to test the impact of early legal advice by promoting certain pilots, particularly in the area of social welfare law, to see what results can be secured. I note the observation of the noble Lord, Lord Marks, about the need for implementation at pace, and indeed we are committed to the implementation of all of these recommendations as soon as we can. For example, we will be looking at the financial levels for qualification for legal aid and we intend to bring that to a conclusion by summer 2020 so that these matters can be addressed as soon as possible.

There are areas where we face difficulties with regard to the provision of legal advice. The noble Lord referred to legal advice deserts. In fact, in the areas of housing and debt, we are generally well covered across England and Wales so far as advice is concerned, but I accept that there are still gaps which have to be filled by, for example, telephone advice, which is not the ideal. Indeed, one of the reasons we want to roll out the web-based access that I mentioned earlier is to address the demand for legal advice and assistance in rural areas and other areas outside urban centres where that is more readily to hand. That is certainly part of our proposed action plan,

On the assurances the noble Lord sought, he readily appreciates that it is not in my power to secure a debate in this House, but no doubt the usual channels will have heard his observations. I concur with his reference to the depth and breadth of these reports, and perhaps the need to look at them in more detail to figure out just where we are going forward and how quickly we should go forward on these issues. As I sought to reassure him earlier, we are concerned to ensure that there is implementation of these proposals as soon as it is possible to secure it.

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 29th January 2019 Grand Committee

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

My Lords, I do not propose to address the same matters of detail that the noble Lord, Lord Beecham, has done. I said a great deal of what I wanted to say about the general impact on judicial co-operation and co-operation in legal matters in the debate on the first of these statutory instruments. But let the Minister and the Government be in no doubt that the issue of co-operation in family justice, and the replacement of the system we have now by the bitty and only partial system he has outlined, is the substitution of a much less satisfactory and much less smooth step backwards—which is to be deplored—from the extremely well-respected and widely understood system that we have now across the European Union.

The noble Lord, Lord Beecham, mentioned 16 million cross-border family disputes. The European Parliament estimates that 10% of European citizens are married to people of a different citizenship, and a very large number of those are married to other European citizens. I am one of them; many in your Lordships’ House and the other place are also married to other EU citizens. Even Nigel Farage is—or was—married to an EU citizen of another state.

We have a system now that works well and is widely respected across the whole gamut of domestic law. Jurisdiction is the area where I think there has been the most difficulty because the first court is the place of jurisdiction in divorce rulings, which was difficult to accept but is now widely understood. Recognition and enforcement are absolutely crucial. Going back to the Hague rules will be unhelpful by comparison with what we have now. The system of child abduction goes back to the Hague convention of 1980. Yes, it was there but the override that we have under Brussels IIa makes the system work far better, far more effectively, far more cheaply and with far more co-operation.

Judicial co-operation across the European Union has generally been helpful and beneficial and we have all gained immeasurably from the co-operation across different jurisdictions. Legal aid is available in respect of cross-border disputes within the European Union, which will not be available after we leave it. The new arrangements for the maintenance regulations are absolutely hopeless compared with what we currently enjoy for intra-European disputes, as anybody who is involved with divorces between, for instance, UK and US or other third-country litigants well knows.

I entirely accept the Government’s argument that we simply could not insist on losing reciprocity and nevertheless maintain unilateral arrangements in the case of these convention advantages, the reason being that we would put UK citizens at severe disadvantages when their relationships with other EU citizens broke down. Nevertheless, the Minister and the Government should not rest on the consultation that they have had by discussion with some family lawyers. The Government should be in no doubt that family lawyers generally deplore the loss of the European regime, which is what would face us if we went through with a no-deal exit.

The Explanatory Memorandum produced by the Government is in similar terms to, and shares the faults of, that in respect of civil and commercial cases. It says at paragraph 12.2 on page 6:

“In the event of a no deal EU Exit, the impact on business, charities or voluntary bodies (being those that advise, represent and support individuals and families engaged in cross-border family law matters) of this instrument will, on balance, be positive. The amendments provide a basis for continued reciprocal cooperation with most EU Member States through the UK’s participation with those Member States”.


It then goes through the Hague conventions that will be available. That is a comparison with the prospect that we would enjoy if we had no statutory instrument to cover this position. The Explanatory Memorandum faces reality later on in that paragraph, where it says:

“However, the change to Hague Convention rules and the new domestic rules on divorce etc jurisdiction, maintenance jurisdiction and parental responsibility legal aid will require relevant businesses, charities and voluntary bodies to familiarise themselves and adjust their administrative arrangements to deal with the new rules. In some cases (especially divorce etc jurisdiction) the new rules could lead to greater disputation and complexity”.


Greater disputation and complexity always means greater cost. In family cases it is greater stress, unhappiness and mental health issues, and severe damage to children. One sees in so many of these cross-border cases the added damage to children, even with the present benign arrangements, because their parents are in different jurisdictions. The Explanatory Memorandum goes on:

“In the event of a no deal EU Exit, the impact on the public sector is expected to be an increase in case volume and complexity of cases before the family court due to the changes in divorce and maintenance jurisdiction rules. However, this instrument will have positive impacts on the family court as it ensures there will be workable rules governing cross-border family law disputes”.


Once again, this is confusing the two issues. Yes, there will be workable rules and, yes, that is better than no rules at all, but it is far worse than what we have now.

Of course, I accept the other statutory instrument that same-sex marriage and civil partnerships should be put on the same basis as opposite-sex relationships, but we are once again facing a situation where it is my view—and, I suggest, a view that ought to be taken seriously by the Government—that the loss of co-operation in family law and relationship law generally would be very serious, and that those prepared to countenance no deal should take that into consideration far more than they do at present. I know that the noble and learned Lord and the noble Baroness, Lady Vere, take these matters seriously. I wish other members of the Government would do the same.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. I reiterate what the relevant comparators are for impact assessments in consideration of these instruments. This Parliament determined to make a law by reason of which we leave the EU on 29 March 2019. The Executive not only have to respect that law, as made by this Parliament, but have to make appropriate plans and arrangements to allow for that in the event that no withdrawal agreement is in place as at 29 March. So, with respect to the noble Lord, Lord Marks, we are carrying out a relevant comparison within the impact assessments in that context.

I will not gainsay the comments about the benefits we have enjoyed from the Brussels regime, whether in the context of divorce, maintenance, child abduction or the wider issues we have already discussed today of commercial and civil cases. We have all benefited from that regime, but we cease to be a party to it because this Parliament has made a law determining that that would be the consequence on 29 March 2019.

On the issues of family law, fortunately we have, in essence, the foundations for all that we find in Brussels IIa. We have the 1970 Hague convention on recognition of divorce and separation and the 1980 Hague convention on child abduction. The noble Lord, Lord Marks, is quite right that it does not contain the override, but then it cannot because we will not be in a position to make an order overriding an order of an EU state court when we have left the EU. We simply cannot do that unilaterally, so we have to accept that. We have the 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in family matters. In the context of maintenance, we have the 2007 Hague convention. All of that will be in place and, as I indicated earlier, we are also applying to be a party to the Lugano Convention, although my understanding is that the Lugano Convention is on civil and commercial rather than family matters. Nevertheless, we are taking all the steps we can at this stage to cover all bases.

On the question of future co-operation, the political declaration refers to the intention to negotiate these matters, but it takes two to tango—as is sometimes observed—and therefore the pace at which we can negotiate these issues is dictated not only by us but by the EU, and we have to take that on board.

The noble Lord, Lord Beecham, referred to the European protection order. That is a particularly difficult issue because the European protection order is in the form of a directive, which is quite specific in its terms. It says that an EU court can issue an EPO only to another EU jurisdiction, and that an EU court can recognise an EPO only from another EU jurisdiction. It is simply not possible even to apply a unilateral aspect of the EPO, but we have done that with regard to the civil protection orders that I referred to earlier.

We have done as much as we can in preparation for a no-deal exit—a no-deal exit of which no one, as far as I am aware, is truly in favour. But we have to plan for that contingency given the state of the law as it has been determined by Parliament. It is in these circumstances that I commend the regulations to the Committee.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 29th January 2019 Grand Committee

[Lord Keen of Elie]

My Lords, this Parliament decided that the United Kingdom will leave the European Union on 29 March this year. That is the determination that has been made. That date has been set in law. The Executive must respect the law as determined by Parliament and respond responsibly to it, as laid down by Parliament. Therefore, they must address the implications of us leaving on 29 March if, as at present, we do not have a withdrawal agreement concluded with the European Union. That is what this statutory instrument seeks to address.

