Criminal Justice and Courts Bill
Lord Faulks Excerpts(12 years ago)
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Lord Faulks
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, Amendment 1 removes references in Clause 2(10) to subsections (5) and (6) of that clause. Subsection (10) makes transitional provision around the application of the “dangerousness” life sentence, imposed on conviction of an offence listed in Schedule 15 to the Criminal Justice Act 2003, which carries a maximum penalty of life where the court considers that there is a significant risk to members of the public of serious harm from further Schedule 15 offences. However, such a sentence could never be imposed for the offences mentioned in subsections (5) and (6) so we do not need to refer to them.
The other amendments are minor changes that correct inconsistencies and lacunae relating to dangerous offender provisions in the drafting of the Criminal Justice Act 2003. Amendment 2 relates to foreign service offences and the extent to which they are treated as previous convictions for the purposes of the dangerous offender sentencing scheme. Previous convictions may be relevant in determining eligibility for an extended determinate sentence or for the “two strikes” life sentence. This amendment ensures that all previous convictions for a member state service offence, which is the equivalent of an offence listed in Schedule 15B to the Criminal Justice Act 2003, can count as relevant previous convictions for these purposes.
As currently drafted, paragraph 49 of Schedule 15B to the Criminal Justice Act 2003 covers only equivalent member state service offences for which the offender was convicted by a court operating in the member state. However, a conviction for a member state service offence could be given by a service court sitting elsewhere in the world. Currently, such convictions are covered for UK service courts operating outside the UK, and we should treat member state convictions in the same way.
Amendment 3 relates to certificates of conviction. There is provision in the Criminal Justice Act 2003 for such certificates to be treated as evidence as to whether a previous conviction is a relevant previous conviction for the purposes of the “two strikes” life sentence. Such certificates could assist in dealing with disputes about, for example, whether a previous conviction for robbery under Section 8 of the Theft Act 1968 involved possession of a firearm. In the former case, the robbery would constitute an offence listed in Schedule 15B to the Criminal Justice Act 2003. However, no similar provision is made in relation to deciding eligibility for an extended determinate sentence. To rectify this anomaly, we are extending Section 232A of the Criminal Justice Act 2003 to Section 226A(2) of the Criminal Justice Act 2003 as well.
Amendment 6 relates to how the court determines the date of a previous offence. Generally, where legislation makes a change to sentencing, provision is made for how the date of an offence should be determined if it is found to have been committed over a period of two or more days or at some time during a period of two or more days. This is helpful because such changes often apply only where an offence is committed on or after the commencement of the provision in question. However, there is no provision of this type in relation to Section 224A of the 2003 Act—the “two strikes” life sentence. This is an anomaly, and we consider that we need to rectify it. I beg to move.
Lord Faulks
“( ) Part 4 of Schedule 15B to the Criminal Justice Act 2003 (offences under the law of Scotland, Northern Ireland or a member State other than the United Kingdom listed for the purposes of sections 224A(4) and 226A of that Act) is amended as follows.
( ) In paragraph 49, for “An offence” substitute “A civilian offence”.
( ) After paragraph 49 insert—
“49A A member State service offence which, if committed in England and Wales at the time of the conviction, would have constituted an offence specified in Part 1 or 2 of this Schedule.
49B In this Part of this Schedule—
“civilian offence” means an offence other than an offence described in Part 3 of this Schedule or a member State service offence;“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.””
Lord Hope of Craighead (CB)
My Lords, I shall add a word based on my own experience. It is quite difficults to visualise the work of the Parole Board members unless one has seen them at work. One thing that struck me some years ago when I attended Parole Board hearings from time to time was the huge volume of paperwork generated by individual cases. Of course, the longer a prisoner remains in custody, the bigger the volume becomes. The technique which the Parole Board member has to apply to each case is to work his or her way through the file, which takes a great deal of time, then explain whatever views he or she has reached, based on the information in the file. It is immensely time consuming. My experience was that Parole Board members were extremely conscientious; the people who know best what the effect was of the diminution of resources on their ability to do their job are the Parole Board members themselves, which is the strength of the point that the noble Lord, Lord Beecham, made. I suggest that his amendment deserves a great deal of consideration.
Lord Faulks
My Lords, the amendments relate to four clauses, which will have the effect of increasing the involvement of the Parole Board in certain areas. The clauses we are considering are: Clause 3, which adds a number of terrorism-related offences to the enhanced dangerous offenders sentencing regime; Clause 4, which will require all prisoners serving an extended determinate sentence to be referred to the Parole Board before early release can be authorised; Clause 5, which creates a new determinate sentence for serious child sex and terrorist offenders, under which prisoners will be referred to the Parole Board before early release can be authorised; and Clause 7, which introduces a new test for determining whether offenders receive fixed-term or standard recall, and to inform re-release decisions.
Our impact assessment acknowledges that Clauses 4 and 5 will add to the Parole Board’s workload. However, Clause 3 should not give rise to more than negligible impacts, since very few offenders are convicted of the offences in question. In any event, it should not impact on the Parole Board over and above the estimated impact of Clause 4 because, following the changes in Clause 4, all those serving extended determinate sentences will be referred to the Parole Board for early release in any event. We also think that Clause 7 will not have significant effects, because we estimate it will add a very small percentage to the total number of standard recalls that the board currently deals with.
We have looked at the likely impact of these provisions and the time over which the impacts will make themselves felt, and are confident that the additional work that will be created will be manageable. Most of the increase in Parole Board workload will arise from the new determinate sentence created by Clause 5 and Schedule 1, which will apply only to offenders who are sentenced after the new sentence is implemented. Those who commit these offences very often receive substantial prison sentences; under the new sentence, they will serve half their custodial term in prison before they are referred to the Parole Board for consideration for release. All this means that there will be a substantial time lag before these cases start to come through to the board. Our estimate is that the board will see the full impact of changes to early release between 2020 and 2030. We are also supporting the board in dealing with the consequences of the Osborn, Booth and Reilly judgment, referred to by the noble Lord, Lord Beecham, in his helpful remarks.
The Parole Board has established a programme of work to equip itself for dealing with the challenge of providing an increased number of oral hearings. The first phase of that work, which involved scoping the challenge and setting up immediate plans to deal with the increased demand, is now complete. The second phase, which involves developing a new case management model for the future, is under way.
Lord Faulks
“Minor amendments
(1) In section 224A of the Criminal Justice Act 2003 (life sentence for second listed offence), at the end insert—
“(12) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(b) and (4)(a) to have been committed on the last of those days.”
(2) In section 232A of that Act (certificates of conviction), for “section 224A” substitute “sections 224A and 226A”.
(3) In section 218A of the Armed Forces Act 2006 (life sentence for second listed offence), at the end insert—
“(8) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(c) and (5)(a) to have been committed on the last of those days.””
Lord Beecham
My Lords, I must confess that I am somewhat puzzled by the position outlined in the JCHR report and what the noble Lord, Lord Lester, referred to as the Government’s recent pronouncements on it. As he rightly said, the report indicated that the Government would be awaiting the outcome of the appeal in McLoughlin before updating the Committee of Ministers of the actions that they plan to take to implement the Vinter judgment—which implies that the Government are planning to implement the Vinter judgment, but in ways as yet undetermined.
I am sure that the Minister will be able to enlighten us about whether that is in fact the Government’s intention and, if so, what approach they will be taking. If they are awaiting the outcome of that appeal before coming to a conclusion, that is not an unreasonable position for them to take, but the underlying question is whether they intend to implement the Vinter judgment as indicated in whatever decision the Supreme Court ultimately makes on the details of the McLoughlin appeal.
I am also uncertain about the interesting reference that the noble and learned Lord, Lord Phillips, made to a wider meaning of “compassion” and whether that would be a criterion for release. Is that something that the Government are in fact contemplating? Might that form part of their response to the Committee of Ministers in relation to Vinter?
These are difficult cases, and one must hope that we can reach the position where we are not in conflict with the court but that, nevertheless, the balancing interest of public safety is also given due weight. For the Opposition’s part, we await the Government’s response in general and the Minister’s response in particular this afternoon.
Lord Faulks
My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.
However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.
I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.
The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.
The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:
“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.
The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:
“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.
The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.
The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.
The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.
Lord Lester of Herne Hill
My Lords, I am grateful to everyone who has spoken in this extraordinary debate, including the Minister. One has to bear in mind that under Article 46 of the convention there is a duty on the UK to abide by the final judgment of the Strasbourg court in the British case. That duty must be performed not just by the Government, thank goodness, but by Parliament and by the judiciary. When the Committee of Ministers of the Council of Europe—that is, 47 Governments, including 46 that will be looking at this debate and particularly at what the Minister has just said—next meets to scrutinise whether the UK has in fact properly complied with the judgment, it will no doubt read the debate, including the Minister’s reply, and the report of the Joint Committee on Human Rights with some interest. It will note that three of those who have spoken contrary to the view of the Minister have all exercised judicial power in our apex courts, the House of Lords and the Supreme Court, including the President of the Supreme Court, and they will view with some surprise the notion that the Minister’s view of the Court of Appeal judgment is somehow more significant when looking at the matter than the views of those extremely distinguished jurists, all of whom, as I say, have exercised judicial power at the very apex of our legal system.
