Non-Contentious Probate (Fees) Order 2018

Lord Marks of Henley-on-Thames Excerpts

Tuesday 18th December 2018 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

Leave out from “that” to the end and insert “this House declines to approve the draft Order, because it would be an abuse of the fee-levying power, since the proposed increased fees substantially exceed the cost involved in making grants of probate and would amount to a tax, which should only be introduced, if at all, by primary legislation.”

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

My Lords, my amendment is fatal, and I do not move it lightly. The Government propose to increase fees for probate applications from the current flat rate of £215 for individuals or £155 for solicitors’ applications on all estates worth £5,000 by introducing a sliding scale of fees rising from £250 to £6,000 on all estates worth £50,000 or more. The fee is to be banded with a maximum £6,000 fee kicking in at £2 million. These are dramatic increases. According to the impact assessment, the existing fees reflect average administrations costs. That is why a solicitor’s application costs less than an individual’s application, simply because it costs less to administer. For estates above £2 million, the increase is twenty-eightfold. Just that increase would be 27 times the actual cost of administration. The Government expect these so-called enhanced fees to generate a profit of £145 million a year, rising as estate values increase.

The noble and learned Lord relied in his all-Peers letter and relies today on Section 180 of the 2014 Act as, “clear authority to set fees above cost to cross-subsidise other parts of the courts and tribunals system”. He says, “The level of fee does not have to be related to the cost of the service and all additional income raised from enhanced fees can only be used to fund an effective and efficient courts and tribunals system”. He is quite right to point out that Section 180 permits,

“a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”,

but it permits only a fee, not a tax. These are probate fees and not court fees. The element of cross-subsidisation on which he relies is wrong in principle, because he is using a totally different part of the system to subsidise court fees.

The Minister has pointed out that a similar proposal was made in 2017, but with an upper fee of a massive £20,000, and he understated the outcry that it provoked. The proposal was not pursued to conclusion—anyway, the 2017 election intervened. Then as now, the draft SI was considered by both the Joint Committee on Statutory Instruments and by your Lordships’ Secondary Legislation Scrutiny Committee. Your Lordships’ committee’s current report, published on 21 November, states:

“The Government estimate that the revised fee structure will generate over £145 million in additional fee income in 2019–20, which they plan to use to pay the running costs of other parts of Her Majesty’s Courts and Tribunal Services. We wonder whether the House envisaged the power being used for this degree of cross-subsidy when the Act was passed. This Committee’s concern about the revised fee structure remains the same as it was for the draft instrument laid in 2017: ‘while section 180 … permits the levying of enhanced fees, we are surprised to see it used to this extent. To charge a fee so far above the actual cost of the service arguably amounts to a ‘stealth tax’ and, therefore, a misuse of the fee-levying power.’”


As for the difference between the £20,000 fee proposed in 2017 and the £6,000 fee proposed now, the committee expressed the view, with which I agree, that,

“the underlying principle behind the charge has not changed”.

The Government explain:

“Even the highest fee in our scheme would represent no more than 0.5% of the value of the estate”.


The Minister repeated that today. The committee thought that this sentence, relating the fee to the value of the estate,

“gives the fee the appearance of a tax rather than a fee linked to the actual cost of providing the service”.

The Joint Committee reported on 5 December even more strongly, stating:

“The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act”.


It reminded Parliament that it had called last year’s draft order to the special attention of both Houses, on the grounds that,

“(a) the charges prescribed by it would in substance constitute a tax on estates, rather than probate fees, and may therefore be ultra vires; and (b) the Committee doubted whether Parliament contemplated that the enabling powers would be used in the way proposed by the Lord Chancellor”.

It distinguished enhanced court fees intended to pay for the Courts Service from enhanced fees for probate applications intended to subsidise the running of the Courts & Tribunals Service generally. The committee stated that,

“applying for probate is not to be compared with the commencement of proceedings. A person can choose whether to litigate, and therefore whether to incur the fees payable on issuing a claim—which may be recoverable from the defendant if the case succeeds. In contrast, executors have to obtain probate to allow them to administer an estate, and the fee for doing so is not refundable. This is an administrative process, akin to the registration of a life event. Nobody applying for an uncontested probate would think for a moment that they were engaging in litigation. That makes it difficult for the Committee to accept that a power to charge enhanced court fees can be extended naturally to require probate fees to reflect the general costs of the court and tribunal system”.

The point that executors have no choice but to apply for probate was powerfully made by the Law Society in its briefing for today’s debate. The committee thought these probate fees were like stamp duty and used the phrase “dressed up as ‘fees’”. It reminded Parliament:

“It is an important constitutional principle that there should be no taxation without the consent of Parliament, which must be embodied in statute and expressed in clear terms. In the Committee’s view, the 2018 Order is a measure of taxation for which there is no clear statutory authority”.


The committee referred to the 1921 case of the Attorney-General v Wilts United Dairies. However, there is older and more fundamental authority on the point of that case. In relation to tax-varying measures proposed in Clause 8 of the European Union (Withdrawal) Act, the Delegated Powers and Regulatory Reform Committee complained that the powers would enable the creation of what it called tax-like charges. It said:

“Fees and charges for services or functions should operate on a cost-recovery basis, leaving taxation for a Finance Bill”,


which it rightly described as,

“a principle enshrined in Article 4 of the Bill of Rights 1688”.

