Voyeurism (Offences) (No. 2) Bill

Lord Keen of Elie Excerpts

Tuesday 13th November 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

That the order of commitment of 23 October be discharged and the Bill be committed to a Committee of the Whole House.

Motion agreed.

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

Lord Keen of Elie Excerpts

Monday 12th November 2018 Lords Chamber

[Lord Bach (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interest as the police and crime commissioner for Leicester, Leicestershire and Rutland.

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

My Lords, the Government remain committed to publishing the findings of the post-implementation review of LASPO by the end of the year. The evidence-gathering phase of the review concluded in September and we are considering the evidence submitted. During that phase we engaged more than 70 organisations. This review process also represents an opportunity for the Government to consider what the future of legal support should look like.

[Lord Bach]

I thank the noble and learned Lord for his reply and commend those in the Ministry of Justice who are carrying out the review for their courtesy and willingness to meet with all interested parties. I thank Lucy Frazer MP personally for meeting with me and members of the Bach Commission, which proposed some sensible changes that the Government could make very quickly. Is the Minister aware that there is a broad consensus among senior judges, practising lawyers, parliamentarians of all colours and none, and many others, that Part 1 of LASPO was a serious mistake that has led to many of our fellow citizens being deprived of access to justice—and if people cannot access justice, why should they in the long run consent to live under the rule of law?

[Lord Keen of Elie]

My Lords, we are conscious of the importance of access to justice. I thank the noble Lord and those who sat with him on his commission for their contribution to the debate, but I will not anticipate the outcome of a review that will be published by the end of the year.

[Viscount Hailsham (Con)]

My Lords, I no longer practise at the criminal Bar, so I have no present interests to declare—but I know very many people who do, and I can tell my noble and learned friend that there is a real sense of crisis in the criminal Bar. Does my noble and learned friend accept that unless the Government urgently and fully address the anxieties expressed by the Criminal Bar Association—of which I was a member—and articulated fully in the book The Secret Barrister, there is a real danger that the independent criminal Bar will cease to exist, which would be a very great loss to the administration of justice in this country?

[Lord Keen of Elie]

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

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

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

[Lord Keen of Elie]

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

[Lord Howarth of Newport (Lab)]

My Lords, does the Minister accept that justice delayed is justice denied? Does he also accept that, following the Chancellor’s Budget Statement, we are looking at the prospect of justice indefinitely denied, with further real-terms cuts to the already ravaged budget of the Ministry of Justice, continued gross underfunding of the courts and—the most flagrant systemic injustice—the continuation of the Government’s scorched-earth policy on legal aid?

[Lord Keen of Elie]

My Lords, we face economic challenges. I remind the noble Lord opposite that it was the last Labour Prime Minister who announced the end of boom and bust. He did so without consulting either the markets or even the Delphic oracle. One Labour Minister pithily observed as he left government that,

“there is no money left”.

The coalition Government had to pick up the pieces of an economy blown to pieces by the last Labour Government and we have been putting it back together. We are doing so responsibly. We are not the cause; we are the cure.

[Baroness Deech (CB)]

My Lords, just three years ago we came together in this country with representatives from the common-law world and the Royal Family to mark Magna Carta and celebrate the rule of law. However, in family law, does the Minister realise that husbands and wives are going to court with one often having legal representation and the other, usually the wife, not, and that judges have to spend their time carrying out the job that barristers should be doing because they cannot be afforded? Is this not an injustice to women? Does he further realise that altruistic, young would-be barristers are being put off going into criminal and family law because they are unable to earn a living, which is destroying social mobility and the rule of law?

[Lord Keen of Elie]

My Lords, there are challenges facing those who seek to deliver legal services in our country today. We are conscious of that, which is why the review of LASPO has been undertaken. In the context of matrimonial matters, I observe that we have at least introduced a digital portal for undefended divorces, which has been a considerable success. In addition, we have seen a very significant increase in the provision of legal aid in cases involving domestic violence.

[Lord Faulks (Con)]

My Lords, Part 1 of LASPO, referred to by the noble Lord, Lord Bach, covers third-party funding by the state. But there is another source of third-party funding: that is, those who invest in litigation, which is a growing field. It used to be unlawful. Many are concerned that it distorts the whole business of litigation. Can my noble and learned friend the Minister tell me whether this is a matter for consideration, either in this report or generally by the Ministry of Justice, and whether there is not room for more regulation of this area?

[Lord Keen of Elie]

My Lords, the matter of third-party funding has now become well established and makes a contribution to the delivery of legal services in this country, but it is a matter that is the subject of consideration as we go forward. I cannot say that it is directly addressed in the context of the LASPO review that is to be published by the end of the year.

Prisons (Interference with Wireless Telegraphy) Bill

Lord Keen of Elie Excerpts

2nd reading (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

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

My Lords, first, I congratulate my noble friend Lady Pidding on bringing this Bill before the House. Like her, I thank Members in the other place who have made a significant contribution to the progress of the Bill so far. I strongly concur with my noble friend’s assessment that the Bill will make an important contribution to keeping our prisons safe and secure. I note the contributions from other Members of your Lordships’ House—it appears that they agree with the aims and objectives of the Bill. It would be deeply regrettable if for any reason the Bill could not find its way swiftly on to the statute book, given the need to address such an important issue with regard to our prisons.

Noble Lords clearly understand that the illegal supply and use of mobile phones presents real and serious risks not just to the stability of our prisons but to the safety of the public. Illicit phones erode the barrier that prisons walls place between prisoners and the community. They can be used to commission serious violence, harass victims and continue organised crime and gang activity outwith the walls of the prison. They are also key to the illicit economy within prisons, and consequently contribute to the cycle of debt, violence and self-harm that can occur in prisons, particularly where it is related to drugs.

Examples of the risk that illicit mobile phones in prison pose to the public are clear. We should have no doubt about the seriousness of the crimes committed by means of mobile phones. As a result of considerable work and intelligence-led enforcement activity, we have managed to investigate and prosecute crimes committed in prison using mobile phones and the control of criminal activity outside prison from within prison.

Clearly this is a major issue. The noble Baroness, Lady Hayter, referred to the number of mobile phones that are being recovered in prisons. It is an ongoing and demanding issue that we seek to address in various ways. Addressing the security challenge posed in many cases is an essential prerequisite to making prisons safer and therefore capable of performing their rehabilitative functions.

Noble Lords highlighted the need to continue to provide legitimate ways for prisoners to contact family and friends as we tackle the illicit use of mobile phones. We recognise and endorse that point. Recent research published by the Ministry of Justice has shown the beneficial impact that maintaining family links can have on reducing reoffending. The provision of accessible legitimate telephony services is obviously a key factor in maintaining those links, and there is an ongoing programme of work to improve those services. Touching upon a point raised by the noble Lord, Lord German, we have completed the deployment of in-cell telephony to 20 prisons to make calls more accessible to prisoners. We are investing £7 million over the next two years to provide in-cell telephony in a further 20 prisons. In response to a point made by the noble Lord, Lord Ramsbotham, we have also reduced tariffs in these sites to make calls more affordable. I recognise that telephones that are otherwise available in prison are subject to a higher tariff than that normally found in domestic tariffs because they are essentially charged on a pay-as-you-go basis. That is being addressed. For the avoidance of doubt, we hope all in-cell phones will be on a more affordable tariff. There will be limitations on the use of those phones because they will be limited to preapproved phone numbers and there will be robust restrictions in place to address that.

The noble Lord, Lord Ramsbotham, raised a point in earlier conversations about linking the availability of such in-cell telephony with incentives and privileges within the prison. We recently consulted on the incentives and earned privileges policy. As we take that forward, I will pass his point on to officials because it strikes me that it is worthy of further consideration.