I simply do not understand how the Government think they can get away with it. They have already spent years and years, like their predecessors, in trying to get away with their refusal to abide by the final judgments in the prisoners’ voting rights case. By a strange quirk of life, I go to the Committee of Ministers every quarter. I shall not be at the next one but I usually go there because I am deemed to be Cypriot, for the purposes of the Cyprus/Turkey dispute. I observe what happens, without speaking, in the British cases. I have to say to the Minister, who has not had that experience, that our reputation at the moment is right at the bottom. Everyone I speak to—ambassadors, judges, civil servants in Europe—view with astonishment the fact that we now have a Minister of Justice, a Home Secretary and a Prime Minister who feel sick when they read judgments of the Strasbourg court and say so, and who threaten to tear up the convention or, rather, to withdraw from the court’s jurisdiction and the Human Rights Act. One cannot imagine quite what it is like to have lived through a period when the United Kingdom had such a fine international reputation and then to find that the pseudo-democracies of Europe—the dictatorships and totalitarian regimes—say, “If the United Kingdom can do this so can we”.
The JCHR said that this was a probing amendment, and that is what it is, but it is an extremely valuable probing amendment because those experts on penal reform, such as the former Chief Inspector of Prisons, the noble Lord, Lord Ramsbotham, and distinguished human rights advocates, within the law or in some other occupation, have all spoken in the same way. I have no doubt that the Government will not get away with it and that the Committee of Ministers will not close the matter, as the Government are now saying, but will demand further explanations. Having said all that, I beg leave to withdraw the amendment.
Lord Faulks
My Lords, we are debating once again the position of current IPP prisoners. The Government abolished that sentence in the LASPO Act 2012, for reasons I need not rehearse. We replaced them with immediate effect so that no further IPPs can now be imposed on offenders convicted after December 2012, regardless of the date of offending. That, as I think noble Lords would agree, is a major step forward. The noble Lord, Lord Beecham, said in the course of his address to your Lordships that the Government who preceded ours had not given the Parole Board sufficient resources. What he failed to do was to acknowledge that it was his Government who brought in this scheme, which has been so much criticised. That scheme has resulted in a number of people being imprisoned and still being in prison; this Government repealed that provision.
However, in respect of IPP sentences already imposed, our position remains that it would not be right or appropriate retrospectively to alter sentences that had been lawfully imposed prior to the abolition of IPPs, particularly because in this case those sentences were imposed with public protection issues in mind. Consequently, prisoners serving IPP sentences are not released unless the Parole Board authorises it.
A number of questions were posed about the Parole Board’s resources, including those from the noble Lord, Lord Wigley. In answer to an earlier amendment, when I think the noble Lord was not in his place, I set out to the Committee the fact that the Government were well aware of the demands, temporary and in future, being presented to them. They had given further resources and were intending to be nimble in responding to the demands that were and would be placed upon them.
Lord Beecham
I am sorry to intervene at this point but, as the noble Lord, Lord Wigley, was not in the Chamber when this matter was discussed before, would the Minister care to address the point that I made to him that the Parole Board’s estimate of the increased demand was £10 million a year, which is equivalent to the total budget, while the Government’s provision is proposed to be £3 million? How does that square with the assurance that he is trying to give to the noble Lord?
Lord Faulks
The Government and the Parole Board, as the noble Lord would expect, are in frequent communication. It is difficult to be precise about these figures; an estimate is simply that. I assure the noble Lord that the figures in so far as they can be reached are the result of a number of conversations that have taken place regarding predictions about the demand. It is the Government’s position that we are providing the appropriate support for the Parole Board now and its estimate of what will be required in future. I also said—
Lord Faulks
Perhaps I might finish this sentence before I sit down. It is of course our intention to respond as appropriate if there are increasing demands.
Lord Davies of Stamford
I am most grateful to the Minister for giving way. It is clear that the Parole Board has a serious backlog in this matter. In considering the appropriate budget for the board, have the Government been looking at this matter completely by itself in vacuo or have they been looking at it in connection with the very relevant point made just now by the noble Lord, Lord Ramsbotham, that there would be considerable savings to public funds if these prisoners were released, to the order of about £40,000 a year? Is it not the case that the interests of financial rationality and justice are aligned in this matter but that the Government are running counter to both of them?
Lord Faulks
I am very surprised that the noble Lord thinks that somehow the Ministry of Justice has failed to notice that it costs the Government a great deal of money to keep prisoners in custody. It is painfully aware of that, and of the cost. However, the ministry is also aware of its obligation for the protection of the public, and it is in balancing these issues that it comes to the very difficult decisions that it has to reach.
It is right that offenders serving indeterminate sentences—IPPs—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. There is evidence that IPP prisoners who take the opportunities presented to them to reduce their risk are beginning to achieve release in greater numbers. Since 2010 the number of IPP releases has grown, and we have seen over 400 IPP releases in 2012 and 2013. The percentage of IPP cases considered where release was ordered was 6% in the 2010-11 report, whereas in the 2012-13 report the figure was 16%.
Of course, we keep the matter under review. The amendment, as I understand it, would effectively lead to the prisoners who are within the scope of the amendment being automatically released, as it would mean that there was no discretion for the Parole Board to do other than to direct release. That is not the Government’s policy, as noble Lords are aware, and I will be unable to accept the amendment on those grounds.
I should also say that there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle. The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release IPP prisoners who had a tariff of less than two years. Section 128 is not about the duty to release indeterminate sentence prisoners but, rather, gives the Secretary of State the power to change the Parole Board’s release test by order. The amendment, however, appears to direct the Parole Board to release certain prisoners without any consideration of a test whatsoever.
The noble and learned Lord, Lord Lloyd, to whom I pay tribute, as others have, for his tenacity and his great concern for these prisoners—indeed, concern has been expressed for them all around the House—suggests that the amendment would be a gentle push. With very great respect to the noble and learned Lord, as it is currently expressed the amendment would be a very firm shove indeed. However, I understand that the intention is that these particular prisoners would be released at the point at which they would naturally fall due for Parole Board review, thus phasing their release. Presumably, the retention of the Parole Board’s role in the process is designed to align as much as possible with the current statutory arrangement. However, it would be problematic to give the duty to release to the Parole Board if in fact there was no discretion for the board under this proposal. For these reasons, I do not think that the amendment is the right way to achieve the noble Lords’ objectives.
However, in turning away and facing the principle rather than the detail, the noble and learned Lord, Lord Lloyd, has chosen to concentrate on those with tariffs of under two years, who he suggests have been particularly disadvantaged as they could not have received an IPP after the 2008 changes to the IPP statute. In fact, it remained possible to receive an IPP with a tariff of lower than two years until IPPs were abolished, where the offender had a serious previous conviction, and a fair number continued to do so. While between 2005 and 2008 courts were obliged to impose IPPs in certain circumstances, this was only where they found the offender to meet the dangerousness threshold. The statute, however, did not oblige courts to find the offender dangerous if he had a previous Schedule 15 conviction and it was clear that the court need not conclude that a previous conviction made the offender dangerous if it would be unreasonable to do so.
The noble and learned Lord, Lord Lloyd, and some other noble Lords have seen an analysis of the management information that was put together last year relating to the situation of IPP prisoners who were sentenced before July 2008 with tariffs of under two years who remained in prisons and whose tariff had expired. It is the Government’s view that this analysis supports that position in respect of the group. It provided clear evidence that the continued detention of short-tariff IPP prisoners remains justified and that the Parole Board still considers that in many cases they pose an unacceptable risk to the general public and to themselves. The majority—80 prisoner cases of the 100 sampled—were assessed as at high risk of serious harm, whereas none was assessed as being at no risk of serious harm. Almost all of that sample had had recent parole hearings and were deemed unsuitable for release. However, the fact that 11% of the sample were in fact approved for release clearly also demonstrates that, where risk has been reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.
I know that many noble Lords keep themselves closely informed of the National Offender Management Service’s ongoing work to enhance support for this group of prisoners, but a brief reprise of those efforts bears repeating. We have come a long way in terms of management and support since the introduction of the sentence. For example, NOMS has made substantial improvements to the waiting times for IPP and other indeterminate-sentence prisoners. Once they have been approved for open prisons, in addition IPP prisoners have improved access to accredited programmes and they remain a priority group for interventions. Sentence planning instructions have been overhauled to emphasise that there are a range of interventions, not just accredited programmes, that can provide useful evidence for parole hearings. This has also been emphasised in discussions with Parole Board members. Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs, such as learning difficulties. NOMS will continue to oversee positive changes to the management of IPP prisoners. As I said earlier, the reality is that IPP prisoners are now achieving release in greater numbers under the current arrangements.