In that context, we must address the difference between leaving on 29 March and doing nothing about the existing state of the law—with regard to judicial recognition, identity of choice of court and law, the enforcement of judgment and so on—and doing something about it. I quite understand the observations of the noble Lord, Lord Marks, about the benefits of our being in the Brussels Ia system, but we can be in the Brussels regime only as a member of the European Union. According to Parliament and the law it made, we will cease to be a member of the European Union on 29 March 2019. Although the Brussels regime can be dated back to 1968, it was in that context a regime for existing European Union members and not open to non-members, to clarify a point made by the noble Lord, Lord Adonis.

The first point is that we have to consider the impact of us leaving on the date I have mentioned if we make no change to the existing law, and the impact if we change the existing law. I quite understand the point repeatedly made, that in many ways we would prefer the cake analogy: we would like to have our cake and eat it. We would like to remain within the regime, even if, as Parliament has determined as a matter of law, we are leaving on 29 March 2019. But we cannot have it, because Parliament has made that determination. Many may regret it now, and many may regret it later, but that is the law as determined by this Parliament, and we have to accept that. We can seek to change the law—of course we can—and no doubt there are many who may, even now, seek to change it. However, the law is as determined by this Parliament.

[Lord Marks of Henley-on-Thames]

I hope that the noble and learned Lord will at least address my question on what consideration has been given to applying to join the Brussels regime entirely separately. Although he says that it is a creature of the European Union, and by and large of course it is, there do not seem to be insuperable obstacles to negotiating reciprocity around the context of the Brussels regime but outside the European Union.

[Lord Keen of Elie]

I take the noble Lord’s point when he says “negotiate”; that is the whole point. If he looks at the political declaration, there is a reference to the desire of all parties to negotiate on this among other issues so that we may be part of a regime perhaps similar to Lugano. Let us be clear: we have not only applied to become an individual signatory to Hague 2005, which involves reciprocity between the convention members and ourselves—although I say, quite candidly, that it is not as perfect as Brussels Ia, being more akin to Brussels I. That is why it is in many ways a second best to that extent, but that is as far as we can go. We have also applied to the council of the Lugano convention to become a party to the Lugano convention—a point raised by the noble Lord, Lord Beith. That will of course require the consent of the EFTA parties and of the EU, and it will be subject to negotiation, but we hope also to be a member of the Lugano convention.

If noble Lords have regard to the impact assessment, they will see that under option two we looked at simply leaving the UK law as it is—in other words, embracing all those relevant terms of Brussels Ia without any right to reciprocity from the EU 27. The difficulty there is that in the absence of reciprocity, people would not know what they were going to get from those provisions. Furthermore, it would raise two obvious difficulties. First, corporations, companies and associations within Europe could secure a decree there and automatically seek to secure enforcement in the UK, but companies, corporations and associations in the UK that secured a judgment from a UK court could not expect to enforce it in the EU 27 countries. That is why I stressed the concept of reciprocity. Yes, we want to negotiate and to secure reciprocity, but until we do, we have to make sure that the statute book is in some sort of order for a no-deal exit—which, as far as I am aware, no one truly wishes for.

Secondly, if we embrace the Brussels Ia regime without being a member of the EU, we would be discriminating between the EU 27 jurisdiction and all the other third-party countries. We would be giving some benefits to the EU 27 under Brussels Ia, albeit without reciprocity, but we would not be giving the same benefit to third-party countries such as the United States, India and China, and Commonwealth countries such as Australia and New Zealand. That raises real issues about discrimination in the context of wider issues on services and so on.

Child Sexual Exploitation: Grooming Gangs

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 24th January 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, Operation Stovewood is now operating in respect of Rotherham. To support women such as Caitlin, the National Crime Agency has a dedicated team of independent sexual violence advisers working with investigators and service providers in Rotherham to create a bespoke survivor pathway for victims and their families. The Department for Education is providing additional funding of up to £2 million to children’s social care. The Ministry of Justice has also provided £1.6 million to the police and crime commissioner for the commissioning of local victims’ services, and additional funding for specialist support.

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

Can the Minister say a little more about what lessons may have been learned to help victims of grooming through the prosecution process? Are any further steps planned to help support victims through those very difficult cases?

[Lord Keen of Elie]

My Lords, Operation Stovewood is a victim-focused investigation carried out under a strategy known as the survivor pathway, with a dedicated team of independent sexual violence advisers. In addition, when taking forward the consideration of prosecution, the CPS has regard to the victims’ code and to guidance on how it should approach and deal with victims in that context. Over and above that, we have the statutory provisions of Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999, whereby victims and other witnesses who are vulnerable or potentially intimidated can have their evidence taken by video recording and be cross-examined via a television link.

Central Courts IT System

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 23rd January 2019 Lords Chamber

[Lord Keen of Elie]

I rather fear that the noble Lord’s inquiry has taken sail. The position is that the issue that arose recently had nothing whatever to do with the development of the common platform system for the Ministry of Justice, which is still in its testing phase. It was entirely unaffected by the issue that arose, which was in fact attributable to the corruption of a routing server that has now been replaced.

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

My Lords, the Answer repeated by the Minister is welcome, but expressions of frustration and an apology are, frankly, not enough. The reported consequences of this IT failure include: the adjournment and collapse of criminal trials; lawyers and litigants unable to access court documents; probation workers unable to provide courts with pre-sentence information; and even the farce of courts asking driving offenders to check their own DVLA records for past offences. The chair of the Criminal Bar Association, Chris Henley QC, describes the system as being “on its knees”.

We appreciate that the MoJ needs time to understand these failures, but they come at a time when the department is rightly further digitalising courts and tribunals to increase efficiency and save time and money. Will the Minister promise us an urgent, full and detailed inquiry to cover what has gone wrong, any failures of contract management within the MoJ, other weaknesses in the IT system, what updating and replacement is necessary and what it will all cost?

[Lord Keen of Elie]

My Lords, the reported effects narrated by the noble Lord are not accurate; let us be clear about that. There is no evidence of any cases being adjourned in either courts or tribunals with respect to this issue. In addition, it is not true that defendants have had to do their own DVLA checks. Furthermore, the probation service was affected by the outage but no offender appointments were missed, and the service reverted to paper processes where necessary. The IT systems are back up and working as of this morning with respect to the probation service. There was no impact on the Prison Service, which is in fact dependent on entirely separate computer system.

The cause of the outage was identified as a routing server that had become corrupted, and that has been replaced. It fell within one of our contractors’ systems and, as I indicated earlier, we are going to be speaking to our contractors with regard to that matter. At this stage we do not intend to institute the sort of inquiry that the noble Lord alluded to.

Prisoners: Imprisonment for Public Protection Sentences

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 20th December 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I emphasise that the number of prisoners held under IPP sentences continues to decrease at an accelerating rate. However, I regret to observe that that leaves behind a serious core of sometimes incorrigible individuals, which presents real difficulties for the Parole Board when it addresses the question of release. Indeed, it is noticeable that as we have increased the rate of release of IPP prisoners, the rate of those being recalled under licence for serious breaches of it has also increased.

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

My Lords, we abolished these sentences under LAPSO. The continuing rate of release is extremely low. This injustice cries out to be cured, and that can be done by changing the test under Section 128 of LASPO, as was always intended. Does the noble and learned Lord appreciate that the number of incidents of self-harm among IPP prisoners is more than double that for the rest of the prison population? Is that not evidence of the despair these sentences cause?

[Lord Keen of Elie]

My Lords, it is regrettable that the number of incidents of self-harm is both as high as it is and higher for IPP prisoners. However, many of these prisoners suffer from serious psychological issues, which is one reason for that unfortunate statistic. There is no intention at present to change the onus under Section 128 of the Act, but as the Supreme Court observed in a recent decision:

“Although the default position is that detention will continue ‘unless … the Board is satisfied that it is no longer necessary’ … the Parole Board is an investigative body which will make up its own mind on all the material before it”.

Non-Contentious Probate (Fees) Order 2018

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 18th December 2018 Lords Chamber

[Lord Keen of Elie]

There is clear statutory authority for the fixing of these fees in order that there can be an element of cross-subsidy between the various elements of the courts and tribunals system. It is justified by that statutory permission.

