Crown Courts: Outstanding Cases
Lord Stewart of Dirleton Excerpts(3 years, 7 months ago)
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Lord Ashton of Hyde (Con)
My Lords, we ought to allow the Minister to reply.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in relation to the Question posed by the noble Lord on behalf of the noble Lord, Lord Beith, we spent more than a quarter of £1 billion on recovery in the last financial year, making court buildings safe, rolling out new technology for remote hearings and opening 60 Nightingale courtrooms. Although there is further to go, this has made a difference. In the Crown Courts, we are completing around 2,000 cases each week, which is the same as before the pandemic.
Lord Thomas of Gresford (LD) [V]
My Lords, my apologies. Given that physical accommodation has at last been made available for Nightingale courts in football grounds, hotels, theatres and even the ballroom in Chester Town Hall, how are these being manned by trained court staff? Given the fact that very few have custody facilities, to what extent are serious cases being held back and periods of remand in custody thereby lengthened?
Lord Stewart of Dirleton (Con)
My Lords, at the Nightingale venues, we use experienced court staff who are trained to deal with the type of work heard on site. While Nightingales deal with non-custodial cases, by taking this work away from the main court estate, custody cases can be heard in our specialist facilities faster than would otherwise be possible. To expand further our capacity to hear complex cases, we have also modified around 70 courtrooms to increase the capability to hear multi-handed trials of up to 10 defendants. In addition, work has begun on a super-courtroom in Manchester, which will further increase capacity for multi-handed cases. For those on remand in custody, our systems show that the majority of such cases had their first hearing in February 2021, and those who have pleaded not guilty have been listed for trial prior to September 2021. I acknowledge the courtesy shown by the noble Lord, Lord Thomas of Gresford, by intimating to my department the terms of his supplementary question in order that a specific answer could be given to this important point.
Baroness Jones of Moulsecoomb (GP)
My Lords, the Minister must be well aware that this problem has been going on for much longer than just the pandemic. The big problem is the Government’s savage cuts to court processes. The solution is not Nightingale courts but better funding. Will the Government do that?
Lord Stewart of Dirleton (Con)
My Lords, prior to Covid, the outstanding case load in the Crown Court was 39,000, which is well within the range of 33,000 to 55,000 over the last decade. At its lowest point, it was even as low as 33,000, in 2018-19. Immediately before the pandemic, the Government were increasing sitting days in the criminal courts to address rising demand.
Baroness Rawlings (Con) [V]
My Lords, on 25 January, I tabled a Written Question to my noble friend Lord Wolfson regarding the closing, selling and standing empty of courts. My noble friend’s swift, detailed reply was that around 110 had been closed since 2015 but 21 new Nightingale courts, which have just been mentioned, had been made. Have these courts had what the Minister feels is the desired effect of reducing the backlog in the Crown Court as well?
Lord Stewart of Dirleton (Con)
My Lords, I am obliged to my noble friend for her question. The recovery steps taken have made a difference, allowing us to complete around 2,000 cases each week—the same figure as before the pandemic. I assure my noble friend that the decisions taken to close courts were not, and are not, taken lightly; they are taken alongside public consultation.
Lord Singh of Wimbledon (CB) [V]
My Lords, the Covid pandemic has led to a surge of cases awaiting trial in the Crown Court. While the setting up of special Nightingale courts to help clear the backlog is welcome, delays to effective hearings are leading to additional stress and anxiety, particularly for vulnerable victims. Does the Minister agree that, in looking to greater efficiency, we need to look harder at cutting the considerable time spent on cases that do not move to trial?
Lord Stewart of Dirleton (Con)
My Lords, we are keenly aware of the need to improve timeliness for both defendants and victims, and to mitigate the impact of delays on complainers and witnesses in such cases. To that extent, I agree with what the noble Lord asked in his question.
Lord Browne of Ladyton (Lab) [V]
My Lords, in a Written Question on 17 December, my honourable friend Alex Norris asked the Secretary of State for Justice
“what assessment he has made of trends in the level of defendants offending while awaiting delayed court dates.”
On 15 January, the dismissive one-sentence reply was:
“We do not hold any data on offences committed by offenders.”
Is data about the number of offences committed on bail no longer held on the police national computer? Why have this Government apparently lost interest in trends of the criminal behaviour of offenders awaiting trial?
Lord Stewart of Dirleton (Con)
My Lords, I repeat the answer given previously: the department does not collect specific data on the level of offending by defendants on court bail. However, as the noble Lord is aware—and as Members present may not be aware—the commission of a crime on bail is itself an aggravation, which will be reflected in the sentence.
Baroness Ludford (LD) [V]
My Lords, the recent Constitution Committee report pointed out that, because of delays to the courts reform programme, improvements to IT systems had not been sufficiently implemented by the time of the pandemic, meaning that remote hearings relied on antiquated systems and participants in the criminal and family courts in particular struggled with virtual hearings. How do the Government intend to supply adequate investment in training in IT while also guaranteeing fairness for all through physical participation for those for whom remote hearings are not a solution?
Lord Stewart of Dirleton (Con)
My Lords, we acknowledge that, in many cases, participation by way of remote hearings is valuable for people in such positions. None the less, we also appreciate that it is not appropriate for all such people, whether they be witnesses or complainers in cases.
Baroness Altmann (Con)
My Lords, I am delighted that the Nightingale courts are being expanded. Can my noble friend comment on any plans that the Government might have to extend the serving period for, or bring back, retired judges so that we can deal with the backlog more rapidly—perhaps by extending court hours—and deal with ongoing ageism in the workplace, which seems to write off older people when they are too young?
Lord Stewart of Dirleton (Con)
My Lords, prior to retirement, judges below the High Court are already able to have their appointments extended on an annual basis up to the age of 75 where there is a business need. After retirement, salaried judges are already able to be authorised to sit beyond the current retirement age of 70, on an ad hoc basis, up to the age of 75. We are using our fee-paid judges, as well as salaried judges who wish to sit following retirement, to ensure that we maximise judicial capacity.
In answer to the second part of my noble friend’s question, we are looking at more flexible working. Temporary Covid operating hours have been piloted at seven Crown Court sites to test whether even more could be done, and we are looking at the extension of the working day as a short-term—I emphasise “short-term”—tool and aid to managing recovery. Magistrates’ courts also sat on at least 100 additional Saturday courts per month between September and December.
Lord Morris of Aberavon (Lab) [V]
My Lords, justice delayed is justice denied. Is not the root cause of the delays the reduced finance that the Justice Department too speedily agreed to long before the pandemic? Have the Government given up on the alternatives that I have canvassed to speed up trials—for example, a reduction in the size of juries or trials of less serious offences decided by judges alone, with the consent of the defendant?
Lord Stewart of Dirleton (Con)
My Lords, I repeat the figure that I gave earlier: over a quarter of £1 billion has been spent on a range of measures to increase Crown Court capacity. With respect to the additional measures that the noble and learned Lord outlined, I regret that I do not have to hand details of consultation and discussions, but I undertake to write to him on behalf of my noble friend Lord Wolfson in the Ministry of Justice.
Lord Hain (Lab)
My Lords, does the Minister accept that this mountainous backlog impacts most upon victims, witnesses to crime and members of the public waiting for years to see justice done? Does he also accept that this backlog began well before Covid and is directly because of this Government’s savage funding cuts in courts and tribunals and even more punitive cuts in legal aid? Is it not high time that the Conservatives started investing in increased court capacity, qualified staff and victim support instead of cuts, cuts and still more cuts, benefiting only criminals?
Lord Stewart of Dirleton (Con)
My Lords, I do not accept the adjectival premises on which the noble Lord’s questions were based. I refer to my earlier answers about the spending that has been identified in relation to these matters.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked, and we now move to the fourth Oral Question.
Counter-Terrorism and Sentencing Bill
Lord Stewart of Dirleton ExcerptsWednesday 3rd March 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 169-I Marshalled list for Report - (26 Feb 2021)
“(a) a sentence of imprisonment imposed under section 205ZA of the 1995 Act (serious terrorism sentence),(b) a sentence of imprisonment imposed under section 205ZC of that Act (terrorism sentence with fixed licence period), or(c) an extended sentence imposed under section 210A of that Act in respect of a terrorism offence.”Member’s explanatory statement
This amendment expands the scope of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 by making it applicable also in relation to a person who is serving an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in order to ensure that terrorist offenders in Scotland serve the appropriate custodial period of sentences for terrorism offences when they are imposed consecutively to other sentences, we introduced several amendments in Committee. Following these changes, we are now making a series of minor, technical amendments to provide further clarification and to ensure that the legislation will operate as intended.
The amendments have a variety of complementary effects but, taken together, they ensure that new Section 1B, which was introduced in Committee, operates effectively within the Scottish jurisdiction. Given the complexity of the amendments, we have continued to consider their effect with the Scottish Government, resulting in these final amendments, which have been agreed by all parties.
Many of the amendments simply insert the relevant terminology into the new clauses and deliver consequential changes to ensure the smooth operation of Section 1B. The overall effect is to ensure that terrorist offenders in Scotland serve the appropriate custodial period when they are serving multiple sentences, including for non-terrorism offences, and that offenders who receive multiple sentences for terrorist offences—and therefore multiple licences—will serve only one, aggregated licence period.
I draw your Lordships’ attention specifically to Amendment 31, which ensures that the sentence calculation provided for in Section 1B will apply retrospectively. This will provide clarity in calculating release dates where sentences for both terrorism and non-terrorism offences are imposed, ensuring the effective application of the Terrorist Offenders (Restriction of Early Release) Act 2020 in all cases.
Should noble Lords wish to see an individual breakdown of these amendments and their effect, I would be happy to place in the Library a letter in terms similar to the one I issued following Committee to explain the purpose of each one. I beg to move.
Lord Paddick (LD) [V]
My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.
Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.
I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?
I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.