Lord Thomas of Gresford
Before the Minister moves on, regulations were passed to permit lie detector tests to be carried out in respect of prisoners who are subject to IPP provisions. Are those tests carried out and, if so, what is the result? I have been informed by an experienced organisation that it is necessary to pass a lie detector test in order to establish that the particular offender is not at risk.
Lord Faulks
I am not aware of the question of lie detectors and whether or not they are used. I will write to the noble Lord when I have some information about it.
Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and inclusion, including offenders with complex needs, as I was indicating. I was asked about the case of James, Wells and Lee. The noble Lord, Lord Wigley, pointed out that the decision was that the retention of those prisoners was contrary to Article 5.1 and was therefore an arbitrary detention. I dare say that he will know, from having studied the decision, that the European Court of Human Rights did not hold that the sentence itself was unlawful. It was the unavailability of courses that was considered to be a breach of Article 5.1. I am sure the noble Lord would accept that it is simplistic to suppose that attendance at a course would automatically result in someone being appropriate for release. Clearly, it is carefully managed to ensure that so far as is possible those courses are reached. Those who attend the courses will not necessarily be eligible for or suitable for release. Equally, some who do not will be. However, I accept it is a matter of considerable assistance.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the construction of a statutory duty is a matter of the purpose as construed on examination of the relevant statute. In response to a debate about this section, the Lord Chancellor’s predecessor, Kenneth Clarke, said that he would look at progress after the LASPO changes had taken effect. I mentioned earlier that the rate had increased. The position is—I am afraid this is more or less the same answer that I gave in the debate initiated by the noble Lord, Lord Wigley—that there are no current plans to review the release test for prisoners serving IPP sentences whose minimum term has expired, although we continue to use a range of measures to improve their progression and reduce the risk that they pose. The Government’s position is that it is right that IPP prisoners continue to serve their sentence until they are assessed as safe to be released into the community by the Parole Board. The Government were left with this rather crude device by the previous Government. They repealed it, but none the less they have to be extremely mindful of what lay behind the introduction of this provision; namely, the protection of the public. I accept that there is great concern that those who would have received a lower tariff sentence might seem on the face of it to be languishing in prison for far too long. However, there are factors which I have attempted to draw to the Committee’s attention which do not, in the view of the Lord Chancellor and the Government, warrant a change of approach to that discretion.
Of course, it is a matter of anxiety. While others are attending the opera, I am—as the noble Lord, Lord Wigley, would have it—having sleepless nights. However, the duty of the Government remains to protect the public, notwithstanding the persuasive arguments that have been put forward by noble Lords. I ask the noble and learned Lord, Lord Lloyd, to withdraw the amendment.
Lord Lloyd of Berwick
Will the Minister explain why releasing these people now would present any greater risk than that they would have presented if they had been given determinate sentences back in 2005?
Lord Faulks
They did not receive determinate sentences. With great respect to the noble and learned Lord, it is a hypothetical question because the sentence they received was not a determinate sentence; it was a sentence for the protection of the public. It is therefore the Government’s case that they have to proceed with caution using the processes which exist via the Parole Board to ensure that, before somebody in that position is released, the public are safe so far as reasonable precautions can be taken.
Lord Lloyd of Berwick
First, I must thank those who have supported this amendment so effectively, as it seems to me, and say a particular word of gratitude to the noble Lord, Lord Wigley. How good and refreshing it is to hear from a layman, especially one who is able to speak with a certain passion, which we lawyers try to keep in control. It was a very effective contribution.
Criminal Justice and Courts Bill
Lord Faulks Excerpts(12 years ago)
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Lord Faulks
“Alternatives to prosecution: rehabilitation of offenders in Scotland
In Schedule 3 to the Rehabilitation of Offenders Act 1974 (protection for spent alternatives to prosecution: Scotland), at the end insert—“9 (1) The powers conferred on the Scottish Ministers by—
(a) paragraph 6, and(b) section 7(4), as applied by paragraph 8, may be exercised to make provision relating to reserved matters and are not subject to the restrictions imposed by section 29(2)(b) or (c) of, or Schedule 4 to, the Scotland Act 1998.(2) In this paragraph, “reserved matters” has the same meaning as in the Scotland Act 1998.””
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this amendment is required in order to address a legal competence gap that has been identified by the Scottish Government in relation to the exercise of enabling powers in Schedule 3 to the Rehabilitation of Offenders Act 1974, to which I shall refer as the 1974 Act. Following on from the Children’s Hearings (Scotland) Act 2011, the Scottish Government would like to legislate to specify occasions when the normal rules relating to the disclosure of spent alternatives to prosecution from a children’s hearing should not apply.
To achieve this, the Scottish Government need to exercise powers in Schedule 3 to the 1974 Act to specify the types of employment and proceedings that are excluded from the protection of the 1974 Act and, therefore, where a person may need to disclose a spent alternative to prosecution. These powers can be found in paragraph 6 of Schedule 3 and Section 7(4) as applied by paragraph 8 of Schedule 3 to the 1974 Act.
Scottish Ministers already have the power to legislate in respect of exceptions and exclusions relating to spent convictions in reserved areas. However, because paragraph 6 and paragraph 8 of Schedule 3 were inserted into the 1974 Act by an Act of the Scottish Parliament, these provisions cannot be exercised to make exclusions, modifications or exceptions in relation to reserved subject matters.
A transfer of functions order, as was made in 2003 in relation to convictions, cannot be made here because the relevant powers were conferred on the Scottish Ministers by an Act of the Scottish Parliament rather than on a Minister of the Crown by a Westminster enactment. Therefore, the amendment will insert a new paragraph into Schedule 3 to the 1974 Act which will state that Scottish Ministers can exercise the powers in paragraph 6 and Section 7(4) as applied by paragraph 8 without the relevant restrictions in Section 29 of the Scotland Act 1998. This will allow the Scottish Ministers to set out exclusions, modifications and exceptions in relation to alternatives to prosecution which are given by children’s hearings in Scotland in the desired way.
The amendment is an important step in helping the Scottish Government to implement their policy concerning the rehabilitation of child offenders and shows how this Parliament can demonstrate its ability to legislate effectively for Scotland. I hope that the Committee agrees that this is a sensible and pragmatic solution and that noble Lords will support the amendment. I beg to move.
Lord Beecham (Lab)
My Lords, this amendment was provoked by a disturbing article in the Guardian on 1 July, based on the recently published report of the inquiry into children and the police by the All-Party Group on Children, chaired by my noble friend Lady Massey. It appears that, in 22 police forces that replied to a request for information, 1,136 children under the age of 10—well below the age of criminal responsibility —were subject to stop and search between 2009 and 2013. The Met could not supply figures for 2009-11. The number of children under the age of 18 subject to this process across 26 forces exceeded 1 million.
There have been reports on this issue in the past, including one in November 2009 relating to children from BME backgrounds, and one in January 2010 on searches of 11 year-olds. In January this year, it was reported that 500 such searches had been carried out in Scotland on children under the age of 10, including 72 on children aged only seven or younger. It is apparent that there is no effective code of practice governing the carrying out of such searches, or even of properly recording them. For example, police forces were unable to say how many looked-after children had been stopped and searched. Some forces do not even record a child’s name, address and date of birth, although some do. Only 20 of the forces had separate custody facilities for children in their police stations.
The Home Office has reviewed stop-and-search powers, but the all-party group’s inquiry suggested a number of improvements relating to the collection of data, including ethnicity, and specific guidance on safeguarding and child protection, especially for vulnerable children in care or at risk of abuse or exploitation. When a child is taken to a police station for the purposes of a search, he or she has a right to have a parent present. Some forces make an effort to take a child home before searching.
The Bill contains a welcome provision in Clause 20 to require an appropriate adult to be present when a caution is given to an offender under the age of 17. The amendment, which is designed as a probing amendment, would extend that principle to stop and search so that an appropriate adult would have to be present, particularly during the search. The stopping is not necessary something an appropriate adult would be present for, but the search, which is a more personal intervention, should be in the presence of an appropriate adult. As it stands, the amendment applies to children under the age of 10, but perhaps thought should be given as to whether that age remains too low—after all, it is below the age of criminal responsibility. In Scotland, consensual searches—searches the child simply agrees to—will now no longer be carried out on children aged under 12.
I hope the Minister will agree to consider this amendment and come back on Report possibly with an improved version. It seems important that this process, if it has to be undertaken, should be undertaken in as sensitive a way as possible, preferably in the presence of a parent, but, if not, at least of an appropriate person independent of the police force. I hope the Minister will look kindly on the suggestion and perhaps work with the Opposition to see whether we can reach an agreed position on it. I beg to move.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for drawing the Committee’s attention to this issue. The purpose of the amendment is to extend the safeguards provided in PACE codes of practice C and H, covering custody procedures, to provide children under the age of 10 with an appropriate adult in public settings where a stop and search is carried out. While this is a laudable aim, the Government do not consider the amendment desirable, as we consider the existing provisions in law and codes of practice are sufficient for the purposes of ensuring that children are treated appropriately. For instance, there are already important safeguards attached to Section 1 stop and searches. These include the obligation on the police to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure. In addition, a person can be detained for the search only for as long as is reasonably required to allow the search to be carried out. Therefore, the period of time for which an individual can be held for the search is strictly limited and proportionate.