As for the means by which we seek at present to limit the use of mobile phones, we have the means touched upon by the noble Lord, Lord German. He talked about the jamming of equipment and the identification of particular phones and the use of a fence, as mentioned by the noble Lord, Lord Ramsbotham. I will come back to that point in a moment. Looking at the current means of trying to limit mobile phones within prisons, we have the basic idea of searches, detection using scanner technology, telecom restriction orders—which I think are what the noble Lord was alluding to—and blocking devices. It is a problem that if blocking devices are not deployed with sufficient care we can end up blocking telephony outwith the curtilage of the prison itself. There are therefore certain limitations on their deployment, and we agree with that, so their use has to be approached with considerable care. In addition, because of those limitations there are instances where the blocking cannot be deployed throughout the entire prison itself, where there may be areas that are not blocked. So blocking is not a complete answer so far as mobile telephony is concerned. Where it is deployed, however, let me be clear that the blocking of such equipment extends not only to telephony but also to data—there is no question of that—because they both operate on the same part of the network. Therefore where it is effective in respect of telephony it is also effective in respect of data.

Then there is the issue of wi-fi provision outwith the curtilage of the prison that might be picked up within the prison itself. There is a theoretical risk of that happening; albeit in this day and age one would expect these wi-fi providers to be password-protected, that would not always be the case. Indeed, one of the aims of the present Bill is to enable us to engage with the telecommunications companies in order to develop strategies as the telecommunications develop. One area where we may be able to address this is with regard to further technology to combat the ability of people to pick up wi-fi signals from outwith the curtilage of the prison. As I say, it is a theoretical risk; it is in theory an issue that we would want to address, and one that we feel we might be able to.

[Lord German]

Perhaps the Minister would allow me to reiterate the point that when you take out a broadband contract with the largest provider in this country, it gives you the option of allowing your wireless to be available to others. If you do that, clearly there are a large number of people operating through this system where you do not require permission, because that has already been given, nor do you require a password. It just automatically happens when you walk down streets with which you are unfamiliar.

[Lord Keen of Elie]

I recognise the point made by the noble Lord, Lord German. That is why, as I say, the Bill would allow us to engage with the telecommunications companies in order that we can combat that sort of development and indeed future technology that may not create an issue at present but may create one in future as we go on to 5G and 6G technology.

We have already invested £6 million in prisons to provide them with modern technology such as scanners, phone-blocking technology and indeed improved searching techniques. Clearly we want to do more. We then have the telecommunications restrictions orders that would enable us to disconnect mobile phones or SIM cards identified as operating within a prison. But I want to be clear: the purpose of the Bill is to ensure that we can engage directly with, and grant permissions to, the telecommunications providers, which are probably the best qualified to guide us on how we can best meet the demands in future presented by the illicit use of mobile phones within our prison estate.

I hope that that has addressed the points raised by the noble Lord, Lord German, because I would not want the Bill to be derailed. I hope that it has also addressed the points raised by the noble Lord, Lord Ramsbotham. The noble Baroness, Lady Hayter, ranged into a wider area with regard to courts and prison reform, and in particular raised the issue of cross-examination in domestic cases within the family courts, as distinct from criminal courts. I undertake to write to her on that subject rather than endeavouring to address that issue in the context of this debate. I hope that she will accept that undertaking from me.

With that, I commend my noble friend for moving this Private Member’s Bill.

Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018

Lord Keen of Elie Excerpts

Wednesday 24th October 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 28 June be approved.

Considered in Grand Committee on 17 October.

Voyeurism (Offences) (No. 2) Bill

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

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

My Lords, the Bill addresses a small but important gap in the current law which means that not all circumstances in which upskirting occurs can be prosecuted. Under the current law, there is a risk that an instance of upskirting which takes place somewhere which is neither private nor fully accessible to the public—for example, a school or office building—would not be treated as an offence. Equally, an instance of upskirting which occurs in a place where there are not two or more people capable of witnessing it—for example, an empty train carriage—would also not be covered by the existing offence of outraging public decency. The Bill ensures that this unpleasant behaviour will now be an offence in such circumstances and that those who upskirt for sexual reasons will be made subject to notification requirements—more commonly known as being placed on the sex offenders register, subject to certain thresholds. This strengthens the existing law and ensures that the consequences are proportionate and effective.

The Bill is not designed to address wider issues that have implications beyond its scope and that require more detailed analysis and cross-government work. Instead, it is intended to be narrow, clear and focused on the issue of upskirting, on which there is clear cross-party agreement.

The Bill will insert two new offences into the Sexual Offences Act 2003 to make the practice of upskirting a specific criminal offence. It will capture instances where, without consent, a person operates equipment beneath someone’s clothing to observe, or to allow someone else to observe, their genitals or buttocks, whether exposed or covered by underwear. It will also capture instances where, without consent, a person records an image beneath someone’s clothing in circumstances where the genitals, buttocks or underwear would not otherwise be visible. The offences will apply where the offender had a motive of either obtaining sexual gratification or causing humiliation, alarm or distress to the victim. This will capture all whose conduct should be criminalised. Those who commit upskirting for reasons of sexual gratification will be made subject to notification requirements in line with the sentencing thresholds which apply to existing voyeurism offences.

As I have said, this is a narrow Bill designed to address a small gap in the existing law. A number of issues were raised in the other place: the sharing of non-consensual intimate images; the purposes for which an upskirting image is taken; making all offenders over 18 subject to notification requirements regardless of purpose; and consideration of hostility towards a victim due to their gender being treated as an aggravating factor for sentencing purposes. I am pleased to say that all amendments on these issues were withdrawn following the Government’s response at Report, and the Bill passed through the other place without any amendments. I hope that we can do the same here. However, I thought it would be helpful to set out the Government’s position on these issues.

First, a number of Members in the other place raised concerns about the distribution of non-consensual intimate images, and amendments were tabled to criminalise the distribution of upskirt images. This is clearly an important issue for the Government to consider. But this Bill is not the place to legislate on this particular issue. It cannot be right that we change the law on sharing and distribution in such a narrow area. We must take our time to consider and tackle this issue in the most appropriate way, looking closely at all the related issues that arise and working collectively across government. That is why we announced that we will work with the Department for Digital, Culture, Media and Sport and the Law Commission to review the law around the taking and sharing of non-consensual intimate images, building on the existing Law Commission review of online harm.

There was also active debate in the other place around the purposes requirement in the Bill, and in particular whether the purposes are sufficiently broad to capture most situations in which people choose to upskirt. We have been clear that the offences in this Bill capture those who commit this unpleasant crime in a wide range of circumstances, whether for sexual gratification, or to humiliate, alarm or distress an individual. We are confident that this will include cases where someone takes an upskirting photo for what is sometimes termed “a laugh” or for financial advantage, because it is highly likely that, by doing so, they intended to humiliate, distress or alarm their victim. We must remind ourselves that the Bill was drafted to address a gap in the law in relation to the circumstances in which an act of upskirting takes place—to ensure that this behaviour is covered wherever it takes place, be it in public or in private—with effective and proportionate consequences.

I am confident that the two purposes for which an offence can be committed are appropriate, straightforward and familiar to criminal justice agencies. Removing these purposes risks making the law less clear, leading to potential inconsistencies in how this law is to be applied within the criminal justice system. We must also remember that the new offences will work alongside existing offences, such as outraging public decency, to complement and strengthen the criminal law. We know that there have been successful prosecutions for upskirting under that offence where a person commits an act of such a lewd, obscene and disgusting nature, in public, and with at least two people capable of seeing it that is capable of outraging public decency. As with the new upskirting offences, there are no exceptions under the OPD offence in relation to actions of the paparazzi.