Lord Falconer of Thoroton (Lab) [V]
My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.
We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.
I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.
The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.
Member’s explanatory statement
This amendment excludes sections 1AB, 1A and 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 from the scope of new section 26ZA(3) of that Act.
Lord Stewart of Dirleton (Con)
My Lords, the amendments in this group would all require the Secretary of State to commission independent reviews into various aspects of the operation of the Bill and to lay the resulting reports before both Houses of Parliament. I welcome the considerable appetite for scrutiny of these measures and for the accumulation of data—the facts and statistics that the noble Baroness, Lady Jones of Moulsecoomb, sought. I acknowledge the appetite for review, to which the noble Lord, Lord Ponsonby of Shulbrede, referred. However, while I welcome these things, I must respectfully disagree that the amendments are necessary.
First, as acknowledged within the amendment of the noble Lord, Lord Marks of Henley-on-Thames, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose remit covers this Bill. Indeed, he has announced his intention to conduct a review of matters within prisons, which we welcome. The benefit of an independent reviewer is that he will not be constrained by the specifications of government and can decide what is most appropriate for his consideration. We have every confidence that he will continue to provide valuable and independent scrutiny following the Bill’s enactment and through the prisons review that he will be undertaking. I remain of the view that there is no need to appoint another reviewer to focus on just some of the provisions of the Bill.
The amendments indicate some areas of particular concern, which I shall seek to address with greater specification. On Amendment 12, the noble Lord, Lord Marks of Henley-on-Thames, has noted a particular interest in the rehabilitation of terrorist offenders while in custody. As he told your Lordships’ House in relation to an earlier group of amendments, he and others, including the noble Lords, Lord Ponsonby of Shulbrede and Lord Carlile, attended the briefing held by officials in the Joint Extremism Unit. I have heard that at least some noble Lords found that a helpful exercise, and I hope others did as well. I understand from engagement, and from the contributions made from the Floor today, albeit electronically, that there was a healthy discussion and a recognition that there is no simple cure or metric for this matter; indeed, that was acknowledged in a contribution by the noble Lord, Lord Carlile of Berriew, on an earlier group of amendments.
It is very difficult to measure the effectiveness of intervention programmes in changing behaviour for any offenders but especially within such a small cohort. Efforts in our prison system to deradicalise and rehabilitate offenders in custody are ongoing, and techniques are developing constantly. However, while rehabilitation will remain central to the work undertaken with terrorist offenders in custody, that goes hand in hand with risk management.
The noble Lord, Lord Marks of Henley-on-Thames, has again raised the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate, and the use of separation centres to this end. The risk was identified that such persons might otherwise become kingpins, looked up to by other persons in the prison estate. We have a set of specialist operational controls for managing counterterrorism risk in custody, as well as a number of population-management controls available for use across the entire prison estate.
I assure the noble Lord and the House that most extremist prisoners can, and should, be managed in the mainstream prison population with appropriate conditions and controls. That having been said, we take the risk of radicalisation within the prison estate seriously and, where deemed necessary, we have used, and will use, the separation centres available to us to prevent persons spreading malicious ideology to other prisoners.
In bringing to a close my submissions on this amendment, I acknowledge on behalf of the Government the anxious and thoughtful concern expressed by the noble Lord and others, following a very constructive series of engagements.
Amendment 13 would require the Government to commission an independent review and publish a report into the use and operation of polygraph testing in the licence conditions of terrorist offenders. Today and, more importantly, in Committee, we discussed in some detail the matter of polygraph testing. As I am sure noble Lords now understand, it is not intended to be used as a stand-alone measure but as part of a package to provide a further source of information to test offenders’ compliance with their conditions of licence. It is not to be used as something to catch an offender out in breach.
That said, I recognise that the use of polygraph testing as a licence condition is a novel matter for the House, which is why the Government have committed to conducting and publishing a review of polygraph testing on terrorist offenders after a two-year period, which will provide more meaningful results and report on most of the criteria outlined by the terms of the amendment. I hope that that will satisfy the noble Baroness, Lady Hamwee, who dwelt specifically on this material in the course of her submission.
I will make one further point on this amendment. The terms have specified that the review may make recommendations on
“regulations, rules and codes of practice”.
Clear rules governing the use of polygraph examinations in a licence condition will be laid by statutory instrument. We currently anticipate that these will be those already in place for the use of polygraph testing in licence conditions for sex offenders, as set out in the Polygraph Rules 2009, which specify the qualifications expected for polygraph examiners, how a polygraph examination should be recorded and how those examinations will be reviewed.
Our review will of course inform whether these require amendment or tailoring in light of factors presented by the specific cohort, so I assure the noble Lord, Lord Paddick, who moved the amendment, and those noble Lords who spoke on it that our plans for the introduction of polygraph testing already account for this concern.
Amendment 24, in the name of the noble and learned Lord, Lord Falconer of Thoroton, would introduce a new clause requiring the Secretary of State to
“commission a review and publish a report”
into a number of measures, most of which are not directly addressed by provisions in the Bill, in the first year of it coming into force. While I recognise the desire to test for unintended consequences of the Bill, I politely disagree that a review on these terms and within this timeframe would be either necessary or add to what is already under way.
I want to set out briefly why, taking each part in turn. Proposed subsection (1)(a) would require a review into
“the effectiveness of current strategies to deal with lone terrorists”.
There is a great deal of work under way to target the terrorist threat, including that of lone terrorists. I point the noble and learned Lord to the Security Minister’s speech at the Royal United Services Institute in November 2020.
The Government’s response to the recent terrorist attacks has been comprehensive and informed by the Independent Reviewer of Terrorism Legislation’s analysis. The Government will shortly bring forward policing and crime legislation to implement a number of recommendations from Jonathan Hall QC’s independent review of the effectiveness of the Multi Agency Public Protection Arrangements—MAPPA—when it comes to the management of terrorism, matters connected with terrorism and offenders of terrorism concern within the community.
The Government recognise that independent analysis can be useful in terms of challenging existing practices and processes. That is why the noble Lord, Lord Anderson, QC, was asked to oversee the operational improvement reviews following the attacks in 2017. I submit that now is not the time for another review.
As part of the constant, ongoing review and improvement of our counterterrorism systems and processes, the CONTEST unit, based in the Home Office, undertook an internal review of lone-actor terrorism last summer, working with operational partners and departments from across government. The review’s findings are sensitive and will not be published, but they have been shared with Parliament’s Intelligence and Security Committee.
Proposed subsection (1)(b) refers to
“the effectiveness and availability of deradicalisation programmes in prisons”.
As I have said, it is difficult to measure their effectiveness, but the primary intervention, the Healthy Identity Intervention—HII—has been accredited by a panel of experts and is informed by the best available evidence. We have also conducted an evaluation of the HII pilot study to assess implementation and delivery. This is publicly available on GOV.UK, and a short-term outcome evaluation of the HII is under way. Although this has been delayed due to the impact of Covid-19, we are committed to publishing it once it has concluded.
We remain committed to keeping our interventions under review and developing the evidence base, which is what so many of your Lordships who have spoken on this matter have sought. As I have said, we will establish a new counterterrorism assessment and rehabilitation centre, which will not only help us to develop knowledge and evidence but will bolster our capacity to deliver interventions by recruiting more specialist psychologists and trained chaplains.
The Government plan to make an oral Statement that will explain more fully the important work to rehabilitate terrorist offenders in prison, including an overview of the new centre’s strategy and programme of work. I hope that noble Lords will agree that these demonstrate this Government’s commitment to transparency and sharing as much as we can.
On proposed new subsection (1)(c) in the amendment, in relation to the polygraph, as I mentioned earlier in this group, we will be conducting an evaluation of its use after two years. This will add to our evidence of its effectiveness and value, which has already been established through independent evaluation, and I submit that a further review is not needed.
Baroness Hamwee (LD) [V]
My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.
Lord Stewart of Dirleton (Con)
My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.
The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.
The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.
I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.
The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.
Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)
Lord Stewart of Dirleton Excerpts(3 years, 10 months ago)
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The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I thank the noble and learned Lord, Lord Saville of Newdigate, for calling the debate today in his capacity as former chairman of the committee for post-legislative scrutiny of the Bribery Act 2010. I also wish to thank him and all other former members of the Bribery Act Committee for the important and comprehensive post-legislative review process, which they carried out between May 2018 and March 2019, before the publication of the official report. The breadth of issues covered in the committee’s report has led to the very interesting and lively debate we have heard today. Finally, I thank all noble Lords who took part in this discussion.
We will all agree that bribery is a very serious crime, and the importance of having a law for bribery which is clear, effective and robustly enforced is not in doubt either. This Government remain committed to tackling economic crime and see the Bribery Act as an important and effective tool in that endeavour. As the committee makes clear in the report, however, the task of the legislature is not just to make the law but to see whether major legislation enacted is having the effect it was designed to achieve; that is why scrutiny is so important.
As we have discussed this afternoon, the main focus of the committee’s scrutiny centred on three areas. The first is whether the Act has indeed led to stricter prosecution of corrupt conduct, a higher conviction rate and a reduction in that behaviour. The second is whether UK businesses have been put at a competitive disadvantage in obtaining foreign contracts under the stricter provisions of the Bribery Act and whether small and medium enterprises were sufficiently aware of the provisions of the Act. A further area is how far deferred prosecution agreements have affected the conduct of companies, both in preventing corrupt conduct and investigating it once it has been discovered.
It is worth reminding ourselves why we needed the Bribery Act in the first place—a number of speakers today touched on this. Bribery was not reported as a high-volume crime in the days before the Bribery Act came into being, so it could be said that it was not born of a need to address an urgent domestic problem of the day. However, in the face of growing criticism by both domestic and international stakeholders, it was apparent that reform of the previous law on bribery was increasingly necessary to deal effectively with ever more sophisticated, cross-border use of bribery in the modern world. The main objective in the development of the Act was therefore to provide modern legislation which reformed the existing common law and statutory offences of bribery by introducing a new consolidated scheme of bribery offences designed to give the police, prosecutors and the courts an effective way of tackling bribery, whether committed at home or abroad. I will return to the extraterritorial aspect of the 2010 Act in due course.