Indeed, in terms of the time that individuals are detained, were there to be a requirement for an appropriate adult to be called in a stop and search context, this would require the police to arrange for provision in all public settings and at all times, which would entail detaining children for significant and disproportionate periods of time. This would also mean a significant strain on police time and resources.
There is also Section 11 of the Children Act 2004, which places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. The statutory guidance accompanying this duty requires the police to ensure that appropriate training is in place to enable police to deal appropriately with children.
In respect of the police’s use of stop and search, those are just some of the safeguards in place which apply to children, and they are entirely appropriate given the nature of the procedure.
The principal function of an appropriate adult is to explain and demystify the criminal process at the police station following arrest and detention. For example, the police interview, the meaning of the caution, the individual’s rights within the police station context and so on would need to be explained. However, these considerations do not apply to a brief stop and search encounter, which is about confirming or allaying a police officer’s reasonable suspicion that an individual may be in possession of something they should not.
I am aware that this proposed measure was mentioned in the recent All-Party Parliamentary Group for Children report on children, published this month. The group’s initial report stated that,
“APPGC Officers will continue to consider recommendations on the stop and search of under-10s for our final report, including ... whether”,
stop and search,
“should only occur in the presence of an appropriate adult, carer or parent or in the family home”.
In answer to the noble Lord, the Government will consider the group’s conclusions in its final report on this matter, but for now, without adequate consideration and consultation, we are not convinced that this measure should be introduced in legislation.
Finally, on 30 April, as the noble Lord said, the Home Secretary announced a comprehensive package of measures designed to reform the way that stop and search is used. The measures are designed to ensure that these powers are used fairly and effectively and in a way that engenders community confidence. These measures should impact positively on all sections of the community, including children. For these reasons, I respectfully ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I confess to being somewhat disappointed by the Minister’s response. We are talking here essentially about very young children, and much of what he said would be relevant certainly to adults and possibly to adolescents, but children aged 10 or under will be going through a process that is not systematic and with apparently no clear national guidance on how these things are to be conducted. Indeed, as I said, the fact that even the recording of what has happened is not uniform suggests that there is certainly a need for a coherent code. I also still urge consideration to be given to the suggestion in the amendment that an appropriate adult be available, particularly for younger children.
I do not know what timescale the Minister envisages for the production of any further guidance or indeed how long it will take the APPG to produce a second report. However, even if it is not possible before Report to reach a conclusion on whether the parliamentary group believes that it is necessary to amend the Bill, I hope that we can emerge from this whole process with a coherent approach in which the issues that the APPG has raised are addressed and in which legislation or guidance is uniformly adopted by all relevant agencies, including of course the various police forces.
I particularly invite the Minister to look at the Scottish experience. Scotland has taken a very clear decision, which is in any event quite different from the one that we now apply here. I hope that there will be some conversation with interested agencies north of the border, irrespective of the outcome of the referendum, in order to ensure that the best possible practice is implemented when we are dealing with children of this age in England and Wales. Having said that, I beg leave to withdraw the amendment at this stage.
Lord Faulks
My Lords, I am very grateful to the noble Lord for his introduction to this amendment. Of course, he is right to identify the increasing danger of fraud in the cybersphere, something acknowledged in the Serious Crime Act. He was also right to refer to the fact that there are other offences that deal with fraud—in particular, the Fraud Act 2006, which already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purposes of making a gain for himself or another.
While identity theft is not in itself a criminal offence, the use of a false identity for fraud purposes is. Therefore, the amendment as drafted has difficulties, because it would also apply to innocent persons—for example, to persons who collect a parcel using their relative’s identification from the post office, which is currently permitted. However, the Government take the issue of identity crime extremely seriously and are pursuing a number of initiatives to prevent it. A multiagency strategic group, led by the Home Office, has been formed to reduce the threat to the United Kingdom. The group is engaged in a range of activity to tackle the problem, such as strengthening the issuing processes of government documents, improving data-sharing of false identities, and taking down websites that offer false documents for sale. There is a national policing identity crime champion. The City of London Police is leading this work and is currently developing an identity crime strategic threat assessment, working closely with the National Crime Agency.
The Government recognise that there are often particular challenges in dealing with the consequences of identity theft. These challenges relate to the difficulty of identifying and catching offenders, rather than to a lack in the criminal law. The Government are working with banks and credit card companies, promoting technical solutions to the problem and working to help the victims of such crimes. We are working with the credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Callcredit. We are also addressing the scale of this issue and establishing identity crime trends over time, through the Crime Survey for England and Wales.
We are not in any way complacent but I hope that my response to the noble Lord’s very real and appropriate concerns about identity crime has satisfied him that the Government are well aware of the issue and are responding appropriately. In those circumstances, I respectfully ask him to withdraw his amendment.
Lord Beecham
I will, of course, withdraw the amendment. However, if I may say so, I am slightly disappointed by the Minister’s rather complacent tone in relation to where we are in this situation. I do not detect a properly co-ordinated response between the Home Office and the Ministry of Justice where the police service is concerned. This matter bears further examination. If, as the noble Lord says, it is currently under consideration, I wonder whether there is any possibility of a report being made before we get to Report stage. If that is not the case, I will be tempted to bring something back at that point. However, I am happy to enter into further discussions in the light of any progress made by the Government in drawing their various strands together. I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, like other noble Lords, I want to speak to both Clauses 23 and 24 to aid your Lordships’ House.
The Opposition cannot support the noble Lords, Lord Blair, Lord Dear, Lord Condon and Lord Paddick, in opposing Clause 23. I have heard very clearly the points that they have made concerning police officers being public servants with special provisions being made for them. They are obviously highly respected individuals and public servants but, with that, they carry great responsibility and great power. Where those officers exercise that power or privilege improperly, there can be tremendous consequences for the individuals concerned. That is the concern that we have on these Benches and it is why we will support the clause as it stands.
Moving on to Clause 24, the murder of a police officer is of course a most serious crime, and it is right that anyone killing a police officer in the course of their duty should receive a substantial jail term. This clause would make that a whole life term. My colleagues in the other place supported the Government, as we do today on the Opposition Front Bench. The noble Lords, Lord Blair, Lord Condon and Lord Dear, have all been senior police officers and have all expressed grave reservations about this provision, saying that it is unnecessary. Like the noble Lord, Lord Paddick, I very much hope that the Minister will meet the noble Lords and other representatives and look at this issue very carefully. The last thing that anyone wants to do is to agree to a Bill that puts more people’s lives at risk. I am very worried about that. We must look carefully at what they have said and talk to them about this issue because it would be madness to do anything else.
These are very difficult issues. Obviously everyone wants to root out corruption at any level. Regarding Clause 23, the consequences for the victims of police corruption are very serious.
Lord Faulks
My Lords, this has been an excellent debate, distinguished by the contribution of four very senior and experienced police officers. Also, the helpful contribution of the noble Lord, Lord Kennedy, added to the debate. The noble Lord, Lord Paddick, is quite right: the Government should plainly listen to what police officers with such experience and who are so respected in your Lordships’ House have to say.
The noble Lord, Lord Condon, ranged over a number of issues in respect of the police. He stressed that the police were in something of a crisis at the moment but, at the same time, he said, absolutely correctly, that they need to be properly resourced and that there ought to be a competent Independent Police Complaints Commission. So far as that is concerned, the Government have given the IPCC a range of new powers. It has already received £2.4 million to strengthen its capabilities. In addition, from this financial year, we will transfer £18 million from police forces to the IPCC to enable it to do all serious and sensitive cases, including corruption work.
Lord Blair of Boughton
My Lords, I am most grateful to the Minister and to the noble Lord, Lord Kennedy, for their comments. I am afraid that I still feel we are in the world of assertion, as the Minister said, rather than of argument. He may not be able to do this, but I would be most grateful if he could assist me by providing me with some of the advice that he has received in relation to the corruption offences. The scenario that he just described, of a senior police officer misusing his position but where no prosecutor could find a way to suggest that that was an offence under the bribery or whatever Act, or that it was misconduct in a public office, sounds a little unusual to me.
I am most worried, as I think are other noble Lords who have spoken, about what I shall now refer to as the “perhaps” clause. The Minister very much emphasised the word “perhaps”, saying that an offender in these circumstances would perhaps not be familiar with the law and so on. The fact is that as soon as you mention “whole life tariff” to a criminal, he or she—it is almost certainly a he—knows what a whole life tariff is and that it means that you might as well take five cops out as one cop. It is that simple. I would be grateful to speak to the Minister a little further about this, particularly to answer the question that the noble Lord, Lord Kennedy, raised about the level of consultation with senior police officers and the Police Federation at the moment. I am pretty clear that the objections that I have raised are familiar to them: they have been familiar to generations of police officers since the then leaders of the police service objected to there being capital punishment for the murder only of a police officer or a prison officer.