The question for this House is whether it is appropriate to treat the enhanced fees proposed in the draft order as fees or a tax. I invite the House to accept the view that what the Government are intending to do here is, impermissibly, to introduce a tax by secondary legislation by a misuse of their power under the 2014 Act.

I accept that a fatal amendment is unusual. However, the Cunningham committee, in its report Conventions of the UK Parliament in 2006, concluded that there are situations in which it is right for the Lords to threaten to defeat a statutory instrument, citing as an example,

“where special attention is drawn to the instrument by the Joint Committee on Statutory Instruments or the Lords Select Committee on the Merits of SIs”.

That is so in the case here for both those committees. Both committees took that course. I would add to the specific examples in the list produced by the Cunningham committee that where a proposed SI offends against the fundamental principle that taxation requires primary legislation that is fully amendable, that is a matter of constitutional importance which entitles this House, in our role as guardians of the constitution, to reject an SI on that basis.

I have two further short points. First, these charges are to be paid up front. There is no provision, as there could have been, for the Government to defer payment where necessary until the assets of the estate, often real rather than liquid assets, are realised. Executors are not always beneficiaries; they are often friends or relatives of the deceased acting out of kindness. I see no reason why they should be subjected to these substantial charges payable before—often years before—the assets of the estate can be realised. This is a point well made by the briefing prepared for today by the Institute for Family Business, which cites asset-rich but cash-poor farming businesses as an example.

The Minister’s response to this point is that they can borrow the money, and he made that point again today. Perhaps they can in certain circumstances, perhaps even in most circumstances, but at a cost that is often considerable, both financial and administrative. The burden of obtaining a loan is often very significant. The alternative response that the noble and learned Lord gave at the all-Peers meeting that he kindly arranged to discuss this SI was that solicitors would no doubt offer credit. I have to say that that does not match my experience of solicitors paying disbursements for their clients.

My other point is that there are specific remissions of fees proposed in respect of deaths in the 2004 tsunami and deaths as a result of the July 2005 terrorist attacks. I suggest that if there were to be prescribed remissions, there ought to be a power to remit far more widely in other cases. The power to remit fees in exceptional circumstances, the safety net mentioned by the Minister, does not seem to me to answer that criticism.

However, this last was a minor point in respect of this SI, which is of course unamendable—and the fact that it is unamendable is something that noble Lords may well wish to take into account when deciding how to vote on this Motion. My principal point is one of constitutional importance, however, and I suggest that on that basis this House should decline to approve the order. I beg to move.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I should inform the House that if this amendment is agreed to, I cannot call the amendment in the name of the noble Lord, Lord Beecham, by reason of pre-emption.

--- Later in debate ---

[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

Lord Marks of Henley-on-Thames Excerpts

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

Lord Marks of Henley-on-Thames Excerpts

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]

Lord Marks of Henley-on-Thames Excerpts

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

Lord Marks of Henley-on-Thames Excerpts

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

Lord Marks of Henley-on-Thames Excerpts

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

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

My Lords, upskirting is nasty, predatory, degrading and invasive behaviour. It inflicts significant emotional damage upon its victims, as described by my noble friend Lady Burt and others. While, as my noble friend Lady Barker pointed out, it has similarities to revenge porn, which we rightly and successfully criminalised in 2015, upskirting is markedly different from revenge porn in that its victims are generally unknown to the perpetrators and suffer this appalling unpleasantness, which may leave them with serious emotional scars for years to come, just because they happen to be in the wrong place at the wrong time.

It is significant and welcome that there has been absolutely no dissent in this short but excellent debate on criminalising upskirting. I too pay tribute to my honourable friend Wera Hobhouse MP for the skill and determination with which she pioneered her Private Member’s Bill and secured the Government’s support that has led to this Bill. I thank the Government for taking it on and the Minister for the clarity of his introduction.

I also pay tribute to Gina Martin. She was enjoying a visit to the British Summertime Festival, a 26 year-old woman with no political or legal experience, when a man who was with a friend took a photo up her skirt on his phone and then very publicly texted it to all his friends in the surrounding crowd, causing her considerable distress. The police attended and told her there was nothing that she or they could do because upskirting was not an offence in England and Wales, unlike in Scotland, where it was criminalised in 2009. That prompted Gina Martin to launch and champion a very successful petition and to campaign vigorously to make upskirting an offence. She has been an example to us all of what individual campaigning can do to secure real change.

What has horrified many has been not just that upskirting has become so widespread but that it has been accompanied by the development of large numbers of websites where upskirting images have been publicly displayed. This was mentioned by my noble friend Lady Burt, the noble Baroness, Lady Barran, and others, while the noble and learned Lord, Lord Judge, talked about dealing with the question of distribution. We must be absolutely sure that legislation captures this type of behaviour.

I turn to the detail of the Bill. The first issue for consideration has been raised by all noble Lords: whether it is necessary to specify that to constitute an offence the upskirting must be carried out either for the sexual gratification of the perpetrator or another, or in order to humiliate, alarm or distress the victim. The Government maintain that, given the lack of consent requirement in the Bill, all non-consensual upskirting is likely to be committed for one or other of those specified purposes. I acknowledge, and on this I share the view of the noble and learned Lord, Lord Judge, that it is quite difficult to see circumstances where upskirting will be committed without one of those specified purposes in mind. However, I remain to be convinced that there will never be such circumstances or that the specified purposes will always be capable of proof to the criminal standard.