[Lord Marks of Henley-on-Thames]

My Lords, the Minister put his case, supported by other noble Lords, on the basis that these probate fees will be used to, in effect, cross-subsidise the courts and tribunals system, and for increased spending on access to justice. Your Lordships will know that I am a staunch advocate of access to justice, that I believe in spending on legal aid and in renewing the court estate, and that I am concerned about the quality of judges. But the spending for those laudable aims ought to be met out of general taxation, raised in the ordinary way envisaged by the Bill of Rights and other statutes since: by amendable primary legislation subject to the full scrutiny of Parliament, not out of the hypothecation of excessive fees—which are, to use the committee’s phrase, taxes “dressed up as ‘fees’”—to subsidise that sort of spending. I agree with the noble Lord, Lord Beecham, that the Government’s guidance on managing public money, which compares fees with the costs of producing a service and says that that should be borne in mind by government, is apposite.

I usually agree with the approach of the noble Lord, Lord Pannick—which has persuaded the noble and learned Lord, Lord Judge, and, to a certain extent, the noble and learned Lord, Lord Mackay—on statutory construction. However, it escapes me how he managed to construe Section 180 of the 2014 Act without looking at the meaning of “fee”. Section 180(1) provides:

“In prescribing a fee under an enactment specified in subsection (2), the Lord Chancellor may with the consent of the Treasury prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”.


The noble Lord says that he can infer from that—and the Minister jumps on that statement—that it does not matter by how much the fee exceeds the cost of providing the service. I respectfully commend the approach of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who asked that very question. There has to be a stage at which the amount charged so far exceeds the cost of the service that the Government are not charging for a service but are seeking to raise money. That is what is involved in the cross-subsidisation and at this level I suggest it has to be a tax. That is the way that it was treated by Managing Public Money, the Government’s guidance, and that is the way that both the Joint Committee and your Lordships’ committee saw it. I do not accept the construction contended for by the noble Lord.

It is disappointing that the noble Lord, Lord Beecham, suggested that the Labour Benches will abstain. I hope that noble Lords on the Labour Benches will in fact support my fatal amendment. Of course, it is a serious matter, but I suggest that this statutory instrument ought to be struck down precisely because it is seeking to dress up taxes as fees in a way that is impermissible. That is a wrong use of the statute. In answer to the noble and learned Lord, Lord Judge, the statute may be slightly carelessly drawn—it could have been more specific—but that should not be used by Ministers to drive a coach and horses through the statute when seeking to rely on the enabling powers to pass statutory instruments. That is what they do when they use the permission to exceed the cost to drive through a wild, excessive charge such as this one.

Striking this statutory instrument down is the correct course to take. A regret amendment will not achieve the end that ought to be achieved. The Government will be at liberty to reconsider their position and bring back revised fees, certainly, but not fees on this scale, which many noble Lords have deplored. I have heard nothing that dissuades me from seeking to test the opinion of the House.

European Union (Withdrawal) Act 2018

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 11th December 2018 Lords Chamber

[Lord Keen of Elie]

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.

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

My Lords, however well intentioned, the Answer just repeated simply ignores the legal problems. Pulling yesterday’s vote has left us mired in a legislative no man’s land from which the withdrawal Act offers us no escape. Section 13(4) does not apply because the House of Commons did not decide not to pass the Government’s resolution—it decided nothing—so there is no requirement under that subsection for the Government to set out their proposals within 21 days. Subsections (8) and (11) do not apply because they depend on an absence of an agreement in principle, but there is such an agreement, even though not one approved by the Commons. So there is no obligation on the Government under the Act to set out their proposals.

It follows that as matters stand, the country is in a state of limbo. There is no legislative significance to 21 January and the Government are legally unconstrained by time limits, even though the time until March is running out. If the Government will not give us a firm timetable, so long as the text of the withdrawal agreement remains in place but unapproved, the only solution may be for the House of Commons to find a way to force a vote on the Government’s resolution put to it last Tuesday and reject it, so activating the obligation for the Government to make a Statement within 21 days under subsection (4). Does the noble and learned Lord agree with this analysis?

[Lord Keen of Elie]

My Lords, I commend the noble Lord upon his exercise in statutory interpretation, which would undoubtedly attract an A-. The position at present is that in keeping with the spirit of the Act the Government will ensure that the matter is brought back to the Commons before 21 January.

Brexit: Attorney-General’s Advice

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 29th November 2018 Lords Chamber

[Lord Bridges of Headley (Con)]

My Lords, given that we are so fortunate to have my noble and learned friend—

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

My Lords, in March 2003 the Government resisted publishing the Attorney-General’s full advice on the legality of the war in Iraq, publishing a summary only. That episode showed how misleading a summary can be and how such tactics discredit government. Will the promised full, reasoned Statement to which the noble and learned Lord referred amount to more than a summary, and will it be the work of the Attorney-General? Are the Government determined to repeat the mistake of 2003, and this time in defiance of a binding Motion on a humble Address requiring publication of the full advice? Do the Government have any proper basis for defying that Motion? The noble and learned Lord has not addressed that question. Is not the only possible inference that the Attorney-General has advised that the Prime Minister’s deal would tie the United Kingdom to the backstop unless and until the European Union agrees to its release?

[Lord Keen of Elie]

My Lords, again, the observations of the noble Lord merely underline the prematurity of the Question that is being posed. I think that noble Lords have to be realistic about this. No, we do not intend to repeat the mistakes of past Governments, nor will we. With regard to the advice over the Iraq War, I will not go into detail on that; it is a matter of history. The issue that was raised was whether the Cabinet had been shown the full legal advice or merely a summary, which, in the latter event, would have been contrary to the then Ministerial Code which indicated that when advice from the Law Officers was included in ministerial papers or in papers for the Cabinet, the full advice should be annexed to any summary. But that issue does not arise here at this time. Again, the whole Question that has been raised is one of prematurity. I am not going to comment on the issue of legal advice in a way that would intrude upon the Law Officer privilege.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

3rd reading (Hansard): House of Lords
Tuesday 13th November 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

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.

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

The noble and learned Lord has pre-empted me but I wanted to add to what the noble Baroness, Lady Chakrabarti, said, with our thanks for the co-operative way in which this Bill was handled. I also thank the noble and learned Lord, Lord Keen, his ministerial colleague the noble Baroness, Lady Vere, and the excellent Bill team who did so much work on it. We on these Benches are very grateful for the way in which new Sections 67A and 67C of the Courts Act 2003 were inserted, limiting the functions of delegated officers and providing for judicial reconsideration of delegated decisions. They were dealt with co-operatively and it is a tribute to the way this House can deal with matters co-operatively and achieve improvements to the Bill. We are content with the Motion.

[Lord Keen of Elie]

My Lords, I apologise to the House for pre-empting the noble Lord and I am obliged for his observations. Again, I move that the Bill do now pass.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Review

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Monday 12th November 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, of course we have the highest regard for the independent criminal Bar and are concerned to ensure that it is sustained in a suitable way—but, again, I will not anticipate the outcome of the present review.

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

My Lords, nobody is asking the noble and learned Lord to anticipate the review. This is an internal MoJ review, which many regret. However, since it is an internal review, have Ministers told officials conducting it how much could be available to boost the resources for legal aid in view of the mistakes that have been widely acknowledged and, in particular, how much they would be able to spend of the estimated extra savings from LASPO over and above what the Government predicted—currently estimated at about £500 million a year? I asked a similar question on 19 April. May we now have a reply?

[Lord Keen of Elie]

My Lords, I say again that I am not going to anticipate the outcome of a review that is due to be published before the end of this year.

Voyeurism (Offences) (No. 2) Bill

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

2nd reading (Hansard): House of Lords
Tuesday 23rd October 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, this Bill is intended to address what is generally acknowledged to be obnoxious and degrading behaviour. I welcome the contributions from all sides of the House with regard to the proposed legislation. I also underline the point just made by the noble Baroness, Lady Chakrabarti, about the need to ensure that we take this forward effectively and speedily and therefore keep it within the compass set within the terms of the Bill. If we seek to grow arms and legs on this legislation, I fear it may come to grief.

I will address a number of the issues raised across the House. There are certain common themes to the points and I hope your Lordships will forgive me if I address them on a thematic basis, rather than indulge in repetition. I begin with the observations made by the noble Baroness, Lady Gale, and I will touch on a number of them. We do not consider that the purposes as set out in the Bill are narrow or that they are incapable of addressing all relevant motivations. I note the observation made by the noble and learned Lord, Lord Judge, that the subsection on purposes uses very wide words. I believe that that was echoed in other parts of the House. That certainly is our view.