It is of course important that we continue to keep the law under review, which is why we committed in the other place to undertake a post-legislative review in two years’ time to assess how the proposed new offences are working in practice.

Some questions were raised as to whether notification requirements should apply to those aged under 18 years. It is important to recognise that notification requirements are used to assist the police with the management of sex offenders in the community. They are not intended as an additional punishment or penalty. The Bill as drafted will make offenders subject to notification requirements if they have committed an act of upskirting to obtain sexual gratification and the sentence given by the court reaches the relevant sentencing thresholds. These are set at a level which will ensure that they capture only those who are likely to pose an ongoing sexual risk to the community, such that they should be monitored by the police accordingly. Certainly, we must be careful not to overcriminalise children. But we believe that the Bill is correct and proportionate in how it deals with those under the age of 18 who commit this offence for reasons of sexual gratification. The sentencing threshold will mean that only the most serious offenders under 18, who also have a sexual motive, are made subject to notification requirements.

We also saw debate on whether to create an aggravating factor for sentencing where the commission of the offence was motivated by hostility towards the victim based on their gender. I reassure noble Lords that there is a range of aggravating factors that a court can take into account when considering the seriousness of an offence for the purposes of sentencing. This includes aggravating factors set out in sentencing guidelines, such as the location of the offence, the deliberate targeting of a vulnerable victim and the physical or psychological effect on the victim. It also includes those aggravating factors set out in statute—race, religion, sexual orientation, disability, and transgender identity.

In relation to gender specifically, as noble Lords may be aware, this topic garnered a lot of attention and stirred up a debate about whether misogyny and, indeed, misandry should be treated as hate crimes. It is important to highlight the issue and recognise that, while this offence is not specific to women, it is likely that women will most often be the victims of this behaviour. But this narrow Bill is not the right place to make that amendment because statutory aggravating factors do not usually apply to only one or two offences, as would be the effect of such an amendment. It would make the new offences inconsistent with all other sexual offences, and there is no convincing rationale for this proposed amendment to apply specifically and only to these offences.

We are of course concerned about ensuring that our hate crime legislation is up to date and consistent. We have therefore asked the Law Commission to undertake a review of the coverage and approach to hate crime legislation and to consider whether there should be an expansion of protected characteristics including, for example, in relation to gender. This will build on the Law Commission’s previous work to ensure that all aspects of hate crime are properly considered and that our courts deal with them in the most appropriate and indeed the most consistent way.

There is clearly considerable interest in this Bill and the important issue which it seeks to address. But let me be clear: the Bill is specifically targeted at addressing a narrow gap in the law and is not the vehicle to legislate for other wider issues. While it is important to discuss and debate these wider issues, we must do so when the right opportunity arises. I would be grateful for the support of noble Lords in ensuring that the Bill passes through the House quickly so that we are able to begin punishing those who commit this type of crime as soon as possible. I commend the Bill to the House, and I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

[Lord Marks of Henley-on-Thames]

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

[Lord Keen of Elie]

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

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

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

Bill read a second time and committed to a Grand Committee.

Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018

Lord Keen of Elie Excerpts

Wednesday 17th October 2018 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018.

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

My Lords, the Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018 will make amendments to the Companies Act 2006. The amendments are consequential to the changes in the law introduced by the Third Parties (Rights Against Insurers) Act 2010. They are necessary because of the effect of the interaction of the Third Parties (Rights Against Insurers) Act 2010, the Third Parties (Rights against Insurers) Regulations 2016, and the Companies Act 2006 on the ability of insurers to exercise their rights of recourse against other parties liable for the same loss.

I will make clear that the draft regulations are concerned only with the ability of one insurer to obtain money from someone else, typically another insurer, where the first insurer has already paid out an award of damages. They do not affect the rights of personal injury claimants.

The Third Parties (Rights against Insurers) Act 2010 simplified and modernised the previous law and procedure by which victims could obtain compensation for wrongs done to them by insolvent wrongdoers. Most importantly, the 2010 Act allowed claimants to take legal proceedings directly against the insurer of the insolvent wrongdoer, rather than having to establish the wrongdoer’s liability in separate legal proceedings.

Wrongdoers which are dissolved companies were brought within the scope of the 2010 Act by the addition in the Third Parties (Rights against Insurers) Regulations 2016 of new Section 6A. This also meant that claimants no longer had to spend time and money restoring the company to the register of companies simply for the purpose of suing it, establishing its liability and thereby gaining access to its insurer.

The creation of this direct remedy against the insurer affects the insurer’s rights of subrogation in respect of their ability to recover payments of contribution from other wrongdoers and their insurers potentially liable for the same loss. Subrogation is a common law concept allowing a person who pays out a claim to “stand in the shoes” of the payee as regards other rights of action the payee had in relation to the claim. An insurer who pays damages to the claimant is therefore subrogated to the rights of the insured in relation to the claim.

Importantly in this context, as a result of the 2010 Act claimants no longer have to restore companies to the register. As a result, the current six-year time limit imposed on the restoration of dissolved companies, other than in relation to personal injury claims, will bite on insurers who are directly sued under the 2010 Act. This is because a claim for subrogation is not a personal injury claim.

The effect is particularly acute in personal injury claims for exposure to asbestos, where Section 3 of the Compensation Act 2006 makes any defendant liable for the whole of the loss to the claimant, irrespective of whether others might also have caused the injury and might also have an obligation of contribution.

Damages in these and other personal injury cases are usually paid by the defendant’s insurer. As a result of the payment the insurer is subrogated to the rights of the defendant against other parties liable for the same loss. However, a right to subrogation can be exercised only if the company to be sued exists. A dissolved company clearly does not, and a company that has been dissolved for more than six years cannot currently be restored to existence.

The changes to the law introduced by the 2010 Act, which removed the need for a claimant to restore a company, have therefore had the indirect consequence in personal injury cases that the insurer has to restore the dissolved company to be able to exercise rights of subrogation, but cannot do so if the six-year limit has been exceeded. A right to be subrogated to a claim for contribution against such a company has therefore been made inoperable, with the consequence that one insurer will have to bear the whole loss. This was not the intention of the 2010 Act.

The draft regulations cure this problem by allowing an application to restore a company under Section 1030(1) of the Companies Act 2006 outside the six-year time limit for the purpose of an insurer bringing proceedings against a third party, typically another insurer, in the name of that company in respect of that company’s liability for damages for personal injury. This change ensures that the same subrogation result is produced for direct claims against insurers under the new Section 6A of the 2010 Act as is already produced for indirect claims where the person who suffered the loss claims against the insured wrongdoer and the insurer pays for the loss. In other words, this solution restores insurers’ rights of subrogation without prejudicing any third party. We submit that it is a fair and sensible way to resolve the problem inadvertently caused by the 2016 regulations. I beg to move.

[Lord Beecham (Lab)]

My Lords, try as I might, I can find absolutely nothing wrong with the regulations. I have tried very hard to do so and failed completely. It is perhaps worth noting that it is unfortunate that this problem arose in the first place; presumably the original drafting ought to have anticipated and dealt with it. However, it is being corrected, although somewhat belatedly. What are the consequences, if any, for cases that have already gone through the process? It is presumably too late to apply the present terms to cases that have already concluded. Will there be litigation to go back over cases that have already been determined?

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord for his efforts in trying to find some flaw in the regulations. I am relieved that he was not able to do so. I do not see how the problem of prior claims could arise, because we would be within the six-year time limit for restoring a company to the register with regard to past claims. I do not understand there to be an issue over that; a problem is not anticipated. As far as future claims are concerned, it is entirely proper that we should be able to accommodate these matters. In these circumstances, I commend the regulations to the Committee.

Motion agreed.