As one might expect, I do not share my noble friend Lady Burt’s distrust of sneaky defence barristers. Defence counsel have a duty to advance all defences available to their clients. For my part, I would not want to offer those who ought to be convicted a gratuitous and undeserved route to acquittal by erecting artificial hurdles for the prosecution to surmount.

My concern is that there may be incidents of upskirting where the perpetrator could argue that he had no view to his own sexual gratification or that of anyone else, no intention of humiliating, alarming or distressing the victim and that his interest was mere entertainment or banter with friends.

We should remember the important fact that any victim who is aware of the upskirting and of the distribution of the resulting images, or even of the risk of distribution, will inevitably suffer humiliation, alarm and distress. But intention to cause it may be difficult to prove. Should we be requiring the prosecution to prove it, allowing a defendant to argue, for example, that his victim was entirely unaware of the incident? For my part, I would regard any such defence as of absolutely no merit, but I can foresee such defences being run and doubt that they should be available.

The question of financial gain arises in this context also. If the perpetrator’s purpose is financial gain from distributing images on websites, will the prosecution always be able to prove that it follows that his purpose was the sexual gratification of another person or persons looking at the websites? That is apparently the Government’s argument, but I remain to be convinced that it is right, or, even if it is right, that it is necessary to import that somewhat complicated and convoluted logic into the Bill. If the purposes provision is to remain in the Bill, the question arises why financial gain and entertainment should not be added to the purposes specified in the Bill.

Viewing the question from the opposite point of view to that of the Government, if all non-consensual upskirting would fall within the specified purposes, what is the point of specifying them? The Minister argues that only upskirting for sexual gratification should lead to notification—that is, entry on the sex offender register—so that purpose and others must be distinguished. I can see that. However, the Bill could be simply amended to provide that notification followed only where the offence was committed for the purpose of sexual gratification of the offender. We will explore this in Committee.

Having carefully considered the Government’s position, I agree with other noble Lords who believe that recording upskirting images without the actual or believed consent of the victim should be enough to constitute an offence and the prosecution should not have to prove one of the specified purposes. I will listen, of course, to the Minister’s response, but I invite the Government to think again on this point.

My noble friend Lady Burt also raised the question of misogyny and whether there should be aggravating factors in the offence under the Bill. I can quite see the argument that an offence that is accompanied by hostile and misogynistic behaviour should be treated particularly seriously by judges when sentencing offenders. The noble and learned Lord, Lord Judge, pointed out that that is precisely what sentencing judges do. Whether or not that should be mentioned specifically in the Bill is open to question and may be considered in Committee.

However, I have no doubt that the House welcomes the commitment by Lucy Frazer, the Parliamentary Under-Secretary for Justice, a commitment mentioned by the Minister, that she will be asking the Law Commission to review whether and how far existing hate crime law should be broadened to give greater protection against hostility based on sex and gender-protected characteristics.

We enthusiastically welcome this Bill; we are proud that it was introduced as a Private Member’s Bill by a Liberal Democrat MP; we applaud the Government for adopting it; and we look forward to considering it further as it passes through the House.

--- Later in debate ---

[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]

Lord Marks of Henley-on-Thames Excerpts

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

[Baroness Chakrabarti (Lab)]

My Lords, I believe we have some settled agreement in your Lordships’ House on the constitutional system we serve, which is still much admired around the world. In that system, notwithstanding the peculiarities of your Lordships’ revising House, accountable primary legislators make our laws and independent judges apply them.

I fear that we have been lulled into a false sense of security on this so-called mouse of a Bill. We have been encouraged to wave it through your Lordships’ House without much of a squeak, but I fear none the less that it breaches the crucial distinction I just attempted to set out. It attempts to sneak through principal changes that, in my view, constitute a double delegation of legislative powers to unaccountable judges by way of the procedure rule committee—and ultimately not even to judges because in my experience, government lawyers will draft those rules, which will pass on the rule committee without much by way of amendment.

Secondly, judicial powers are to be delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges. That would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial staff, to employees of Her Majesty’s Courts and Tribunals Service. It is vital that Clause 3, which delegates judicial functions to authorised staff, is understood in the context of a much wider court reform agenda, and the significant austerity measures—because austerity is not quite over yet—that sit behind this.

Efficiencies generated by the proposed reforms will arise not only through the reduction of the court estate but through savings on judicial salaries. The Government’s Queen’s Speech promised a programme of reforms that would transform the way the United Kingdom justice system operates. Unlike last year’s Prisons and Courts Bill, which dealt with these proposed reforms head on, the courts and tribunals Bill is the beginning of a slower legislative drip-feed process. There has been no adequate parliamentary scrutiny of this broad programme of expensive modernising measures—even by the Justice Committee—nor indeed of the associated court closures and staff cuts.

The Bill currently provides that regulations under Clause 3 shall be made under a negative resolution procedure. This would allow for new rules of court stipulating which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience to take on those judicial functions. As the Bill stands, this delegation will come into force without any real parliamentary scrutiny. By providing that the regulations in the Bill be made under the negative resolution procedure, the Government are once again seeking to avoid proper scrutiny by democratically mandated legislatures, principally the other place. This amendment, supported by the Bar Council, attempts to ensure more constitutionally appropriate accountability and scrutiny, through at least the affirmative resolution procedure, of the potentially sweeping regulations to be made under Clause 3. Those regulations concern powers to make rules stipulating which judicial functions may be delegated and to whom, alongside appropriate stipulations regarding the qualifications or experience required before this member of the administration—potentially quite a junior member of Whitehall staff—be given these judicial functions.