On the question of financial gain, where someone takes these images and then posts them, it is generally recognised and easily identified that it is for the purposes of someone else’s sexual gratification. There is potentially no financial gain otherwise. Therefore, that area, we consider, is covered.

In addition, the sharing of an image for somebody else’s sexual gratification would also be an offence, as the noble Baroness, Lady Chakrabarti, observed. The noble Baroness, Lady Gale, and the noble and learned Lord, Lord Judge, raised the question of other forms of distribution—where, for example, somebody comes across an image and decides to distribute it. That raises particular issues of its own. First, if you find that someone is distributing such an image you do not know whether it has been taken consensually. Furthermore, such distribution may engage Section 127 of the Communications Act 2003. It may engage Section 1 of the Malicious Communications Act 1988. It may indeed engage the Obscene Publications Act 1959 in some cases. That is why we have asked the Law Commission to look at the issue of distribution on a wider basis. I hear what noble Lords have said in that regard, but this is not the Bill in which we should attempt to address the wider issues of distribution, and nor would it be appropriate to try to address them merely in the very narrow confines of this Bill. My understanding is that the Law Commission is on the cusp of making its first report in this area and we will, of course, look at it.

The issue of revenge porn, as it is sometimes termed, arises because of the change in the law made pursuant to, I think, Section 33 of the 2015 Act. At that time, revenge porn was not designated as a sexual offence because very often the act is not sexually motivated. Therefore, it would not easily fall within the category of sexual offences otherwise provided for in the context of notification, for example. So, again, one has to approach that issue with some care.

A number of your Lordships, in particular my noble friend Lady Barran, pointed out that there was an apparent anomaly in that when you are dealing with an offence under the Bill, there will be anonymity for the victim. That arises because it is designated as a sexual offence. If you are dealing with a victim of revenge porn, there is no automatic anonymity because it is not designated as a sexual offence. However, I stress no “automatic” anonymity; of course, it is always open to apply to the court for anonymity to be granted. To take the example touched on by my noble friend Lady Barran, in a situation in which somebody has taken an image that would be an offence under the Bill and has been prosecuted, and thereafter there is further distribution in the context of revenge porn, you would be in a position to apply to the court for anonymity to be applied to the second prosecution. It would be rather surprising to discover in such a situation that the court was not inclined to grant anonymity. There are, however, particular reasons why anonymity is not automatic in the context of what is generically referred to as revenge porn or an offence under Section 33 of the 2015 Act.

The noble Baronesses, Lady Gale and Lady Burt, touched on the provisions of the Istanbul convention. The present position is that this year we have consulted on domestic abuse and the consultation closed in May. Consideration has since been given to domestic abuse legislation and, in particular, a Bill that would cover domestic abuse in a wider context. That will also address the question of extraterritorial effect for such an offence. Once that is done, we will be in a position to ratify the Istanbul convention. Until that is done, however, I understand that we cannot fully ratify the convention, which is why the matter is being taken forward at present. I hope that that meets the noble Baroness’s query about the convention.

On the wider issues raised, again, I come back to one point. I hope I have touched on distribution. I do not believe that there is a gap in this piece of legislation, as the noble and learned Lord, Lord Judge, suggested. It is an issue that will have to be addressed more widely because it touches on other legislation and would be a distraction from the intended effect of the Bill to fill in a gap in the present criminal law.

On the question of those taking such images for a laugh, as it has been termed—let us be clear that it is certainly not a laugh for the victim—it is perfectly clear that in circumstances where they are taken for “a laugh”, that is bound to cause distress and humiliation to the victim and is therefore covered by the very wide-ranging purposes set out in the Bill.

[Lord Marks of Henley-on-Thames]

I just wonder whether the noble and learned Lord would consider, between now and Committee, the position in cases such as those mentioned by the noble Baroness, Lady Chakrabarti, where the victim is unaware of the images being taken and is intended to be unaware by the perpetrator. In those circumstances, the intention to provide sexual gratification may be very difficult to prove.

[Lord Keen of Elie]

With respect to the noble Lord, in such circumstances it would also be impossible to prove whether the image had been taken consensually. That would be a further, more fundamental bar to prosecution in such circumstances. That is why we and the Law Commission are looking more widely at the distribution of images.

I come back to one point: the mental element in a criminal offence. Being a Scots lawyer, I am rather hot on the topic of mens rea, if I might term it as such. It certainly seems to me unusual—indeed, wholly exceptional—to bring forward a new criminal offence without allowing for the mental element that we regard as mens rea. That is why I consider it appropriate to maintain our present position with regard to purposes. We do not bring forward offences of strict liability except in the most exceptional and compelling circumstances, and that should remain our position so far as the amendment of the criminal law is concerned.

I have heard the submissions made by noble Lords across the House and I am conscious of the wider concerns that arise in the context of aggravating features, although, as the noble and learned Lord, Lord Judge, said, those can be dealt with in the context of sentencing. I urge noble Lords to bear in mind the observation made a number of times about the need to ensure that this remains a simple, straightforward Bill that can be passed and brought into force as quickly and effectively as possible in order to address this obnoxious behaviour. I commend the Bill to your Lordships.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, in moving Amendment 5, I will speak also to Amendment 12, standing in my name. I am most obliged to the noble Lord, Lord Marks, for his engagement, not only with me but with the Bill team, in consideration of the issues he raised in Committee and the time he took to discuss how we could address the concerns he mentioned during the debate on earlier amendments. As he indicated, the purpose of these amendments is to place in the Bill a limit to the functions that authorised staff may carry out by specifying certain functions that they will not be permitted to undertake. We consider that there are certainly judicial functions that authorised staff should not be permitted to exercise, particularly where these relate to deprivation of liberty or repossession of residential property. We have therefore brought forward amendments in response to the concerns that were raised.

Amendment 12 would prevent the Tribunal Procedure Committee enabling authorised tribunals staff to carry out functions that involve authorising a person’s committal to prison or arrest, or the granting of an injunction. Amendment 5 provides that similar restrictions will apply in the courts, subject to certain exceptions. Amendment 5 also prevents the relevant rule committees allowing authorised courts staff to make orders for repossession of residential property where the case is contested, and making search orders. Whether authorised staff may exercise other functions beyond those prohibited by this amendment will, as indicated, be for the independent rule committees to decide.

I hope that these amendments will find support across the House. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord has indicated that we support these amendments, and indeed they respond to concerns that I raised. I indicated in Committee, and in discussion and correspondence with the department since, that I did not see the need to restrict the ambit of delegated functions in a way that could prevent authorised officers extending time for the service of documents, or making consent orders of a procedural nature in substantial civil claims.

However, I was extremely concerned that an authorised officer should not have the power to: make orders taking away the liberty of the subject; make a possession order that would have the effect of depriving someone, or their family, of their home; take the serious steps and risk the far-reaching consequences of granting injunctions; or make orders to preserve evidence—which, as I said earlier, could involve searches of private premises.

I am very grateful to the noble and learned Lord, and to the Bill team, for their consideration and acceptance of the principles I have made. Amendments 5 and 12 respond fully to our concerns and we support them.

Victims Strategy

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Monday 10th September 2018 Lords Chamber

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

My Lords, we too welcome the publication of the victims strategy and I join the noble Lord, Lord Beecham, in thanking the noble and learned Lord for repeating the Statement. The strategy certainly builds on the work done by government, by agencies across the criminal justice system over a number of years and by campaigners. I join in paying tribute to the noble Baroness, Lady Newlove, for her work and also mention the work of my noble friend Lady Brinton in this area.

The measures to strengthen the victims’ code are extremely necessary. It needs revision. We accept that there should be consultation before revision, but it needs to be made easier to understand, easier to access and there needs to be a great deal more awareness of the existence of the code and its provisions among members of the public. The aim should be to ensure support and co-ordination of that support across the criminal justice system. It is also right that the Government propose boosting the powers of the Victims’ Commissioner to hold the agencies to account. However, the main commitment of the victims strategy is to enshrine victims entitlements into a victims law. We look forward to the consultation as to how that will be framed.

I mention in passing two further points that I have picked up. The involvement of victims in the parole process plainly needs to be increased. We need to put behind us the failures of the system of the type that led to the decision in the Worboys case and to the feeling among the public that they had been let down by an inadequate and secretive process.

I also mention the proposed improvements to the criminal injuries compensation scheme which are extremely necessary. I welcome the proposed abolition of the absurd “same roof” rule, whereby victims were debarred from compensation if they lived under the same roof as the person who perpetrated violence against them; very often they lived under the same roof only because they were forced to do so by financial deprivation.

