Data Protection: Legislation

Debate between Lord Deben and Lord Faulks

Wednesday 11th March 2015 Lords Chamber

[Lord Faulks]

Data do not respect boundaries in quite the same way that the noble Lord does. We do indeed take a number of steps to protect our data—the ICO has a number of powers which it exercises regularly to control data. However, it is appropriate that our data protection legislation should be in harmony with that of the rest of the European Union.

[Lord Deben (Con)]

Would my noble friend not accept that it would be quite difficult to explain to companies which work all the way across the European Union that we were so fed up with the European Union that we did not do the sensible thing for them, which is to do through Europe the things that are best done in Europe?

[Lord Faulks]

My noble friend takes a slightly different view of this country in Europe. Certainly that is the approach that the Government take, although of course they make a major contribution themselves to the development. Indeed, I shall be attending on Friday a meeting at which we will discuss the final version of European data regulation, or at least the partial general approach to it over the forthcoming year.

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Faulks

Tuesday 9th December 2014 Lords Chamber

[Lord Deben (Con)]

My Lords, I do not want to disappoint the noble Lord opposite but it does not need to be a particular party to see that there is something deeply wrong with what is being presented today. I am sorry about the tone that he adopted. I think it was entirely wrong and he may have done his cause and my cause a great deal of harm as a result.

The Government have not distinguished themselves by the way in which they have listened to this House or by the way in which they have thought through what they have presented. I remember the comments of the late Harold Macmillan that it is a mistake to revolt on more than one thing at a time because it confuses the Whips. I am concentrating on this particular issue because it is the most important issue of all. I think my noble friend misunderstood something I said earlier as criticising him. I do not criticise him at all. I think he has presented the case in this House as well as humanly possible, with a courtesy which one would expect and which he has fully expressed. The trouble is that there is not a case for what is being proposed. That is the difficulty. I do not think I have ever heard so damaging an apology as the one which was revealed during the course of the speech of the noble and learned Lord, Lord Woolf—that the Minister got wrong the only argument of any importance that he presented and then tried to uphold in this House the decision of the other House which would not have come about except with the exercise of the Whip. That would have done credit to the Chief Whip on the Benches opposite during his period in the House of Commons. It is very serious indeed. We have to say no to the Government’s determination. We have to support the proposal of the noble Lord, Lord Pannick, because we have to give the other House an opportunity to reverse the decision that it made when it was not in full possession of the facts. That is the first thing we have to do.

My noble friend said that all that is happening is that the bar is being raised slightly higher. I am not a lawyer. I am proud of not being one and am keen to enter into this discussion because sometimes it seems as if the only people who understand these things are lawyers. I think that most normal people understand these things and they understand them very simply. With the greatest of respect, the bar is not being raised slightly higher. Its nature is being changed. What is being asked now is that judges must make a decision which does not seem to be a proper decision for the courts in any case. Decisions of courts should fundamentally be on the facts of the law—on what something means. But that is not the decision that is being asked for here. The judge is being asked to decide that somebody’s unlawful act was highly unlikely to have affected the people who would otherwise have been affected. That is a curious thing to ask a court to do. Surely a court ought to be asked to say whether a proposal is so unimportant or vexatious that it should not occupy the time of the court. That is a perfectly reasonable thing to say. If judges had constantly allowed people who wanted to argue how many angels danced on the point of a pin, then I would have accepted that we needed to do something about it. However, when my noble friend was challenged for the statistics on which this very serious proposal was based, he honestly said that he had not got any.

Your Lordships might reflect that if I were presenting a proposal to a board of directors of a public company and I said I wanted fundamentally to change the product they had—its constituents, the way it was advertised, the market for which it was being manufactured—I would have to present some figures. I would have to say how many people did not like the product and thought that it needed to be reformulated. I would have to say how often the product had poisoned people or upset their stomachs. I would have to produce some kind of basis.

[Lord Faulks]

I am grateful to my noble friend for giving way on this point. I said that I had no statistics; I did not say that I had no examples.

[Lord Deben]

I have listened carefully to the examples that my noble friend put forward, but has he any more? I do not think that any of them have been convincing so far. I am happy to give way to him if he is prepared to give us some new examples.