As the noble Lord, Lord Pannick, who I see in his place, pointed out in Committee:

“The power which the Secretary of State or Lord Chancellor is being given”,


under the clause,

“includes a power to make ‘consequential provision’”.—[Official Report, 10/7/18; col. 878.]

Despite the Government’s promise to give further consideration to the issue during the previous debate, they seem to have offered only the assurance that the power will be limited to changes to statutory instruments. If that is the assurance, why should it not appear in the primary legislation? As a legislator, that seems an assurance worth having.

At Second Reading, the Minister said in response to concerns expressed about the lack of consultation and scrutiny of this ambitious reform programme that,

“the purpose of primary legislation is to implement law, not to review that which we can already do”.—[Official Report, 20/6/18; col. 2053.]

I once more respectfully disagree with that constitutional analysis, for to my mind the role of the legislative process is most certainly in part to review government policy and to restrain executive action, particularly when that policy has the potential—just the potential—profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, the Government’s drip-feed might erode some of our most fundamental institutions and our understanding of the rule of law. The safeguards that we are calling for on the powers created by this Bill are not unreasonable, or seeking to wreck the fundamental notion of reasonable delegation of non-contentious administrative functions. They are minimal if we consider that provisions in this so-called uncontroversial Bill have the potential profoundly to impact on our justice system. The relatively unrestrained double delegation of legislative and judicial powers that the Bill encourages is a slippery constitutional slope that we can, and ought to, resist.

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

My Lords, since Committee on 10 July there have been meetings and extensive correspondence with the noble and learned Lord’s department. The question arises on this amendment as to what is the ambit of the power. If it were as described by the noble Baroness, Lady Chakrabarti, one would have considerable sympathy with the amendment—indeed, I do have sympathy with it, but it needs a little more analysis.

When serving on the Delegated Powers and Regulatory Reform Committee, as I did for some years, we were astute always in not ruling out a negative resolution procedure in cases where the power was strictly limited, but insisting on an affirmative resolution where it was not. In the analysis that we have conducted I have been very grateful to the Bill team, and in particular to the Bill manager, Dominic Smales, for the careful and thorough way in which he in particular responded to my persistent and probably rather troubling questioning. What has concerned me is Clause 3(1), to which the noble Baroness referred, which states:

“The Schedule provides for authorised court and tribunal staff”—


it is subsection (b) that worries me—

“to exercise judicial functions where procedure rules so provide”.

The phrase,

“where procedure rules so provide”,

is important.

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[Baroness Chakrabarti]

My Lords, I shall also speak to Amendments 4 and 6, which are consequential. These amendments in aggregate stipulate that authorised persons must have the following bare minimum legal qualifications: that they be a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, as recommended and drafted by the Law Society and supported by the Bar Council. This is a very minimal ask of the Government in the circumstances. It is a lower qualification threshold than is currently required for pupil supervisors or for solicitors to supervise an office.

Authorised staff who are not subject to the training, experience, ethos and oaths of professional judges could be performing judicial functions and employed directly by HMCTS. Even the concept of such delegation, as I said earlier, raises questions of independence. There is legitimate concern that they would inevitably be subject to administrative pressures—for example, meeting targets in a very difficult fiscal climate—and potentially subject to political pressures as well. Without some reasonable limit on who can be authorised, this delegation has, as I said, the potential—perhaps just the potential, but the potential none the less—to change an essential aspect of our judicial system.

I acknowledge that the relevant procedure rules committee will set out procedural requirements about who is empowered to carry out those procedures, but, as we have heard, the committees are made up predominantly of senior judges. This marks a growing trend towards forcing a judiciary that is already bearing the brunt of cuts to the MoJ’s budget also to have to mark its own homework. This has implications for the rule of law and for the independence of judicial decision-making. We also argue that such a shift may well fall short of reasonable expectations held by members of the public about the level of experience and independence of those charged with making judicial decisions—not least about their fundamental rights.

The draft Authorised Court Staff Qualifications Regulations which have been offered in response to those concerns offer only that authorised persons are legally qualified solicitors or barristers. The Bill policy statement provided by the MoJ states:

“We do not expect legal qualifications to necessarily be required for all the different types of judicial functions that authorised staff will carry out”,


so that assurance does not go very far. The Opposition, along with key stakeholders—in this case, the Law Society and the Bar Council—are clear that further qualification is necessary for authorised persons adequately to take on judicial functions of whatever magnitude and that minimum requirements ought to be included in the Bill.

I note that the Minister previously pointed out that three years’ post-qualification experience sets the bar higher than that currently required of assistant justices’ clerks, who currently tend to legal advice within magistrates’ and family courts. However, assistant justices’ clerks are not currently performing judicial functions. If the object here is to provide uniformity to the practice of delegation across all courts and tribunals, surely we should set the bar at least three years PQE.