We are left with one very serious area of concern: the legal enforceability of the victims strategy. It does not commit to imposing legally enforceable duties on the agencies involved, justiciable at the instance of victims. It pledges to hold agencies to account through improved reporting, monitoring and transparency on whether victims are in fact receiving their entitlements, and to make the responsibilities of the agencies clearer. However, it is more likely that the victims strategy will succeed in ensuring that agencies meet their obligations, and victims receive their entitlements, if those agencies can be held legally accountable to victims. Will the Minister assure us that the consultation on the victims law will explore ways in which legal enforceability might be achieved? The victims strategy is a good one, but to make victims’ rights a reality needs resources, as the noble Lord, Lord Beecham, pointed out. It also needs the victims law to have real teeth.

[Lord Keen of Elie]

My Lords, I am most obliged for the contributions from the noble Lords, Lord Beecham and Lord Marks. I understand their expressions of concern about various areas of the strategy which are going to be the subject of consultation. I sense a perception, across the House, that we need to move forward on this matter and that we may be moving in the right direction, without looking at the detail that we are immediately concerned with.

The noble Lord, Lord Beecham, raised a point about the conduct of the Metropolitan Police regarding certain matters of prosecution and the pursuit of certain investigations. That is clearly an operational matter on which I cannot comment. Ultimately, the conduct of the Metropolitan Police in that regard is a matter for the commissioner and the Mayor of London. I turn to the other matters raised. First, we intend to amend the victims’ code to address the questions of complexity and accessibility that were referred to. We hope to consult on that in early 2019 and intend that an amended code is in place by the end of that year.

Both noble Lords touched on the victims law. There is already key legislation in place to support victims but we want to go further. It is clearly important that new legislation should be pursued as rapidly as is reasonably possible. We are committed to consulting on the detail of the victims law and that consultation will take place in 2019. We will work closely with the parliamentary authorities to identify legislative slots once we are clearer on what proposals there will be for legislation. We must make sure not to put the cart in front of the horse. We want to complete the consultation process, determine what legislative measures are going to be taken and then decide how best to take that forward.

On the point touched on by the noble Lord, Lord Marks, I stress that we do not want to pre-empt the consultation but we wish to carefully consider, among other things, strengthening enforcement of the victims’ code, to make sure that victims receive the services that they are entitled to and that it is more than just black letters on a piece of paper. That is at the forefront of our minds. We also wish to look at strengthening the powers of the Victims’ Commissioner, and the consultation will explore increasing those powers so that she can better hold government to account in these matters.

I will touch on one or two of the other issues raised. First, again we wish to consult on the criminal injuries compensation scheme; that is likely to be in early 2019. We understand the need to look at the “same roof” issue, and I touched on that in the Statement. Clearly, we will have to consider how this scheme can better serve victims of child sexual abuse and explore, among other things, the concerns raised and recommendations made by the Independent Inquiry into Child Sexual Abuse, which recently made its interim report.

Regarding the independent public advocate, as noble Lords will be aware, we have launched that consultation today and that will close at the beginning of December this year. We would hope then to publish a government response to the consultation process in March 2019. Clearly, it is important to take this forward to ensure that after tragic events such as Grenfell or the Manchester bombing, there is a party in place who can take an overview of where and when parties who are bereaved, who are victims, have been given—or should have been given—the opportunity to be heard and considered.

Finally, on parole, which was touched upon, steps clearly have to be taken to address what occurred following the Worboys case, and the concerns expressed about, in particular, the victim contact scheme and the way in which victim liaison officers may deal with victims in that context. We hope to have a training programme rolled out by the end of 2018 and are looking at changes to the code by the end of 2019 concerning that. We are particularly concerned to ensure that victims will be properly consulted in the context of the parole process. Again, I would not wish to pre-empt the consultation process. We are alive, however, to the need to ensure that change and improvement is made. With that, I hope I have responded to the points made by noble Lords. I welcome their contributions to the debate and to the consultations that will follow.

Law Commission: Funding

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 10th July 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I have already sought to underline the commission’s independence with regard to these matters. The Government continue to value the important work of the Law Commission and recognise that it must retain the ability to make independent choices about reform projects that it chooses to take forward. There are, of course, circumstances in which departments of government will, as it were, seek to instruct or seek approval for particular projects to assist with the Law Commission’s budget. At this point, I pay tribute not only to the work of the Law Commission but to its outgoing chair, Sir David Bean.

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

My Lords, it is a question not just of funding. For the Law Commission to ensure that the law is fair, modern and clear, as it must, the Government must implement its recommendations. Yet, in spite of the duty to report annually to Parliament, only two-thirds of the commission’s 227 reports since 1965 have been implemented. Some 10% still await a government decision, including the reports on cohabitation and intestacy for cohabitants from 2007 and 2011, which are the subject of my Private Member’s Bill. Even the uncontroversial 2010 report on the High Court’s criminal jurisdiction has had only a holding response in 2015. Do the Government regard these delays as acceptable?

Privately Financed Prisons

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, there is nothing craven about the approach that has been taken to the very real and challenging issues relating to our prison population. We are concerned that we should look more carefully at alternative forms of sentence, such as community orders, that would in themselves replace the requirement for sentences particularly of less than 12 months’ imprisonment. That is a matter for consideration. In addition, I remind the noble Lord that we are in the course of taking active steps to provide not only additional but new and refurbished prison accommodation in order to improve the standard of our prisons across England and Wales.

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

My Lords, new, modern prison places are sorely needed, but do not the failed Carillion maintenance contract, the CRC contracts that we have just discussed and other MoJ contracts show how far the ministry needs to take a serious look at its contracting procedures, just as Rory Stewart accepted when he was before the Justice Committee yesterday and assess tenders in a realistic and much more rigorous way? How does the department propose to improve its contracting procedures for these new prisons? Furthermore, Mr Gauke’s effort to get prisoner numbers down by cutting the number of short sentences, saving money in the process, is welcome. What proposals do the Government have to ensure that their prison building programme seeks to combine cutting numbers with transforming prisons, in both public and private sectors, to focus on rehabilitation and training rather than just containment and punishment?

[Lord Keen of Elie]

My Lords, the model of having both private and public custodial services and privately funded and publicly funded prisons has been in place for many years and has distinct advantages. On the maintenance of existing prisons, we have agreed an additional £16 million to start to improve conditions across the estate and not just to address the provision of new prison accommodation. On sentencing, as I indicated earlier, we are concerned to see a development with regard to community and non-custodial sentences. On the matter of contracts, we are pursuing and putting in place robust means of ensuring that contracts are analysed correctly and not simply on the basis of the lowest tender.

National Probation Service

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we continue to make advances in dealing with IPP prisoners, and the numbers continue to reduce. However, I am not in a position to say what the present number of IPP prisoners is in detention. If my noble friend wishes to see that figure, I will arrange to write to him and will place a copy of the letter in the Library.

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

My Lords, the Question of the noble Lord, Lord Beecham, is about the remaining National Probation Service, but the Justice Committee severely criticised the private CRCs for failure through poor contracting, lack of resources and a half-baked payment-by-results system that does not incentivise good practice. So through-the-gate supervision has produced only a poorly functioning signposting service, and voluntary sector involvement in rehabilitation, which we were promised would increase, has reduced instead. Will the Government now commit to implementing the Justice Committee’s recommendations, and there are many of them, and take a long, hard look at reversing this failed part-privatisation?

[Lord Keen of Elie]

My Lords, the Justice Select Committee observes that the model that was introduced by the coalition Government has been disappointing in a number of respects, and we will of course address the terms of the Justice Select Committee report.

Rape Trials

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the review that was undertaken involved consideration of 3,637 cases in the period between 1 January and 13 February this year. In respect of those cases, 47 were identified where there were concerns about the management of disclosure. However, that does not mean that this was the reason for the discontinuance of the prosecution in each and every one of those cases. There is of course concern that disclosure should be carried out fully and properly pursuant to the legal requirements of the Criminal Procedure and Investigations Act 1996. That obligation lies not only on the police and Crown Prosecution Service but on the defence, which is required within a certain period—28 days—to give a defence statement. That, in itself, indicates where there may or may not be room for further investigation of material that could pertain to the prosecution case or assist the defence. It is necessary for all parties involved in this process to engage in order that it can be properly discharged.