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

Lord Keen of Elie Excerpts

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

[Lord Pannick (CB)]

My Lords, we are dealing here with a very sensitive subject: that of authorising court and tribunal staff to exercise judicial functions. The noble Lord, Lord Marks, emphasised that the question may well be the scope of the Clause 3(2) power to make consequential provision. I am still puzzled as to why the Minister says that it is a power only to amend subordinate legislation, because that is not what it says. It states:

“The Secretary of State or Lord Chancellor may, by regulations made by statutory instrument, make consequential … provision”—


that is the part that concerns me—

“in relation to the Schedule”.

I understand the Minister seeking to reassure the House, as he sought to reassure the Committee, that the power may be validly used only to amend subordinate legislation, but I would welcome an explanation as to why that is so.

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

My Lords, I am obliged for all the contributions that have been made with regard to this matter. Your Lordships will be aware that the power in Clause 3 allows the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to certain provisions for staff by way of regulations.

I say immediately that I am most obliged to the noble Lord, Lord Marks, because it would appear that we are being briefed by the same Bill team. That is hardly a surprise, but I am in a position to say that he has eloquently and clearly expounded the rationale for these provisions being in the Bill. I accept his point about how they are intended to operate as set out between Clause 3 and the schedule.

The power that we are talking about is constructed narrowly, both in regard to the nature of the amendments that it provides for and being in respect only of secondary, rather than primary, legislation. However, there seems to be some confusion about the extent of the provision. Perhaps noble Lords will allow me briefly to explain the interaction between the substantive power in paragraph 32 of the schedule and the consequential power in Clause 3(2).

The key substantive power in paragraph 32 is that the rules of court may provide for the exercise of judicial functions by authorised court and tribunal staff. It will therefore be the procedure rules that set out the details of which functions authorised staff may exercise, the qualifications and experience that they may require and any specific right of reconsideration should the relevant rule committee consider that one is needed. Rules are made by independent committees to govern procedure within courts and tribunals. All rules are made by statutory instrument subject to negative resolution in Parliament.

However, the procedure rules cannot be used to make all the necessary amendments to other secondary legislation, such as consequential changes to remove references within existing secondary legislation—I take as an example those to “justices’ clerks”, which will become redundant once these provisions are in force. For that, we will use regulations under Clause 3(2), which will in turn be subject to the negative resolution procedure. We could not use this consequential power to make substantive provision in relation to judicial functions.

Further, I refer to the width of the provision itself. The concept of an amendment that is consequential, transitional, transitory or saving is well understood, with many precedents. I should note that these terms are construed strictly by the courts. The power in Clause 3 is a narrow power so, although the rules may provide for a wide variety of functions to be exercised by authorised staff, it does not follow that the consequential power has wide application. In our case, this power is needed principally, as I say, to amend references in secondary legislation from, for example, “justices’ clerk” to “authorised officer”. So far, I think that we have identified about 200 references in over 60 pieces of secondary legislation that would need amendment; there may be more.

I come to the point raised by the noble Lord, Lord Pannick, as to which legislation may be amended. It is normal practice in legislation to say expressly when a power is to be used to amend primary legislation. The Government have no intention of using this power to amend primary legislation, so there is no express provision for such amendments in Clause 3. We have identified consequential amendments to primary legislation for these provisions, which are provided for in the schedule. We do not need, or seek, any further power to amend primary legislation in the Bill.

In drafting the Bill, we thought carefully about the extent of the power in Clause 3(2). The Prisons and Courts Bill, from which the clauses originated, included powers to make consequential provision and for such powers to be able to be used to amend primary as well as secondary legislation. As we have now identified the consequential changes needed, as I say, we do not intend to make any further changes to primary legislation. In drafting Clause 3, there was therefore no inclusion of the express provision to make such changes to primary legislation.

I am happy to give noble Lords an undertaking in Hansard that the power in the Bill will not be used to amend primary legislation. If a future Government attempted to do so, I would expect the Joint Committee on Statutory Instruments to bring this to the attention of Members of both Houses. I am content to give that undertaking without qualification, for the purposes of Hansard.

[Lord Pannick]

Can the noble and learned Lord not merely give the House an assurance that the Government do not intend to use the power to amend primary legislation but also tell the House that the Government’s intention and understanding is that the scope of this power in Clause 3 is such that it could not validly be used for that purpose?

[Lord Keen of Elie]

I endeavoured to set that point out in my previous observations, but I am happy to repeat them. If the Government’s intention had been to seek the power to amend primary legislation then, in accordance with precedent and court decisions on interpretation, they would have included the express power to do so in Clause 3, as they did in the Prisons and Courts Bill. There is no intention of doing that and they have not included that power. I do not consider that such a power is available to the Government, in light of the way in which Clause 3 is carefully framed, so I have no difficulty with that.

The provisions that we have now made within the Bill for dealing with this by way of the negative procedure found approval with the Delegated Powers and Regulatory Reform Committee, which is of course charged with reporting on such provisions. It noted in its 29th report that there was nothing in the Bill to which it wished to draw the attention of the House. I am aware that in the past the Magistrates’ Association raised a point similar to that raised by the noble Baroness, Lady Chakrabarti, but I understand that once we—by which I mean the Bill managers—had explained the position, as they did to the noble Lord, Lord Marks, it withdrew its concerns because it appreciated the narrow scope of this provision. With that explanation, I hope that the noble Baroness will see fit to withdraw the amendment.

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Moved by

[Lord Keen of Elie]

5: The Schedule, page 10, line 19, at end insert—
“but does not include a function to which any of the following subsections applies.(2) This subsection applies to any function so far as its exercise involves authorising a person’s committal to prison.(3) This subsection applies to any function so far as its exercise involves authorising a person’s arrest, but it does not apply to the issue of a warrant (whether or not endorsed for bail) for a person’s arrest in order to secure that the person attends court proceedings relating to an offence of which the person has been accused or convicted in a case in which no objection is made by or on behalf of the person to the issue of the warrant.(4) This subsection applies to the function of making an order to recover possession of a building, or part of a building, which is occupied as a dwelling by—(a) the person against whom the order is made, or(b) the person’s spouse, civil partner or dependent child aged under 18,but it does not apply to the making of an order in a case in which no objection is made by or on behalf of the person against whom the order is made to the making of the order.(5) This subsection applies to the function of granting an injunction under section 37 of the Senior Courts Act 1981.(6) This subsection applies to the function of making an order under section 7 of the Civil Procedure Act 1997 (order for preserving evidence etc).”

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

[Lord Marks of Henley-on-Thames]

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

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

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

--- Later in debate ---

Moved by

[Lord Keen of Elie]

7: The Schedule, page 11, line 8, at end insert—
“67BA Exercise of relevant judicial functions: reconsideration of decisions (1) Before making rules of court that provide for the exercise of relevant judicial functions by authorised persons by virtue of section 67B(1), the authority with power to make the rules must take the following steps in relation to each of the functions in question.(2) The authority must consider whether the rules should include a right for the parties to proceedings in which a decision is made by an authorised person exercising the function to have the decision reconsidered by a judicial office holder.(3) If the authority considers that the rules should include such a right, it must include provision to that effect when it makes the rules.(4) If the authority does not consider that the rules should include such a right, it must inform the Lord Chancellor of—(a) its decision, and(b) its reasons for reaching that decision.”

[Lord Keen of Elie]

My Lords, as well as moving Amendment 7, I shall speak also to Amendments 9, 10 and 13, which stand in my name. When the Bill was in Committee, there was a general desire to see more safeguards on the face of the Bill and greater transparency around the process of making court and tribunal procedure rules. The Government have listened to these concerns and, after further discussion, we have tabled these amendments.

The purpose of the amendments is to require the committees, when making any rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. This means that the rule committees would have to consider whether each judicial function should be subject to a right to reconsideration. Furthermore, the amendments require that, if a rule committee decides against the creation of such a right in the rules that it makes, it will have to inform the Lord Chancellor of its decision and the reasons for it.

The amendments should be read alongside existing statutory provisions relating to the making of court and tribunal rules. The committees are under a statutory obligation to,

“consult such persons as they consider appropriate”,

before making rules. If, following consultation, a rule committee chose not to include a right to reconsideration in its rules, it would have to inform the Lord Chancellor of this and, as I indicated, it would also have to give reasons for the decision. The Lord Chancellor would then have two options: either to ask the committee to reconsider its decision, as he has the power to ask the rule committees to make rules, or, if he agrees with the committee, to lay the rules in Parliament. In doing so, we would expect the Lord Chancellor to set out, in the Explanatory Memorandum to accompany the statutory instrument containing the rules, the committee’s rationale for not including a right to reconsideration. The amendments would therefore ensure much greater transparency in the decision-making process.

Our amendments would ensure that the jurisdictional rule committees continued to play a full part in determining the most appropriate mechanism for reviewing decisions by authorised persons. I hope that in the light of these amendments the noble Baroness, Lady Chakrabarti, will consider her position with regard to her Amendments 8 and 11, which fall within this group, but perhaps I can defer that and allow her to state her position with regard to those amendments.

[Lord Pannick]

Before the Minister sits down, can he give the House a practical example of the exercise of relevant judicial functions by someone who is not a judge in respect of which it would not be appropriate to allow for a review by someone who is a judge?

[Lord Keen of Elie]

One obvious example is the issuing of a summons. Such persons issue about 2.5 million summonses at the instigation of public authorities each year. If every one of those applications for a summons was the subject of judicial reconsideration, with the kind of time limits alluded to in Amendments 8 and 11, the delays involved would be enormous. There are other means by which, in due course, a party may seek to challenge the issuance of such a summons. I take that as one clear example of where it would not be appropriate for there to be judicial reconsideration.

[Baroness Chakrabarti]

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

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

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

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

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


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

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

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

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


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

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

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

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

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


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

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

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

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

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

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

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

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness. The Criminal Procedure Rule Committee and the other ones—the civil, family and tribunals committees—are independent bodies. They look at and scrutinise everything with a great deal of care. They are representative of all interests in litigation. For example, the Criminal Procedure Rule Committee has a number of defence lawyers and people from other aspects of the criminal justice system who proceed with great care to look at what is before them. It was suggested that they are unaccountable. I say on this amendment that the provisions for having to consider the right of reconsideration and then reporting that to the Lord Chancellor informing him of the decision and reasons is a traditional form of explanatory accountability.

Secondly, we ought to take into account the fact that, in our system of justice, the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date. I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees. For example, there are areas where it has proved difficult to modernise and to reform the system—for example, for extradition appeals, where provisions put into primary legislation made the system almost unworkable. Certainly what was in the primary legislation in relation to videolinks and the protection of vulnerable witnesses proved a great obstacle.

I therefore urge your Lordships to consider that this amendment, as my friend the noble Lord, Lord Marks, said, provides the right balance. It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation. It is always difficult to think of issues on the spur of the moment but, for example, one of the areas that troubles courts quite often is the short time limits if you have a recalcitrant party. It might be that, in very restricted circumstances, a rule committee would say, “This is the kind of area where a reconsideration is not necessary when a final extension has been given”. But the important point is that I urge your Lordships to trust the rule committees, particularly now that there is this additional safeguard.

[Lord Keen of Elie]

I am obliged to all noble Lords for their contributions. The Government’s position remains that the independent procedure rule committees, comprised of experts and practitioners from each jurisdiction, are best placed to decide whether a right of reconsideration is needed for each judicial function that staff are permitted to exercise. Similarly, they are best placed to determine what such a right should look like. In that context, I gratefully adopt the observations of the noble and learned Lord, Lord Thomas, the former Lord Chief Justice, and of the noble Lord, Lord Marks.

The approach taken in Amendments 8 and 11, tabled by the noble Baroness, Lady Chakrabarti, would impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice. For example, the amendments would allow a person 14 days to apply for reconsideration. Why would a 14-day limit apply across all jurisdictions and for every judicial function that authorised persons are permitted to exercise, some of which are entirely straightforward case management and preparation duties? Indeed, the noble and learned Lord, Lord Thomas, referred to time limits. What happens if you have a request to adjourn a hearing due to take place the following day? If it is refused, you then have 14 days for reconsideration. In other words, it would automatically be successful because of this blanket provision. That is just one of many examples.

Each jurisdiction has its own ways of working and needs mechanisms for reviewing decisions that can respond to this. For example, the rule committees in the civil and tribunals jurisdictions have already built in a specific right to judicial reconsideration of decisions made by authorised staff. The magistrates’ courts and the family court have their own existing mechanisms for reviewing various decisions. These amendments, as proposed by the noble Baroness, would cut across all those existing provisions.

I mentioned an example in response to a query from the noble Lord, Lord Pannick. The magistrates’ courts issue something in excess of 2 million local authority summonses every year. If there were a right to reconsideration in every one of those cases, where would we begin and end with regard to the administration of such applications? Indeed, in the magistrates’ courts, there are already a number of ways for a defendant to challenge a case in which a summons has been issued. He or she can make an initial argument to the court hearing the case that the summons should not have been issued. You can contest the substantive application made by the local authority. There is even the possibility of judicial review. The matter is already covered.

Creating a mandatory right to apply for judicial reconsideration of the decision is not only unnecessary but would also be burdensome and ineffective. It is in these circumstances that I reiterate that it is appropriate, as other noble Lords have observed, that these matters should remain with the independent procedure rule committees and that I again commend Amendments 7, 9, 10 and 13. I invite the noble Baroness, Lady Chakrabarti, not to press her amendments in this group. I cannot commit to reflecting any further between now and Third Reading on these matters, so if the noble Baroness wishes to test the opinion of the House, she should do so now.

Amendment 7 agreed.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

9: The Schedule, page 17, line 43, at end insert—
“Schedule 5 (Tribunal Procedure Rules) is amended as follows.”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

12: The Schedule, page 18, line 27, after “paragraph” insert—
““function” does not include—(a) any function so far as its exercise involves authorising a person’s committal to prison or arrest;(b) any function of granting an injunction;”

Prisoners: Purposeful Activity

Lord Keen of Elie Excerpts

Monday 15th October 2018 Lords Chamber

[The Lord Bishop of London]

To ask Her Majesty’s Government how they plan to ensure that every prisoner can participate in purposeful activity during their sentence.

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

My Lords, the introduction of offender management in custody and the associated staffing means that prisons will be better equipped to run fuller regimes with more opportunities for purposeful activity. Our education and employment strategy, launched in May, will create a system where prisoners are on a path to employment through increased opportunities to gain experience of work in communities while released on temporary licence.

[The Lord Bishop of London]

My Lords, I thank the Minister for his response. In Prisons Week, does he accept that continuous efforts must be made to ensure that our prisons are places of safety for those serving their sentences, and are places of hope for those who intend to avoid reoffending once released? Although I welcome the constructive use of additional staff through the promising new offender management in custody scheme, I invite the Minister to acknowledge the important role that chaplaincies, community chaplaincies, charities and churches can play in the rehabilitation of offenders.

[Lord Keen of Elie]

My Lords, the right reverend Prelate makes a very good point about the need for rehabilitation and for safety in prisons to be as effective as possible. In addition to the strategy that she mentioned, we have launched the education and employment strategy, which will create a system in which each prisoner is set on a path to employment from the outset. We hope that governors will be in a position to deliver that strategy by next April. I confirm that there are chaplaincy facilities in all our prisons, of course.

[Baroness D'Souza (CB)]

My Lords, there has been considerable success in introducing theatre of all kinds and acting in some prisons. How far do the Government support those efforts and how far are they prepared to finance them?

[Lord Keen of Elie]

My Lords, I understand that the introduction of theatre is part of the wider educational programme in prisons. I am not able to say that there is any identified or closed funding for that aspect of the process.

[Lord Harris of Haringey (Lab)]

My Lords, Her Majesty’s Chief Inspector of Prisons reported in June that 38% of those in young offender institutions are locked in their cells for more than 22 hours a day. How on earth can they receive any proper training and rehabilitation if they are locked up for such lengths of time? Why has the Ministry of Justice repeatedly refused to collect data on how long people are locked up in prison? Is it because it does not want to know, or because it knows that it will not like the answer?

[Lord Keen of Elie]

My Lords, on the last point, we do not have clear and identifiable data from all institutions that would enable us to determine how long prisoners actually spent in individual cells. That is clearly a matter for which individual governors have considerable responsibility. Regarding young offenders, the noble Lord may recollect the announcement made by the Secretary of State on 2 October about the introduction of the first secure school, which will open at Medway in 2020.

[Lord Cormack (Con)]

My Lords, if we do not have this data why do we not get it?

[Lord Keen of Elie]

My Lords, it is a matter for consideration, but the collation of such data is a massive task and there are other, more immediate issues in our prisons to be addressed.

[Lord German (LD)]

My Lords, one of the principal barriers to meaningful activity in prison is the unnecessary movement of prisoners between one prison and another. Courses and training are disrupted and the receiving prison frequently does not have the appropriate vacancy or the necessary course. Does the Minister acknowledge that problem, which is primarily caused by overcrowding in prisons? People are moved to create space and to wherever there is a space. That leads to a reduction in the amount of time that can be given to people to train and learn; when they leave they are without the appropriate skills.

[Lord Keen of Elie]

My Lords, I do not accept that there are unnecessary movements of prisoners between prisons. There are reasons why prisoners have to be moved from one institution to another from time to time. That is dependent on the category of prison and the category of prisoner. From time to time there may be disruption to courses that prisoners are undertaking, but there may equally be an issue about preparing them for release on licence or about trying to ensure that they come into closer contact with their family, for support.

[Baroness McIntosh of Hudnall (Lab)]

I return to the question posed by the noble Baroness, Lady D’Souza. I advise the Minister that this very afternoon my own daughter, as a professional opera singer, is in one of Her Majesty’s prisons in this city working with prisoners who are about to present a production of “Carmen”. Will he acknowledge that these interventions have a significant effect on the confidence and self-esteem of prisoners who are able to participate, but that not enough of them are able to do so? I ask him respectfully to reconsider the answer he gave and perhaps suggest that the Government put a little more effort into this.

[Lord Keen of Elie]

I am obliged to the noble Baroness, although I do not seek to reconsider my earlier answer. I acknowledge the importance of the work being done; of course it contributes to self-esteem and to the re-establishment of sensible relationships required of those in our prisons. It is part of an educational process that leads some prisoners to a point where they are able to secure suitable employment when they leave prison.

Justice: Women’s Centres

Lord Keen of Elie Excerpts

Wednesday 12th September 2018 Lords Chamber

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

My Lords, I first add my congratulations to the right reverend Prelate the Bishop of Gloucester on securing this important debate. I also thank all noble Lords, whatever their gender, for their contributions to it.

I particularly wish to note the contribution of my noble friend Lady Sater, who is clearly eminently qualified to make a contribution by way of her maiden speech in this debate. I look forward to her further contributions in this House.

I also thank the noble Baroness, Lady Corston, for coming to speak to me. I am grateful for her having shared her knowledge and experience in this area with me. I am equally grateful for her not having shared her severe cold with me, but I hope she is recovering.

Various statistics have been noted, but clearly we understand that, although far fewer women are represented in the criminal justice system, those who are there and who come into contact with it are among some of the most vulnerable women in society. Many face complex circumstances, including histories of abuse, mental health issues, low income, unstable accommodation and, of course, in many cases, the experience of domestic violence and the disruption which that engenders.

It is a recognition of this vulnerability and need that underpins our Female Offender Strategy, which was published in June. I pause to acknowledge the work of my honourable friend Phillip Lee in respect of that matter. Our strategy sets out the Government’s intent for improving outcomes for women in contact with the justice system based on a vision that fewer women should come into the criminal justice system and in custody, especially on short-term sentences. We want to see a greater proportion of women managed in the community and managed successfully. We want to see better conditions for women who, for safety or other reasons, need to be held in custody.

If we are to achieve the aims of such a strategy, then we must recognise that community services lie at the heart of our approach. We know that the third-sector-led women’s centres can offer valuable support to help vulnerable women address their needs and turn their lives around, thereby reducing the risk of offending—examples have been given by a number of noble Lords. Women’s centres are often at the heart of the multiagency whole-system approaches to female offenders. These aim to provide holistic, gender-informed support to women, from first contact with the police and at all points of the justice system.

I referred to gender-informed support, and the noble Lord, Lord Beecham, raised the question of gender-informed probation services. That is a matter of training and experience: it is a matter of ensuring that those engaged in the provision of probation services understand the particular and peculiar needs of women in the justice system. Certainly, that is something that we aim to ensure going forward.

The right reverend Prelate asked what assessment has been made of the ability of women’s centres to improve outcomes for women in the justice system. It would be difficult to undertake a full assessment, as women’s centres offer support to women with a wide range of issues and needs, not all of whom have been referred by—or, indeed come into contact with—the criminal justice system. We also know that women may be supported by other local agencies. We estimate that there are approximately 80 women’s centres in England and Wales. More than 50 of these support women in the criminal justice system, with more than 30 being engaged with community rehabilitation company contracts.

I note the comments that have been made about some of the difficulties surrounding those contracts and those engagements. Noble Lords will be aware that we are addressing the issue of existing CRC contracts: they are intended to be terminated and reviewed going forward, and it is our intention to ensure that the community rehabilitation companies understand the need to engage with the voluntary sector, and in particular these centres, as part of their supply chain.

Data from some centres has clearly found the way in which they have been effective. Women supported by women’s centres contracted to CRCs clearly have a lower reoffending rate than those who have no contact with the centres. Data from the Brighton Women’s Centre found that, for every 100 women supported by the centre, there was a reduction in the frequency of reoffending by between 27 and 29 offences.

Alongside the work that women’s centres do, there are many other community services that are effective in supporting the complex needs of female offenders. As set out in our strategy, we are encouraging local areas to adopt new ways of working by developing a multiagency approach to these issues—often termed a whole-system approach. We hope that the whole-system model brings together local agencies, criminal justice and both statutory and voluntary organisations. Together, they should be capable of providing the sort of targeted support that female offenders need. That has to be complemented by the National Probation Service and community rehabilitation companies, which are clearly going to be key partners in ensuring that female offenders receive targeted support, not only through the gate but once they are back in the community.

To give an example, the whole-system approach set up in Greater Manchester in 2014 has provided effective outcomes for female offenders. We know, however, that the availability of women’s community services across England and Wales does not always match the demand for those services. We want to see a sustainable network of women’s community services and centres embedded as an integral partner in the delivery of public services for female offenders, making better use of their potential as places where support and interventions can be delivered in an appropriate form and at an appropriate time.

Clearly, such a network cannot be delivered without funding. We know that women’s centres have a wide range of funding streams, but that they often face issues of sustainability, creating uncertainty for staff and putting services at risk. If we are to deliver the commitments in our strategy, we need to ensure that we have sustainable community provision that will meet demand. That is why the strategy announced the investment of £5 million of cross-government funding over two years in community provision.

As part of this investment, we have launched an initial £3.5 million grant funding competition for 2018-19 and 2019-20 to sustain and increase community provision, including whole-system approach models, for female offenders. This community provision is intended to include women’s centres and we hope that the funding will also help providers to leverage additional funding from other sources.

Some concerns have been raised at the level of this funding, which builds on the £1 million seed funding that we are investing in the whole-system approaches between 2016 and 2020. The Government are committed to ensuring that there is sufficient funding for the female offenders strategy, and this is the start of a new and significant programme of work to deliver better outcomes. We will have the opportunity to revisit funding issues as we take that work forward.

We know that a truly sustainable network of community provision requires the support and involvement of many partners, not just of government. Our strategy therefore announced that we will work across government and with other partners to develop and agree a national concordat on female offenders. This will set out a cross-government approach to addressing the needs of this cohort of vulnerable women. Importantly, it will also seek to provide the leadership that stakeholders tell us is necessary to bring about change at local level. The concordat will act as a statement of intent, agreement and understanding about how statutory and third-sector services should come together to provide what I would term a joined-up response to supporting vulnerable women in this context. Through early intervention, we want to see fewer women coming in to the justice system.

For those women who do offend, we want to provide support from first contact with the police and at all stages of the justice system so that we can effectively address the factors that lie beneath their offending behaviour and thereby reduce the risk of reoffending. It is important to acknowledge that women’s centres must be supported in their work with female offenders by an effective probation system, which sees offenders regularly, identifies their particular rehabilitative needs and secures access for them to the right forms of support. Equally, it is vital that courts have confidence in the probation services delivering those services in order that they can give proper consideration to effective community sentences, as distinct from custodial sentences.

We also recognise that the probation system needs to improve. We are taking decisive action to stabilise and improve the delivery of probation services by setting out our intention to end the current CRC contracts early and put in place new arrangements, as I mentioned, from 2020. We are consulting on our proposals and look forward to hearing the views of a range of stakeholders, including how probation services can best meet the needs of female offenders.

Alongside that, we want to explore what more we can do to improve outcomes for female offenders. The strategy has committed us to working with local and national partners to develop a residential women’s centre pilot in at least five centres in England and Wales. Through the pilot, we hope to develop a robust evidence base for what could be an effective, sustainable and scalable model for improving outcomes for female offenders. We will take that consultative approach to designing and delivering the pilot models, engaging with potential providers, partners and investors, both nationally and locally. We want to ensure that the models we take forward are appropriate for the local context of each site. I look forward to sharing more details with noble Lords as that work progresses.

For the moment, I thank noble Lords again for their contributions to this debate, and I reiterate our commitment as expressed in the female offender strategy that we recently published.

House adjourned at 7.48 pm.

Victims Strategy

Lord Keen of Elie Excerpts

Monday 10th September 2018 Lords Chamber

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

My Lords, with the leave of the House I shall now repeat a Statement made by my honourable friend the Parliamentary Under-Secretary of State for the Ministry of Justice. The Statement is as follows:

“With permission, Mr Speaker, I should like to make a Statement. Today, the Secretary of State and I are launching the Government’s victims strategy. which sets out our vision for victims of crime in England and Wales. That vision is one of a justice system that supports even more victims to speak up, with the certainty that they will be understood, that they will be protected, and that they will be supported, whether or not they report a crime and regardless of their circumstances or background. However, no single department, agency, or emergency service alone can provide the services victims rightly expect to receive, as shown by recent major incidents such as the Grenfell Tower fire and terrorist attacks in London and Manchester.

To truly deliver on our vision we must all work together, and that is why we have today published, for the first time, a cross-government victims strategy, further delivering on this Government’s commitment to ensure that victims of crime get the support they need. This strategy is the latest milestone in improving the support for victims and builds on important progress over the last few years, such as the establishment of the first Code of Practice for Victims of Crime in 2006, the appointment of the first Victims’ Commissioner to champion the interests of victims and witnesses in 2010, and the publication of Getting it Right for Victims and Witnesses: The Government Response in 2012, setting out the Government’s approach for making sure that victims and witnesses get the support they need. The victims strategy consolidates and builds on that progress but recognises that more needs to be done. I want to thank and pay tribute to all those victims, groups and experts who have willingly shared their experiences and sat on the victims’ panel and their work, and to my predecessor, who initiated this work.

The nature of crime is changing and we must adapt our response to meet that challenge. While overall crime has fallen, some of the most serious crimes have risen. Serious violent crime has increased and reporting of sexual offending has also risen. In the year ending March 2018, there was a 24% increase in reported sexual offences compared to the previous year. The message from victims is clear: they want to be treated with dignity, humanity, and compassion; they want clear, timely and accurate information about what is happening with their cases from day one; and they want the opportunity and support to make their voices heard as justice is done. To help achieve this, the strategy sets out a system-wide response to improving the support offered to all victims of crime throughout the criminal justice process, and incorporates actions from all criminal justice agencies, including the police, CPS and the courts. We must ensure that those who are a victim of crime do not become a victim of the process.

First, we want to strengthen the victims’ code and make it fit for the future. Our data tell us that fewer than 20% of victims are even aware of the code. Those who are often find it too lengthy, too confusing, with too many agencies involved. We will therefore revise the code, making it more user-friendly, reducing contact points, and strengthening entitlements in key areas such as the victim personal statement and support for victims of mentally disordered offenders. We will test the proposed changes to the code in a public consultation in early 2019 and aim to have a revised code in place by the end of 2019.

We have also reaffirmed our manifesto commitment to a victims’ law. The consultation will also consider how best to enshrine victims’ entitlements in law and the detail of the necessary legislation, and will include boosting the powers of the Victims’ Commissioner, who plays a vital role in holding those agencies to account already. I pay particular tribute to my noble friend Lady Newlove for all her work over almost six years to promote and protect the interests of victims and witnesses.

The criminal injuries compensation scheme must reflect the changing nature of crime. We will therefore be reviewing the entire scheme, with a particular focus on how we treat the victims of child sexual abuse and terrorism. That will include examining eligibility criteria and abolishing the arbitrary and unfair ‘same roof’ rule so that victims can get the compensation they are rightly due.

From Hillsborough to Grenfell, there have been too many failures to properly support those affected by disasters. So, we have today in this strategy set out our purpose for an independent public advocate and have in tandem published a consultation on the detail of the role, supporting bereaved families so that those failures cannot be repeated and we can properly support victims from the beginning of a disaster right through to the application of justice and beyond.

Building on the work we commenced earlier this year to improve the parole process, the strategy sets out how we will improve communication and support for victims during what can be for many a difficult time when memories of crimes committed years ago are relived. We will simplify the victim contact scheme and improve the quality of communication. We will make it easier for victims to make victim personal statements at parole hearings, and roll-out revised training for victim liaison officers, so that they are better equipped and prepared to support victims through parole hearings. This can and should ensure that past failings can never be repeated.

The strategy highlights the extra funding that we are providing for victims, including increasing spending to improve services and pathways for survivors and victims of sexual violence and abuse, including spending £8 million on interventions to ensure that support is available to children who witness domestic abuse. Some of the other measures are: improved training for the police, including guidance on supporting victims through the interview process and collecting evidence; trialling body-worn cameras for taking victim personal statements so that victims have a choice in how their story is heard; expanding support for families bereaved by gang violence—the recent spate of gang-related violence, particularly in London, has shone a spotlight on the devastation that gun and knife crime can cause to families, and we will be bringing in new funding for advocacy support for those affected by domestic homicide—and new guidance on pre-trial therapy to reduce the perception that it will damage the prosecution case.

In developing the strategy we have engaged extensively with victims, victims’ groups and the Victims’ Commissioner. This has ensured that the strategy is informed by those who have had direct experience of being a victim as well as those with front-line expertise. The strategy is not a quick fix. It is about building on the work to date so that we can better support victims in the future, and it is about giving them the confidence that, no matter their background, their individual circumstances or the crime that has been committed against them, the support that they need will be available.

This is the first time that we have looked in such detail and in such a joined-up way at how we treat victims in the wake of crime. This strategy is a marker for the way that we see ourselves as a nation—one that offers dignity, empathy and compassion to people when they are at their most vulnerable. It is something on which there is broad consensus across this House. Delivery of the strategy will now commence in earnest as we continue to progress towards a system that supports even more victims to speak up by giving them the certainty that they will be understood, supported and protected throughout their journey”.

--- Later in debate ---

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

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

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

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

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

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

[Lord Keen of Elie]

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

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

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

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

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

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

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

[Baroness Brinton (LD)]

My Lords, I also thank the Minister and the Government for finally announcing this victims strategy and consultation document. Nearly two years ago, in December 2016, your Lordships’ House voted on strengthening the victims’ code and encoding it in law, and we supported making sure that the agencies had to deliver that code. Noble Lords will remember that the matter went back to the Commons and the Minister returned to your Lordships’ House in January 2017 saying that a victims strategy and proposals would be published within six months and implemented by the end of 2017. We are running a bit behind that schedule but in the interim I compliment the previous Victims Minister for coming to consult with a large number of victims’ groups. Over the past 18 months, I met him and some of them and the time has not been wasted.

I will not repeat the comments made by other noble Lords on the strengths of the strategy. For those groups I have been working with, it is not simply a matter of fewer than 20% of victims being aware of the victims’ code, as I am afraid that there are a significant number of people working in the criminal justice system itself who are not aware of the details and who do not assist victims. I am reminded of one victim saying that when she reported her case of rape, the alleged perpetrator was given breaks from questioning, tea breaks and meal breaks, but there was absolutely nothing—not even a glass of water—provided for her as a victim when giving her statement. That is the sort of fundamental misunderstanding happening at the front line of the criminal justice system at the moment for victims, and we absolutely must make sure that it is changed.

I also echo the congratulations to the Victims’ Commissioner, the noble Baroness, Lady Newlove. I welcome the new support and strengthening proposed for her role, but it will all be utterly worthless unless there is a duty on the agencies to deliver the victims’ code and the new proposed victims law. I note with some concern that on page 18 of the strategy the words used are,

“improved reporting, monitoring and transparency on whether victims are receiving entitlements”.

We will not make progress until all parts of the criminal justice system have to deliver the victims’ code and a proposed victims law for all victims.

I will raise one other point, on a final omission. At every meeting of the victims’ forum that has met in Parliament over the two years, we have heard the organisation Murdered Abroad speak eloquently. There is a hole in the current system for victims whose family members have been murdered abroad, and the British system back here, even through the coroners’ court system, completely fails them. The Foreign Office does what it can, but at the moment there is no link at all back into our criminal justice system, and I hope that as part of the consultation the Government will seriously look at mending this hole.

[Lord Keen of Elie]

Again, I am obliged for the contribution from the noble Baroness, Lady Brinton, on this matter. While we may appear to be slightly behind schedule, I am relieved by her suggestion that time time has not been wasted. There is a concern to ensure that we take this forward as rapidly as possible but that we do it in the best-informed way possible. We will of course look at the scope of legislation that we will take forward to ensure that powers are available—whether they are direct legal powers or powers for the Victims’ Commissioner—which can be employed to ensure that all relevant parties are in a position where they are not only capable of enforcing the victims’ code but understand their obligation to do so as well.

[Baroness Fookes (Con)]

My Lords, reference has been made to an increase in the powers of the Victims’ Commissioner, about which I am delighted, but I am not clear what they will be. Could my noble and learned friend flesh it out for us?

[Lord Keen of Elie]

My Lords, the intention is that the consultation should do that, and I will not pre-empt the consultation process.

[Baroness Warsi (Con)]

My Lords, I take this opportunity to welcome this Statement, and I pay tribute to my noble friend Lady Newlove. I will spare her blushes—we were all speaking about her just before she took her place in the Chamber, but I am sure that she will read Hansard and realise that the whole House pays tribute to the work she has been doing over a number of years. Can my noble and learned friend say something at the Dispatch Box which will send out a message to victims of sexual violence, and specifically to young girls who were children at the time they were subjected to sexual exploitation? We have seen the cases across the country. What will these new measures do for them, how will they be taken seriously, and how will the experience—which, sadly, is sometimes quite horrific—of people subjected to these crimes be different?

[Lord Keen of Elie]

I thank my noble friend Lady Warsi for her observations. With regard to that question, the whole idea is that the victims’ code should first be made more accessible, that victims should be aware of its existence, and that those who engage with the victims should be properly aware, not only of its existence but of the way in which it ought to be implemented. Victims should be able to pause, consider and then come forward, in many instances seeking guidance on how they should go about making their complaints, and those complaints should be received sensibly, reasonably and openly. It is a difficult area, particularly where one is dealing with matters of historic sexual abuse. Nevertheless, we hope to achieve a situation in which people will not feel that any barrier or inhibition prevents them coming forward with those concerns.

[The Lord Bishop of Chester]

My Lords, I wholeheartedly endorse and support what has been said about this strategy. I know from my pastoral work how the effects of crime can resonate throughout people’s lives, not least when it comes to sexual abuse that happened a long time ago. Nevertheless, can the noble and learned Lord comment on the term “victim” and when its use is appropriate and when it is not? Occasionally in the report the term “victim/survivor” is used, and of course we have the report from Lord Justice Henriques into the Operation Midland case, which contained some warnings about the premature use of the word “victim”; in that case it is clear that those who were accused were the victims, and I understand that the person who was widely described as the victim is himself now facing criminal charges. The same was said by the noble Lord, Lord Carlile, in his report on the Bishop Bell case. Is there a way of defining the term? At the end of the report there is a glossary of about 29 or 30 terms, but the term “victim” itself is not defined in it. Perhaps the strategy might be strengthened if there was at least some recognition that people who are falsely accused can equally be victims.

[Lord Keen of Elie]

I thank the right reverend Prelate for his observation. It is of course difficult in this situation, because if we simply proceed with the term “complainer”, people have certain perceptions about that, and that in itself appears to inhibit them from coming forward. They are perceived to be merely complainers rather than, as they are in reality, victims. Terminology is therefore important here, but it is also difficult. However, I entirely endorse the right reverend Prelate’s observation that those who are falsely accused of crime are also victims. Of that there can be no doubt whatever, and we should always remember that.

[Baroness Scott of Bybrook (Con)]

My Lords, I also welcome this strategy from the Government. I will ask the Minister about major incidents and their victims: places such as Grenfell, of which I have some knowledge, but also Manchester and even Salisbury. I hope that in the strategy the Government acknowledge the role of local government in supporting the victims but I also hope that they challenge local government and look to support it in its role as supporting victims of these major incidents.

[Lord Keen of Elie]

I thank my noble friend for that. Indeed, the noble Lord, Lord Beecham, raised this very same point about the need to ensure that all agencies which may be involved in these matters should be properly engaged and consulted. I certainly acknowledge the role of local government in dealing with disasters such as Grenfell, the Manchester bombing or Salisbury. There have to be clear lines of engagement between central government and local government to ensure that that can be achieved, and I anticipate that that matter will be addressed in the course of the consultation process.