One has to ask whether the reluctance on the Government’s part to set minimum qualifications just a little higher than nowhere is not due to fiscal concerns about HMCTS staff salaries. Once again, the Government are asking the public—on this occasion, users of our courts and justice system—to bear the burden of austerity, which we have only just been told is over. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the noble Baroness has opened our debate on the amendment with considerable eloquence and a beguiling argument. We have approached the question of whether an authorised member of staff needs to be a qualified lawyer of stipulated experience with an eye on what the extent of the delegated powers of authorised persons would be. In particular, the concern that I expressed in Committee was that the delegated powers should not extend to taking away a person’s liberty, or to ejecting a person from his or her family home, or the family from that home, or to granting an injunction or an order for preserving evidence, which can have far-reaching consequences, or authorise searches of private premises.

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[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.

[Baroness Chakrabarti]

My Lords, as far as I am concerned, this is the good news in this afternoon’s proceedings. I am very grateful to the Government, assisted by the noble Lord, Lord Marks, for responding to some of the gravest concerns about the gravest decisions that ought not to be delegated to non-judicial persons. I have been trying to suggest that there is an ocean of difference between purely procedural decisions and those that could have, for example, the effect of depriving an individual of their freedom. Without limits on who can be authorised, and what powers can be delegated, measures such as those that we have been discussing could have a very profound effect on the nature of our judicial system. Such a profound change really requires proper scrutiny by parliamentarians.

The stated intention of the policy is to improve the efficiency of the Courts Service by diverting judges’ time from routine tasks, to allow them to focus their time and expertise on more complex matters. Matters of personal liberty and of people’s homes should surely be considered in that higher order of decision-making. That is why I am particularly grateful for having been heard by both the noble Lord, Lord Marks, and by the Government, in relation to concerns raised at earlier stages and in discussion.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for delegation, covering each tribunal and eventuality—particularly as these roles cover a broad range from the administrative to the determinative, depending on the jurisdiction—we can surely all agree that functions that might deprive a person of their home or their liberty are never appropriate for this kind of delegation. These particular limitations really are the bare minimum. It is worth noting that, in his civil courts structure review, Lord Justice Briggs drew the line at caseworkers making any dispositive decisions, which he saw as being a purely judicial role.

All delegated functions in the civil jurisdiction are routine case-management functions, and are often confined only to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination, and a party may request a reconsideration of any decision of a legal adviser within 14 days of being served a notice of that decision. Are these not reasonable restrictions to have been placed on delegated functions in criminal proceedings? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. In addition to concerns around transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court has to reconsider these decisions at a later stage in the process.

I give the Government due credit for having gone some way towards addressing real concerns raised at the Lords Committee stage with an amendment that prohibits the delegation of decisions affecting people’s homes and personal liberty. We wholeheartedly support these government amendments, which are very welcome; none the less, they highlight the potential hidden dangers in an apparently benign Bill.

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[Baroness Chakrabarti]

My Lords, I shall speak to Amendment 8 and to Amendment 11, which is consequential, both of which were drafted by the Bar Council.

Clause 3 and the Schedule to the Bill provide for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. This would allow decisions that are currently made by independent judges to now be made by employees of Her Majesty’s Courts & Tribunals Service. The Bill provides that authorised staff will be independent of the Lord Chancellor when carrying out these delegated judicial functions, but they will remain court staff and will not take the judicial oath of independence.

Amendments 8 and 11 would ensure that a party to any decision made by an authorised person in the execution of relevant judicial functions or of a tribunal—by virtue of Section 67B(1) or paragraph 3 of Schedule 5 respectively—may apply in writing within 14 days of the service of the order to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.

A statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge was recommended by Lord Justice Briggs in his 2016 report Civil Courts Structure Review: Final Report. That right is currently already provided for, for example, in the tribunal procedure rules. Lord Justice Briggs said:

“The creation of an extensive right to have the decisions of Case Officers considered by a judge has from the outset been regarded as the natural safety valve for concerns about what was … described as the delegation of judicial functions to persons who are not judges”.


As a minimum safeguard, the right of consideration has the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if the right of appeal were, for example, created. It is important to point out that this consideration on the papers by a judge is not the same as a full right of appeal. It has the additional benefit of going further than a right of review, guaranteeing judicial oversight of a decision which a right of review would not ensure.

Crucially, this statutory right would also ensure compliance with Article 6 of the European Convention on Human Rights—the right to a fair trial—surrounding decisions affecting people’s rights by an independent and impartial person, which is not a member of court staff. It is a proportionate safeguard relevant to the new powers created by the Bill. Your Lordships are aware that Article 6 provides that the determination of a person’s civil rights and obligations or any criminal charge against them must be undertaken by an independent and impartial tribunal established by law.

The requirements of independence apply not only to the tribunal but also to any judge or other officer authorised by law to exercise judicial power. As the Ministry of Justice acknowledges in its memorandum on the Bill,

“In considering independence, … guarantees against outside pressures are relevant – as is the question whether the body presents an appearance of independence”.


In that human rights memorandum, the MoJ suggests that it is intended that,

“case management decisions which it is proposed these authorised members of staff will be able to take will be uncontentious and not of sufficient importance to engage Article 6”.

However, case management decisions can have a significant impact on shaping the issues, progress and ultimate outcome of the case. For example, a decision on the appropriate timescales within which a party should take a step in proceedings may be significant, as failures to comply with that timescale can subsequently lead to some or all of the party’s case being struck out.