[Lord Faulks]

If the noble Lord had looked at the website in which all the examples were set out in the build-up to the Bill, he would have read them. I cannot read them all out now; it would be an inappropriate use of the House’s time.

[Lord Deben]

I am sure that most of my noble friends, and noble Lords generally, have seen those examples. I have to say to my noble friend that they are not very convincing. They are not sufficiently great to suggest that we should change the law of the land in this very particular way. That is my concern. I can see that it is easy to say, “Look, there have been a lot of judicial reviews that have not really been necessary”, or to say that we really need to shorten the time to build and to develop. I have a long history of being keen on building, developing and getting this country ahead of its neighbours, and of being unhappy about the way that we seem to take such a long time to do things. I am therefore a natural voter for this. I am on the side of the Government; I would like to be with them. However, this is not the way to do it. There are ways in which it could be done that would not break the fundamental reason for judicial review.

I come to my third point. During an earlier debate I said that the foundation of British law is that no one is above the law. I am a great enthusiast for King Charles the Martyr, but it was perfectly right to say that he should not be above the law. I think it extremely dangerous—I say this to my noble friend very carefully—if Ministers should feel it reasonable to break the law because it is not really very important, or because it does not really have much effect. Breaking the law, if one is in a position of authority, is ipso facto a serious thing to do. Having been a Minister for 16 years, I would expect my civil servants to tell me very clearly if I proposed something that would break the law. I would take that very seriously indeed. I do not believe that ordinary people will respect the law in the same way that they do today if they think that Ministers have a special arrangement, which is that when they do things somebody has to show that it was really serious, really upset somebody or really made a difference before the courts can adjudicate on it.

I come to my fourth point, which I must say is, to me, very serious indeed. We have to be very careful about legislating in a way that suggests that we do not have trust in the judges who make decisions. Of course, this might be thought to be a dangerous place to say this as there are so many judges here, but it is the thing that distinguishes us from many Administrations: there are very few people who will not say that the judges in this country make decisions without fear or favour. If judges have made decisions that judicial review cases should be heard, I would prefer to rely on them than on people who are parti pris—that is, the Ministers—who find those decisions embarrassing. Ministers of any political party ought to be embarrassed if they break the law. That is an essential part of defending the law.

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Faulks

Monday 27th October 2014 Lords Chamber

[Lord Faulks]

My Lords, this has been a passionate debate. We heard from the noble Lord, Lord Pannick, in close co-operation with the noble Lord, Lord Beecham, who, to continue the football analogy, persisted with his tactic of man-marking the Lord Chancellor. The debate was also enhanced by the contribution of the noble Baroness, Lady Campbell. My noble friend Lord Deben made a number of criticisms of ministerial colleagues for announcements. I must, and will, deal with those. My noble friend Lord Phillips told us about bygone days, when the way legal practices functioned was very different. I have, through my relations, memories of rather a different approach to the law than that which pertains now. Legal aid was certainly commonplace in the provinces then and people were charged what solicitors thought they could afford. We live in a very different era now. The noble Baroness, Lady Lister, repeated her concern at the effect of the residence test on some children in some circumstances.

Amendment 180 would bring the new clauses into effect at the end of the period of two months beginning with the day on which the Act is passed. Amendment 176 seeks to prevent the Government making future changes restricting the availability of legal aid for judicial review through secondary legislation under LASPO. Specifically, the amendment would prevent future changes being made through the powers conferred under Sections 2 and 9 of LASPO. It is important to pause here as there is a danger of confusion. Section 2 deals with remuneration and Section 9 with scope, where these have the effect of imposing further eligibility criteria for legal aid in judicial review cases, or of restricting the scope of legal aid for judicial review. The amendment also seeks to annul any statutory instruments that have previously been made through the powers available under Sections 2 and 9 of LASPO, in so far as they restrict eligibility or scope in relation to judicial review.