At the same time, the Government also sought to provide the private sector and affected companies with greater certainty and consistency around bribery and the obligations on companies and businesses. It was hoped that this would ensure justice for those involved in or affected by bribery, and a reinforcing of proper ethical conduct in commercial business and society in general—a matter of culture to which many speakers today adverted.
A further main policy objective of the Act was to address issues raised in relation to our international anti-corruption obligations by putting in place an effective mechanism for prosecuting bribery involving foreign public officials, and to establish effective corporate liability for bribery where it takes place. Perhaps most importantly of all, however, it was envisaged that the Act would support the Government’s wider strategy for tackling international corruption by not only deterring and penalising bribery offences but encouraging and supporting business to apply appropriate standards of ethical business conduct.
In this regard, the Government had a specific objective of combating the use of bribery in high-value transactions in international markets and, in particular, in large-scale public procurement or tendering exercises where the largest businesses operate and predominate. Although the legislation would ultimately apply to all companies falling within scope of the definition of the offence, it was recognised that small and medium enterprises would not usually engage in the business environment described above, so it was never envisaged that they would be the main focus of any enforcement activity.
As the committee itself observed, however eagerly anticipated or well received a Bill may be, it is by no means guaranteed that the resulting Act will live up to those expectations. Fortunately—again, I endorse noble Lords’ observations on the topic—the Bribery Act is now recognised internationally as being the leading model, alongside the United States Foreign Corrupt Practices Act, for effective criminal anti-bribery legislation. Moreover, the United Kingdom is recognised as one of the top four enforcers of the Organisation for Economic Co-operation and Development’s convention against bribery. Following the OECD’s review in 2017, the UK received a very positive assessment of its legislative framework. I hope that I will not be thought complacent in that I cite these figures without specific reference, at this stage, to the observations about dropping down the international league table, moving from the gold standard to the bronze.
Alongside the praise received for being a successful anti-corruption tool internationally, the Government’s own initial assessment was that the Act was performing as Parliament had intended. Much of the evidence submitted to the committee supported this, and the Government are very grateful that no major criticisms were made, reflecting the quality of the Act in its drafting. While there is always a case for listening to suggestions about where there might be further improvement, the Government were again grateful for the committee’s positive assessment that the overall structure of the Act, the offences it created, its deterrent effect, and interaction with deferred prosecution agreements are some of the main aspects which have received almost universal praise.
The committee’s final report—which we have covered in detail this afternoon—made 35 conclusions and recommendations around the implementation and enforcement of the Act. Although the Government’s position on each recommendation was made clear in the response document, we will continue to consider and, where possible, explore opportunities for increasing awareness of the associated guidance. However, I think it is clear that the Act is indeed working well and doing what it was intended to do. To illustrate this, I highlight a few of the successes of the Act as an effective enforcement tool since its coming into force in 2011.
Since that time, the Serious Fraud Office has secured its first conviction after trial for corporate offences involving bribery of foreign officials and its first guilty plea by a corporate body for an offence under Section 7—the provision that we have discussed. Nine deferred prosecution agreements have been put in place with United Kingdom companies since their introduction in 2014, six of which are for overseas corruption offences. This is in addition to the imponderable, impossible to quantify, deterrent effect that the Act continues to have on those who would seek to commit bribery offences. The Act has had a positive impact in helping businesses and corporations to reshape their culture.
The Government are not complacent over issues relating to economic crime, which remains a key priority for the Government. We are committed to exploring ways to continue to improve our response to this type of offending. We should not forget that we have achieved some other important milestones following the introduction of the Bribery Act itself. The Government’s anti-corruption strategy, launched in 2017, provides the framework for their domestic and international priorities on corruption and details each of the policies and actions being taken forward to combat that evil up to 2022. Despite the challenges that last year brought to every aspect of life, the year 2 update on that strategy was published, as expected, in July.
Speakers this afternoon have made reference to the provisions for training. The multi-agency National Economic Crime Centre, based in the National Crime Agency, has been established to co-ordinate and task the United Kingdom’s response to economic crime, including high-level fraud and money laundering. For the first time, the centre encourages and facilitates closer ties between its partner organisations in law enforcement and the regulated sector, including the Financial Conduct Authority, Her Majesty’s Revenue and Customs, the City of London Police, the Home Office, the Serious Fraud Office and the Crown Prosecution Service, all of which played an important part in the committee’s review. The Crown Office and Procurator Fiscal Service in Scotland also contributed.
Another issue that was highlighted by the committee was the lack of progress on next steps following the corporate criminal liability call for evidence in 2017. I am conscious of the criticism made by a number of noble Lords about the delay that has occurred since that date. This is an extremely complex area of law, and the Government received a number of diverse and often conflicting views to the call for evidence. This resulted in a considerable delay to an announcement on the way ahead. Although the results of the original process proved inconclusive, it is extremely positive that we have had progress on the issue since the committee’s report—and indeed the Government’s response—was published. As I am sure many noble Lords are aware, the Law Commission has agreed to carry out an in-depth review of the current law on economic crime. Work has already started on this, and I know that there is a good deal of support for the work of the commission in this House. The delay arises not out of any attempt to kick the matter into the long grass, as one speaker said earlier—or at least referred to the possibility of it being interpreted as such. It is a reflection rather of the polarisation of views with which we were presented.
The terms of reference for the project have been published on the Law Commission’s website but, in summary, it is envisaged that the first part of the process will be to draft an options paper, in which the commission will analyse how effective the law is and where it could be improved. The commission will then present various options for reform of the law, so that we can continue to ensure that corporate entities can be held appropriately to account. Initial findings are expected later this year, and it is hoped that this will lead eventually to the end of the long-running and often contentious debate on whether further changes to economic crime law are necessary. This will include consideration of a potential extension of the “failure to prevent” offence set out in the Bribery Act, so I am sure that it will be of great interest to all former committee members and to those who have contributed to our debate today.
The chairman of the committee sought specifically to learn about developments since the conclusion of our departure from the European Union. The safety and security of our citizens is the Government’s top priority. We have reached an agreement with the European Union, which delivers a comprehensive package of capabilities that will ensure that we can work with counterparts across Europe to tackle serious crime, terrorism and other offences, protecting the public and bringing criminals to justice. This includes fast-track extradition arrangements similar to those in place between the EU and Norway and Iceland. These arrangements are intended to be as fast and effective as those under the European arrest warrant, while providing greater safeguards for those who are arrested.
The agreement also puts in place arrangements that will simplify and speed up co-operation with EU member states on mutual legal assistance and asset freezing and confiscation, building and improving on the relevant Council of Europe conventions. This is the first time that the EU has agreed such a comprehensive agreement with a third country in this area. I recognise that, in the case of economic crimes, effective extradition arrangements will be important to ensure that we prosecute individuals effectively. We have these streamlined arrangements based on the EU’s surrender agreement with Norway and Iceland.
We are no longer part of the EAW. These new arrangements provide stronger protections for individuals, including provisions that make it clear that a person cannot be surrendered if their fundamental rights are at risk, or extradition would be disproportionate, or they are likely to face long periods of pre-trial detention— all evils identified under the EAW scheme. They also allow the UK courts to refuse a warrant if they believe that it has been issued to prosecute someone because of their political views, and to guarantee rights of access to translation, legal advice and consular assistance for British citizens arrested abroad.
The deal that the Government have reached in relation to our departure from the European Union enables arrangements with Europol and Eurojust that reflect the scale of our contribution to these agencies and facilitate effective operational co-operation. It enables the fast and effective exchange of national DNA, fingerprint and vehicle registration data via the Prüm system to aid law enforcement agencies in investigating crime and terrorism. We have agreed fast and effective arrangements for exchanging criminal records data through shared infrastructure and have ensured that information can be exchanged for crime prevention and safeguarding purposes. We have secured the continued transfer of passenger name records from the EU to protect the public from terrorists and criminals. As I said, we have also put in place arrangements that will simplify and speed up co-operation with EU member states on mutual legal assistance and asset freezing and confiscation, building and improving on the relevant Council of Europe conventions.
Perhaps I may turn to some of the thoughtful submissions made by speakers in the debate. The noble Lord, Lord Hain, referred to specific examples and endorsed the essay of the noble Lord, Lord Gold, on corporate culture. The noble Lord spoke about the importance of adequate resourcing and questioned the Government’s commitment to the operation of the Act abroad and the enforcement of anti-bribery measures abroad. I draw to his attention Section 12 and emphasise that the Bribery Act is an extraterritorial matter. Persons can be prosecuted where they have a close connection with the United Kingdom, and it does not matter if acts are committed abroad.
The noble Lord’s observations about London as a centre for money laundering are matters of urgent concern, but I sense that they also reflect something of London’s particular pre-eminence and status as a financial centre.
I agree with the observations of the noble Baroness, Lady Bowles, as to the importance of deferred prosecution agreements. I advise her that guidance and indeed practice emphasise that the existence of a deferred prosecution agreement does not bar prosecution of individual persons who were themselves responsible for acts of bribery. We encourage the prosecution of individuals. That has taken place already and is taking place in the context of DPAs.
As well as contributing an article which attracted positive views from members of the committee, my noble friend Lord Gold also spoke. I am happy to endorse his question and say that we will keep under review the possibility of extension of Section 7 of the 2010 Act into other areas.
I hope that I have already reassured noble Lords who mentioned the risk of complacency. It was the noble Lord, Lord Stunell, who spoke of our decline from the gold medal position to the bronze medal position on the podium. I suspect that this will be a matter which is somewhat fluid and dynamic in terms of measures coming into force. As we will discuss later, the types of offence with which the Act is concerned and the investigations put forth under it have a very long lead time.