Furthermore, the Ministry of Justice’s fact sheet on the delegation of functions to non-judicial staff states:

“In future, we expect that authorised staff will be able to carry out a range of functions and responsibilities, including case management powers and some mediation roles”.


This suggests that it is envisaged that such staff will have a role beyond merely making non-contentious decisions on purely procedural matters in future.

The Government’s welcome amendment excludes some functions from delegation, but there are still others that may be significant to the progress and outcome of an important case. Such functions—for example, the issuing of an arrest warrant to secure a person’s attendance in court—can still be delegated to non-judicial staff.

In Committee, the Minister argued that a blanket right to reconsideration across all jurisdictions will not work in practice, as it will add significant cost and delay to the process on the basis that a dissatisfied party will inevitably apply for reconsideration by a judge, thereby negating the benefits of delegating decisions to staff. However, this objection was dealt with by Lord Briggs in his Civil Courts Structure Review: Final Report. He accepted that,

“an unfettered right of reconsideration will be a necessary long-stop”.

He also cited evidence from real-life precedents, suggesting that where such a right exists elsewhere, the number of reconsideration applications is low. Surely that should continue to be the case, particularly if, as the Ministry of Justice suggests, the decisions being made by authorised staff are properly non-contentious.

The Government’s concession, placing an obligation on the relevant rule committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns than their concession on delegated functions themselves, such as the safeguard in relation to a person’s liberty in their home. In fact, the Government’s concession here replicates the fundamental problem with the effect of the Bill. Placing the obligation on the rules committee, which ultimately does not have the budget to fund the Courts Service, delegates a legislative duty to an unaccountable body.

We on this side of your Lordships’ House strongly believe that Parliament has a legitimate role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection for the right to a fair trial. Consequently, I urge noble Lords to support our amendments, which have already been endorsed by the Law Society, the Bar Council and the Equality and Human Rights Commission. They propose a statutory right to judicial reconsideration for any party to a judicial decision made by an authorised person, or non-judge. This would afford stronger protection for the right to a fair trial and guarantee the independent and impartial determination required by Article 6.

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I spoke in favour of a blanket right to judicial reconsideration of all delegated decisions of authorised persons, much along the lines suggested just now by the noble Baroness, Lady Chakrabarti. During the debate, and after I had spoken, I was gently chided—if I may put it that way—by the noble and learned Lord, Lord Neuberger of Abbotsbury. He said that he sympathised with my view, stating that,

“the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice”.

However, he went on:

“Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for such an appeal seems to me, again, to be questionable. While I absolutely see the requirement for a right of appeal, I would have thought that, again, it would be better to leave it to the rule committee”.—[Official Report, 10/7/18; col. 890.]


I stress, as has been stressed before, that rules made by the rule committee have to be laid before Parliament, and are subject to annulment if Parliament so decides. The question is, then: how far do the amendments tabled by the Government in this group ensure that a right of judicial reconsideration will apply, when such a right ought to apply?

The noble and learned Lord, Lord Keen, suggested meeting the need to provide for judicial reconsideration by introducing requirements for the rule-making bodies to consider and work on the judicial reconsideration specific for each type of function. Amendments 7 and 13 reflect the Government’s thinking on that. The rule-making body will first have to consider and decide whether rules delegating functions should, in respect of each delegated function—that is important, because they are function-specific—include a right to judicial reconsideration. Secondly, if the rule-making body considers that the rules should include such a right, that body will be compelled to include it, so the right will stand. Thirdly, if the rule-making body considers that the rules should not include such a right, the body should be compelled to inform the Lord Chancellor of its decision and reasoning. Not only are these function-specific arrangements, but they meet the point that there would be no judicial reconsideration.

I was initially concerned when I saw these amendments that they would stop there, without providing for what the Lord Chancellor should do when informed of a decision by a rule-making body not to include a right to judicial reconsideration. But the Lord Chancellor has the power to require rules to be made. It seems to me that if the Lord Chancellor is of the view—being answerable to Parliament and having to lay rules before it—that a rule-making body is wrong in failing to provide for judicial reconsideration, he may be expected to require appropriate rules to be made. That is enhanced by the fact that, if he decides that they are right, he will have to come back to Parliament and say so. In my view, that meets the point made by the noble and learned Lord, Lord Neuberger, while providing for the introduction of rights to judicial reconsideration and delegated decisions where appropriate.

I do not see that there is a contravention of Article 6 simply because a judicial decision is delegated to an authorised officer. That would be a matter of consideration of the particular function and delegation and the presence of a right of appeal. A decision taken by someone who is not a judge is not necessarily a decision by a non-independent party. Indeed, in private litigation between parties, I can see no reason why a decision by an authorised officer should not be a decision by an independent party compliant with Article 6.

Victims Strategy

Lord Marks of Henley-on-Thames Excerpts

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.

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

Lord Marks of Henley-on-Thames Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

2: After Clause 1, insert the following new Clause—
“Report on the impact of the provisions under section 1 on the diversity of the judiciary
(1) The Secretary of State must carry out an assessment of the impact of the provisions under section 1 of this Act on the diversity of the judiciary.(2) This assessment must make reference to whether increasing flexibility in the deployment of judges has had an impact on the diversity of the judiciary.(3) The Secretary of State must lay a report of the assessment before both Houses of Parliament within one year of this Act passing.”