As noble Lords will already be aware, remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO so that where an application for judicial review is issued, the legal aid provider will undertake work on the application at financial risk, unless permission is granted or a discretionary payment is made. This point was elegantly made by my noble and learned friend Lord Mackay of Clashfern. There is, of course, a difference between scope and remuneration in this context, and that is a partial answer to the point made by my noble friend Lord Deben. A theme correctly adopted by the Government, throughout the difficult period that has persisted since they came into power, is that limited legal aid resources should be properly targeted, particularly at judicial review cases where they are needed most. The legal aid system is there to command public confidence and credibility. It was in that context that we introduced amendments to the Civil Legal Aid (Remuneration) Regulations to limit the circumstances in which legal aid providers should receive payment for work carried out on an application for permission.

It may be helpful if I explain that our figures suggest that there are a significant number of unmeritorious cases—751 in 2012 and 2013 alone—which receive public funding but where permission is refused. Therefore, they have apparently satisfied the Legal Aid Agency that there is sufficient to justify legal aid. In fact, on the old test, they have failed to surmount the rather low hurdle of permission. This change was introduced to incentivise providers to consider more carefully whether to commence judicial review proceedings and hesitate before commencing claims that are unlikely to receive permission. In genuinely meritorious cases, the provider is still paid because the case is granted permission, the case concludes prior to permission and their costs are paid by the defendant, or, where the case concludes prior to permission and they cannot get costs, the provider can apply to the Legal Aid Agency for discretionary payment. Unfortunately, I do not think that my noble friend Lord Deben was able to be present when we had a lengthy debate on these issues, and the question of legal aid for judicial review and its limits in relation to remuneration and scope was debated.

Remuneration continues to be paid in the usual way for the earlier stages of a case to investigate the prospects and strength of a claim and to engage in pre-action correspondence aimed at avoiding proceedings under the pre-action protocol brought in by the noble and learned Lord, Lord Woolf, who is in his place, to discourage proceedings where the matter could be sorted out through an exchange of letters pursuant to the protocol.

I should stress that the regulations made under Section 2 of LASPO do not affect the availability of civil legal aid to individuals, the scope of civil legal aid for judicial review or the eligibility of applicants for legal aid in judicial review proceedings. Where a client is in receipt of legal aid, he or she will remain so for the life of the case unless it is withdrawn for other reasons. These changes relate only to the remuneration of legal aid providers. To put it more simply, it is the lawyer who loses out. The client does not lose legal aid.

As the amendment seeks to prevent the Government using Sections 2 or 9 of LASPO to impose further eligibility criteria for receipt of civil legal aid or to restrict the scope of legal aid, the amendment would therefore not achieve what appears to be the intended effect of, among other things, annulling the recent amendments I have referred to on remuneration. The amendment would however have the consequence of preventing the Government imposing additional eligibility criteria or restricting the scope of legal aid for judicial review, other than through primary legislation. It would also annul previous amendments debated and passed by Parliament in relation to the scope of legal aid for judicial review.

The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers, and the eligibility for and scope of civil legal aid, are subject was considered only recently by Parliament during the passage of LASPO. We continue to believe that the level of parliamentary scrutiny is appropriate.

Perhaps I may remind the House about what happened during the passage of the LASPO Bill. Parliament was assured that the scope of judicial review would not be amended, which is entirely correct, but we do not accept that the proposals we are discussing are inconsistent with LASPO. In other words, the issue of bad faith, which is effectively alleged by my noble friend, simply does not arise. LASPO contains a very clear power to amend the scope of civil legal aid, as per Section 9, to which I referred earlier. There is no exception for judicial review.

Therefore, it is wrong to say that LASPO was enacted on the basis that the scope of legal aid would never be amended to create some sort of estoppel, as my noble friend seems to suggest.

[Lord Deben]

My noble friend will entirely solve my problem if he can say absolutely directly that nothing that the then Lord Chancellor said is in any way inconsistent with what we are now doing. In other words, what Kenneth Clarke said as Lord Chancellor, and what he promised, are entirely carried through and there is no contradiction whatever. In that case, I have no problems at all and will be happy to support him, but that is what we want to know.