The noble and learned Lord, Lord Morris of Aberavon, called for figures on the operation of the bodies charged with investigation of crimes of this sort. I can advise him and others that the gross budget for the Serious Fraud Office went up from £44.6 million in the financial year 2009-10 to £60.6 million in 2018-19, that being the last year for which figures are available. I regret that I do not have figures for the Crown Prosecution Service or other agencies. I shall endeavour to discover those and to write to the noble and learned Lord. I can tell him that the Government are committed both to the Serious Fraud Office and to the maintenance of the Crown Prosecution Service. We will always ensure that those bodies are fully supported to deliver their objectives, and they make their financial details available year on year.
My attention is drawn to the clock. I agree with the submission by the noble Lord, Lord German, that artificial intelligence will be an important and developing tool.
On advice given to small and medium-sized enterprises, the Government have sought to group matters together on a specific landing-site website. That means that inquiries on this matter will come to a central site and there will be easy links to places where information and advice can be discovered.
The role of the anti-corruption champion was raised by a number of noble Lords. Mr Penrose MP holds that office; he is a prime ministerial appointment and reports to the Prime Minister. The anti-corruption champion is committed to his role, which can be seen by the fact that he has weekly meetings with the joint anti-corruption unit and regular meetings with Ministers and businesses. That matter was raised by the noble Lord, Lord Bradshaw, as well as by my noble friend Lord Hodgson of Astley Abbotts.
My noble friend Lord Hodgson also made reference to the committee’s scrutiny of the Skansen case. I share his concern about aspects of the prosecution in that matter, and I am sure that the practice will have developed and will continue to develop so that what might be seen as errors in the prosecution’s approach will not be made in future.
The noble Lord, Lord McNally, referred to his gift from the outgoing Labour Government of the 2010 Act. I am happy to say that the noble and learned Lord, Lord Davidson of Glen Clova, my predecessor in this role, was responsible for that, and I thank him for his kind words. I am happy that the gift to the noble Lord, Lord McNally, on coming into post was merely the 2010 Act and not a case of whisky—a reference to the sensible observations from the noble and learned Lord, Lord Morris of Aberavon, about the nature of facilitation payments and the obviousness of bribery.
I have made reference to funding concerns and cited figures for the Serious Fraud Office and its increase in budget.
I am grateful to the noble Lords, Lord Rogan and Lord Empey, and my noble friend Lord Naseby, who spoke from experience of business abroad. The noble Lord, Lord Rogan, referred to the existence of a pilot project operating in Kenya, Mexico and Pakistan. It is important that consular, high commission and other embassy advice is available to businesses practising in foreign countries. The Government are aware of that. Time may not permit me to refer noble Lords to the range of training in place but, again, I can write to noble Lords who raised the question. I can say in relation to the specific point raised by the noble Baroness, Lady Fookes, that we will respond in writing to the question of how many people are involved in training in the embassies—and that also goes to consular and high commission facilities.
In answer to questions raised by the noble and learned Lord, Lord Davidson of Glen Clova, my predecessor in office, the self-report system that operates in Scotland is, as he and the noble and learned Lord, Lord Hope of Craighead, observed, distinct from the system of deferred prosecution agreements that operates in England, Wales and Northern Ireland. The initiative must be reviewed and approved each year by the Lord Advocate, and was most recently extended until June 2021. The fact that business is required to put in place measures to prevent unlawful conduct is viewed as an effective means of preventing corruption in future.
In 2018, the committee asked the Lord Advocate about a perceived lack of transparency with the self-report scheme, because the matter does not go before a judge in open court. The Lord Advocate does not accept that there is a lack of transparency in the Scottish system. Following the conclusion of any settlement under the self-reporting scheme, as part of a proactive strategy, the Crown Office invites publicity and provides information for media releases which are published on a dedicated bribery page on the Crown Office and Procurator Fiscal Service website.
In response to a further point raised by the noble and learned Lord, there are no current plans to amend the Act, but we will await with interest the findings of the Law Commission review of corporate criminal liability. In relation to the concern raised by a number of noble Lords about the guidance on offer in relation to corporate hospitality, we believe strongly that professional organisations and trade associations are better placed to provide both sector-specific and bespoke guidance on corporate hospitality. In relation to the broader point raised by the noble and learned Lord, we can readily see that there may be a difficulty if, further down the line to the provision of specific tailored advice in specific circumstances, one side might plead that it was being prosecuted having followed advice, and the other might declare that material facts that would have influenced any advice given had not been disclosed. It is that sort of matter that the Government’s approach seeks to avoid.
I thank the noble Lord, Lord Thomas of Gresford, for his characteristically thoughtful analysis of the matter and his endorsement of the operation of Section 7. My observations in relation to the last point follow his remarks that the Government are not a trade body in relation to the provision of advice to members.
I suspect that I have gone over time and I apologise for trespassing on your Lordships’ patience and that of the clerk and others here. I thank noble Lords for their thoughtful contributions and am particularly grateful to the committee for its work in scrutinising this piece of legislation. I am happy that the legislation and its operation, broadly speaking, enjoy such support across the Benches in your Lordships’ House. I apologise to noble Lords if I have not responded, owing to the times constraints, to specific points that they have raised, but I will go over my notes and those taken for me in relation to points raised by noble Lords, and will correspond in due course.
Northern Ireland: Defamation Act 2013
Lord Stewart of Dirleton Excerpts(3 years, 10 months ago)
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Lord Lexden
To ask Her Majesty’s Government what recent discussions they have had with the Northern Ireland Executive about extending the Defamation Act 2013 to Northern Ireland.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, no recent discussions have taken place on this issue. The civil law of defamation is a devolved issue and the development of the law in this area is a matter for the Northern Ireland Executive. I understand that the Northern Ireland Minister of Finance recently updated the Assembly on this matter. He noted that work is under way to review defamation law, and this will inform legislative change under the next mandate of the Assembly.
Lord Lexden (Con)
During a debate on this subject which I initiated in 2013, I asked a question sent to me by a leading Belfast solicitor. More than seven years on, I will ask the question again. Why should the citizens and journalists of Northern Ireland not be afforded the same protection as those in the rest of the United Kingdom, whether they are expressing opinions online or holding government to account? Secondly, will the Government extract from the Northern Ireland Executive clear reasons—cogent and convincing reasons, I hope—for the long delay in extending the benefits of this landmark human rights legislation to our fellow countrymen and countrywomen in Northern Ireland, who have been given no explanation by the Executive?
Lord Stewart of Dirleton (Con)
My Lords, I respectfully echo my noble friend’s views on the benefits flowing from the legislation to which he refers. I remind the House that, under the Sewel convention, Parliament remains sovereign. However, the United Kingdom Government will not normally pass primary legislation relating to areas in which a devolved legislature has legislative competence, except with the agreement of that devolved legislature. The Northern Ireland Executive must have the scope to set their own priorities for legislation, but I can reassure my noble friend that the work on the law of defamation in Northern Ireland put in place by the Assembly recommenced in February 2020.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, what work has been done by the Northern Ireland Executive on updating the defamation laws in view of the fact that the Northern Ireland Law Commission has indicated that there are six times as many claims for defamation in Northern Ireland as in other regions in the UK, thereby highlighting the need to update our defamation laws?
Lord Stewart of Dirleton (Con)
My Lords, the noble Baroness has, to a certain extent, been answered by my answer to my noble friend Lord Lexden. Work on the matter recommenced as of February 2020. As to the statistic which the noble Baroness puts forward on the comparative number of defamation actions, I put the question to officials and am satisfied with the answer that, despite concern that a libel tourism industry might arise in the law of Northern Ireland, this has not taken place.
Lord Garnier (Con)
I declare my interest as a media law practitioner at the Bar of England and Wales and the Bar of Northern Ireland but not, as my noble and learned friend will be glad to hear, as a member of the Scottish Bar. That said, will he accept that, although the 2013 Act confuses the difference between a defamatory statement and one that is actionable, among other positive things it enacted the serious harm rule, the public interest defence, the website operators defence and the single publication rule adjusting the limitation period, and it widened the ambit of reporting provision? Will he further agree that, so long as the Act does not apply to Northern Ireland, freedom of expression and freedom to criticise those in positions of power and influence are curtailed in what is, and I trust will remain, an integral part of the United Kingdom?
Lord Stewart of Dirleton (Con)
My Lords, in relation to the matters raised by my noble and learned friend, although extension of the provisions of the Defamation Act 2013 might be desirable, existing common law and statute law in Northern Ireland, informed as it is by human rights considerations, is not so deficient as to curtail freedom of expression and the legitimate criticism of those in authority and in positions of power and influence. I note my noble and learned friend’s membership of the Bar of England and Wales and the Bar of Northern Ireland but not that of Scotland, and I hope that at some point in the not-too-distant future the opportunity may arise for him to complete a much-deserved triple crown.
Lord Loomba (CB) [V]
My Lords, it is now eight years since the defamation law was changed in England and Wales to bring about a fairer system, and it is nearly five years since the Stormont Executive commissioned a report recommending bringing Northern Ireland into line. Does the Minister agree that making the Northern Ireland legislation consistent is long overdue, and that not applying the serious harm test there is benefiting claimants over respondents and breaching the rule of law?
Lord Stewart of Dirleton (Con)
My Lords, the noble Lord makes useful points in relation to the benefits flowing from this statute. I repeat my previous answer that the law of defamation is a devolved matter for the Northern Ireland Assembly. I am aware that work relating to a Bill of the sort that applies in England and Wales may shortly restart. Indeed, I can advise the noble Lord that similar provisions are currently under contemplation by the Scottish Parliament.