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

My Lords, I said at Second Reading that I regarded the area of judicial diversity as a significant one for the improvement of the Bill. Amendment 2 is an attempt—drawn as widely as possible while keeping it within scope—to retain the Government’s focus on the need to have judicial diversity at the centre of their programme for the modernisation of the courts.

I am not one who believes that the Government do not understand the need for the judiciary to look, feel, seem and actually be more similar to and representative of the public at large, whose cases and disputes it is their job to determine and resolve. Often, such disputes involve very human problems. Only as recently as 24 April, the Lord Chancellor wrote jointly with the Lord Chief Justice and the noble Lord, Lord Kakkar, the chairman of the Judicial Appointments Commission, to your Lordships’ Constitution Committee to announce a funded programme to encourage applicants for judicial office, aimed partly at increasing the diversity of successful applicants by providing targeted support to underrepresented groups.

However, I emphasise that the importance of this issue has become all the greater as the number of unrepresented litigants in civil and criminal courts has increased. It was bad, but not so bad perhaps, when advocates looked and sounded like me and perhaps the noble Lord, Lord Pannick, and we addressed judges in court who looked and sounded like the former judges in this House, for whom we all have the greatest of respect and affection. But a great deal of modern litigation in courts and a great many cases in tribunals are not like that at all. Litigants are often representing themselves or are represented by informal McKenzie friends. It makes it no better that they are often opposed by more powerful parties represented by qualified lawyers whom they perceive, probably rightly, in part at least, as having an understanding with the judge or tribunal that leaves them at a serious disadvantage. I fear that, for too many unrepresented litigants, we lawyers, judges and tribunal members often sound as if we come from another planet.

Judicial diversity will not solve all these problems but it can do a lot to help. We have come a long way in securing better representation of women on the Bench. It is now somewhere between 20% and 25%, but that is nowhere near enough. The recent and frankly long-overdue appointment to the Supreme Court of Lady Arden has of course helped, but we need the appointment of more women at all levels of the judiciary. In 2010, the report of the advisory panel chaired by the noble Baroness, Lady Neuberger, on improving judicial diversity pointed out that there was no easy route to achieving a representative judiciary. It made a large number of important recommendations which were widely welcomed by the professions and the Bench but which, frankly, have not been addressed with the full-hearted commitment that they demanded.

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[Baroness Vere of Norbiton]

I think that the noble Baroness is perhaps not entirely understanding my comments. It is absolutely key that we get the best candidates into the job. The point of this is to make sure that the pool of possible candidates is as broad as possible. No candidate, whether they be from a BAME community, female or disabled, should be left out of the pool—and from that pool it is important that we select those candidates who are the best for that particular job.

I hope that, in the light of my comments, the noble Lord will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, when the Minister started her response, I was tempted to accuse her of complacency. However, I now accept, after the length of her speech and what she said subsequently, that that was directed only to the limited ambit of the Bill.

On the subject of men’s caring responsibilities, I think she will find that Hansard will show that I specifically mentioned them—although I may have emphasised women’s. But as a father of seven, it would be wrong for me to omit mention of caring responsibilities myself. I should also perhaps have echoed the parental declaration of interest of the noble Lord, Lord Beecham, because one of my children is a solicitor.

I respond to the point that the Minister made about merit regardless of all. The whole point of the tipping amendment that we tabled to the courts Bill was to ensure that, where there were candidates of equal merit, it was permissible to choose a candidate who had a protected characteristic over an equally qualified candidate, in much the same way as happens in organisations across the land. That ought to be important.

Finally, I do not accuse the Minister of complacency. What she said plainly showed that the Government do care. However, I echo the words of the noble Lord, Lord Pannick, in attacking this Bill for its failure to address the very real problems and make good the promise of modernisation of the courts in a comprehensive fashion. I know that the noble and learned Lord has told us that other legislation will follow on the modernisation of the courts, but there are real issues to address, and judicial diversity is one of them. Saying that, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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[Baroness Chakrabarti]

My Lords, in moving Amendment 8, I will speak to Amendment 10. Once more, these amendments would place restrictions in the Bill as to what type of function will be permitted to be delegated to authorised persons. The previous amendments were about who might be an authorised person. The restrictions this time include that no authorisation,

“shall include the power to … make an order of the court which is opposed by one or more party … make any order of the court in a civil claim with a value of more than £25,000 … make any order of the court with a penal notice or power of arrest”.

The stated intent of the policy of delegating judicial powers is to improve the efficiency of the courts service by diverting judges’ time from routine administrative tasks to allow them to focus their time and expertise on more complex and significant matters. However, there must be reasonable limits to what powers can be given to authorised persons who are not judges. Without those limits, we have a power that has the potential to change the essential nature of our judicial system. I am sure that this is not the Government’s intention, but we need to construct this power for future Governments of whatever stripe because significant judicial power should be exercised by judges.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for the delegations that will cover every tribunal and eventuality, it is reasonable to expect some red lines and limits relating to the most significant decisions and exercise of power. It does not seem unreasonable to ask that Parliament have an opportunity to set out a framework for such delegation and to exclude decisions that deprive an individual of their liberty or of life-changing sums of money for most people, and decisions that parties have contested or those involving vulnerable witnesses or people lacking mental capacity.