[Lord Faulks]

I am sorry that my noble friend is not satisfied with the explanation that I have been rather laboriously making—which is that it all depends on the difference between scope and remuneration. The scope of legal aid has not been altered; we are simply talking about an amendment to remuneration at one stage of the process—a particular regulation which was considered in Committee. It was the subject of a debate on these matters. Admittedly there was opposition to it on the basis that this could stifle people from bringing judicial review, but it was not then suggested that there was some violent inconsistency between the LASPO Bill and what was said during its passage, and the change pursuant to Section 9. Now, however, it is being suggested that there is some bad faith on the part of the Government.

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Faulks

Monday 27th October 2014 Lords Chamber

[Lord Deben]

My Lords, I am grateful to my noble friend for giving way. I am listening very carefully. The tiny bit that I do not understand is why the judge should not have discretion to decide whether the case merits payment of costs or not. The discretion is very bound, because he has to maintain that these are exceptional circumstances. I find that difficult. Why cannot he be given the right to say, “In this case, they ought to pay because they have been in one way or another negligent”, or have overcharged, and in another case that they should not? Why cannot we leave it to the judge? It is his court and he should make the decision.

[Lord Faulks]

My Lords, of course that is the burden of the argument in favour of the amendment, and that is the current situation. The clause is intended to place a higher burden—we accept that it is a higher burden—on interveners to think carefully about the intervention that they intend to make as to whether it is truly worth while.

Before my noble friend’s intervention, I was stressing that the judge has discretion over both aspects: causation and quantum. The intervention may have caused only a degree of additional costs, rather than the entire costs of the action, which will modify the intervener’s exposure to costs. That will be a matter for the discretion of the judge. Of course, it is ultimately up to the judge to decide what are exceptional cases. Judges have different views as to what constitutes an exceptional case, but ultimately it is for the judge. It is very rare, if at all, that one sees appeals on questions of costs having any success. Amendment 164 would remove both presumptions that the clause creates, replacing it with a general discretion, which my noble friend would like, for the court to award costs either for the intervener against a party or to require the intervener to pay the parties’ costs. That is the status quo.

Clause 73 has been criticised for being too broad and meaning that interveners could be expected to pay costs in any circumstances. Critics have said that that means that an intervener would not be able to intervene in important cases and provide assistance to the court, as the risk of adverse costs is too unclear and potentially too great. Under Clause 73, what amounts to exceptional circumstances will ultimately be set out in court rules. That will provide clarity for an intervener at the point where they are considering whether to intervene on the manner in which they should carry out their intervention or risk costs.

Clause 73 does not mean that in every case where an intervener is involved they will be forced to pay all the costs of all of the parties, but it is right that they have a fairer financial stake. All those with experience will confirm that, just as interveners can add value, they can delay and hinder and make arguments that simply amplify or repeat—

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Faulks

Wednesday 30th July 2014 Lords Chamber

[Lord Faulks]

I am not saying that they would not. This form of words is sufficiently wide, including the various adjectives that it does, to cover a variety of situations, and if one particular adjective does not serve, another will serve. There will be an overlap between the two. I do not accept that the word “supplementary” is as offensive as has been suggested.

[Lord Deben]

My noble friend, rightly, points to the fact that similar, or the same, wording has been used in other Acts. Surely that does not mean that it was right to use it in those Acts. Here is an opportunity for the Government to take seriously the real concerns of people about the way in which this House and the other place control the legislation that goes through them. We have a system that is not very elegant. Therefore, unless there is something about the word “supplementary” that is different and is necessary, it might be better not to have it. If all those other things cover all the points that the noble Lord raised, then “supplementary” is otiose. If it means something more than that, then I would like to know what “supplementary” would cover that none of the other words would. If we knew that, we might well be willing to help the Government by supporting them. If we do not know that, we have a reason to say that perhaps it is better not to have it.

[Lord Faulks]

As a lawyer, I have a particular regard for precedent. The fact that the word “supplementary” has found its way into other Acts of Parliament is at least some indication that previous Parliaments have approved its inclusion. The fact remains that any provision is worthy of analysis, whether it has been in a previous Act of Parliament or not. None the less, I am sure that the noble Lord would agree that it is important that we give, quite properly, the degree of power necessary to the Secretary of State to implement those parts of the Bill that become law. I can reassure him and the House that such powers are narrowly construed by the courts and are available only for the purposes of implementing what is in the Bill, not what is further to the Bill, not in the Bill or what the Secretary of State might like to have been in the Bill.