Legal Systems: Rule of Law
Lord Faulks Excerpts(12 years ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble and learned Lord, Lord Woolf, for affording the House the opportunity to discuss the United Kingdom’s legal systems. As many noble Lords have said, his contribution to the justice system has been highly significant. The noble Baroness, Lady Flather, chose her dining companions well in those days. I will not repeat the many tributes, but they were all justly described. However, I also say that the Government welcome not only the contributions today from distinguished lawyers and judges but also those from non-lawyers, because of course the law does not belong to lawyers or judges, but to all of us.
This has been a rich debate, full of legal history and the history of legal maxims, the development of Magna Carta and the protection of rights since. Material for many debates has indeed been provided by the contributions of noble Lords. However, I am sure that one thing on which the whole House can agree is that our legal institutions and services are a vital part of the constitution. As a result of their deserved reputation for integrity and excellence, the influence of our legal institutions and services reaches across the world. They not only shape other jurisdictions but also provide the conditions for commerce to flourish.
I first address the question of the rule of law and our constitution. It is crucial to recognise that the rule of law is at the heart of the British constitution, underpinning a fair and just society in which citizens, businesses and civil society can help our nation prosper. As many noble Lords reminded us, next year sees the 800th anniversary of Magna Carta, a document of great symbolic importance. It established the principle, among others, that executive power is not above the law.
The 800th anniversary of the sealing of the charter affords us an opportunity to reflect on and celebrate its values. The Government are working with the Magna Carta 800th Committee to organise commemorative events, which I am sure that many noble Lords are greatly anticipating. Magna Carta began to chart the boundaries of the relationship between the state and the individual, a dialogue that persists to this day. Much of what we do here in Parliament concerns the defining of the limits of state power when it represents a potential threat to individual liberty.
Today the rule of law ensures that all, including the Executive, are subject to a clear, certain and accessible body of law, determined by Parliament and interpreted and applied by an independent and impartial judiciary in a timely manner. The Lord Chancellor is under an oath to respect the rule of law, providing Britain with a system that protects the rights of citizens with respect to the state in areas of public law, and to provide for the fair and reliable resolution of private disputes. We have a judiciary with statutory safeguards through the Constitutional Reform Act 2005. Its members are independent of the Executive and of each other, and this allows for the law to be interpreted and applied impartially. It is to the great pride of our country that our judiciary is held in the highest regard, not merely here but throughout the world. The quality of our judiciary and its incorruptibility is something that we should never take for granted.
Furthermore, the Lord Chancellor has the duty to provide an efficient and effective system to support the business of the courts and tribunals. There has been considerable criticism not only of the Lord Chancellor and the role that he now performs as Secretary of State but of the holder of that office. Indeed, the Lords Constitution Committee is to conduct an inquiry into the office of Lord Chancellor. The Ministry of Justice will provide evidence to the committee in due course on that issue.
It is our shared understanding of, and respect for, the constitutional principles that I have outlined that enables the judiciary and Executive to work in partnership in the delivery of justice so that it can continue to be administered efficiently and effectively.
The noble Lord, Lord Marks, criticised the lack of diversity in our judiciary. It is true that, in the High Court, 21 women out of 108 is not a happy percentage—in the circuit Bench, one in six is a woman from a total number of judges of 654—but I am glad to tell the House that there has been a considerable increase in the number of appointments of women to the Bench recently.
A number of noble Lords raised the subject of judicial review and changes that the Government wish to bring about by the Bill that is currently before your Lordships’ House. I have been well and truly put on notice that there are a number of aspects of Part 4 of that Bill about which there is concern. I hope that noble Lords will forgive me if I do not give a full response to all the potential criticism at this stage, but that would be only a dress rehearsal for what may follow. I well understand the depth of concern about judicial review. I hope, however, that when we come to debate that issue, all noble Lords, whether with a legal or other background, will bear in mind that there are perceived by some people, rightly or wrongly, to be areas of judicial review where it has made incursions beyond those which those who developed the doctrine originally anticipated. However, I should make it clear that the Government, and certainly any Government of which I am a part, do not wish to abolish judicial review, contrary to what is occasionally written in the press, but value it as an essential part of the constitution.
A number of noble Lords raised the question of human rights, not least my noble friend Lord Lester, of whom I was a colleague on the Human Rights Commission. Rightly, attention was drawn to the terms of the European Convention and those who drafted it. I know that very few politicians or lawyers on any political wing would quarrel with the convention itself. What, however, is more open to debate is the relationship between the Strasbourg court and our courts. It is a legitimate reason for debate and a matter on which a number of people on all sides of the political divide have expressed a view: whether the Supreme Court should be the ultimate arbiter of these things and whether Section 2 has either been wrongly interpreted or should be amended. However, I should make it clear that this coalition Government have no intention to repeal or amend the Human Rights Act.
There was also considerable criticism of the cuts in legal aid. The noble and learned Lord, Lord Woolf, I fear, was right when he anticipated that I would mention austerity, which indeed I do. The Government attempted to identify those areas where legal aid was most needed and those areas where it should be possible—if not sometimes difficult, as we accept—for those needing on the face of it some legal assistance to manage by other means.
The full effect of the legal aid cuts will take some little time to assess. The Government are committed to reviewing this within five years—but it might be better to specify a period of three to five years from the implementation of the reforms in April 2013. The difficulty with making any assessment is that there was a considerable spike in the number of claims started just before that date, so it is almost impossible to form a clear view of the effect.
Of course I share with all noble Lords the concern that access to justice should not be denied. Indeed, I, with the noble Lord, Lord Pannick, was part of a group of Peers who were behind an amendment to the LASPO Bill to say that when economic circumstances changed, the Lord Chancellor should consider enlarging the scope of legal aid. I hope that that is indeed the position.
I could discuss the rule of law in more detail. It was elegantly discussed by the noble Lord, Lord Plant, and there has been repeated reference, quite rightly, to Lord Bingham’s great work The Rule of Law, which I am sure will be read for many years to come.
There are few better illustrations of the strength of our legal services than their overseas influence. The rule of law provides the best environment for the nourishment of commerce and economic growth. In turn, this assists the growth of business and wealth around the world. As the noble and learned Lord, Lord Woolf, will be well aware from his own experience, the expertise of our practitioners, coupled with the enduring strength of our legal institutions, is sought by many clients across the world. We should also remember the influence of many legal professionals who, having qualified in the United Kingdom, return to their home countries and bring their education and expertise back to enrich their own jurisdiction. Our legal practitioners, and those who train here, benefit not only the United Kingdom but all the jurisdictions in which they work.
The noble and learned Lord, Lord Judge, rightly commended the work of the Judicial College and its increasing reputation abroad. He was too modest to mention his own significant role in training judges. I must declare an interest as a nervous assistant recorder who was inspired by him to set about the difficult task of sitting as a judge, and who listened to his stirring speech about the dissenting judgment of Lord Atkin in Liversidge v Anderson. The noble and learned Lord, Lord Walker, rightly reminded us of the importance of advocacy training, and how this is a skill that we are spreading beyond our shores.
English contract law has long enjoyed an excellent reputation. Its combination of consistency and flexibility, backed by courts that are independent, impartial and able to enforce their judgments, ensures that it is favoured by many businesses around the world. The noble and learned Lord, Lord Phillips, told your Lordships about the positive explosion of commercial law since he began in practice.
As a fellow of the Chartered Institute of Arbitrators, I am pleased to say that a particular strength of our legal services is arbitration. In a 2010 survey, London was voted the preferred seat of arbitration by an international audience, and we will strive to ensure that international lawyers and business continue to take advantage of our expertise and state of the art facilities when resolving disputes.
Noble Lords will need little further elucidation of the strength of London, with its diverse range of practitioners, close links to the City and fine modern facilities such as the Rolls Building. But as this debate is on UK legal services, I should add that there are high-quality providers in centres such as Edinburgh, Glasgow, Belfast, Leeds, Sheffield, Birmingham, Manchester and Liverpool, offering choice and value to a variety of clients in a wide variety of sectors. It is important to point out that some legal activity—in fact, quite a lot of legal activity—is carried out on a pro bono basis, as the professions generously provide their expertise to those who could not otherwise afford to use their services.
The noble Lord, Lord Clement-Jones, stated the ambition that we should become lawyers and advisers to the world. He was right to remind us of the level of exports accounted for by legal services. They were estimated to generate £20.4 billion for the UK economy in 2012, of which just under £4 billion were exports. I am not sure how much of that was contributed by the one-man export drive that is the noble Lord, Lord Pannick. Of course, the influence goes further in terms of soft power—referred to by the noble Lord, Lord Ramsbotham and my noble friend Lord Hodgson—together with the export of judges, referred to by the noble and learned Lord, Lord Phillips.