Other provisions in the amendment provide a mop-up of what might provide a red line around a decision which could dispose of a matter altogether. Lord Briggs drew such a line in his civil court structure review, at caseworkers making dispositive decisions, which he saw essentially as a judicial role. All delegated functions in the civil jurisdiction are routine case management functions and are often confined to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination and a party may request reconsideration of any decision of a legal adviser within 14 days of being served notice of it. Are these not therefore reasonable restrictions to place on delegated functions in the context of criminal proceedings, where so much is potentially at stake? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. Why not put such a reasonable restriction in the Bill, given that many case management decisions are potentially important judicial functions that should not be delegated?

In addition to concerns about transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court then has to reconsider such decisions at a later stage in the process. Further, if one accepts the case for the limited delegation of some of the most straightforward decisions to such authorised staff, one has to raise concerns that these relatively low-paid staff—HMCTS staff being paid less than other government lawyers—are being used to save money without proper remuneration for their increased workload. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I have some sympathy with two of the new paragraphs proposed in the amendments. I have sympathy with those relating to orders of the tribunal or the court with a penal notice or power of arrest. I have some sympathy, too, with the restriction on the power of a court to make an order under Section 37 of the Senior Courts Act for an injunction, including any freezing order, and the corresponding power for the tribunal.

I am afraid that is as far as my support goes for the noble Baroness’s amendment, because all the other powers may be entirely trivial. In particular, the noble Baroness places reliance on the idea that a contested order should not be made. Some contested orders are unbelievably trivial. If I seek a 14-day extension for the service of my defence and the other side says that I should do it in seven, and the authorised person says, “Well, you can have 10”, the idea that he or she should not have the power to make that order is wrong.

One has to leave it to the good sense of the rule committees to decide where it is sensible that such restrictions should be drawn. Injunctions are in a different category and where the liberty of the individual is at stake we have a different category, but otherwise I am afraid I cannot support the amendments.

[Lord Neuberger of Abbotsbury]

My Lords, I applaud the noble Baroness’s concerns, which, as in the previous amendments, are directed towards ensuring that the high standards of justice in this country are maintained.

I echo to a considerable extent what was said by the noble Lord, Lord Marks. However, in the end, these are matters for the rule committee. There are two protected factors: one is that nothing can be done without it being in the rules, and the second is that the Lord Chief Justice needs to give his or her authorisation to the person who makes the decision. The other amendment concerns the Senior President of Tribunals. With the rules, there is the protection of them having to be laid before Parliament, and therefore any restrictions of the sort that the noble Baroness wishes to put forward would have to be considered by the rule committee. If they were not in the rules, and this House felt that they should be, this House would then have an opportunity to see what was said and why. I again suggest that these matters are best left to the rule committee. As the noble Lord has indicated, there is clearly room for disagreement over which items and categories should be included and what should not be included. That is best left to the rule committee and, in due course, to the Lord Chief Justice.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I fully support the noble Baroness’s Amendments 9 and 11. It seems to me that the Bar Council is absolutely right to draw a distinction between the nature of rules specifying what decisions can be made by authorised persons and the question of whether such decisions made by authorised persons should be subject to a review.

The noble and learned Lord was good enough to circulate to us not only the draft statutory instrument that he mentioned but the policy statement in support of it. It is quite clear that the procedure rule committees will be responsible for making the decision as to what decisions should be made by authorised persons: that is, the Criminal Procedure Rule Committee, the Family Procedure Rule Committee and the Civil Procedure Rule Committee. Of course, the noble and learned Lord, Lord Neuberger, is right to point out that those rule committees make rules that are both subject to scrutiny by Parliament and subject to approval by the Lord Chief Justice. However, that does not have a bearing on the question of whether decisions, once made, should be reviewable.

I commend these two amendments because they set a simple and short time limit of 14 days for making the application for review, and a further 14 days only for the decision upon that review. Furthermore, I believe that there is some benefit to be gained from uniformity, so that all such decisions made by authorised persons are subject to the same time limits and the same procedure. It seems to me that to have different rules for different types of decisions would be a mistake.

I would of course expect that, in due course, the review provisions would be implemented by applying a test that the decision of an authorised person would be overturned only if it was outwith the range of reasonable responses to the question posed to the authorised person—the traditional appellate test, rather than a fundamental review test. Subject to that, it seems to me that to give an authorised person an unappealable, unreviewable power to make what will sometimes be very important decisions, even if they are sanctioned by the rules, would be going too far. So I support these amendments.

[Lord Neuberger of Abbotsbury]

My Lords, I have considerable sympathy with these amendments, in the sense that, as the noble Lord, Lord Marks, has said, the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice. Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for such an appeal seems to me, again, to be questionable. While I absolutely see the requirement for a right of appeal, I would have thought that, again, it would be better to leave it to the rule committee, which, as the noble Baroness has said, consists of experienced people from all aspects of the justice system.

Having chaired the Civil Procedure Rule Committee for three years, I can say, as has been quoted in relation to its criminal equivalent by my noble and learned friend Lord Thomas, that considerable care is given to ensure that all the requirements of justice are met. It is very rare, if ever, that I can remember a decision being arrived at which was not arrived at by consensus. To my mind, in those circumstances, while it is essential that there is this right, it is a right whose details should be worked out, at any rate, by the rule committee—the rules of which, as I have said, sounding like a scratched record, are put to the House.

Law Commission: Funding

Lord Marks of Henley-on-Thames Excerpts

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?