Lord Browne of Ladyton (Lab) [V]
My Lords, the Society of Editors has made clear that meaningful reform of libel laws in Northern Ireland is part of a broader package of issues that threaten press freedom and freedom of speech there. There are the issues of media plurality, the use of private injunctions to try to stifle legislation and, more worryingly, continuous online abuse and paramilitary threats to journalists. Surely this is a shared responsibility between the UK Government and the devolved Administration. I understand that the Government are not discussing libel laws with the Northern Ireland Executive, but what are they discussing with them to try to resolve these problems?
Lord Stewart of Dirleton (Con)
My Lords, as I say, the matter is a priority for the Northern Ireland Assembly. There are discussions between it and the UK Government, albeit that I am not aware of their specific focus regarding defamation. It is a pleasure to reply to the noble Lord; I followed him in this place as I followed him at the Scots Bar, and it seems not too long ago that he and I were sweating over our books in Parliament Hall in preparation for our exams.
Lord McNally (LD) [V]
My Lords, I declare the interest that I was the Minister who carried through the 2013 legislation as Minister of State at the Ministry of Justice. I am pleased to have heard how well it has worked, and I pay tribute to Simon Singh and the late Lord Lester of Herne Hill in helping me to get that legislation through. I want to put a thought to the Minister. As he rightly says, this is a devolved matter but, remembering that it was the DUP that blocked the legislation last time, does he not think those who are most committed to the union would have a really vested interest in demonstrating that Northern Ireland was in step with the rest of the United Kingdom in important legislation such as this?
Lord Stewart of Dirleton (Con)
In my view, my Lords, commitment to the union is not best expressed by railroading the devolved Assembly into a particular course of action.
Lord Caine (Con)
My Lords, does the fact that, uniquely in these islands, Northern Ireland has a Government but currently no Official Opposition not place an even greater burden on journalists to scrutinise Ministers and hold them to account? To do that effectively, they need the same legal framework and protections as those in the rest of the United Kingdom. Would not the quickest route to achieving that be for the Northern Ireland Assembly to get behind the Private Member’s Bill on this matter that is shortly to be introduced by my Ulster Unionist colleague Mike Nesbitt?
Lord Stewart of Dirleton (Con)
My Lords, freedom of expression and the ability to hold Ministers to account on matters of public interest are of course of the greatest importance, and I am sure that the Northern Ireland Assembly will wish to consider the position carefully in considering that Private Member’s Bill and any measures that the Northern Ireland Executive may themselves bring forward.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed, and that brings Question Time to an end.
Divorce
Lord Stewart of Dirleton Excerpts(3 years, 10 months ago)
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Baroness Deech
To ask Her Majesty’s Government, further to the research on the impact of divorce published by Resolution on 30 November, what steps they are taking (1) to improve the capacity of family courts, and (2) to support divorce litigants.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con) [V]
[Inaudible]—enormous pressure. Despite this unprecedented challenge, I can reassure the House that the whole system has worked together to prioritise support for the most vulnerable. Of course, we acknowledge that there is always more to do, which is why the department continues to work with the advice sector to provide vital support services for litigants.
Baroness Deech (CB) [V]
The Resolution report showed that we are heading for disaster in the family courts, and that 41% of those recently divorced suffered mental health episodes or even had suicidal thoughts. The Nuffield report on remote hearings showed that while the professionals are happy with remote court working, litigants are not. There are technical issues and a lack of privacy. What will the Government do to help those in divorce proceedings? Disputes over financial provision are a major irritant. If mediation is a solution, the law in that area has to be simplified. Will the Minister update the House on progress with a promised review of financial provision law aimed at making it less contentious?
Lord Stewart of Dirleton (Con) [V]
My Lords, I do not accept the noble Baroness’s characterisation of the situation as one in which we are heading for disaster. The situation is no doubt complex, and we are aware of the data to which she refers.
Lord Farmer (Con)
My Lords, Resolution urges early support for separating couples to mitigate the pain of divorce and consequential mental ill health they and their children very frequently experience. The Lord Chancellor committed to join up government family support to mitigate the pain of no-fault divorce. Family hubs, as recommended by Justice Cobb’s Family Solutions Group, are firmly on the Department for Education’s agenda, but how will the Ministry of Justice ensure support for separating families?
Lord Stewart of Dirleton (Con) [V]
My Lords, the noble Lord is correct to identify the family hubs as a principal part of the Government’s intention to join up government family support as part of the backdrop to implementing no-fault divorce. Ministers and officials from the Ministry of Justice are working closely with their counterparts in the Department for Education and a number of other government departments to share a cross-government agenda for strengthening families. Family hubs are a vital element of this agenda, and work is continuing to further develop the family hub model to ensure that they improve outcomes for children and families with children. This will include those at risk of separating or who have separated, equipping them with the skills to manage issues and decisions independently and effectively so that they do not need to rely on family courts. In addition, and as previously stated in this House, the Government will use the opportunity of revising the online divorce application process to improve the signposting of relevant support services.
Baroness Butler-Sloss (CB) [V]
My Lords, will the Minister ensure that the Government give sufficient support, especially to children suffering from the separation of their parents, including better funding for CAMHS?
Lord Stewart of Dirleton (Con) [V]
I am very sorry; may I ask the noble and learned Baroness to repeat the question? I am trying to communicate by telephone, and it is not particularly easy.
The Earl of Courtown (Con)
My Lords, I think we should move on to the next question. If my noble friend the Minister could write to the noble and learned Baroness with his answer, we can move on to the next supplementary.
The Lord Speaker (Lord Fowler)
Moving on to the next supplementary, I call the noble Lord, Lord Faulkner.
Lord Faulkner of Worcester (Lab)
My Lords, I think we are all aware that this post-Christmas period is a particularly difficult time for relationships, and the feelings of depression and anxiety among divorcees, which the noble Baroness, Lady Deech, referred to, are made worse when they are worried about whether they can afford professional or legal advice. So many decide to represent themselves in the divorce court rather than to have professional advice, sometimes with disastrous results. How do the Government intend to ensure that poorer people have access to justice, and what are they doing to relieve the huge burden of overwork for court staff which leads to phones not being answered and cases postponed?
Lord Stewart of Dirleton (Con) [V]
My Lords, with regard to the noble Lord’s first question, legal aid is available for private families where an applicant is a victim of, or at risk of being a victim of, domestic abuse or child abuse, and that is subject to the means and merits criteria. Legal aid is available for the purpose of obtaining urgent protection such as non-molestation orders without any up-front evidence requirements, and the Legal Aid Agency has the power to waive all financial eligibility limits so that a victim may qualify for legal aid even if their income or capital exceeds the eligibility limits. An overall contribution may be required later. Legal aid for matters out of scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is available via the exceptional case funding scheme. That is intended to ensure that legal aid is accessible in all cases where there is a risk of breach of human rights, subject to the statutory means and merits test.
Lord Thomas of Gresford (LD) [V]
[Inaudible.] Can the Minister confirm that, as discussed in the recent GR judicial review case, where a wife subjected to domestic abuse has been assessed as having capital in a jointly owned matrimonial home but is otherwise penniless, and where she can demonstrate that she is unable to access that capital because the violent husband refuses to sell or mortgage the property, the director of legal aid casework has a discretion which he should exercise to treat the applicant as financially eligible for legal aid?
Lord Stewart of Dirleton (Con) [V]
The noble Lord’s question addresses aspects of detail as well as recent case law. I do not have the detail and the material with me to permit me to provide the noble Lord with a satisfactory answer. Again, I shall ensure that I correspond with him and put down in writing the answer to his question.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, in November, the Children and Family Court Advisory and Support Service, Cafcass, triggered its prioritisation protocol in South Yorkshire and the Humber region, which means it is allocating only the highest priority cases there due to severe understaffing. The trade union Napo has described this as a crisis. What steps is the Minister taking to prevent this prioritisation protocol being triggered in other areas, and what estimate has he made of the extra resources necessary to stabilise Cafcass in this region and to prevent a similar protocol being triggered elsewhere?
Lord Stewart of Dirleton (Con) [V]
The question covers some of the ground posed by an earlier question but I am happy to answer it. Approximately £3.5 million of additional funding has assisted Cafcass in increasing staffing levels. Her Majesty’s Courts & Tribunals Service has recruited approximately 900 additional support staff across jurisdictions and around 700 further appointments are currently sought. Your Lordships will be aware that Her Majesty’s Courts & Tribunals Service has established 17 Nightingale courts across England and Wales. These give 32 additional courtrooms to alleviate the pressure on courts and tribunals. These courts are hearing, as well as family cases, civil, tribunal and non-custodial criminal work. I can advise that judicial sitting days in the family court have been increased. Current projections are that a level of nearly 96,000 sitting days for 2020-21 may be accomplished—5,000 more than allocation—and the courts sat for record numbers of days in June and July 2020.
The Lord Speaker (Lord Fowler)
The time for this Question has elapsed. We now come to the second Oral Question.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Lord Stewart of Dirleton ExcerptsThursday 10th December 2020
(3 years, 11 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 144(Corr)-IV Fourth marshalled list for Committee - (7 Dec 2020)
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 50 in the name of the noble Lord, Lord Davies of Gower, seeks to amend the Bill to allow for a criminal conduct organisation to retrospectively authorise action if it was to save someone from harm. Clearly, the noble Lord speaks with considerable knowledge and experience from his time as a serving police officer. I have great respect for the work that he has done in the past, and I pay tribute to those brave officers whom the noble Lord referred to, who every day put themselves at risk of considerable harm to protect us and keep us safe, and who also work to turn people so that they become informants. As the noble Lord, Lord Paddick, said, the whole question of child CHISs has been discussed, and we will return to it on Report. These are very serious issues.