Amendment 84 proposes to remove Clause 73(2). This would prevent any provision necessary to give full effect to the Bill being made if it required amendments to any existing legislation, whether primary or secondary. Similarly, with the powers subject to Amendment 83, provisions permitting amendment to primary and secondary legislation for these purposes are commonly found and have been approved, and we are concerned that their absence would hamper the Government’s ability to bring the Bill into force.

Of course I accept that it is right that these provisions should be subject to proper scrutiny. That is why we have provided, in accordance with the expectations of the Delegated Powers and Regulatory Reform Committee, that all provisions made under this clause will be subject to parliamentary scrutiny. Where provisions amend primary legislation, any regulations will be subject to the affirmative procedure. With that reassurance, I hope that I can allay to some extent any residual anxiety that the House may have.

These provisions are not novel and we say that they are necessary to implement the provisions of the Bill properly. During the Recess, among the many other things that I have been invited to reflect on, I will reflect on the precise use of the adjective “supplementary” in this context. At the moment, I do not give any indication of a desire to amend it, but I will of course reflect on it. In the mean time, with the reassurance that I have endeavoured to give the House, I hope that the noble and learned Lord will feel able to withdraw his amendment.

Criminal Justice and Courts Bill

Debate between Lord Deben and Lord Faulks

Monday 21st July 2014 Lords Chamber

[Lord Faulks]

I am putting this before the Committee in circumstances in which, as I think the noble Lord well knows, a compromise has been reached.

[Lord Deben]

Does my noble friend agree that this is too important an issue for it to become a kind of joke measure for those who wish to make other party-political points? We ought to consider this seriously, in the way it ought to be considered, and make our own decisions according to the facts.

[Lord Faulks]

I agree with my noble friend that it should be considered seriously and a judgment exercised by the Committee as to what it thinks the appropriate response to this particular clause is.

--- Later in debate ---

[Lord Faulks]

The Committee is looking carefully at the clause. I have endeavoured to assist with various questions to indicate that certain technical amendments would have to be made, which would not alter the fundamental purpose behind the clause, but would nevertheless make it more satisfactory.

[Lord Deben]

Would it help the Government if we voted this clause down? They could then produce a clause that was satisfactory and would listen to what the Committee had said.

Legal Aid: Social Welfare Law

Debate between Lord Deben and Lord Faulks

Monday 7th July 2014 Lords Chamber

[Lord Faulks]

My Lords, I obviously cannot comment on individual cases. It may be that cases with lawyers proceed only if lawyers have advised that there are reasonable prospects of success. As to those cases which fail, I do not accept that the tribunals are not able to do justice in the absence of lawyers. Most of the tribunal members are extremely well trained. They are capable of eliciting the facts. Simply to say that there cannot be justice without lawyers is, with respect, simplistic.

[Lord Deben (Con)]

Will my noble friend accept that those of us who supported these changes because of the large sums spent on legal aid in this country as compared with other countries would still be concerned to ensure that what we thought was going to happen is happening? Is he aware that many of us feel that rather than waiting five years before we have the kind of assessment which is surely necessary, as we are dealing with the poorest and most vulnerable people in our society, we really ought to look at this rather earlier?

[Lord Faulks]

My Lords, I share my noble friend’s concern, as do the Government. My answer was “within five years”, and I take note of what he says: that five years might be regarded as too long. Nevertheless, I am sure he would agree with me that we need time to assess these matters, particularly in view of the fact that before April 2013 there was a spike in the number of applications so as to take advantage of the old regime. It will take a little time to assess the true effects of the reform.

Prisons: Overcrowding

Debate between Lord Deben and Lord Faulks

Monday 16th June 2014 Lords Chamber

[Lord Faulks]

The Serious Crime Bill is intended to deal with serious crime, which unfortunately is a problem. If serious crime is committed, sadly it will result in sentences of imprisonment.

[Lord Deben (Con)]

Why is it—