I am delighted to draw your Lordships’ attention to two exciting events that will be taking place in the United Kingdom in 2015. In April 2015, Glasgow will host the Commonwealth Law Conference. The conference has the overarching themes of resources, responsibilities and the rule of law. It is organised by the Commonwealth Lawyers Association and the Law Society of Scotland, and I am certain that it will draw a strong attendance from across the Commonwealth, with whom we share so much legal heritage. As the noble Baroness, Lady Prashar, reminded us, in February 2015, London will host the Global Law Summit. This one-off conference will examine how the principles of Magna Carta offer innovative solutions to achieve commercial, political and social goals. It will also provide outstanding opportunities for business and collaborative working. The venture has wide support among my government colleagues, the legal professions in this country and business. Indeed, we are expecting more than 2,000 delegates, comprising political, business and legal leaders from across the world.
Before concluding, I should pick up one or two points made by other noble Lords in the debate. My noble friend Lord Marks referred to the importance of televising court proceedings. That is a difficult area about which I think that opinions can reasonably differ. I am not sure that everyone watching the Pistorius trial would necessarily have been persuaded that televising trials was always in the public interest.
We were rightly told by the noble and learned Baroness, Lady Butler-Sloss, of the challenges that judges—in particular, those in the Family Division—face in dealing with litigants in person, when disputes are so often acrimonious. She reminded the House that there is still legal aid for mediation. Mediation has a good story to tell, although I accept that it is not always the answer. Much needs to be done to improve the lot of litigants in person who, I accept, must inevitably be a greater feature of the legal landscape. I pay tribute to the judiciary as being most helpful, together with court officials, in developing systems. In the High Court of Justice and other courts, increasing help is to be had for litigants. There is improvement of access via computer and signposting to assist those who need help. The Government are expecting reports from two High Court judges on the problems confronted by the courts in dealing with litigants in person. That is a matter that should certainly be kept under review.
We also heard from the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Morris, about the contribution of the rule of law to international law and conflict. It was reassuring and encouraging to hear that the rule of law as we understand it is making a great contribution even in the complex scenarios that international conflict continues to throw up.
Our system has much in it to be admired but, as the noble Lord, Lord Taverne, told us, it is expensive. The expense of litigating can mean—as he rightly said, it has often meant in the past—that it is only the very rich or those on legal aid who can afford to litigate at all.
The noble and learned Lord, Lord Woolf, made a great contribution to improving the legal system by the Civil Procedure Rules, but I am sure that he would be the first to admit that it is not beyond further improvement. Various initiatives such as cost capping are helping. The reforms in Part 2 of LASPO, which implemented the Jackson report, are beginning to have their effect. The use of qualified one-way cost shifting and the reduction of the recoverability of ATE premiums in conditional fees have made it a little more economical to litigate. This area is a matter of great concern to any Government. It is a matter, one hopes, of co-operation between government, the judiciary and lawyers to ensure that we have a system that maintains accessibility to all.
The global summit, to which I referred, marks an apt point at which to conclude my remarks. It reflects the enduring relevance of our constitutional heritage while providing an opportunity for the UK legal service to continue to demonstrate its prowess across the globe. Our system has many admirers. To continue the quote from the John of Gaunt speech started by the noble Lord, Lord Pannick, it is indeed a,
“precious stone set in a silver sea”,
as indeed is the noble and learned Lord, Lord Woolf, to whom I pay great tribute for initiating this debate.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1: injunctions to prevent gang-related violence) Order 2014
Lord Faulks Excerpts(12 years ago)
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Lord Faulks
That the draft order laid before the House on 9 June be approved.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 7 July.
Legal Aid: Social Welfare Law
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Lord Bach
To ask Her Majesty’s Government, 15 months after the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, what is their assessment of the effect of the Act on the legal advice system in relation to social welfare law in England and Wales.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, we have made hard choices in reforming legal aid. However, we have retained it for the highest priority social welfare cases and we continue to spend an estimated £50 million per year on this area. Although the Act is relatively new, the reduction in legal aid for social welfare matters is broadly in line with expectations. We are monitoring the impact of legal aid reform and will conduct a post-implementation review within five years of implementation.
Lord Bach (Lab)
My Lords, I thank the noble Lord for his Answer but he and the Government know that the effect on social welfare law advice has been devastating. In the year 2013-14 alone—this is from the Government’s own figures—there was an 80% fall in the number of social welfare law cases, including a figure of 45% in housing cases. These cuts affect the poorest and most vulnerable, including many disabled people, in our society. Are the Government to some extent ashamed of the removal of access to justice from hundreds of thousands of our fellow citizens, all caused by deliberate coalition government policy?
Lord Faulks
The noble Lord mentioned housing. In fact, legal aid remains available for eviction and possession cases, housing disrepairs, where there is a serious risk to health or safety, homelessness assistance and all debt matters which may represent a threat to somebody’s home. As to the cuts in legal aid, they are concentrated on matters where the Government, after careful consideration, have decided that having a lawyer is not always the answer.
Lord Marks of Henley-on-Thames (LD)
My Lords, I refer the House to my registered interest as a practising barrister. My noble friend’s department has in the past largely dismissed fears for the future availability of publicly-funded barristers, given the cuts in the scope of legal aid and in remuneration rates. Does my noble friend share my concern at the 38% drop in available tenancies in chambers over the year to 2011-12 and the long-term decline in the availability of pupilages, particularly in chambers doing legally-aided work? How can we reverse this trend?
Lord Faulks
My Lords, that is a little way from social welfare law. Of course we need lawyers to represent those in every section of society in all sorts of fields. The fact remains that there is less for lawyers to do and inevitably there will be fewer lawyers to do it. It is important that the profession maintains high standards but I do not think that I can comment on numbers in particular chambers.
Lord Low of Dalston (CB)
My Lords, getting back to social welfare law, the Minister will be aware of the report of the commission, which I had the honour to chair, on the future of advice and legal support on social welfare law. One of the chief recommendations of that report was that the Government should develop a national strategy for advice and legal support in England and that there should be a Minister for advice and legal support within the MoJ with a cross-departmental brief to lead the development of such a strategy. Will the Government give serious consideration to the early implementation of that recommendation?
Lord Faulks
I am indeed aware of the noble Lord’s commission and its report on the future of advice and legal support on social welfare law. Indeed, I answered a debate on the subject on 25 February this year. As I told the House, we keep the position under review and are keen that there should be effective mechanisms to help individuals. However, it was made clear in the Cabinet Office review of the not-for-profit social welfare advice sector that while the Government accept the role they have in supporting the sector there is a need for the sector to adapt to the new funding realities. Indeed, that was very much acknowledged in the noble Lord’s report and during the course of contributions made in that debate.
The Lord Bishop of Chelmsford
My Lords, I, too, should like to make reference to the Low commission. The church, faith communities and charities are all too keenly aware of the impacts of some of the cuts in legal aid on the poorest communities in our country. Sometimes a professional lawyer is needed. Would the Minister still regard the proposals of the Low commission for a nationally resourced strategy to provide support and legal advice as an important priority?
Lord Faulks
My Lords, as I said in response to the debate, it was a valuable contribution. The LASPO reforms were implemented only in April 2013; it is relatively early days. We are considering carefully the effects of these reforms. We have not ruled out the possibility of further changes but, at the moment, the various steps we are taking are helping to ensure that those who need representation are receiving it.
Baroness Hollis of Heigham (Lab)
My Lords, with regard to DLA, is the Minister aware that if an appellant submits a paper hearing there is something like a 20% success rate, if the disabled person attends there is something like a 40% success rate at tribunal, but if they have legal advice, there is something like a 60% success rate? Does this not mean, in all fairness, that legal advice denied is justice denied?
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.
Criminal Justice and Courts Bill
Lord Faulks Excerpts(12 years ago)
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Lord Faulks
That it be an instruction to the Committee of the Whole House to which the Criminal Justice and Courts Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 5, Schedule 1, Clause 6, Schedule 2, Clauses 7 to 17, Schedule 3, Clauses 18 to 26, Schedule 4, Clauses 27 to 29, Schedule 5, Clause 30, Schedule 6, Clauses 31 to 40, Schedule 7, Clauses 41 and 42, Schedule 8, Clauses 43 to 60, Schedule 9, Clause 61, Schedule 10, Clauses 62 to 71, Schedule 11, Clauses 72 to 78.
Legal Services Act 2007 (Approved Regulator) Order 2014
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Lord Faulks
That the draft orders laid before the House on 9 and 16 June be approved.
Relevant documents: 2nd and 3rd Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 1 July.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1: injunctions to prevent gang-related violence) Order 2014
Lord Faulks Excerpts(12 years ago)
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Lord Faulks
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1: injunctions to prevent gang-related violence) Order 2014.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the order before us today amends Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act to allow for advocacy in a youth court to be funded by civil legal aid for under-18s in respect of injunctions to prevent gang-related violence. The purpose of this draft order is to maintain the existing availability of civil legal aid for under-18s in respect of advocacy related to injunctions to prevent gang-related violence. An amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is necessary to reflect the change of venue for such injunctions made by the Crime and Courts Act 2013 from the county court to the youth court, which is a specialist type of magistrates’ court.