So I see the point that the noble Lord is making, but we should not use this Bill, when it becomes law, to retrospectively authorise conduct. That would not be right. I see the point that the noble Lord, Lord Paddick, made, but on previous conduct we have a position now, and that must be the position going forward. I do not see this Bill being used for what the noble Lord seeks to do. I hope that the Minister when he responds will set out the Government’s thinking on this. I hope he will say that they do not support the amendment as it stands, because it would not be the right thing to do, but will set out carefully how the Government will address this issue in the future
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, my noble friend Lord Davies has called for the Bill to enable an authorising officer retrospectively to authorise conduct in certain situations. The noble Lord referred to his experiences in the field, as it were, and it will have been obvious to all noble Lords that he drew on a considerable wealth of practical wisdom which informed his thoughtful contribution to this debate.
We on this side thank him also for his thoughtful engagement with the Minister in the other place on this matter. However, while I understand the concerns behind this amendment, it is not the intention of the Bill to allow any retrospective authorisations. All criminal conduct authorisations are granted by an experienced authorising officer, who will scrutinise each authorisation to ensure that it has strict parameters, that it is necessary and proportionate to the threat it seeks to disrupt and that the criminality authorised is at the lowest level possible to achieve the aims of the operation.
The noble Lord, Lord Kennedy of Southwark, and other noble Lords asked for an outline of the Government’s position. It is clear that this must be a matter of balancing. We consider that, by allowing retrospective authorisations, we remove the ability of the authorising officer to scrutinise the criminal conduct before it takes place, or we remove from the centre of our consideration that advance consideration. While I share the sentiment that we would not want undercover operatives to be placed in difficult positions simply for acting in the public interest, none the less, one of the key components in the present arrangement is control. The authorising officer must have confidence that proper thought has been given to the consequences of the authorisation, and we do not believe that an after-the-fact analysis, when the activities were not under the control of the public authority, should be retrospectively authorised where an authorisation has such an important legal effect.
As now, in the rare situation described here, authorities will make their assessment of the public interest in relation to the actions of the CHIS, the undercover operative, and rely upon prosecutorial—and, ultimately, judicial—discretion, which is no small thing, if I may draw on my own experience and set it against the experiences of the noble Lord, Lord Davies, proposing this amendment, the noble Lord, Lord Paddick, and others who have spoken. I repeat that it is a matter of balance of important considerations. We consider it important—indeed, essential—to emphasise that illegal criminal conduct should be authorised in advance of any actions.
The noble and learned Lord, Lord Morris of Aberavon, sought to explore two questions in particular: how likely a situation is to arise where conduct would be sought to be justified retrospectively, and how often has it arisen in practice? To address those matters, it is appropriate to refer again to the code of practice, which has been a matter of discussion before your Lordships earlier in Committee. Referring to the code of practice, which has the force of law, your Lordships will see that while criminal conduct authorisations must be specific in nature and contain clear parameters, they will not be granted in terms that are too narrow. I refer your Lordships to chapter 7 of the code of conduct in that regard. As to how often these matters have been raised in the past, I cannot provide the noble and learned Lord with specifics on the matter, but I will undertake to explore the matter with him in writing.
The noble Lord, Lord Paddick, presented a highly specific example, drawn no doubt from his experience in the field, in the same way that the noble Lord, Lord Davies of Gower, drew on his. There is a sense that such a very specific example itself allows us to emphasise the need for discretion in the matter, to acknowledge that the situations in which CHISs will be exposed to danger are very broad and to allow me to reply with a degree of confidence that the very breadth of the situations which may possibly be encountered is such as to necessitate the anticipatory use of the authorisations we seek to put in place.
I say further that, in the course of preparation of the Bill, the matter was discussed with operational partners who would control and handle the operation of such persons in the field. They have told us that they are content that the approach which we seek to take is the correct one.
Lord Davies of Gower (Con) [V]
My Lords, I am very grateful to those who have contributed to this short debate and am very grateful to the noble and learned Lord, Lord Morris, for the points he made. As he says, it is a narrow but very important issue. I am grateful to the Minister for responding to that. I accept that it is a matter of balance, but I am also very grateful to the noble Lord, Lord Paddick, who speaks with authority on this matter and has great experience of such issues. For the time being, I am content with the Minister’s response. Therefore, I beg leave to withdraw my amendment.
Lord Rosser (Lab) [V]
First, I wish the noble Lord, Lord Hodgson of Astley Abbotts, well in his campaign against skeleton Bills, as that issue is getting worse, not better.
The Bill provides that the Secretary of State may, by order, prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given. As the noble Lord, Lord Hodgson, said, Amendments 57 and 74, in his name, would remove those provisions and, as he confirmed, their purpose is to probe the extent to which the operation of criminal conduct authorisations can be amended by regulation.
Earlier in Committee, the noble and learned Lord, Lord Stewart of Dirleton, stated that the order-making provisions in the Bill
“allow for additional requirements to be imposed before a criminal conduct authorisation may be granted, or for the authorisation of certain conduct to be prohibited.”
He continued:
“I assure the Committee that they can only be used to further strengthen the safeguards that are attached to the use of criminal conduct authorisations. They could not be used to remove any of the existing safeguards ... The requirements that can be imposed under these powers concern matters of practicality and detail, and therefore it is appropriate that they are contained in secondary legislation.”—[Official Report, 1/12/20; col. 676.]
When the noble and learned Lord said that the order-making powers could not be used to remove any of the existing safeguards, did the Government mean that the wording in the Bill would make it contrary to law to do that, or did they mean only that the intention was not to use the order-making powers to remove any of the existing safeguards? That, of course, is a very different thing, as intentions can change.
No doubt in their response the Government will address that point and give specific examples of the purposes or intentions for which these order-making powers to prohibit the authorisation of certain conduct and impose extra requirements that must be satisfied before an authorisation can be given would—and, equally, would not—be used by the Secretary of State.
Lord Stewart of Dirleton (Con)
My Lords, these amendments have been tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.
As I set out in response to the amendments to the order-making powers tabled by the noble Lord, Lord Paddick, there are good reasons why these powers have been included. I do not wish to repeat the detail of what was said on group 7 of the amendments, other than to highlight again that the provisions have been drafted to resemble closely the terms of Section 29 of the Regulation of Investigatory Powers Act, which provides the underlying authorisation for CHIS use and conduct.
To answer the point raised by the noble Baroness, Lady Hamwee, I repeat what I said earlier and provide the Committee with reassurance that these powers could be used only to impose further safeguards and not to remove them. That point was raised also by the noble Lord, Lord Rosser.
My noble friend Lord Hodgson of Astley Abbotts posed the question of whether the Secretary of State can add bodies to, or remove them from, the list of authorising bodies. The addition of bodies can be accomplished only through the affirmative procedure. The changes to the bodies listed will reflect changes over time in investigative functions and the threats that the country faces. The rank of authorising officers is set by secondary legislation and will be dealt with in line with Section 29 authorisations.
The noble Lord, Lord Rosser, posed the question of whether the terms of the provision are such as to make it impossible for the powers to be extended rather than removed, or whether that is merely the intention of the Government. He correctly remarked on the fact that the persons occupying posts will change from time to time. As I see it, the legislation will not simply rely on the intention of the Government but will have force beyond that. I think that I also addressed the matter when answering the point raised by the noble Baroness, Lady Hamwee. She focused on the meaning of the words “conduct” and “requirements”. I am able to confirm that her understanding was correct. Indeed, as a consequence of what I have said, the interpretation of those words restricts, and does not permit addition to, the provisions in the Bill.
Lord Hodgson of Astley Abbotts (Con) [V]
I am grateful to all who have participated in this short debate and to my noble and learned friend for his answer. I thought that my first question would be a ball of easy length that he would smite over the boundary, saying that nothing could be added to the list of authorised bodies. I discover that actually the situation is worse than I thought, in the sense that apparently, via regulation, bodies can be added. That seems quite a serious point.
I understand the point about secondary legislation, and it is good to hear that the powers are restrictive, not expansionary.
I did not hear anything about forum shopping. Can my noble and learned friend enlighten the Committee about forum shopping between the Scottish system and the systems in the rest of the UK?
Lord Stewart of Dirleton (Con)
I beg the Committee’s pardon for that. I had intended to reply to my noble friend on that point.
The risk of forum shopping must always be considered a live one. It is the inevitable consequence of the existence of separate systems of criminal law in the adjoining jurisdictions. On his real and appropriate concern that this disagreeable practice should not be permitted, given the existence of different systems in the adjoining jurisdictions, there must be constant vigilance to see to it that that does not happen. That constant vigilance will be required of those in each system over time to prevent this practice taking place. I hope that that allays my noble friend’s appropriate concern about this matter.
Lord Hodgson of Astley Abbotts (Con) [V]
I am grateful for that. We have vigilance, not legislation, as regards forum shopping, and that was certainly an issue that bedevilled our record, and the records of other countries, in extradition proceedings in another era.
I said that these are probing amendments, and they are. I just wanted to test the ground and am grateful to those who have helped me to do so. I beg leave to withdraw the amendment.
Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020
Lord Stewart of Dirleton Excerpts(3 years, 11 months ago)
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Lord Stewart of Dirleton
That the draft Regulations laid before the House on 30 September be approved.
Considered in Grand Committee on 8 December.
Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020
Lord Stewart of Dirleton Excerpts(3 years, 11 months ago)
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Lord Stewart of Dirleton
That the Grand Committee do consider the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, this instrument forms part of the Government’s ongoing work to ensure that there are functioning domestic laws dealing with cross-border civil, commercial and family law matters in place at the end of the transition period that are consistent with the UK’s obligations under the withdrawal agreement.
This instrument is made under Sections 8 and 8B of the European Union (Withdrawal) Act 2018. It amends a number of statutory instruments made to remedy deficiencies in domestic legislation arising from the UK’s withdrawal from the European Union. The amendments address minor defects in those instruments, clarify the interaction of international conventions and domestic law after the end of the transition period, and ensure that two of those instruments are consistent with the provisions of the withdrawal agreement.