As I indicated earlier, further work is being undertaken by the Attorney-General to deal with this question, which we hope to report upon by the summer. I do not accept that we are going backwards. Technology is going forward, and very quickly indeed. We now live in an environment in which there are vast quantities of social media apps—Instagram, Facebook and the like—that can be contained on one or two mobile devices and which make demands upon the police service, the Crown Prosecution Service and indeed the defence. They did not exist 10 years ago. We are seeking to meet those demands; it is important that we do so.

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

My Lords, the number of recent cases collapsing following late disclosure—many of them well publicised—is frankly a disgrace. It is made even worse because it has often happened when defendants have been remanded in custody pending their trial. The Director of Public Prosecutions says that the prosecution is disclosing relevant evidence to the defence in the vast majority of cases, but it needs to be—so far as it can be achieved—invariable. I hear endless anecdotal reports from criminal lawyers that these failings are widespread and attributable largely to a lack of resources, often to download and go through smartphone records—as the noble and learned Lord’s last answer implicitly recognised. We accept that trawling through records harvested from confiscated smartphones is time-consuming and expensive, but fairness and justice require it. Can the noble and learned Lord guarantee that the Government will respond to recent failures by giving all necessary resources to be devoted to this work to ensure that we achieve full disclosure of relevant material to the defence?

[Lord Keen of Elie]

My Lords, we must always aspire to full disclosure in circumstances when material could otherwise undermine a prosecution or assist the defence to a criminal charge. No one would doubt that for a moment. As I understand it, there has been no complaint to date about a lack of resources as regards the police and the CPS. I go back to the point I made earlier, that these obligations with regard to disclosure extend beyond the police and the Crown Prosecution Service to the defence as well. I am not in the business of giving guarantees, but we will look clearly, unambiguously and carefully at the findings of the Attorney-General’s investigation in the summer and will respond appropriately to its conclusions.

Courts: Modernisation

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, first, with regard to the online system, which is being piloted in a number of areas, over 16,000 people have already engaged with the pilots relating to online matters such as divorce and minor pleas in road traffic cases. In addition, we have the online system with regard to payment claims. We appreciate that there are those who will continue to have to engage with the offline systems and we are of course concerned to ensure that we make further progress with regard to court reform. But as I indicated earlier, that will be brought forward as and when parliamentary time allows.

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

My Lords, what we need is accessibility: a set of proposals, properly financed, for court staff, in person and over the phone, court documents and online resources all to be committed to helping court users, particularly litigants in person, to navigate their way through the litigation process. This will mean court officers changing their traditional position that they are not there to give advice. What proposals do the Government have along these lines?

[Lord Keen of Elie]

My Lords, there is no reason why reallocated court staff will not be in a position to provide advice as they have in the past. We are at the commencement of an extensive reform of our court processes. Indeed, I quote the Lord Chief Justice and the Senior President of Tribunals:

“While there is still much work to do, the introduction of this Bill is a positive first step in legislation to deliver reform”.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Committee: 1st sitting (Hansard continued): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

I acknowledge the noble Baroness’s expertise in these areas as a non-executive director of Thompsons Solicitors, and her knowledge of the claims culture that has built up. With respect, in carrying out our work, we looked at the behaviour of the insurance industry in this context. Of course, the insurance industry can operate as an intermediary because, where the claims arise, it passes on the costs to the consumer by way of increased premiums. There have been instances in the past where insurance companies have passed on details of their own insurees’ claims to third parties and that has been exploited. I was quite open earlier in saying that we acknowledge the contribution of a number of different parties to what has developed into an unacceptable claims culture. That is what we are seeking to address in this Bill.

Can I continue just a little further in that context? The first group of amendments from the noble Lords, Lord Sharkey and Lord Marks, proposed that compensation for pain and suffering should be determined by reference to the Judicial College guidelines. Indeed, the second set of amendments proposed to place the tariff amounts into the Bill rather than in regulations made by the Lord Chancellor. All those figures would be significantly higher than those proposed by the Government—indeed, more in line with the amount currently paid out by claim.

I understand that noble Lords feel that the proposed tariff amounts are too low, but we continue to be concerned about the high number and the high cost of these claims in general, and the impact of that on the consumer. Therefore, we have to take a policy view as to how we can disincentivise not just fraudulent claims but what I would call unmeritorious claims—very minor and exaggerated claims. Our view is that it is right to set the tariff through regulations, which will help to control those costs and ensure greater certainty to both claimants and defendants when they come to deal with these claims, remembering that the vast majority of these claims never reach court anyway. They are dealt with before they ever arrive at the door of a court. In addition, we consider that a tariff will provide the flexibility required to change the tariff amounts, in reaction not just to inflation but to changes in the market, if I can gently call them that. We know that we are dealing with a marketplace; it is extremely inventive and can rise again phoenix-like from any statutory provision that we bring forward.

Therefore, we are going to have a tariff of predictable damages, albeit for those who suffer injury with a duration of up to 24 months. That is a relatively minor personal injury, but not one to be dismissed—and we do not seek to dismiss them. The relevant tariff will then be applied. It will be far simpler for someone to take their claim forward and, of course, we then have in place the requirement for an independent medical expert report, albeit in circumstances of dealing with subjective complaints of injury, as the noble Lord, Lord Sharkey, acknowledged. They can be very difficult to determine. If someone comes forward with symptoms, on the basis of a subjective assessment, a report can be made, but it can be very difficult to determine whether those subjective complaints are well based. Indeed, as the noble Earl, Lord Kinnoull, observed, there are claims management companies that would encourage someone to come forward even if he had not suffered any symptoms so far, in the belief that something might emerge in due course. That is why we have taken that approach, albeit we have allowed for the judiciary to have input so that it can, in appropriate or exceptional circumstances, increase the tariff award by up to 20%.

[Lord Marks of Henley-on-Thames]

I just wanted to make this point, but because of the noble and learned Lord’s plea I have perhaps left it a little late, as he has left the question of the figures. He made it clear that a political judgment was made in reaching these figures. The noble Lord, Lord Faulks, asked for clarification that the Judicial College guidelines, on which we rely, were merely an extrapolation from judges’ awards. However, as I expect the noble and learned Lord will accept, there is an element of circularity here because the judges reach their decision as to what is appropriate invariably after having the Judicial College guidelines cited to them, so they feed on themselves and are therefore a fairly carefully worked-out set of figures into which there could be political input.

[Lord Keen of Elie]

With respect, as the noble Lord outlined, they are self-perpetuating figures. Therefore, although we have regard to those guidelines when coming to a view as to where the tariff should be set, that was only one element in deciding the appropriate levels for the tariff itself.

I shall turn for a moment to the amendment proposed by the noble Lord, Lord Beecham, which would provide the court with complete discretion with regard to any percentage increase of exceptional circumstances. We do not consider that that is an appropriate way forward. It would simply lead to an increase in litigation and in the claims culture, so that is why we feel that there should be an appropriate limit on how any exceptional circumstances can be dealt with by the court.

In that context, I should point out that the tariff system is not entirely a novelty. Other European jurisdictions faced with the same claims culture and the same racket, as some people have called it, have introduced tariffs as well, or tables of predictive damages. That includes Italy, Spain and France. In due course both Houses will have the opportunity to debate the details of any regulations that are introduced to put forward the appropriate figures for the tariff, which at present we consider should be in the regulations, if only for the purposes of flexibility.

Again, I want to emphasise that this is essentially a matter of policy to deal with a very particular problem. It is a political decision; it is not one that we consider is for the judges; it is one that is ultimately for the Lord Chancellor to deal with in his capacity as a Minister. It is in these circumstances that I invite the noble Lord to withdraw the amendment.

Civil Liability Bill [HL]

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Committee: 1st sitting (Hansard): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

With great respect, the relevant text can be judged, because the requirement is that a person should take reasonable steps to secure those services where they are required. If they are not available then that is an answer to the point.

May I move on to Amendments 27A and 49A, on the course of employment? I have to confess that, on this matter, I am inclined to side with the noble Lord, Lord Bassam. It appears to me, with due respect, that there is perhaps a misunderstanding here. If we look at Clause 1(3), we see that it is concerned with a situation in which a person suffers whiplash injury “because of driver negligence”. Whether a person is in the course of their employment or not, if they suffer a whiplash injury because of driver negligence, the third-party driver’s negligence will be responsible for the injury and, therefore, the insurer of the third-party driver will respond. If, on the other hand, the injury is the consequence of the driver himself, then he will have no claim, because you cannot claim in respect of your own negligence. In neither event would there be a legitimate basis for claim against the employer. It is for that reason that we do not consider it necessary to exclude a group to that extent.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt the Minister, but is that the point? The point of these amendments, as I understood them, was to exempt those who drive in the course of their employment from the rigour of the new provisions of this Bill when they are claimants, so that the claimant in the course of his employment has a legitimate claim. We may assume it is a legitimate claim because, as the noble Baroness, Lady Berridge, said, it would have to be backed up by the employer’s evidence saying, “This claimant, driving my lorry on a perfectly legitimate delivery, was injured”. It is the claimant who counts, not the defendant.

Grandparents: Legal Rights

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, with regard to access to the courts, the number of applications for child arrangement orders has generally been in the region of 2,000 over the period since 2011. They have varied slightly, and the number of applications has increased steadily from 2015 to the current year, where the figure is in excess of 2,000. I have certainly not referred to presumption, and various issues would of course arise if we were to consider such a move because, if you contemplate a presumption in favour of grandparents, you are in a sense intruding on the rights of the parent.

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

My Lords, is there really a justification for the two-stage process whereby grandparents have to apply for the right to make an application for a contact order and there is then a filtering system? Would it not be much easier for there to be a single application for a contact order with a filter system for non-parents built into that application, thus saving grandparents a great deal of time and trouble—all, as the noble Lord, Lord Beecham, points out, without the benefit of legal aid under the current arrangements, which require there to have been domestic violence or abuse?

[Lord Keen of Elie]

My Lords, the matter of seeking permission, whether it be by grandparents or other non-parent applicants for an arrangement order in respect of children, was the subject of independent review by the Family Justice Review panel in 2011. In its final report, published in November 2011, it concluded that the matter of an application for permission should continue.

Employment Tribunal Hearings

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 26th April 2018 Lords Chamber

[Lord Keen of Elie]

On the last point, the Supreme Court determined that it was lawful to charge fees for the tribunal; it was the level of fees that was considered disproportionate. The time taken for tribunal cases was in the region of 26 to 28 weeks per case for resolution. That has increased to about 33 weeks because there was a significant increase in applications to the tribunals after the decision in July 2017. We have put in place a process for recruiting a further 54 tribunal judges for employment tribunals, which should increase capacity by about 44%. In addition, we are now taking steps to increase the number of fee-paid judges in the tribunal system; indeed, fee-paid judge sittings have increased by 180% since July 2017. We are also conscious of the need to employ additional staff in employment tribunals; that is being undertaken at the present time. I apologise for the length of my answer, but I felt I should give the noble Lord’s question a full response.

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

My Lords, in the impact assessment supporting the 2013 fees order, the Government said that they were unable to predict how many employment tribunal claims would be deterred by the introduction of the fees but that they should deter unmeritorious claims. We now know that there was a 75% drop in claims following their introduction, with absolutely no effect on their success rate, and that this massive backlog has built up following their abolition. Will the noble and learned Lord accept that this is clear evidence that high tribunal and court fees deter meritorious claims and so reduce access to justice? Will he assure the House that any future impact assessments on this topic will have regard to such evidence?

Probation: Voluntary Sector

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Tuesday 24th April 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, if I may, I will quote from the chief inspector’s report of 17 April:

“We found that the quality of services was variable, but reasonable overall”.


We intend that the service should be more than reasonable, and we are considering her recommendations.

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

My Lords, the report demonstrates that probation services have been going badly wrong, with a failure to involve the voluntary sector on anything like the scale envisaged. Allowing the community rehabilitation companies to design and implement their own delivery models was a mistake and has led to uneven and inadequate delivery. Do the Government now plan to tie CRCs to more rigorous contracts by variation, or on renewal? Might this not also enable CRCs to provide much more in the way of needed services to the National Probation Service?

[Lord Keen of Elie]

My Lords, the community rehabilitation companies faced unexpected difficulties when it was found that the financial float of those companies was less than had been planned for. We have already discussed the terms of the contracts with the CRCs and they are the subject of further consideration. We are certainly determined that there should be a diverse provision so far as probation is concerned, and one that does involve third sector organisations.

Legal Aid

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 19th April 2018 Lords Chamber

[Lord Keen of Elie]

We are conscious of the contribution that the criminal Bar makes. The noble and learned Baroness is alluding to developments with regard to recent changes to the advocates’ graduated fee scheme. That scheme was developed in conjunction with the profession, in particular the Bar Council. The changes are intended to create a simpler and more modern pay system which better reflects the reality of the work being done. As regards the question of an inquiry, a review by the Lord Chancellor is ongoing and we intend to report on it in the course of this year.

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

My Lords, the impact assessment for LASPO anticipated annual savings of £450 million. In fact, annual savings have been running at about £950 million. Last month’s terms of reference for the LASPO review commit the Government to ensuring that legal aid is,

“available to those who need it”.

Given that this aim is clearly not currently being achieved, will the Government make these extra savings of £500 million available to fund any proposals made on the review for extra legal aid spending? Has that been made clear to officials conducting the review within the department?

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Keen of Elie]

With respect, neither I nor the Prime Minister misunderstood any of that. With great respect, I want to correct the noble Baroness on one point: that ecosystem is simply not required for mutual recognition and enforcement of judgments by two separate jurisdictions. That happens between the countries of the Lugano convention and countries in the EU in any event. I am talking about starting from the same point, with common rules regarding judicial recognition and enforcement, and moving from there to the negotiation of a new partnership. We do not foresee the sort of difficulty that the noble Baroness alludes to in that context.

At this stage, I want to come back to the point I was seeking to make. First, it is not necessary for the UK to subject itself unilaterally to the CJEU’s jurisdiction to secure a reciprocal agreement. Many other countries do that. Secondly, in any event, the Government have been clear throughout debate on the Bill that it is in no way designed to legislate for any future agreement between the UK and the EU. That is not the purpose of the Bill. We cannot unilaterally legislate for our future relationship with the EU simply by including in our domestic legislation certain provisions about recognition of family law, maintenance and other agreements—a point that the noble Baroness, Lady Sherlock, readily acknowledged at the outset of her opening remarks some considerable time ago.

I understand that the intention behind Amendment 120 is to make sure that there can be continued application of international agreements, such as the Hague 2007 maintenance convention, which the UK currently operates by virtue of its membership of the EU. Of course, we are intent on doing that; as I noted earlier, we understand that there is a potential three-month gap there, which we need to address. I hope I can reassure the noble Baroness that we are clearly intent on securing an agreement, albeit not as an EU member and not subject to the direct jurisdiction of the CJEU, which ensures that we can maintain the highest standards of family law and mutual recognition, whether it be jurisdiction, choice of law or enforcement. I invite the noble Baroness to withdraw her amendment.

[Lord Marks of Henley-on-Thames]

I entirely understand the response the noble and learned Lord gave to the effect that you can, of course, have a treaty to ensure reciprocity, but he does not appear to recognise the role of the CJEU in the difficult cases where there is an argument about what reciprocity means and the obligations on states that are parties to that treaty. I do not know that there has been any explanation from the Government of how we deal with the difficult cases without accepting the jurisdiction of the CJEU. Would he like to elaborate?

[Lord Keen of Elie]

I am happy to repeat the observation I made earlier: these difficult cases are resolved, for example, between Norway, Iceland, Switzerland and the other members of the Lugano convention embraced within the EU. In that context, each of the courts—the Lugano court and the CJEU—respects each other’s judgments, but they are not bound by them. That happens all the time. Ultimately, it would be for the domestic courts of each jurisdiction to determine what they were and were not prepared to enforce in the context of these agreements. That does not present any insurmountable difficulty, any more than it does in the context of the reciprocal recognition and enforcement of orders made pursuant to the current Hague conventions.

Again, I am obliged to the noble Baroness, Lady Sherlock, and to the noble Baroness, Lady Kennedy of The Shaws, for the report. I repeat my offer of further meetings to the noble and learned Baroness, Lady Butler-Sloss.

Prisons

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 22nd February 2018 Lords Chamber

[Lord Keen of Elie]

My noble friend is quite right to highlight such a serious issue. There is a very large proportion of prisoners with mental health issues within the system. We are working with the Department of Health and NHS England to develop a new health and justice protocol that should ensure timely access to mental health and substance misuse services. In addition, we have been providing grant funding of £500,000 a year to the Samaritans for the last two years in order that they can support their Listener Scheme for those who require it.

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

My Lords, I believe that this House collectively shares a vision for our prisons to be not only secure, but clean, well maintained, humane, uncrowded, well staffed, safe places of education, training and purposeful activity, effective in addressing mental health and addiction issues and committed to rehabilitation and turning lives around—in short: civilising and civilised. Do the Government share this vision? If so, will they greatly increase investment now to realise it, incidentally reducing the estimated £13 billion annual cost of reoffending?

[Lord Keen of Elie]

My Lords, we, of course, have a vision of a prison system that is decent and safe for all those who have to be secured within it. We are proceeding with a programme of capital expenditure to replace Victorian and older prisons with prison accommodation more suited to present requirements. We have increased the number of prison officers within the prison estate in the last few years to the point where, up to December 2017, there were 19,925 prison officers, an increase of about 1,500 from the previous year. Of course we have aspirations for the prison system but we have to be realistic about those.

Non-Disclosure Provisions

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Monday 22nd January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes any non-disclosure provisions between any employer and employee unenforceable unless the employee has had independent legal advice. The position of the legal profession, to that extent, is monitored. ACAS has a statutory code and practical guidance on settlement agreements which make it clear that no settlement agreement can include clauses that attempt to prevent or restrict an individual from making a protected disclosure. That applies to the public sector as well as elsewhere.

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

My Lords, the noble Baroness raises an important point, because it is wrong that confidentiality, or gagging, clauses in settlements should be used to conceal wrongdoing. But confidentiality clauses do play an important part in encouraging ADR—particularly mediation or arbitration—and in encouraging parties to settle cases rather than fight them in public, all of which we are keen to promote. Will the Government consider further how we might restrict the improper use of such clauses, particularly in employment and sexual cases, without undermining their legitimate use?

HMP Liverpool

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Thursday 21st December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, where the courts impose a custodial sentence, the punishment is deprivation of liberty. But where someone is kept in custody, the conditions should be decent, safe and secure. We accept that as a Government.

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

The MoJ may say that it does not comment on leaked reports and the Minister has repeated that, but there is no doubting the authenticity or content of this one. The prison was the worst that inspectors have seen, with prisoners spending 22 hours a day in filthy, vermin-infested cells with exposed electrical wiring and blocked and leaking lavatories. Within weeks of inspection, two inmates killed themselves. Yes, the governor has been sacked, but that is not enough. Will the MoJ please now act urgently to establish a crisis task force to work with the inspectorate’s recommendations, there and elsewhere, to turn around the dreadful conditions in our failing prisons?

[Lord Keen of Elie]

My Lords, we have replaced not only the governor but the deputy governor and the head of healthcare at the prison itself. We intend to establish a new unit in the Prison Service to enhance our response to the inspector’s recommendations, which will involve monitoring and auditing progress on the recommendations. This will commence in January 2018. In addition, on 30 November we announced the introduction of an urgent notification process. Unfortunately, the report took place in September and therefore did not trigger that notification process. Under that process, the inspector can go directly to the Secretary of State for Justice in cases where urgent reform is required, and the Secretary of State will undertake to respond publicly within 28 days of such notification.

Criminal Justice: Interpretation and Translation Services

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 29th November 2017 Lords Chamber

[Lord Keen of Elie]

I agree with both the propositions advanced by my noble friend. We have no difficulty at present with the provision of interpretation services in respect of these matters.

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

My Lords, this month there have been at least six reported instances of cases being adjourned for lack of an interpreter, and there may be more. This is part of a continuing pattern which disrupts court business and wastes resources. Does the MoJ have any new proposals to ensure that needs for interpreters are identified and arrangements made for their attendance earlier and more efficiently?

[Lord Keen of Elie]

We have no proposals to alter the present system, which works effectively. I point out that there are around 500 to 550 bookings for interpreters each day, so the number he refers to—six—is a very small proportion of the overall interpretation service.

Civil Procedure (Amendment) Rules 2017

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 13th September 2017 Lords Chamber

[Lord Keen of Elie]

I do not accept that. Quite apart from anything else, I again make the point that some of these matters have already been submitted in argument to the High Court. It has heard those arguments and will deliver judgment upon these points. I am quite clear in my own mind that the cap has a default position; it may be varied in light of the schedule of means, but once it is fixed there have to be identifiable and fixed circumstances, such that the claimant misled the court in the first place, before it will be reviewed on an application by the defendant. It is very clear, and the grounds upon which that can be done are patently very narrow.

[Lord Marks of Henley-on-Thames]

Perhaps the Minister will explain where those grounds are rigidly defined because they are nowhere in the rules, as I read them. The statement of financial resources has to be provided with the original application. It is not a question of there being a default cap which may then be varied on the basis of the statement of means. Rule 42 is absolutely clear that at the outset the statement of financial resources has to be provided.

[Lord Keen of Elie]

On the second point, I do not demur. The point is that there is a default position but, in the light of the schedule of means that is produced at the outset, that may be varied down or up. I have no difficulty with that whatever. As to the first point that the noble Lord alluded to, I commend to him a little patience because the High Court is about to opine on these matters, having heard argument. He will be familiar with the pleading that the NGOs submitted in their judicial review and with the notes of argument that were submitted on behalf of the claimants and on behalf of the defendants in that matter. They focus on the very issue of the limited circumstances in which any variation can take place at a later date. I have referred to two possibilities. They are the only two possibilities of which I am aware, and I put that into Hansard. If there were a third or fourth, I would have mentioned it.

The Government understand that, following the most recent changes in February, environmental claims continue to be brought. That said, the Government agree that it is too early to make a fully effective assessment of the impact of the changes to the environmental costs protection regime to date. We will keep the impact of the new environmental costs protection regime under review and will review it formally when we have sufficient data, so I seek to reassure the noble Baroness on that point.

The Government need to strike a balance between enabling appropriate claims to proceed and making sure that unmeritorious claims are not encouraged. Those who can pay towards the costs of unsuccessful claims should do so, subject always to the requirement that Aarhus convention claims should not be prohibitively expensive. Overall, the Government believe that the reforms that have been introduced are fair and reasonable and certainly comply with our international obligations. That is the subject of a current challenge on which the High Court is about to opine. I respectfully suggest that it would be premature for this House to anticipate the opinion of the High Court on these points and I hope that the noble Lord will withdraw his Motion.

Prisons and Youth Custody Centres: Safety

Debate between Lord Keen of Elie and Lord Marks of Henley-on-Thames

Wednesday 19th July 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Beecham, for his observations. First, on the safety of the youth estate, since his report was published the inspector has acknowledged that at the institution at Werrington, the standard of safety for both inmates and staff is at a scale of three out of four: that is, at 75%. Of course, the fact that one of these institutions has achieved such a level of safety takes us only so far. We will seek to emulate those standards across the entire estate going forward, but it is not the case that all these institutions have failed. I accept, however, that the failure reported upon by the inspector is unacceptable and has to be addressed.

As the noble Lord may recollect, we have already committed to spending £1.3 billion on the prison estate. In addition, I note that Her Majesty’s Prison Berwyn, which has been completed, now has 430 places in use, and, once fully operational, will have a further new 2,100 prison places. That is but a step but it is a step in the right direction. As for periods of incarceration, I note that the level of sentences imposed for violent and sexual crimes over the past decade has increased. That, of course, has an impact upon the prison estate. That is a feature that we have to take into consideration in looking at the overall operation of the system. But we cannot lose sight in this context of the issue of public safety.

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

My Lords, the chief inspector reports that he is,

“appalled by the conditions in which we hold many prisoners”,

and that far too often he had seen,

“men sharing a cell in which they are locked up for as much as 23 hours a day, in which they are required to eat all their meals, and in which there is an unscreened lavatory”,

while,

“staff shortages make it impossible to provide a decent, rehabilitative environment”.

Do the Government recognise this as a crisis which disgraces Britain? The Minister’s Answer suggests complacency. We are not making significant progress. The chief inspector says that we are having,

“a dramatic and rapid decline”.

We now have a custody system that is redolent of “Midnight Express”. Never mind the nasty party, on prisons we are becoming the nasty country. Will the Government act now to reduce prisoner numbers, renew the prison estate, reduce overcrowding, radically raise staffing and tackle violence of all forms?

Is the MoJ powerless to persuade the Treasury to spend more on reducing reoffending to save offenders’ futures, at the same time saving much of the £13.5 billion annual cost to the public purse of reoffending?

[Lord Keen of Elie]

I am obliged again to the noble Lord, Lord Marks. Complacency is not a badge that can properly be applied to the Government with regard to the issue of prisons and the prison estate.