Before setting out further details about the order and why the Government are taking this action, I will briefly explain some background. Civil legal aid is currently available for injunctions to prevent gang-related violence under Part 4 of the Policing and Crime Act 2009 by virtue of paragraph 38 of Part 1 of Schedule 1 to LASPO. These proceedings are currently heard in a High Court or county court, and Part 3 of Schedule 1 to LASPO, which sets out when advocacy may or may not be funded by civil legal aid, allows for this, subject to a means and merits test. Section 18 of the Crime and Courts Act 2013 amends Part 4 of the Police and Crime Act 2009 to provide that, where a respondent is aged under 18, a youth court will have jurisdiction to grant gang-related injunctions. This reflects the Government’s view that a youth court is a more suitable venue for such proceedings involving a child. The youth court is a type of magistrates’ court, designed in a child and youth-sensitive way. However, legal aid for advocacy for proceedings before a magistrates’ court is generally excluded from the scope of the civil legal aid scheme by virtue of Part 3 of Schedule 1 to LASPO.
With that background in mind, I will turn to the reason for the order before us today. The Government recognise that restrictions may be placed upon a person’s liberty as the result of an injunction to prevent gang-related violence. Breach of an injunction can lead to contempt of court proceedings which, for 14 to 17 year-olds, can result in a supervision order or a detention order being made under the Crime and Security Act 2010. The Government therefore consider that legal aid should remain available for advocacy in proceedings in respect of injunctions to prevent gang-related violence for under-18s, notwithstanding the change of venue for these proceedings as a result of the Crime and Courts Act 2013. To maintain the existing availability of civil legal aid, it is necessary to make an order specifying that advocacy for such proceedings is in scope of the civil legal aid scheme set out in LASPO. That is achieved by the order before this Committee today.
I hope that noble Lords will welcome the order. It makes a relatively minor but important change to the civil legal aid scheme which complements the wider changes made by the Crime and Courts Act 2013. I therefore commend the draft order to the Committee and I beg to move.
Lord Kennedy of Southwark (Lab)
My Lords, as the noble Lord, Lord Faulks, has outlined, Schedule 1 to the LASPO Act sets out the scope of the civil legal aid scheme. It is well documented that the Labour Party, along with many other organisations, opposed what the Government did in respect of civil legal aid when they brought this Act into law. Having said that, from the autumn of this year, proceedings related to gang-related injunctions concerning people under the age of 18 will move to the youth court from the county court. We in the Opposition think that is a sensible move and support the transfer, along with the provision for civil legal aid to be available when the proceedings move, which is what this order seeks to do.
I note from the papers that, as this is regarded as a relatively minor change, no specific consultation was undertaken and no guidance is provided. This is not a policy change and the impact is regarded as minimal, with no major impact on regulating small businesses. However, it is said that the operation and expenditure on legal aid is continually monitored by the department, so perhaps the noble Lord could shed some light on what has happened to date, for the benefit of the Grand Committee. Would he also agree that the effect of these injunctions was extremely important and serious for individuals, both those who are the subject of them and those whom they seek to protect? Does he have information on how effective the injunctions have been to date? If he is not able to provide that information today, will he write to me with further details including any case studies that can highlight the effect to date?
With that, I should say that I am very happy with the order.
Lord Faulks
I am grateful to the noble Lord for his comments. Although it is perfectly true that the party opposite has been opposed to legal aid changes, it does not oppose this order because it does not change the eligibility of legal aid but is concerned only with the venue of these hearings.
The description of the change as “minor” simply refers to the effect in terms of substance, rather than suggesting that the injunctions related to minor matters. They do not. They are a relatively new weapon in the hands of local authorities and the police to try to control gang activity, and particularly to discourage youths from joining gangs. That is sometimes to those particular youths’ benefit. Say older brothers or other members of the community put pressure on them to join a gang; an injunction preventing your doing so is a very good answer, so in a sense it protects individuals from themselves.
There has not as yet been an enormous take-up of the orders. However, they have been operational, particularly in London, the West Midlands, Birmingham, Merseyside and Manchester. As I said, it is very much those on the periphery of gangs whom we are talking about; those at the centre of the gangs tend to attract the attention of the police and may end up being prosecuted for specific offences. The injunctions are important, and although they are not yet widely used we hope that their use will increase, particularly in London, where gangs are so much of a problem, as your Lordships’ House will be well aware.
Although the noble Lord did not specifically ask, I should say that if an injunction is breached it can result in an order for contempt of court, which can conceivably result in a sentence of imprisonment of an individual. I reassure the House that there will then be legal aid in those circumstances, although that will be criminal legal aid rather than civil legal aid, which covers these circumstances.
The change of venue reflects the Government’s view that the youth court is a more suitable place for proceedings that involve a child to be conducted. We therefore believe that this is a reasonable and sensible amendment, which aims to ensure that civil legal aid remains available for advocacy for under-18s in respect of the injunctions to prevent gang-related violence. I hope that noble Lords agree that this is a proportionate and sensible measure.
Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (Chartered Institute of Patent Attorneys and Institute of Trade Mark Attorneys) Order 2014
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (Chartered Institute of Patent Attorneys and Institute of Trade Mark Attorneys) Order 2014.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, first, on the designation order, the purpose of the order is to designate the Institute of Chartered Accountants in England and Wales—ICAEW—as an approved regulator under the Legal Services Act 2007 for the reserved legal activity of probate activities. I should also say that, if this is approved, a further order will be laid in the near future to designate the institute as a licensing authority for probate activities, which will mean that it will be able to license alternative business structures. This should help to promote increased competition and innovation in the legal services market.
The Legal Services Act 2007 established a new regulatory framework for legal services. Among the key aims of the Act was to deliver a more effective and competitive market. The Act contains eight regulatory objectives which include protecting and promoting the public interest; protecting and promoting the interests of consumers; and improving access to justice. The Institute of Chartered Accountants in England and Wales is a regulator and professional membership body for the accountancy profession in England and Wales. It provides leadership and practical support to its UK and international members and professional standards are maintained through working closely with Governments, regulators and the industry. It also undertakes education and training to support students studying to become chartered accountants.
The institute applied to the Legal Services Board in December 2012 to be designated as an approved regulator for probate activities. It also applied simultaneously to be designated as a licensing authority for probate activities. During 2013, the Legal Services Board very carefully and rigorously tested the institute’s proposals against the criteria in the 2007 Act. The Legal Services Board has also taken care to assess that the institute has both the capacity and the capability to undertake a regulatory role in the legal services sector. The board took advice from the mandatory consultees, as required by the 2007 Act. These are the Lord Chief Justice, the Legal Services Consumer Panel and the Office of Fair Trading—now the Competition and Markets Authority. The board additionally consulted the Financial Reporting Council and the Insolvency Service.
The Legal Services Board took care to ensure that the governance arrangements proposed by the institute are suitably robust in ensuring that its regulatory arrangements are independent from its representative functions, which is a key element of the 2007 Act. This is an important point, on which concerns were raised during the consultation, but the board has tested this issue and is fully satisfied that the arrangements that the institute has set out for its new probate committee will allow it to exercise the regulatory functions in a way that is not prejudiced by the institute’s representative functions. The Legal Services Board is fully satisfied that the institute has in place the safeguards required to regulate authorised bodies and protect the providers and users of such bodies. The Government accept that assessment.
The Government recognise the importance of the legal services market and want to encourage its growth. We believe that designating a new regulator, which has the appropriate safeguards for consumer protection, will help to achieve this. As for consultation, some issues were raised when the proposals were consulted on. The then Lord Chief Justice had long-standing general concerns that regulatory competition would have a detrimental effect on standards. The Legal Services Board was aware of these concerns and addressed them by setting out how the 2007 Act aims to achieve a more effective and competitive market, thereby improving standards. The Legal Services Consumer Panel strongly welcomed the application by the institute but was concerned that the institute was initially not proposing to have a majority of lay members on the probate committee or disciplinary committee. In response to the panel, the institute redrafted its regulations so that the probate committee was made up of a majority of lay members. The Office of Fair Trading had no objections. The Law Society wrote to the Legal Services Board to express concerns, in particular, as I have already noted, about the governance arrangements being proposed by the institute. The Legal Services Board copied this letter to the institute, which responded in detail to all the concerns that the Law Society had raised. The LSB was content with the response and the governance arrangements.
As I have also already mentioned, the Legal Services Board consulted the Financial Reporting Council and the Insolvency Service. Both the Financial Reporting Council and the Insolvency Service noted that the institute takes its regulatory responsibilities very seriously and supported the applications.
I appreciate that some might argue that the Government should not be pressing ahead with this and that an accountancy regulator should not be permitted to regulate legal services. Some may even suggest that there will be a lowering of standards, or a diminution of consumer protection. We do not accept these arguments. The Legal Services Board is satisfied that there will be no lowering of standards or lessening of consumer protection, and the Government agree. I am satisfied that the Institute of Chartered Accountants in England and Wales will be a highly capable and effective regulator in the legal services market. Its entry to this field will help contribute to the growth of the legal services market and bring further innovations, leading to benefits to consumers of legal services.