First is the amendment to the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, which revoke the Brussels Ia regulation, the key EU instrument dealing with jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. In its place, domestic private international law rules will apply to cross-border cases involving parties from EU member states. However, to ensure that certain employees are not disadvantaged by this change, the civil regulations transpose special protective jurisdiction rules for employment cases from Brussels Ia into UK domestic law. One of those rules ensures that employees who do not have a habitual place of work in any one country can sue their employer in the courts of the EU member state where the business which engaged the employee is or was situated.
An error has been identified in the way the civil regulations transpose this rule. The Government’s exit policy intention is to replicate as closely as possible the Brussels Ia employment jurisdiction rules, modified only as necessary to make them work in the UK. However, in relation to one ground of the special jurisdiction rules, the rule has been inadvertently broadened to cover employees without a habitual place of work in any one part of the UK, rather than employees without a habitual place of work in any one country, as is the case in Brussels Ia.
This effect of this is that a larger group of employees will be able to sue employers in UK courts under this rule. This does not reflect the Government’s policy intention; nor is it a desirable outcome, as it would mean that employees who have a habitual place of work in another country will now have the option of suing in the UK courts instead, even where the connection to the UK is more tenuous—being only that the employee was engaged by a business situated in the UK. The purpose of the Brussels Ia rule was to provide a jurisdiction only in cases where that other place, a place of habitual work, was not available.
This instrument addresses the issue by amending the civil regulations to ensure that the Brussels Ia employment jurisdiction rules are correctly transposed into UK domestic law, modified only as necessary to make them work in the UK context. It does not represent any reduction in the protection available to employees, but merely properly replicates the existing EU rules.
The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 revoke the Brussels IIa regulation, the main EU regulation dealing with jurisdiction and the recognition and enforcement of judgments in parental responsibility cases, and the maintenance regulation, the main EU regulation dealing with jurisdiction and the recognition and enforcement of judgments in maintenance cases. In their place, the UK will move principally to the 1996 Hague convention for cross-border parental responsibility matters involving parties from EU member states and the 2007 Hague convention for the cross-border recognition and enforcement of maintenance involving parties from EU member states. Where there are no applicable Hague convention rules, the family regulations make provision for the rules that will apply. In the case of maintenance jurisdiction, these are largely the rules as they existed prior to the relevant EU rules taking effect.
Two minor errors have been identified in the amendments made to domestic legislation by the family regulations to reinstate the pre-EU jurisdiction rules for maintenance cases in Scotland. The first of these is the carrying through of a reference to
“actions for adherence and aliment”.
These concepts have been abolished in Scots law, making this reference obsolete. This instrument addresses this by simply deleting the reference.
The second error has the unintended effect that, from the end of the transition period, certain applicants seeking maintenance, referred to as “aliment” in Scotland, would be disadvantaged. This would be where that claim is not connected to divorce or other proceedings; the applicant in such a case would be unable to bring the proceedings in Scotland and would have to pursue the paying party in the courts of the country where the paying party is domiciled. This problem is addressed in this instrument through an amendment to the family regulations to restore the jurisdiction of the Scottish court to hear claims for aliment where the applicant is domiciled or habitually resident in Scotland. We have worked closely with the Scottish Government to identify these errors and agree suitable remedies via the instrument we are debating today.
Additionally, the Government recognise that some of the precise effects of the provisions of the family regulations are potentially open to argument. We are grateful to the family law practitioners who have raised concerns about a lack of certainty in the application of the saving and transitional provisions in the family regulations. These intend to ensure that cases started under Brussels IIa or the maintenance regulation rules before the end of the transition period continue under those rules after its end. The concern is whether it is clear enough that those provisions apply to cases begun under the intra-UK maintenance jurisdiction rules, which was the Government’s intention. They have also highlighted a possible lack of clarity over the relationship after the end of the transition period between domestic jurisdiction rules in parental responsibility and maintenance matters and the relevant Hague convention rules.
This instrument addresses these areas of uncertainty through amendments to the family regulations to make clear and put beyond doubt that the saving and transitional provisions apply to intra-UK maintenance matters and that the relevant Hague convention rules take precedence over the domestic jurisdiction rules in cases that properly fall under the relevant Hague conventions.
The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 revoke or amend, as appropriate, domestic legislation which gave effect to the EU mediation directive, other than court rules and matters within the legislative competence of the Scottish Parliament. One of the domestic instruments amended by the mediation regulations, the Fair Employment and Treatment (Northern Ireland) Order, has been amended further by the Employment Act (Northern Ireland) subsequent to the making of the mediation regulations. This amendment came into effect on 27 January 2020; as such, the mediation regulations do not take account of it. This instrument amends the mediation regulations to take account of this later amendment to ensure the meaning of the relevant provision in the Northern Ireland order is clear once it is amended by the mediation regulations.
The Family Procedure Rules 2010 and Court of Protection Rules 2017 (Amendment) (EU Exit) Regulations 2019 make amendments to the Family Procedure Rules and the Court of Protection Rules that are consequential on the main civil judicial co-operation exit instruments. The instrument we are debating today addresses some minor technical errors in the rules regulations, re-establishing a link between the Family Procedure Rules and the transitional provisions in the civil regulations in respect of maintenance cases arising under the Lugano Convention 2007 and fixing a cross-referencing error in, and omitting an erroneous reference to “EU member state” from, the amendments to the Court of Protection Rules.
In addition to these corrective and clarifying amendments, this instrument amends two of the civil judicial co-operation exit instruments to ensure that their provisions are consistent with the UK’s obligations under the withdrawal agreement. The first of these instruments is the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019, which amends the Rome I and Rome II regulations. These EU instruments set out the rules for determining, in cases with a cross-border element, which country’s law applies, respectively, to contractual obligations and non-contractual obligations. The application of Rome I and Rome II have been extended to intra-UK matters, so are also used, for example, to determine whether English or Scots law should apply to a contract connected to both countries.
The Rome I and Rome II regulations have been retained under the withdrawal Act and will apply as domestic UK laws from the end of the transition period. The Rome regulations amend the retained versions of Rome I and Rome II to take account of the UK no longer being an EU member state. While the amendments are minor, it means that the Rome rules as retained are slightly different in some respects from the EU Rome regulations. The other instrument is the aforementioned family regulations. Both the Rome regulations and the family regulation were made in contemplation of the UK’s exit from the EU without an agreement on the terms of our departure. As a result, neither instrument takes account of the withdrawal agreement subsequently agreed by the Government and the EU.
Title VI of Part 3 of the withdrawal agreement contains provisions that determine how transitional matters—that is, matters that commence, but do not conclude, before the end of the transition period—are to be treated. In the case of applicable law rules, Article 66 of the withdrawal agreement provides that the Rome I regulation shall apply in respect of contracts concluded before the end of the transition period and that the Rome II regulation shall apply in respect of events giving rise to damage, when such events occurred before the end of the transition period. The Rome regulations do not reflect Article 66. Instead they provide that the retained versions of the Rome I and Rome II rules as amended by that instrument, and not the EU Rome I and Rome II regulations, apply to such contracts and events.
Likewise, Article 67 of the withdrawal agreement provides that the Brussels IIa regulation and the maintenance regulation continue to apply to matrimonial, parental responsibility and maintenance matters where proceedings are instituted in relevant proceedings before the end of the transition period. The family regulations contain a saving and transitional provision which, although largely consistent with Article 67 in terms of proceedings commenced under Brussels IIa and the maintenance regulation, extends to matters not dealt with in the withdrawal agreement, such as choice of court agreements in maintenance. This instrument amends the Rome regulations and the family regulations to align these instruments with the UK’s obligations under the relevant provision of the withdrawal agreement —Article 66 in the case of the Rome regulations and Article 67 in the case of the family regulations.
I should add that this is the first of two instruments that will amend the civil judicial co-operation exit statutory instruments to ensure that their provisions align with the requirements of the withdrawal agreement. The second of these instruments is still being finalised and will shortly be laid before Parliament.
On impacts, as I have noted, the amendments in this instrument correct minor technical errors and clarify ambiguities in the civil, family, mediation and family, and COP rules regulations, and will ensure that the family regulations and Rome regulations are consistent with directly applicable provisions of the withdrawal agreement. As such, they are not expected to have any significant impact on business, charities or the voluntary or public sectors. Indeed, in terms of the errors and ambiguities corrected, the amendments will ensure the civil, family, mediation and family, and COP rules exit SIs have the impact intended by the Government when they were laid before Parliament, as is reflected in the Explanatory Memoranda for those instruments and, in the case of the civil, family and mediation exit SIs, in the impact assessments published in respect of those instruments.
Lord Stewart of Dirleton (Con)
My Lords, if I may answer the noble Lord, Lord Ponsonby, first—however the order should have been, he spoke first. He asked whether it could be confirmed that the amendments under discussion today, as part of this statutory instrument, are not being discussed in Brussels. I am able to confirm that is the case. The United Kingdom will not be asking for bespoke arrangements on civil judicial co-operations such as these.
The noble Lord raised again the matter of enforcement power in magistrates’ courts where he sits, as he did in another context to me. I regret to advise the noble Lord that I do not have specific matters in relation to his concerns, but if I can ask him to show patience I will write to him on the matter and hope to allay fears that he may have.
The noble Lord, Lord Thomas of Gresford, spoke generously and gave a generous analogy—the helter-skelter of the times and circumstances in which the instruments containing minor errors were inaugurated. With respect, the noble Lord is quite correct to describe the circumstances with the analogy that he used. I have spoken at some length to members of the Bill team as to how these things happened. They confirmed that it was indeed a matter of the extreme and unprecedented urgency with which drafting took place. I stress to the Committee that these statutory instruments have never been enacted into law; the errors that are identified in the present statutory instrument, correcting those in the previous ones, are not errors that have caused any inconvenience to any litigant or any member of the public; and they have no caused any disruption to the court system in any part of the United Kingdom. They have been identified in good time and I freely acknowledge the assistance of the specialist stakeholders who have been in touch to point out these recondite areas in which the statutory instruments fell into error or were insufficiently clear.
Finally, the noble Lord, Lord Thomas, raised the matter of his position—interpreting history from a Whig standpoint. I am more of a Butterfield man, and refer to his book The Whig Interpretation of History. That is a huge field of history on which I look forward, when leisure permits, to having an interesting discussion with the noble Lord. I beg to move.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, apologies are due to the noble Lord, Lord Ponsonby, and to my fellow Petrean and historian, the noble Lord, Lord Thomas of Gresford, for the confusion over the batting order this evening.
European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020
Lord Stewart of Dirleton Excerpts(4 years ago)
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Lord Stewart of Dirleton
That the draft Regulations laid before the House on 15 October be approved.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 25 November.
European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020
Lord Stewart of Dirleton Excerpts(4 years ago)
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Lord Stewart of Dirleton
That the Grand Committee do consider the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, the instrument before the Grand Committee today relates to the question of which courts should be able to depart from retained EU case law. From January, UK courts, rather than the Court of Justice of the European Union, or CJEU, will be the final arbiter of laws that govern our lives. In order to promote legal clarity and certainty in our law following our departure from the EU, Parliament has provided that EU law that we have chosen to retain is to be interpreted in line with EU case law which we have also chosen to retain.
The way in which our law is interpreted by courts and tribunals does not remain static over time. Our departure from the EU has, naturally, brought with it a change to the context in which the law is considered, and we want our courts to be able to reflect that in their decisions where appropriate. Without the ability to depart from EU case law, there is a risk that UK law will remain tied to an interpretation from the CJEU that is no longer appropriate in the UK.
For that reason, the European Union (Withdrawal) Act 2018 vested in the UK Supreme Court and, in Scotland, the High Court of Justiciary, in specified cases, the power to depart from retained EU case law, applying their own tests for deciding whether to depart from their own case law when doing so.
This instrument will extend the number of UK courts with the power to depart from retained EU case law to include courts at Court of Appeal level across the UK. In making such decisions, the test to be applied by these courts is to be the same as that used by the UK Supreme Court in deciding whether to depart from its own case law—namely, whether it is right to do so.
The instrument will achieve our aim of enabling retained EU case law to evolve in a more timely way than otherwise might have been achieved through the status quo. It will also help to mitigate the operational impacts on the UK Supreme Court and the High Court of Justiciary that would have arisen if the power to depart from retained EU case law were reserved solely to those courts. It will further assist those courts by providing prior judicial dialogue on these complex issues from the Court of Appeal level.
I am sure that your Lordships are familiar with the terminology but, first, I shall briefly explain what I mean by retained EU case law. Retained EU case law is defined in the 2018 Act as, broadly, any principles and decisions of the CJEU as they have effect in EU law prior to the end of the transition period. This includes cases which were referred to the CJEU by the UK, as well as those referred by other member states. This is a vast and complex body of case law that spans many different areas of law.
In amending the 2018 Act through the European Union (Withdrawal Agreement) Act 2020, Parliament provided the power to make regulations to extend the list of courts which may depart from retained EU case law, to set the test to be applied by those courts and to specify any considerations that courts should take into account in coming to such decisions. This instrument extends the list of courts that can depart from retained EU case law to: the Court of Appeal of England and Wales, the Court Martial Appeal Court, the Court of Appeal of Northern Ireland, the High Court of Justiciary, when sitting as a court of Appeal in relation to a compatibility issue or a devolution issue, and the Inner House of the Court of Session, the Lands Valuation Appeal Court and the Registration Appeal Court in Scotland.
The instrument also sets out that the test to be applied by these additional courts when deciding whether to depart from retained EU case law will be the same test used by the UK Supreme Court in deciding whether to depart from its own case law. This test is well established and is capable of being easily understood and applied without any further guidance. It is anticipated that applying the same test to that used by the UK Supreme Court will foster a consistent approach across the jurisdictions and, in turn, on appeal to the UK Supreme Court. There is a wealth of case law underpinning the UK Supreme Court’s test which has evolved over time to ensure that courts consider changing circumstances and modern public policy.
The Government have decided against specifying a list of factors to be considered by the courts with the power to depart from retained EU case law, as the UK Supreme Court’s test is underpinned by a significant amount of case law, which provides considerable guidance. The instrument does not change the operation of the doctrine of precedent, which, practically speaking, means that when a court reaches a decision on whether to depart from retained EU case law, that judgment has the same precedent status as other judgments from that court.
As required in statute, the Government have consulted senior judiciary across the UK, a consultation process that was also extended to the devolved Administrations, as well as to representatives across the legal services sector, businesses and other organisations, and was open to the public. The consultation ran from 2 July to 13 August, with a response published on 15 October. That consultation sought views on whether to extend the power to depart from retained EU case law to the Court of Appeal and its equivalents across the UK, or to the High Court and its UK equivalents.
Having considered the responses fully, the Government have concluded that extending the power to Court of Appeal level courts strikes the appropriate balance between enabling retained EU case law to evolve more quickly, where appropriate, and providing legal clarity and certainty. It also assists in managing the operational impacts by ensuring cases are considered in a timely way. Furthermore, extending the power at this level will mitigate the impacts of potentially large volumes of divergent decisions, both within and across the UK jurisdictions, as decisions of these courts are binding on themselves and courts below as well as being persuasive across the UK’s three legal systems. Where such divergence occurs, this can be resolved more quickly by the UK Supreme Court if it is not required to consider all questions of whether to depart from retained EU case law.
I know that there was significant interest from your Lordships when the power to make this statutory instrument was introduced during the passage of the 2020 Act. I hope that your Lordships will be reassured by the consultation that has taken place and the careful approach that is being taken in extending the power to Court of Appeal level courts only.
An impact assessment has been published alongside the consultation response. Any impact is heavily dependent on both litigant behaviour in bringing proceedings seeking a departure from retained EU case law and, of course, the outcome of that litigation. However, based on a qualitative assessment, we assess that any impact on an increase in case volume as a result of this instrument is manageable at Court of Appeal level, helps to maintain legal certainty and mitigates pressure on the UK Supreme Court.
This instrument enables our courts to be better able to consider whether to depart from retained EU case law than the status quo provided in the 2018 Act. Providing these seven courts with the ability to depart from retained EU case law will allow timely evolution of our case law. It will relieve pressure on the UK Supreme Court and avoid our case law becoming fossilised. We are taking an approach that balances the importance of legal clarity and certainty with the need for the law to evolve with changing circumstances.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful for the contributions to this debate and I would like to respond to the points made.
First, I acknowledge the contribution of the noble Lord, Lord Beith, who pointed out that consultation has taken place. I emphasise that the terms of the legislation seek to strike a balance which is intended to prevent an overwhelming rush of work to the court at the highest level. We also intend to maintain judicial independence.
My noble and learned friend Lord Mackay of Clashfern raised the matter of the approach which he had urged at an earlier stage whereby there should be a means of referral from the lower courts to the higher—to those courts which are capable of taking a decision in these matters. There is no provision for any courts to refer below the Court of Appeal, including the magistrates’ court. Matters will find their way into the appellate level of courts capable of hearing these matters in the normal way by decisions being taken and themselves appealed against. It seems very likely that appeals in these contexts would be more or less inevitable given the novelty of the situation but also acknowledging the likely temporary nature of the situation as the law recovers full independence.
The noble Lord, Lord Thomas of Gresford, spoke about there being an allergy on the part of the Government and the Conservative Party against mention of the CJEU. Having gone over my notes and counted four occasions when I mentioned that court in the first two pages of my notes, I am driven to conclude that the noble Lord was speaking figuratively, although at the end of his speech he said that I had perhaps not yet developed the allergy.
On the matter of the response of the consultees, the noble Lord said that I might perhaps be exercising something of a sense of humour when I spoke positively of it, given the overall terms in which the consultation had been responded to. However, I take from the consultation that there was support for the cautious approach taken in terms of the SI, balancing competing needs between access to the courts, the need to avoid a particular higher level of court being overwhelmed with applications and the need for legal clarity. In the circumstances, it seems inevitable that there will be some increase in the burden of work on the higher courts resulting from the unprecedented decision of this country to leave the European Union. That degree of disruption is, as I say, inevitable. However, I submit that the terms of this SI admit a useful and productive method by which that new burden of work can most readily be assimilated over time.
On the noble Lord’s point about the range of courts capable of taking on this function with regard to the statutory instrument, he made reference to the Lands Valuation Appeal Court in Scotland. The seven courts were chosen specifically for their appellate status, the availability of appeals to them and the absence of availability of appeals from them.
The noble Lord, Lord Ponsonby of Shulbrede, indicated the Labour Party’s position and sought reassurance with regard to the concerns that were raised by trade unions and the legal profession. Nothing in this statutory instrument seeks to impose at all on any of the courts any view which the Government may hold. Indeed, the statutory instrument may be read as emphasising the importance that the Government place on the independence of the courts and of judicial discretion. Other than through reiteration of the 1966 test laid down by the House of Lords, there is no prescriptive list of factors to be taken into account by the courts taking on this function.
The Government see this instrument as an important part of the United Kingdom’s future standing to ensure that more courts are able to depart from retained European Union case law but in a timely and appropriate manner. We consider this to be a proportionate and sensible approach to this unprecedented and novel situation as the United Kingdom becomes the first country to leave the EU. We consider that extending the power to courts at the Court of Appeal level, to the Court of Appeal and to its equivalents, strikes the right balance between the provision of legal clarity and certainty and enabling the law to appeal more flexibly.
I am grateful for your Lordships’ learned contributions to the debate. I hope that your Lordships agree that the statutory instrument is a necessary one, therefore I commend this draft instrument to the Committee.