I turn now to the appeals orders. Noble Lords may be aware that the licensing regime for alternative business structures, as contained in the 2007 Act, became operational on 6 October 2011. In brief, alternative business structures are bodies that carry on reserved legal activities and are partly or wholly owned or controlled by non-lawyers.
In relation to that regime, as I have said previously, the ICAEW has applied to the Legal Services Board to be designated as a licensing authority. The Chartered Institute of Patent Attorneys—CIPA—and the Institute of Trade Mark Attorneys—ITMA—also made a joint application to the Legal Services Board to be designated as licensing authorities. Members of the Committee may be aware that the Legal Services Board made recommendations on 6 December, and earlier this year the Minister responsible for legal services agreed to make the following orders designating the Chartered Institute of Patent Attorneys, the Institute of Trade Mark Attorneys and the Institute of Chartered Accountants in England and Wales as licensing authorities under the Legal Services Act 2007.
In accordance with that Act, before CIPA, ITMA and ICAEW can be designated as licensing authorities by order of the Lord Chancellor, it is necessary for there to be an appellate body with the power to hear appeals against its decisions made in relation to alternative business structures.
The purpose of these orders is to make provision for the First-tier Tribunal to act as the appellate body for the purpose of appeals from those three bodies in their capacity as licensing authorities. As required by the 2007 Act, these orders are made on the recommendation of the Legal Services Board, following public consultation.
In summary, the two appeals orders make provision: for the First-tier Tribunal to have the power to hear appeals from the decisions of ICAEW under Part 5 of the 2007 Act and its licensing rules and to hear appeals from the decisions of CIPA and ITMA, acting jointly or separately, under Part 5 of the 2007 Act and their licensing rules; for the orders that the First-tier Tribunal may make on appeals from decisions made by those bodies under their licensing rules; and for modifying the Legal Services Act 2007 so that these appeals fit into the existing structure of onward appeals from the First-tier Tribunal to the Upper Tribunal.
These orders have been brought before the House at the earliest opportunity, following recommendations from the Legal Services Board on 2 May. If approved, the orders will provide individuals and businesses that are subject to licensing decisions of the Chartered Institute of Patent Attorneys, the Institute of Trade Mark Attorneys and the ICAEW with an opportunity to appeal those decisions through an independent and impartial appellate body. I beg to move.
Lord Beecham (Lab)
My Lords, having safely navigated the rather stormy waters of the Second Reading of the Criminal Justice and Courts Bill yesterday, it is a pleasure to renew acquaintance with the Minister over these crucially important statutory instruments. One or two questions occur to me about them.
The first is that we are talking effectively about alternative business structures, which are clearly well regulated. I do not know whether this is possible, but supposing that within a single alternative business structure you had both lawyers and accountants, what would be the appropriate framework? Would the professional body of which an individual within such a structure might be a member have a jurisdiction? Or is there an overarching mechanism for the structure as a whole as opposed to the individuals who work within it?
Secondly, grants of probate are issued to executors. My understanding is that if the executors chose to employ someone who is not part of a regulated profession, of course none of these safeguards would apply. Is it the intention of either the Government or the relevant bodies—I presume it would certainly be that of the latter, but it would also be sensible for the Government—to promote the use of properly regulated structures for these purposes? Having said that, I mentioned to the Minister before we began this Committee that I know of a solicitor who many years ago charged something like £90,000 in fees on an estate that was valued at just over £100,000. The regulatory body disposed of him in due course, but he was nevertheless guilty of an offence and seriously defrauding his client. The existence of a regulatory body itself does not necessarily mean that everything will be well.
There is one other matter, which may be slightly tangential. I am assuming that other accountancy bodies may be in a position to apply to be recognised for the same purposes as the chartered institute. In that connection, I have some involvement with an organisation called the Association of International Accountants. It is a non-commercial relationship; I just happen to know some of the people involved and I was recently asked to host a dinner in this House in lieu of my noble friend Lord Sawyer, which I did. The organisation is having some difficulties, not in this particular context, but in the more general context of being recognised for certain other purposes. It may not be possible for him to give me one at the moment, but I would like an assurance from the Minister that, if such a body were to apply to be recognised for the same purposes as the chartered institute, the same process that the chartered institute has successfully undergone would be available to it.
There is a feeling on the part of the Association of International Accountants that the two main accountancy bodies in this country—the chartered institute and whatever the appropriate body is for certified accountants—are, in one particular area, effectively operating a duopoly from which this association is excluded. I asked a Written Question about this some time ago, to which I received a not terribly helpful reply from the point of view of the association. An assurance that they would be treated on an equal footing in terms of passing whatever tests are necessary to be included in this would perhaps be of some comfort to them. Having said that, I cannot see anything to object to in these orders and we are perfectly content to see them go through.
Lord Faulks
My Lords, I am grateful for the questions that I have been asked by the noble Lord, Lord Beecham, who rightly says that regulation and discipline are no absolute guarantee against unprofessional, to put it mildly, practice on the part of a professional in whatever their particular role is. The Legal Services Board has been given by Parliament the task of approving as a regulator these various bodies. As your Lordships will be aware, the scope of their activities is limited. In terms of protection of the consumer, it was important that the effective arrangements were in place to ensure that members co-operated with the legal ombudsman. The Government also had to be satisfied that appropriate client protection arrangements were in place for any body designated as an approved regulator. The Legal Services Board undertook a detailed analysis and was satisfied with the arrangements of the probate compensation scheme, and the requirement for all authorised firms and accredited probate firms to hold professional indemnity insurance. That should protect someone in whatever particular professional role they perform within an alternative business structure.
In terms of these now multidisciplinary practices, there may well be lawyers working with what one used to regard as an accountancy firm. As I understand it, their work within the accountancy firm would be regulated in the way of the accountancy firm licensed to perform these particular activities, but if they were solicitors, for example, their activities would also be regulated by the Solicitors Regulation Authority as the disciplinary body. In so far as there can be protection for the individual, that will be ensured by these new arrangements.
Lord Beecham
In view of what the Minister has said, it is right that there should be professional indemnity insurance but that is basically for professional negligence. Certainly, the Law Society—as I know from the experience of having to contribute to these things—has occasionally to step in, not just in cases of professional negligence but also in cases of dishonesty, to compensate the clients of solicitors. Is it a condition of these bodies being recognised as regulatory bodies that they should assume responsibilities in that context of compensating those who have been defrauded of their entitlement as opposed to in claims for professional negligence? Again, it may not be possible to answer that question now but it would be interesting to find out.
Lord Faulks
I think that it would. I would be happy to write further with details about the arrangements. As I understand it, the Legal Services Board needed to be satisfied of the capacity for individuals to be compensated if mistakes were made in non-contentious probate. For historical reasons, probate is a reserved activity; hence the need for this whole process. The Legal Services Board was satisfied about professional indemnity insurance.
If I sound somewhat hesitant, the noble Lord will appreciate that Parliament has designated the Legal Services Board as the regulator. This is not directly the Government’s approval; it is the Legal Services Board’s approval. They have created this body, and the body has gone through the process. The Government have to be satisfied that the Legal Services Board has gone through the necessary process of consultation and satisfied itself of the adequacy of protection, for example, for consumers, and all the other aspects to which I referred in opening, but they do not have a separate governmental role. We do not think that there has been any inadequacy in the process of this approval. Essentially, the Legal Services Board, having been given that task, has satisfied itself. If an individual chooses a regulated person to undertake their probate, they naturally have protection and redress. As the noble Lord says, individuals have the choice of whether to undertake their own probate, in which case they do not, which is a matter of consumer choice. Further to what I said about lawyers and accountants within a single ABS, that will, of course, depend on which regulator licensed the alternative business structure. However, I understand that entity regulation applies over individual regulation, although, as I say, the individual may have some additional professional obligations of the sort that I described.
I do not think that I can answer from the Dispatch Box the other question that the noble Lord asked in relation to international firms. However, I will try to write him a more helpful letter than the one that apparently he received on a previous occasion.
Lord Beecham
I am grateful to the Minister for that. However, to be clear, the Association of International Accountants is not just a body of international accountants; it is a body with many UK members and some overseas members as well. It is therefore not operating solely in the international sphere. However, as I say, I am grateful to the noble Lord for his offer.
Lord Faulks
I hope that, subject to my providing further information by letter, I have satisfied the noble Lord. The debate has enabled me to put on record the importance of the alternative business structure and of the Government encouraging growth and innovation in the legal services market generally through these means. The order designated the ICAEW as a new approved regulator, which demonstrates our commitment to it. I hope that the debate has demonstrated the importance of the appeals order, which naturally needs to exist to support the effective operation of the ABS scheme. The appeals orders form a key component of the licensing arrangements. I commend these orders to the Committee.
Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (Institute of Chartered Accountants in England and Wales) Order 2014
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (Institute of Chartered Accountants in England and Wales) Order 2014.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments