Law Commission: Funding

Lord Keen of Elie Excerpts

Tuesday 10th July 2018 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government what assessment they have made of comments made by the Chair of the Law Commission that reductions in the Commission’s funding could put its independence at risk.

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

My Lords, the Law Commission’s independent status is protected in law. Following reductions in its core budget, the commission has undertaken more funded projects. It is for the Law Commission to decide which projects it recommends are taken forward.

[Lord Beecham (Lab)]

My Lords, the commission’s website proclaims that it is a statutory body that aims,

“to ensure that the law is as fair, modern … and as cost-effective as possible … to conduct research and consultations … to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes”.

The commission’s budget has been cut by 54%—£2.1 million—since 2010, resulting in projects being delayed and, even more worryingly, in the words of the current chair, Sir David Bean, “elbowed aside” in favour of projects commissioned by the Government. Will the Minister confirm the commission’s independence and its right to select projects without being obliged to prioritise unduly work commissioned by the Government?

[Lord Keen of Elie]

My Lords, I have already sought to underline the commission’s independence with regard to these matters. The Government continue to value the important work of the Law Commission and recognise that it must retain the ability to make independent choices about reform projects that it chooses to take forward. There are, of course, circumstances in which departments of government will, as it were, seek to instruct or seek approval for particular projects to assist with the Law Commission’s budget. At this point, I pay tribute not only to the work of the Law Commission but to its outgoing chair, Sir David Bean.

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

My Lords, it is a question not just of funding. For the Law Commission to ensure that the law is fair, modern and clear, as it must, the Government must implement its recommendations. Yet, in spite of the duty to report annually to Parliament, only two-thirds of the commission’s 227 reports since 1965 have been implemented. Some 10% still await a government decision, including the reports on cohabitation and intestacy for cohabitants from 2007 and 2011, which are the subject of my Private Member’s Bill. Even the uncontroversial 2010 report on the High Court’s criminal jurisdiction has had only a holding response in 2015. Do the Government regard these delays as acceptable?

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[Lord Keen of Elie]

My Lords, the Government’s response to the Law Commission’s recommendations has been extremely good. The commission has produced 228 sets of law reform recommendations. Of those, 65% have been accepted and the recommended reforms implemented in whole or in part by government. In addition, since the introduction of the special procedure for statutory provisions from the Law Commission, we have brought forward eight different Acts through that accelerated procedure.

[Lord Morris of Aberavon (Lab)]

My Lords, has there been an estimate of the extent of the diminution in the quality of the commission’s reports because of lower funding?

[Lord Keen of Elie]

My Lords, I am not aware of any diminution in the quality of the reports produced by the Law Commission over the past few years. Indeed, there is no suggestion that that is the case. Although there have been reductions in the Law Commission’s budget, its anticipated core funding for 2019 remained in excess of its anticipated running costs.

[Baroness Deech (CB)]

My Lords, I declare an interest in that I started my career at the Law Commission under the late great Lord Scarman, who created it as a model that is admired in the rest the world. Will the Minister accept that the quality of much of the legislation passed in this House and in the Commons is due to the Law Commission’s work, and that we depend on the Law Commission for quality and innovation in law reform? We have a special procedure for rushing through proposals by the Law Commission that are uncontroversial. Will he tell the House what plans there are to implement more Law Commission proposals that remain unimplemented and which we need, as the noble Lord, Lord Marks, has drawn attention to?

[Lord Keen of Elie]

My Lords, I am obliged for the observations of the noble Baroness, and I entirely endorse those about the significant contribution that the Law Commission makes to the quality of legislation that passes through this House. As I indicated before, since the special procedure process was introduced we have passed a total of eight Acts, in diverse areas. They are not potentially controversial and therefore proceed at speed through the legislative process. In addition of course, it is open to the Law Commission to bring forward consolidation recommendations with regard to legislation, and it is carrying out considerable work on sentencing. However, that will require some groundwork through primary legislation, and we are looking at that at the moment in the hope that such consolidating legislation can be brought forward.

[Lord Rooker (Lab)]

My Lords, in 2014 I had the privilege of chairing the Joint Committee on the Draft Deregulation Bill. After three months of taking evidence, we then had three Ministers in front of us from the coalition Government, who showed utter disdain and contempt for the work of the Law Commission. Their attitudes were all wholly and incredibly negative, even in the face of positive information that Law Commission legislation does not take the time of this House or the other place, simply because the work is done for us.

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[Lord Keen of Elie]

I am not familiar with the evidence to which the noble Lord refers, but I assure him that at present Ministers have the highest regard for the work of the Law Commission, and that I have the highest regard for those who carry on that work. We are always amenable to its proposals. In its current, 13th programme, we were happy to approve a list of 14 projects that it submitted.

[Lord Howarth of Newport (Lab)]

In that case, why have one-third of the recommendations not been implemented?

[Lord Keen of Elie]

Not every recommendation made by the Law Commission is accepted by the Government as appropriate for legislation. There may be circumstances in which the Government have a policy on legislation that is not entirely in parallel with its recommendations. That does not take away in any sense from the quality of the recommendations made.

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

Lord Keen of Elie Excerpts

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

[Lord Neuberger of Abbotsbury (CB)]

My Lords, I will just add a footnote to what the noble and learned Lord, Lord Judge, has said. The Lord Chief Justice’s annual report is laid before Parliament, so the information about judicial training will be laid before Parliament in so far as the Lord Chief Justice considers it appropriate, he being responsible for training.

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

My Lords, as the noble Baroness said, this amendment would require the Lord Chancellor to publish, within 12 months of Clause 1 coming into force, a report on the availability of training for judges that will enable them to be flexibly deployed.

As has been noted, the Lord Chief Justice and indeed the Senior President of Tribunals already have far-reaching powers of deployment. The measures in the Bill seek to amend and build on existing powers in legislation. Of course, it is the Lord Chief Justice and the Senior President of Tribunals who are responsible for arrangements for the training of the judiciary. As the noble and learned Lords, Lord Judge and Lord Neuberger, observed, it will be for the Lord Chief Justice, who is responsible for training, to report on these matters, as he seeks to do in his annual report. It would not be appropriate in these circumstances for that responsibility to pass to the Lord Chancellor.

With regard to funding for training, the Lord Chancellor is committed to providing suitable funding for the judiciary; that includes funding in the area of training, particularly by the Judicial College. I add only that that is in accordance with the arrangements that have to be made for resourcing under the Constitutional Reform Act 2005. As I indicated, the Senior President of Tribunals has an equivalent responsibility in relation to judges and members of the tribunals within the scope of the Tribunals, Courts and Enforcement Act 2007. Those responsibilities are exercised through the Judicial College.

The report that the Lord Chief Justice provides with regard to judicial training is a report to Parliament, so it will be available to Parliament in due course. Therefore, it would be inappropriate for the Lord Chancellor to report to Parliament on the availability of judicial training, a matter that is properly for the senior judiciary.

In these circumstances, I venture that the amendment is unnecessary. We can be confident that all our judges are recommended for appointment by the Judicial Appointments Commission following a rigorous process. At a minimum, they will have met the statutory eligibility criteria for the relevant office. In relation to the offices in Clause 1, in many cases the judges will have already met the statutory eligibility criteria. In addition, when it is required, they will have also demonstrated specialist expertise—for example, where judges are appointed or authorised to specific jurisdictions, such as the Commercial Court, the Media and Communications List and the Technology and Construction Court or TCC.

The Judicial College strategy for 2018-20, published in December last year, states:

“All newly appointed and newly assigned judicial office holders will receive induction training”.


It says that, over this period:

“The College expects to deliver more induction training to support increasing flexibility of judicial deployment across courts and tribunals when workload fluctuates”.


The Judicial College has also been devising more cross-jurisdictional training in skills required for all jurisdictions because of the flexibility in deployment that will be available.

On whether or not the provisions in Clause 1 will make a significant contribution to what has been referred to as the recruitment crisis, I cannot say that on its own it will make a significant contribution to recruitment, but certainly the flexibility that is being introduced into the system may assist in that regard. We recognise that more needs to be done with regard to that matter. The noble Lord, Lord Pannick, will be aware that the terms and conditions of the senior judiciary will be the subject of a report later this year. I look forward to that so that we can consider how the matter can be taken forward.

The noble Lord, Lord Beith, raised the rollout of digitisation with regard to the court process. Of course, we hope eventually to bring all these developments together. They are complementary to each other. I acknowledge that we have not yet been able to introduce further provision within the narrow confines of this Bill, but it is our intention that the provisions anticipated by the Queen’s Speech, and indeed laid out in the original Prison and Courts Bill, will be brought forward when legislative time allows.

I hope that I have gone some way to reassuring the noble Baroness, Lady Chakrabarti, that the appropriate training arrangements are in place to support flexible deployment of the judiciary and that she will see fit to withdraw her amendment. I pause to observe that the points raised by the noble Baroness, Lady McIntosh, arise in respect of later groups. Perhaps I may address them at that time.

[Baroness Chakrabarti]

I am grateful to the Minister for that reassurance as to process and to other noble and learned Lords for their exposition of the responsibilities on the Lord Chief Justice, the Judicial College and so on. I have yet to be reassured, however, about the adequacy of funding for this training or the adequacy of funding to the MoJ to deal with, among other things, this recruitment crisis. I fear that we may have to return to this matter but, for the moment at least, I beg leave to withdraw Amendment 1.

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[The Earl of Listowel (CB)]

My Lords, on the matter of meeting the new challenge of litigants in person, particularly in the family courts, I highlight the value of the family, drug and alcohol court national unit. While the national unit supports these drug and alcohol courts for children in the public law system, the same judges—and I imagine the same clerks—also work in public family law. The wonderful thing about this unit is that it supports judges, clerks and the administration in family courts to become better at their job; better at managing these cases which are often very difficult and troubling.

So when the noble and learned Lord, Lord Keen of Elie, writes to me—I am grateful to him for his letter today on the matter of the Family Drug and Alcohol Court National Unit—and says that the responsibility is now passing down to local authorities, I hear what he says and understand why he says it. However, there is a distinct benefit to the judiciary and the courts in training them to be more effective in working with these families, particularly now that they are often litigants in person. I therefore hope that he may keep an open mind, and that perhaps he will be persuaded that some money should come from central government for this special national unit for supporting family drug and alcohol courts.

We have a challenge with regard to the many families in this country who are struggling to stay together or to manage amicably and effectively a separation with the least damage to their children. Having well-equipped judges and clerks in the courts to help this process is vital, and I suggest to the noble and learned Lord that this special national unit can help with that.

[Lord Keen of Elie]

My Lords, Amendment 3 relates to the power in Clause 3 for the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to the authorised staff provisions by way of regulations. It provides that they are subject to a process of negative resolution by Parliament, while the amendment seeks to apply the affirmative resolution procedure.

We believe that it is necessary to take the power in Clause 3(2) to avoid any implementation difficulties or legislative inconsistencies that could arise from changing the law. We have already identified consequential amendments to primary legislation and have made provision for them in the Schedule to the Bill. The necessary changes to secondary legislation may not become apparent until after the provisions in the Bill are implemented; therefore, this power is needed so that the authorised staff provisions can be given full effect. However, I emphasise that it is not concerned with making consequential amendments to primary legislation, for which provision is already made in the Schedule, and so this is a narrow power. As I indicated, the power cannot be used to amend primary legislation, so in these circumstances we considered that the negative resolution procedure is entirely appropriate.

I hear what noble Lords and noble and learned Lords have said about moving from the negative to the affirmative procedure, and I will give further thought to that. However, at this stage I invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment.

[Baroness Chakrabarti]

My Lords, I am grateful to the Minister, and in particular to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for their kind encouragement. In the light of all that, I am happy at this stage to beg leave to withdraw the amendment.

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[Lord Neuberger of Abbotsbury]

My Lords, the noble Baroness is right to be concerned about the expertise and experience of the people who make decisions. My concern about the amendment is that it puts a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions. There will be many decisions where people with her requisite experience would be appropriate, but there will be others where less experience would be adequate for the decision-making.

Given that the rules which will set out the requirements will have to be laid before Parliament, and that many of the decisions outside the rules are made, effectively, by the Lord Chief Justice, while what the noble Baroness said has considerable force in some circumstances, it would unsatisfactorily reduce the flexibility of these proposals. They are largely not concerned with the problems of judicial recruitment which have been canvassed in the House today—which any self-respecting former judge, such as myself, is concerned about—but, none the less, the proposals in the amendment would unduly constrain the flexibility which the measures in the Schedule sensibly envisage.

[Lord Keen of Elie]

I am obliged to the noble Baroness, Lady Chakrabarti, the noble Earl and the noble and learned Lord for their contributions.

There are two strands to this group of amendments, and it is important to differentiate between them at the outset. Amendments 5 and 6 relate to the qualifications for staff providing legal advice; Amendment 7 relates to the qualifications for staff exercising judicial functions. For those staff authorised to provide legal advice to judges at the family court and magistrates, the measures in this Bill replace existing statutory provision for legal advice to be provided by justices’ clerks and assistant clerks. In future, the function of giving legal advice will be exercised by a member of court or tribunal staff authorised by the Lord Chief Justice, or at least a party nominated by him.

Currently, there are different provisions governing the qualifications required of justices’ clerks and assistant clerks. The qualifications required of justices’ clerks are set out in statute. Those for assistant clerks, however, are provided in regulations made by the Lord Chancellor under the powers in Section 27 of the Courts Act 2003. Broadly, an assistant clerk must be a barrister in England and Wales, or a solicitor of the senior courts of England and Wales, or have passed the necessary exams for either of those professions, or have qualified as a legal adviser under historical rules that were in place prior to 1999. The vast majority of legal advice is currently provided by assistant justices’ clerks.

The position in the Bill is that the qualifications required for staff to be authorised to provide legal advice to justices of the peace and family court judges will also be specified by the Lord Chancellor in regulations, and the regulations must be made with the agreement of the Lord Chief Justice, which provides a further important check on this power. The Government take the view that regulations will provide a flexible and proportionate approach to establishing the right qualifications for those authorised staff providing legal advice to judges of the family court and magistrates. I note the point made by the noble and learned Lord, Lord Neuberger, about avoiding a straitjacket so far as these matters are concerned.

I understand the desire of the noble Baroness to see more detail of how our proposals will work in practice. In order to assist the debate on this matter, yesterday we published a draft of the regulations setting out the qualifications for those authorised staff giving legal advice. These regulations broadly reflect the legal qualifications currently required by assistant clerks, with the important addition of fellows of the Chartered Institute of Legal Executives or those who have passed the necessary examinations to be a CILEx fellow. While the Government do not envisage that the regulation-making power will need to be exercised regularly, it would allow us to reflect any developments in the legal profession as to qualifications required to practise. The addition of CILEx fellows is an example of where this flexibility might well be needed.

I should add that Amendments 5 and 6 would impose a much stricter requirement than the current arrangements. Some of our legal advisers qualified through a scheme which has not been available since 1999 and which did not result in qualification as solicitors, barristers or fellows of the Chartered Institute of Legal Executives. In addition, those who have completed the necessary examinations to become barristers in England and Wales or solicitors may become assistant clerks. The current practice works well and demonstrates that assistant clerks are appropriately qualified and experienced for the role they undertake, and we intend to retain these provisions in the new regulations. However, the approach taken by Amendments 5 and 6 would exclude some of our best and most experienced legal advisers. That, I would suggest, cannot be right. I want to be very clear about the Government’s intention. Legal advice will continue to be provided by authorised court and tribunal staff with appropriate legal qualifications as it is now. The draft regulations, which we have published, seek to confirm this.

Turning now to Amendment 7, as I have said, the powers in Clause 3 and the Schedule are not entirely new. For example, in the First-tier Tribunal and Upper Tribunal there is already a power for rules to provide for the exercise of judicial functions by staff. The most basic functions, such as issuing standard directions at the commencement of a case, can be carried out in some tribunal jurisdictions by authorised staff with no legal qualifications. Slightly more complex functions, such as applications for postponements of hearings, extensions of time, withdrawals and reinstatements, can be undertaken by caseworkers who have legal qualifications. The most complex of the delegated functions, such as the consideration of late appeals, are generally reserved to registrars who are legally qualified and have legal experience. It is not necessary for all authorised staff exercising judicial functions to possess legal qualifications, as many will be carrying out routine, straightforward tasks. Where powers currently exist, rule committees are already used to determining the qualifications needed for staff to exercise particular functions, and this works well. Again I note the observations of the noble and learned Lord, Lord Neuberger, about not placing these matters into an unnecessary straitjacket.

The Bill will allow the relevant procedure rule committees to set requirements relating to the necessary qualifications or experience of such staff. The committees are best placed to assess these requirements for their jurisdictions in light of the functions that they are authorising staff to exercise. As a further safeguard, a member of staff will not be able to exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or his nominee, or by the Senior President of Tribunals or his delegate. Authorisations are therefore ultimately the responsibility of the judiciary, and they will not authorise staff unless satisfied as regards their competence.

As with Amendments 5 and 6, setting the qualifications bar as high as in Amendment 7 would rule out a large proportion of courts staff from exercising judicial functions, even though they might have been doing so for a number of years. Such a loss of expertise would render the provisions in Clause 3 and in the Schedule essentially unworkable. Based on that explanation, I hope that the noble Baroness, Lady Chakrabarti, will feel able not to press her amendment.

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[Lord Neuberger of Abbotsbury]

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

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

[Lord Keen of Elie]

Again, I am obliged to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Neuberger, and other noble Lords for their contributions on this matter. Of course, the purpose of the amendments is to give a party in a case the right to request in writing that any decision of an authorised person exercising the functions of a court or tribunal be considered afresh by a judge.

The Schedule to the Bill ensures that the functions of a court or judge that authorised staff may exercise will be determined, and be given appropriate scrutiny, by experts in the form of the independent procedure rule committees. The purpose of these provisions is to enable authorised staff to undertake straightforward case management and preparation duties, thereby freeing up judges to focus on more complex and contentious matters. We are not proposing that these officeholders will undertake, for example, the determination of the final outcome in a contested case. It is our view that a statutory right set out in the Bill to have any decision made by an authorised person considered afresh by a judge would be inappropriate and disproportionate.

I have some sympathy with the intention behind the amendments and the desire to provide protections for court users. Our view, which I believe is reflected in the observations of the noble and learned Lord, Lord Neuberger, is that a decision about whether a right to reconsideration is needed should be left to the experts on the rule committees who are best placed to understand the circumstances in which a review mechanism may be required in their particular jurisdictions. It is not a case of one size fits all. To that extent, I would take issue with the observations of the noble Lord, Lord Marks. The committees should also consider any appropriate time limits for review and the way in which any application should be made. Again, that is essentially a matter for the committees.

These provisions already exist in our procedure rules. Practice Direction 2E of the Civil Procedure Rules makes express provision for review in civil money claims of a decision by a legal adviser. Under the tribunals procedure, in accordance with Rule 4(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008, there may be a review of a decision made by a caseworker. In the magistrates’ court, there is provision for an application to be renewed before the magistrates where it has been dealt with previously by a caseworker. In the Crown Court, there is an inherent jurisdiction to hear such applications at the time of an appropriate hearing. I seek to emphasise that there is a diversity of approaches, all of which generally apply their mind to the question of the review of the decision of a caseworker, and those reflect the views of the relevant rule committee as to what is appropriate for the particular tribunal, court or level of court. That is what we feel should be left open and which would be lost by this amendment.

I go back to an observation that was made earlier, quoting the noble and learned Lord, Lord Thomas, at Second Reading, that,

“detailed restrictions on procedure are a very real fetter on the administration of justice”.—[Official Report, 20/6/18; col. 2039.]

That is what we want to free up here. It is appropriate that these decisions should be made by the procedure rule committees. I hope that in the light of those observations, the noble Baroness, Lady Chakrabarti, will see fit to withdraw her amendment.

[Baroness Chakrabarti]

Once more, I am grateful to the Minister and other noble Lords for engaging with this argument. I do not wish to bore your Lordships’ with this, but there are some really serious concerns at play. I am told to be reassured by the rule committees, and of course I hold the rule committees in enormous esteem, but the rule committees cannot provide the funding that would avoid pressure to overdelegate to underqualified people in the future. When I raise these concerns, I am told that I must not worry because of the rule committees.

My second concern is that the public have a real and reasonable expectation that significant contested decisions in a court will be made by a judge; or, if not, at least that there would be a right of appeal or review before a judge. In the light of the repeated reassurances in the context of different attempts to constrain delegation in the Bill, we will have to return to this issue on Report. For the time being, I beg leave to withdraw the amendment.

Prisons: Women

Lord Keen of Elie Excerpts

Tuesday 3rd July 2018 Lords Chamber

[Baroness Burt of Solihull]

To ask Her Majesty’s Government how they will ensure that provision for women in the prison system is properly funded, following their decision to abandon plans for five community prisons for women in England and Wales.

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

My Lords, I can confirm that there are no plans to reduce funding for the women’s custodial estate. We want to provide the best rehabilitative regimes possible which are specifically tailored to women’s needs to break the reoffending cycle. We are also increasing the number of front-line prison staff, designing a new offender management and custody model tailored to the needs of women and continually improving standards in our prisons.

[Baroness Burt of Solihull (LD)]

My Lords, this move is very welcome, but can the Minister elucidate? This initiative is costing only £5 million for the initial investment, as opposed to the £50 million that building five new prisons would have entailed, the balance being returned to the Treasury. What is the timetable for building each of these residential centres and how many women will be accommodated initially? If the pilots are successful, how many centres will be built? Finally, will the Minister assure the House that funding will be found to roll out this programme throughout England and Wales, so that we can stop locking women up in prison for minor offences and start tackling the underlying reasons why most of them end up in prison in the first place?

[Lord Keen of Elie]

My Lords, we are of course concerned to address short custodial sentences and the viability of moving towards community-based sentences. I thank the noble Baroness, Lady Burt, for acknowledging that this is a move in the right direction. I should perhaps clarify that the £5 million that has been referred to will be used for our work with partners in the community for community-based resolution for women. In addition, we are providing for a women’s centres pilot which will involve five residential women’s centres, but that budget is distinct from the £5 million. I hope I have made that clear. I cannot give a precise timescale for the rolling out of that pilot, but we do have it in course.

[Baroness Corston (Lab)]

My Lords, I, too, welcome the fact that the Government have abandoned their prison building programme in favour of women’s community centres. That is certainly better than anything that happened under the coalition. However, I point out to the Minister that in 2017 one-quarter of the women sentenced to prison were serving sentences of less than one month, and 217 women were sentenced to less than two weeks. What action are the Government going to take to stop magistrates imposing these ludicrous sentences?

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[Lord Keen of Elie]

I am obliged to the noble Baroness. One has to bear in mind that there are instances in which custody is the only appropriate resolution, even in the case of women offenders, but of course we want to minimise that. At the moment, we have brought down the female prison population from a high during the Labour Government of 5.4% to a current figure of 4.6%. We appreciate that a large proportion of them are serving short custodial sentences. The figures I have indicate that in 2017, 72% of custodial sentences for women were six months or less, and that is an issue that we do wish to address.

[Lord Alton of Liverpool (CB)]

My Lords, will the Minister reflect for a moment on why the number of community sentences given to women has fallen by half over the last decade? Will he reflect also on the level of mental health issues among women? They are said to be five times more likely among women in prisons than in the general population.

[Lord Keen of Elie]

My Lords, there are issues that arise more frequently and more obviously among female offenders. Indeed, to quote just a few of the figures, 60% of female offenders who have an assessment have experienced domestic violence, while drug misuse is identified in about 40% of cases and alcohol misuse in about 25%. These issues therefore arise more particularly within the female cohort of offenders. With regard to community orders, it is part of our task to reinvigorate their use, which will involve us in persuading the courts at all levels of the practicality and effectiveness of such sentences.

[The Lord Bishop of Gloucester]

My Lords, I am grateful that Her Majesty’s Government do not intend to open new women’s prisons, as has been said, and I am grateful for the assurance that more money will be put into women’s centres. However, what work will be done to ensure that those who sentence know what is actually available in the community?

[Lord Keen of Elie]

My Lords, I am confident that the sentencing guidelines, and judicial guidelines in general, are sufficient to inform all levels of the judiciary as to the appropriate way in which to treat sentencing provision. Indeed, there is further guidance on this in England and Wales, which the noble Lord at the back may not be familiar with.

[Lord Foulkes of Cumnock (Lab)]

The right reverend Prelate is also shaking her head.

[Lord Keen of Elie]

Looking in this direction, I can only see the noble Lord’s head shaking. However, it might not be in disagreement; maybe it is an affliction, and I apologise. With regard to sentencing, there are clear guidelines, which include guidelines from the Court of Appeal over sentencing where there is an impact on children and other dependants.

[Lord Trefgarne (Con)]

My Lords, is my noble and learned friend satisfied with the arrangements for looking after the most elderly prisoners, who, although small in number, need special facilities?

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[Lord Keen of Elie]

I am obliged to my noble friend. There is an issue of an ageing prison population, and that is addressed in our management provision for prisoners in custody.

[Baroness Butler-Sloss (CB)]

I do not know whether the Minister is aware that although there are guidelines, they do not seem to be getting through to a number of judges. I have been told anecdotally of judges who do not know about the community centres for women.

[Lord Keen of Elie]

I am not aware of the noble and learned Baroness’s source of information in that regard, but clearly, we need to ensure that these guidelines are properly understood at every level of the judiciary.

National Probation Service

Lord Keen of Elie Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government what plans they have to review the effectiveness of the National Probation Service.

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

My Lords, the National Probation Service supervises the highest-risk offenders. The Chief Inspector of Probation has consistently found the overall performance of the National Probation Service to be good. The Ministry of Justice has no existing plans to review the effectiveness of the NPS.

[Lord Beecham (Lab)]

My Lords, the Justice Committee’s report is a damning indictment of the coalition Government’s so-called transformation of the probation system, with its split between the probation service and community rehabilitation companies, and with privatisation involving the usual suspects such as Serco. The committee is,

“unconvinced that … the … model can ever deliver an effective or viable probation service”,

and asserts that,

“Staff morale is at an ‘all-time low’”.


CRC performance has been “disappointing”, and the voluntary sector is “less involved” than before. The committee also criticises the Ministry of Justice’s ability to let contracts. One shocking revelation by the Chief Inspector of Probation was that 40% of offenders are supervised merely by six-weekly telephone calls. She agrees that the system is “fundamentally flawed”. Do the Government intend at all to address these problems? And can the Minister reassure the House that the chairman of the Justice Committee, Sir Bob Neill, will not be dispatched to Afghanistan when these matters are debated in the Commons?

[Lord Keen of Elie]

My Lords, I am not aware of any Member of the other place having been dispatched anywhere. With regard to the Justice Select Committee report, we are of course aware of its terms, and we are taking action to consider the terms in which it has reported. As the committee observed, it is important to understand the effect that probation can have on those leaving prison. It is often a cross-government and cross-departmental issue; for example, it involves issues such as homelessness, as well as other through-the-gate services. With regard to the situation of the CRCs, there are some instances in which they are working effectively with the National Probation Service, but we accept that there have been challenges. It is clear to us that the CRCs’ services need to be improved, and that is being addressed at the present time.

[Lord Trefgarne (Con)]

My Lords, can my noble and learned friend say how far the probation service has got with reviewing the cases of prisoners who are serving indeterminate sentences, many of whom ought now to be released?

[Lord Keen of Elie]

My Lords, we continue to make advances in dealing with IPP prisoners, and the numbers continue to reduce. However, I am not in a position to say what the present number of IPP prisoners is in detention. If my noble friend wishes to see that figure, I will arrange to write to him and will place a copy of the letter in the Library.

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

My Lords, the Question of the noble Lord, Lord Beecham, is about the remaining National Probation Service, but the Justice Committee severely criticised the private CRCs for failure through poor contracting, lack of resources and a half-baked payment-by-results system that does not incentivise good practice. So through-the-gate supervision has produced only a poorly functioning signposting service, and voluntary sector involvement in rehabilitation, which we were promised would increase, has reduced instead. Will the Government now commit to implementing the Justice Committee’s recommendations, and there are many of them, and take a long, hard look at reversing this failed part-privatisation?

[Lord Keen of Elie]

My Lords, the Justice Select Committee observes that the model that was introduced by the coalition Government has been disappointing in a number of respects, and we will of course address the terms of the Justice Select Committee report.

[Lord Laming (CB)]

My Lords, would the Minister agree that we have a very high prison population, and one of the ways of reducing part of the population is to provide the courts with an effective probation service? Can he say how this report will be implemented to make sure that the courts have every confidence in the probation service?

[Lord Keen of Elie]

My Lords, we are conscious of the terms of the Justice Select Committee report which was issued last Friday, and we will give considerable consideration to its detailed terms. We agree that community sentences are often more effective than short prison sentences, particularly in reducing reoffending, and we certainly intend to look at that area in more detail.

[The Earl of Listowel (CB)]

My Lords, as the Minister will know, local authorities have a duty for care leavers up to the age of 25 to provide support with education, training and housing. As he looks at the probation service, will he ensure that there is more connection with local authorities so that they can discharge that duty properly?

[Lord Keen of Elie]

My Lords, I agree with the observations of the noble Earl that there is a need to improve cross-government approaches to the needs and requirements of those leaving our prisons.

[Lord German (LD)]

My Lords, whichever way you look at the report of Her Majesty’s Chief Inspector of Probation on the community rehabilitation companies, it is clear that the contracting mechanism has led to people using a tick-box mechanism instead of proper rehabilitation. What steps are the Government taking to alter that contracting system, which has clearly failed to do the job for which they set out that ambition, and is it really better to have a much different system now in place?

[Lord Keen of Elie]

My Lords, I acknowledge the points made by the noble Lord. We are at present in the course of negotiations with respect to the CRC contracts.

[Lord Rooker (Lab)]

Further to the question from the noble Lord, Lord Laming, what is the current prison population?

[Lord Keen of Elie]

I understand that the present prison population is in the vicinity of 93,000.

Privately Financed Prisons

Lord Keen of Elie Excerpts

Wednesday 27th June 2018 Lords Chamber

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

My Lords, with the leave of the House, I would like to repeat the Answer to an Urgent Question given by my honourable friend the Minister for Prisons and Probation in the other place earlier today. The Statement is as follows:

“Mr Speaker, yesterday I attended the Justice Select Committee hearing on prison populations and confirmed that, in line with the 2016 White Paper and the 2017 manifesto, we remain committed to delivering 10,000 new prison places in order to replace the places in prisons which at the moment often have old, unsuitable and expensive accommodation.

During the committee testimony, I confirmed two things. First, we will be proceeding at Wellingborough with a publicly capital-financed prison, with work to begin at the end of this year or the beginning of next year, subject to the usual test of affordability and planning. I also confirmed that at the Glen Parva site we will be continuing with the current demolition and proceeding, again subject to the normal tests of affordability and planning, to a competition for a private finance initiative for the construction of the Glen Parva prison. We will then continue to push ahead with the four subsequent prisons, bringing us to the total of 10,000 places.

In addition, we are investing £16 million in further investment and repairs in the existing estate. All of this is absolutely essential because, as the shadow Lord Chancellor is very aware, much of our estate remains old, expensive and unsuitable for prisoners, and we must move to regenerate it”.

My Lords, that concludes the Statement. But before I sit down, perhaps I may come back to the question posed by the noble Lord, Lord Rooker. I gave the figure of 93,000; it should have been 83,000.

[Lord Rooker (Lab)]

It was in the newspapers.

[Lord Keen of Elie]

I am very pleased that the noble Lord knew it was 83,000, and now I can reassure him that I, too, know it is 83,000 and not 93,000.

[Baroness Vere of Norbiton (Con)]

My Lords, I respectfully remind noble Lords that this is an opportunity to question the Minister. Therefore, questions rather than long statements would be appreciated.

[Lord Beecham (Lab)]

My Lords, of course I will follow the noble Baroness’s advice—up to a point. We have one of the highest incarceration rates in Europe, exceeded only by those in some of the less advanced countries in the east of Europe. Yesterday, the Prisons Minister, Rory Stewart, said that prison numbers would rise from the current 83,000 to 93,000—the figure inadvertently quoted by the Minister—by 2022. The state of our prisons is a national disgrace as the Government struggle to recruit and retain staff, yet the Minister in the other place feebly states that he would like the prison population to go down but that it is not very likely to happen because he is not sure that there is a will among the people or Parliament to take measures to reduce the population. Given this craven approach to a critically serious problem, should not that Minister resign?

[Lord Keen of Elie]

My Lords, there is nothing craven about the approach that has been taken to the very real and challenging issues relating to our prison population. We are concerned that we should look more carefully at alternative forms of sentence, such as community orders, that would in themselves replace the requirement for sentences particularly of less than 12 months’ imprisonment. That is a matter for consideration. In addition, I remind the noble Lord that we are in the course of taking active steps to provide not only additional but new and refurbished prison accommodation in order to improve the standard of our prisons across England and Wales.

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

My Lords, new, modern prison places are sorely needed, but do not the failed Carillion maintenance contract, the CRC contracts that we have just discussed and other MoJ contracts show how far the ministry needs to take a serious look at its contracting procedures, just as Rory Stewart accepted when he was before the Justice Committee yesterday and assess tenders in a realistic and much more rigorous way? How does the department propose to improve its contracting procedures for these new prisons? Furthermore, Mr Gauke’s effort to get prisoner numbers down by cutting the number of short sentences, saving money in the process, is welcome. What proposals do the Government have to ensure that their prison building programme seeks to combine cutting numbers with transforming prisons, in both public and private sectors, to focus on rehabilitation and training rather than just containment and punishment?

[Lord Keen of Elie]

My Lords, the model of having both private and public custodial services and privately funded and publicly funded prisons has been in place for many years and has distinct advantages. On the maintenance of existing prisons, we have agreed an additional £16 million to start to improve conditions across the estate and not just to address the provision of new prison accommodation. On sentencing, as I indicated earlier, we are concerned to see a development with regard to community and non-custodial sentences. On the matter of contracts, we are pursuing and putting in place robust means of ensuring that contracts are analysed correctly and not simply on the basis of the lowest tender.

[Viscount Hailsham (Con)]

My Lords, I welcome what my noble friend said about contracts. Will he ensure that contracts make explicit and enforceable provision for useful out-of-cell activities?

[Lord Keen of Elie]

My Lords, individual terms of contract make provision for appropriate facilities to be made available to those prisoners who are in private facilities. There is a system of management oversight by the Ministry with regard to the discharge of those obligations by private providers.

[The Archbishop of York]

My Lords, I began my ministry as a prison chaplain in a young offender institution, Latchmere House, where every day some 60 to 70 young men arrived. As a chaplain you had to see them, but sometimes you did not succeed in seeing them because the place was overcrowded. In those days, the prisons were put there by Her Majesty and run with taxpayers’ money. Is the Minister confident that this private finance partnership will not create the same indebtedness from which the National Health Service is suffering? We owe a lot of money to private companies for our new hospitals. Are we walking into the same trap?

[Lord Keen of Elie]

I thank the most reverend Primate for his question. Competition for custodial services in England and Wales is well established and has been in place since the early 1990s. On the funding of new prison facilities, there are now 14 privately operated prisons in England and Wales. Some of them have been funded by PFI, but not all. We consider that the mix of public and private financing has worked and does work.

[Baroness Corston (Lab)]

My Lords, I would like to place on record my thanks to the Lord Chancellor and the Secretary of State for giving me a private briefing yesterday on what he proposes for the women’s prison estate. His announcement that there will be five women’s centres rather than five women’s prisons was very welcome. Will the Minister confirm that these, too, are to be privately run—and, if so, whether they could be run by charitable or not-for-profit organisations?

[Lord Keen of Elie]

My Lords, we are committed to working with local and national partners to develop the residential women’s centres pilot on at least five sites, as indicated by my right honourable friend the Lord Chancellor. I understand that these residential women’s centres pilots will be publicly funded.

[Baroness Redfern (Con)]

My Lords, with the abandonment of the five community prisons for women in England and Wales, the trial residential centres to help offenders with issues of finding work and drug rehabilitation are welcome. Are the proposed residential centres for women all to be privately financed?

[Lord Keen of Elie]

My Lords, as I hope I indicated earlier, the intention is that the five residential centres should be publicly financed.

[Lord Davies of Stamford (Lab)]

My Lords, is it not the case that you can achieve considerable savings in a prison system if prisons are designed and built from the start with a view to the maximally efficient use of staff, bearing in mind the need to achieve targeted levels of out-of-cell time and community time for inmates? Is it not the case that you do not get those savings unless the same organisation, be it private or public sector, is responsible for managing the prison—at least for the payout period for the necessary financing—as well as for the design and construction? Otherwise, there will be no incentive to build a prison to maximally efficient levels.

[Lord Keen of Elie]

My Lords, I do not accept that there is such a necessary link between the construction of the infrastructure and the operation of the prison. Nevertheless, we are committed to replacing our present prison estate with modern facilities to achieve the very outcome referred to by the noble Lord.

[Lord Faulks (Con)]

My Lords, I welcome the various initiatives taken by the Government in relation to the prison population—one of which was mentioned by the noble Baroness, Lady Corston—and the reduction of the prison population from what it was a couple of years ago: 85,000. Does the Minister agree that it is important when thinking about building 10,000 prison places not to become too ideological? HM Inspectorate of Prisons has found examples of good practice in both the private and public sectors. As a Government, we should be looking for examples of good and satisfactory proposals from either source.

[Lord Keen of Elie]

My Lords, I entirely agree with my noble friend’s observations. One of the reasons why we benefit from the competition between private and public provision of custodial services is that we can identify and take the best from each sector.

[Lord Cormack (Con)]

My Lords, as one who has always believed that it is the state’s duty to incarcerate and rehabilitate, could my noble and learned friend remind the House of the percentage breakdown between public and private prisons?

[Lord Keen of Elie]

My Lords, I do not have to hand the figures for the breakdown between the number of inmates who are subject to custodial sentence in privately run prisons as against those in the public sector. I can indicate that there are now 14 privately operated prisons—13 in England and one in Wales—which currently provide approximately 16,000 prisoner spaces. That is just under 20% of all prisoner spaces. As to the level of occupation between those spaces and the spaces in the public sector, I cannot give a precise figure.

Civil Liability Bill [HL]

Lord Keen of Elie Excerpts

3rd reading (Hansard): House of Lords
Wednesday 27th June 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I hesitate to take either side of this argument, given the wisdom and experience of both noble and learned Lords, who have given conflicting views. I am therefore perfectly content, for once, to allow the Minister to indicate the Government’s attitude. After all, this Bill is not ending here; it is going to another place and there will be time for people with greater acumen than mine to look into the arguments advanced by the noble and learned Lord. It will be interesting to see what the Minister makes of them, but, of course, it is not the end of the day and perhaps this elevated discussion can take place with a more useful result than we are likely to see today.

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

My Lords, I am most obliged to the noble Lord, Lord Beecham, for his positive contribution to the debate, to all noble Lords and noble and learned Lords for their observations on this amendment, and to the noble and learned Lord for moving it.

From the very outset—I go back to the Law Commission’s 1994 report on structured settlements—it was intended that a provision of this kind to depart from a prescribed rate should be very much the exception rather than the rule. Clearly, it recognised that it would be both expensive and time-consuming if the prescribed discount rate could regularly be the subject of challenge on the basis that there might be another more appropriate rate for any number of reasons. That goes some considerable way to explaining the position of the Court of Appeal in the case of Warriner v Warriner.

As the noble and learned Lord, Lord Hope, observed, I referred to a guillotine, but I qualified it with the words “almost complete”—this is a deficient guillotine; it is not a complete guillotine. I said that because, for example, the decision of the Inner House of the Court of Session, the appeal court in Scotland, in Tortolano v Ogilvie Construction, indicated that there may be cases in which the power to depart from the prescribed rate can be applied—but I accept that they will be wholly exceptional. In Tortolano, the court suggested that there might, for example, be a need to take account of a claimant who had to pay tax in a foreign jurisdiction, and that impacted upon the valuation of the award.

These are wholly exceptional circumstances, but the provision in Section 1(2) of the Damages Act 1996, which would be preserved by the words in subsection (2) of the proposed new Section A1, would allow for those wholly exceptional circumstances where the judiciary would be entitled to exercise an inherent discretion in order to achieve justice between the parties. It is in these circumstances that I would resist the amendment; I recognise that there may be room for taking this further, although I have been unable to identify it so far, to ensure that we can perhaps more clearly identify circumstances in which the exception would be applicable.

As the noble Lord, Lord Beecham, indicated, the Bill will be considered in the other place, and I and my officials would be content to explore further with the noble and learned Lord, Lord Hope, if he wishes to do so, whether the provision might be improved in some way. However, I have difficulty with that because I am concerned that if we intrude too much into this quite exceptional discretion, there is a risk of encouraging unnecessary and expensive litigation over the appropriate rate in individual cases.

On that basis, and recognising the point that the noble and learned Lord makes, I invite him to withdraw the amendment.

[Lord Hope of Craighead]

My Lords, I am very grateful to all those who have taken part in this short debate. I am grateful in particular to the noble Lord, Lord Beecham, for his suggestion that this might be considered a little further when the Bill moves to the other place. It is a very difficult issue and, as the noble and learned Lord, Lord Mackay of Clashfern, has indicated, it is very hard to find another form of words which can address it.

I am concerned about putting into the Bill something which raises false hopes. The circular from the Association of Personal Injury Lawyers indicates that it was trying to find something in the wording which is not really what the Minister was talking about. We are not dealing with cases of exceptional injury within the domestic system, which is what the association was talking about. I take it from the Minister’s reply that he would not encourage people to have a go at changing the discount rate between reviews, which would be contrary to the idea of laying down certain rules for application while the reviews subsist.

It is a very tight issue as to whether there is a point in this provision at all. But having heard what has been said, and with particular thanks to the Minister for his reply today and for the way in which he has listened to me on two occasions, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I am slightly puzzled at the effect of amendment as moved by the noble Lord, because the Bill prescribes that the rate of return must be started within a period; not every three years, or every five years, but within that period. So potentially, it seems to me—perhaps the noble and learned Lord will either correct me or confirm that I am right—that you could have a review at less than five years, depending on the circumstances. If, for example, there were a crash, as in 2008, which affected rates of return and so on very significantly, you would not have to wait up to five years to deal with it; you could have that review within the period. In effect, any time within that five years could mean a three-year review, a shorter review or something with a maximum of five years. If that is the case, is that acceptable to the Government?

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend Lord Faulks and to other noble Lords who raised this matter in Committee and on Report. On the point raised by the noble Lord, Lord Beecham, it is indeed the case that we are talking about a maximum period for review, and therefore it can be at any time within that period. What we are concerned to avoid is the situation that arose in the past where many years passed before a review was carried out.

The choice between the two periods, three years and five years, is essentially a pragmatic one, I suggest. The arguments for the two options appear to me to be quite evenly balanced. A number of noble Lords have made the point that there would be less likelihood of a gaming of the system if that period were extended to five years. It was a point made in particular by the noble Lord, Lord Marks, on Report, when he indicated that he would prefer a five-year period over a three-year period.

Following discussions with several of your Lordships after Report, we have given further consideration to the question of the length of the review cycle and we accept that a five-year maximum period could help to reduce the effect of the litigation practice of trying to game the system, as distinct from a three-year period. In light of the arguments that have been made, the Government propose to accept these amendments.

[Lord Faulks]

I am extremely grateful to my noble and learned friend for accepting the amendment and for listening generally to the arguments that have been advanced in your Lordships’ House in this connection and, indeed, in other connections.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I begin by thanking the noble Lord, Lord Sharkey, not only for his contribution to this part of the Bill but for his engagement since Report in addressing these matters. I extend those thanks to other noble Lords, including the noble Earl, Lord Kinnoull, who has also engaged extensively on these matters.

Just to be clear, the Government are fully committed to beginning the first review as soon as possible after Royal Assent and to completing it as soon as is practicable. I hope that I can extend that comfort to the noble Lord, Lord Sharkey. That is why we have no objection in principle to the amendment. The only remaining question for the Government was the practical one of whether the 90-day period will be sufficient to ensure that all necessary preparatory work can be finished before the 140-day period for the completion of the first review. The Government have begun this work and are making good progress and, although there are public expenditure rules that may affect the timing of its completion, the Government now consider that the 90-day period is sufficient.

In view of this and having regard to the strength of opinion expressed across the House that the first review should proceed quickly, I am pleased to indicate that the Government intend to accept this amendment as well. Perhaps I can refer back to the observations of the noble Lord, Lord Monks, when I move that the Bill do now pass. For the present purposes, we accept the amendment.

[Lord Sharkey]

I simply express my gratitude to the Minister and his team for accepting the amendment and their co-operation throughout the passage of the Bill.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

That the Bill do now pass.

[Lord Keen of Elie]

My Lords, in moving this Motion I thank noble Lords across the House for their careful scrutiny of the Bill throughout its passage. Noble Lords have made not only detailed but informed contributions to the debate, and that has resulted in improvements to the Bill before it passes to the other place tomorrow for further consideration.

There have been extensive amendments to the whiplash provisions and appropriate amendments to Part 2 with regard to the discount rate. We consider that the Bill is in a better place as a consequence of your Lordships’ contributions.

I have been asked by my noble and learned friend Lord Mackay of Clashfern to put on record a clarification that I provided in my letter to Peers following Report. This relates to a request by the noble Baroness, Lady Bowles, for confirmation that the words “different financial aims” in what was then paragraph 3(3) of the new Schedule A1 to the Damages Act 1996,

“do not provide an override of the conditions laid down in the earlier new paragraph 3(2)”.—[Official Report, 12/6/18; col. 1649.]

As I indicated in my letter, I can confirm that the words in question form part of the definition of the approach to investment that the recipient of relevant damages is to be assumed to take for the purpose of securing the objectives set out in paragraph 3(2) and that the words “different financial aims” cannot therefore override those objectives. It is perhaps appropriate that I put that on record.

Finally, the Government share with the House the view that insurers should be accountable for meeting their commitments to pass on savings from the reforms. Therefore, we have also committed to developing an effective means for reporting on the savings made by the insurance sector being passed on to consumers, making sure that insurers are held to account. We will bring forward an amendment to this effect as soon as possible in the House of Commons. It is quite a complex issue, having regard to, among other things, commercial sensitivity and competition issues.

The noble Lord, Lord Monks, referred to the proposed changes to the small claims limits. We consider that these are appropriate in the circumstances. Of course we are open to debate on these matters, and if the noble Lord wishes to engage with me further on them, I am content to meet with him for that purpose. He is fully aware of the Government’s position on these issues. They form part and parcel of the overall package that we consider has to be delivered to address the issues referred to in the Bill.

Again, I thank all noble Lords for their contributions to the Bill.

[Lord Hodgson of Astley Abbotts]

Before my noble and learned friend sits down, could he possibly say a word about periodical payment orders, an issue which has occupied a number of us quite a lot? He said at the previous stage that he would confirm that the Government placed emphasis on the importance of PPOs as part of the array that is available to the courts when damages are decided.

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend for that reminder. Clearly, it is our intention that this matter should be taken forward. As I indicated before, we are engaging with the judiciary on this matter, and we have engaged already with the Master of the Rolls to see what further developments can be put in place on the provision of PPOs. We share the view that the noble Lord has expressed that the appropriate use of PPOs should be encouraged, and we are grateful to the Master of the Rolls for his agreement in principle to the Civil Justice Council reviewing the law and practice regarding PPOs to see whether they can be improved. The timetable for that has not yet been agreed, but we hope it can begin towards the end of this year or early next year, with a view to completion in the summer of 2019. I hope that that reassures my noble friend.

I thank noble Lords again for their contributions to the Bill. I am content to carry on further discussions relating to the Bill during its time in the House of Commons if noble Lords so wish. Thank you.

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

Lord Keen of Elie Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 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 is a vital first step in delivering legislation to underpin our ambitious and far-reaching programme to create a modern, world-class courts and justice system that is swift and straightforward and that works for everyone. Our programme of reform will also foster innovation and cement our reputation for global legal excellence.

In our manifesto, and in last year’s Queen’s Speech, the Government committed to modernising our courts and tribunals so they are fit for the 21st century. The way justice is administered and delivered in our courts and tribunals cannot stand still while the world changes around them. The justice system must embrace new technologies and seize the opportunities of the digital revolution. It must work for, and fit in with, the way people live their lives today. But modernisation must also ensure that the judiciary and staff who work in our courts and tribunals are empowered to deliver smooth and efficient justice. We have a world-class judiciary, and through the Bill we want to enable it to continue to deploy its time and expertise where and when it is most needed.

The Bill will assist in a number of different ways. It will allow suitably qualified and experienced staff to be authorised to handle uncontroversial, straightforward matters under judicial supervision. This will free up judges’ time to focus on more complex matters and will improve the efficiency and effectiveness of the courts and tribunal system. The independent procedure rule committees will determine which functions staff may exercise in each jurisdiction. These judicially led committees are the right bodies to take these decisions, and this will ensure that the powers are properly scrutinised by judges, practitioners and other interested parties.

The Bill will make it possible for staff to carry out judicial functions in the Crown Court, where the activities of court officers are currently restricted to “formal and administrative matters” only. The Crown Court judiciary currently spends far too much time on routine tasks which could be delegated, such as changes to the starting time of a hearing, or changing the pretrial preparation hearing date, even if the parties are all in agreement about these matters. The Bill also removes the post of justices’ clerk, to enable the creation of a more flexible, cross-jurisdictional leadership role for authorised staff.

All this is subject to a robust framework of authorisation that affords the court and tribunal staff who exercise these functions the right protections and safeguards. Most significantly, the Bill makes such staff independent of the Lord Chancellor but accountable to the judiciary. Courts and tribunal staff will be able to exercise judicial functions only once authorised to do so by the Lord Chief Justice or his nominee, or the Senior President of Tribunals or his delegate. The judiciary will grant such authorisation only when satisfied that the relevant staff have the necessary competence and experience to exercise these functions. The Bill also applies to authorised staff the same protections that currently apply to justices’ clerks and assistants to justices’ clerks carrying out judicial functions in the magistrates’ and family courts. This includes protecting them from costs in legal proceedings and indemnification in respect of anything they do, or do not do, when exercising judicial functions in good faith.

Alongside these changes, the Bill includes measures to ensure that the system of judicial deployment is as flexible as possible. It will give the Lord Chief Justice and the Senior President of Tribunals greater flexibility to make the best use of our judges’ experience, expertise and time. The judicial measures in the Bill include enabling recorders to sit in the Upper Tribunal and senior employment judges to sit as judges in the First-tier Tribunal and Upper Tribunal. This will broaden the pool of expertise that the tribunals can draw from to help them meet business needs. They also include extending the range of High Court judges to act as arbitrators. This will help meet the growth in demand in recent years for arbitration—for example, to resolve cases in the Chancery Division of the High Court. They will also remove the restriction on a judge being the president of more than one chamber of the First-tier Tribunal or Upper Tribunal. This will give the Senior President of Tribunals greater flexibility to manage the leadership of the tribunals without having to recruit and appoint a new chamber president immediately that there is a vacancy. Taken together, these measures will enable the judiciary to respond to the changing demands of the case loads of different jurisdictions and will make the best use of the existing cohort of judges to benefit all users of our courts and tribunals.

We are delivering the court reform programme in partnership with the senior judiciary. I am pleased that the Lord Chief Justice and the Senior President of Tribunals have welcomed the Bill, commenting that its introduction is,

“a positive first step in legislation to deliver reform”.

Most of the measures have already been before Parliament as part of the Prisons and Courts Bill, which fell when the general election was called. The Courts and Tribunals (Judiciary and Functions of Staff) Bill is very much a first step, and we will bring forward further courts legislation as soon as parliamentary time allows.

We have not stood still waiting for this Bill; we have been pressing on with reform in areas where primary legislation is not required and we are making significant progress in enabling access to justice through online and digital means. In May, we rolled out nationally an online divorce service, allowing couples to apply for uncontested divorce digitally for the first time. People can also now make pleas online for low-level offences, such as traffic offences, and they can respond to jury summonses, track social security appeals, and issue and respond to civil money claims, all online. Over 16,000 people have already engaged with these pilots and are getting straightforward, digital access to the courts for the first time. The Bill supports that wider reform by making sure that we make best use of our judiciary and courts staff as we develop these new approaches to delivering justice.

The Bill, and our wider package of reforms, will ensure that our courts and tribunals system is fit for the 21st century and the digital age. It will help to ensure that both the judges and staff of our courts and tribunals are able to respond to the changing demands of a reformed system and, ultimately, to deliver better services for court users. The Bill marks an important first step in delivering a reformed courts and tribunals system and I commend it to the House. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, it is perhaps too late to bring our court system into the 20th century but this is the opportunity to take it into the 21st century. This may be a small step, but a small step on a long journey, when properly directed, will take us closer to our goal, and that is the intention of this legislation. To that extent it has been welcomed around the House. Let me address some of the points raised by noble Lords in the course of this helpful discussion.

First, we have seen the development of digital access, by way of pilots and its wider use, in conjunction with the issue of redundancy within physical court buildings. That means that there has to be a balance between the development of that digital provision and the closure of courts, as anticipated by the noble Lord, Lord Beecham. That will continue. However, it has to be a balancing act—we appreciate that—and judgments will have to be made. We should not allow one aspect of digitisation to run ahead of the necessary demands for physical court buildings, and we have that in mind.

The noble Baroness, Lady Chakrabarti, spoke of the need for legislation so that we could review what was happening with the digitisation process. However, with respect, the purpose of primary legislation is to implement law, not to review that which we can already do. Of course, there are means and methods by which we can keep in mind and review the progress of the changes that we are taking forward.

The noble Baroness also referred to Clause 3 of the Bill and the delegation of official functions. There are two aspects to this: the delegation of judicial functions and the provision for legal advice. The two are distinct and have to be understood as being so. One should not confuse the two or push them together.

On the question of legal advice, justices’ clerks and assistant justices’ clerks are highly qualified individuals who, for a long time, have been in a position of tendering legal advice within the magistrates’ courts and the family courts. That, essentially, will continue; there will be no fundamental changes. It is hoped that these senior and well-qualified individuals will be able to deploy their talents beyond the magistrates’ courts if necessary. That is one aspect of flexibility that is being considered. However, when determining their qualification and function in the provision of legal advice, it is intended that these provisions will be specified by the Lord Chancellor in regulations in order that we can maintain the present system with one or two developments to it.

The staff who will be authorised to carry out certain judicial functions—the “box work” of district and circuit judges—will be determined by the independent jurisdictional rule committees, which are the appropriate bodies to take these decisions and ensure that the powers are properly scrutinised by judges, practitioners and other interested parties. It will be part of the role of the rule committees in determining the functions to consider whether staff should be required to have particular experience or qualifications. That is the level at which this should be done.

The noble Baroness, Lady Chakrabarti, also referred to the use of temporary judges. We consider that there are appropriate safeguards in place with regard to the deployment of temporary judges. We have to remember that there are some highly experienced members of the legal profession who would prefer to maintain their position as temporary judges rather than go forward to a permanent appointment because of the flexibility it provides for them. That is an extremely useful resource and not one that we would wish to imperil.

The noble Lord, Lord Beith, reminded us that there were provisions in the Prisons and Courts Bill that went well beyond the provisions in this Bill. I fully accept that, and in particular the issue—also raised by my noble friend Lady Newlove, who is the Victims’ Commissioner—of the cross-examination of victims of domestic violence. It does not fall within the purview of this Bill but we have it at the forefront of our minds and are determined to take it forward. It is an issue of parliamentary time.

The noble Lord also referred to the use of consolidation Bills. My noble and learned friend Lord Mackay of Clashfern alluded to the difficulties that sometimes arise in ensuring that the Joint Committee on Consolidation Bills is quorate. That is not because of the availability of Members of this House but possibly because of the non-availability of Members of the other House, given that it is a Joint Committee. We see the usefulness of consolidation as a way forward with regard to sentencing. I am aware of the work that the Law Commission has been and is still doing on this matter, but it will be necessary for some primary legislation to be brought forward in order, as it were, to establish a pathway for such consolidation provisions. We are conscious of that and again, we have it in mind. It is to be hoped that we will see some further developments in this area. Reference was also made to the utility of the Law Commission procedure for its own Bills, and again we are conscious of that when parliamentary time is limited.

My noble and learned friend Lord Mackay of Clashfern also alluded to the fact that while Scotland very sensibly managed to retain a Supreme Court, England and Wales rather lost their way in that regard. I am not privy to how it came about, but they agreed to cease to be a supreme court and became a senior court instead. It may be that there is room to revisit that issue at some point, but whether in the context of this Bill or otherwise is a different matter.

The noble and learned Lord, Lord Thomas of Cwmgiedd, welcomed the Bill and I thank him for that. He referred to the importance of flexibility in the deployment of judicial availability, and the point made by the noble Lord, Lord Marks of Henley-on-Thames, is one I agree with entirely. While clearly wanting to have flexibility in the deployment of our judicial asset, we do not want to lose the benefit of the specialist expertise that has been built up in areas such as family law, mercantile law, and the example he gave us of the Technology and Construction Court. We and the Lord Chief Justice will be conscious of that when taking forward the powers here with regard to cross-ticketing, as I believe it is sometimes called.

My noble friend Lord Hodgson of Astley Abbotts raised the question of the judicial retirement age. What I would say at this stage is that we are awaiting the report of the Senior Salaries Review Body, which I think is due in the late autumn, with regard to judicial salaries and pension conditions. I am aware that there have been issues with the judicial pension situation in particular. Once we have the report, it may be possible to look again at the judicial retirement age. My understanding is that at present, the average judicial retirement age is 67 or 68, so it is not a case of the judiciary actually going as far as the existing ceiling. There may be other explanations for that, including the desire of some in judicial office to contemplate an alternative career structure when they cannot proceed beyond 70 on the judicial Bench. It is clear that that requires further consideration.

My noble friend Lord Flight raised the issue of a dedicated housing court. I am aware of the discussions that have taken place on this. Sir Geoffrey Vos recently alluded to the fact that property disputes can take place anywhere between the county court, the First-tier Tribunal Property Chamber, and the High Court. We intend to consult later in the year, I hope, on the provision of a housing court so that this issue can be addressed.

The noble Earl, Lord Listowel, referred to the Family Drug and Alcohol Court. I do not have up-to-date details on what is happening with the funding for that but I undertake to write to him in due course. I will place a copy of the letter in the Library.

On the points made by the noble Lord, Lord Beecham, particularly that we should engage and consult widely before taking further steps, the danger is that that will engender further delay in the implementation of a courts modernisation process, which should not be unduly delayed if possible. We consider that there is general consensus about the need to move towards a more effective, modern and efficient courts system, involving the digitisation of the courts process but remembering the risk that some people may somehow be excluded from access to justice unless their needs and requirements are catered for. We are conscious of that.

With that, I hope that noble Lords will accept that, as I said, this is a small step but a step in the right direction that takes us closer to our goal. I therefore ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

Private Burial Grounds

Lord Keen of Elie Excerpts

Monday 18th June 2018 Lords Chamber

[Baroness Hussein-Ece]

I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare an interest as a member of the Tottenham Park cemetery charitable trust, which is run by families of the privately run cemetery where my own family members are buried.

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

My Lords, the Government have agreed that the Law Commission should include a project aimed at streamlining and modernising the law governing the disposal of human remains in its current programme of law reform. Further details of the project and its start date will be announced by the Law Commission.

[Baroness Hussein-Ece]

Is the Minister aware that privately run burial grounds remain unregulated in law and are only loosely governed by guidelines? Is he further aware that they are often left to unscrupulous owners, as I have discovered in my own case, with no requirements for a licence or any maintenance, and that there is evidence of unlawful burials, reburials, exhumations and, in this instance, a Victorian listed chapel left to fall into ruin? The local authority, the police or any other body have little power of enforcement. Will the Government take action to ensure that these burial grounds are regulated by statute, as is the case in Scotland, and end this scandal?

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[Lord Keen of Elie]

My Lords, I entirely accept the noble Baroness’s observation on the limited regulation of private burial grounds in England. That is why we have agreed that the Law Commission should have a project aimed at addressing this matter. The present regulation, such as it is, goes back to a series of statutes between 1852 and 1857 and is of limited utility today. The London Borough of Enfield has acted on health and safety concerns reported at the cemetery referred to by the noble Baroness, and following an inspection by council inspectors, a temporary closure notice was placed on the site so that necessary repairs could be carried out.

[Lord Beecham (Lab)]

My Lords, what is the current position regarding the policy of the north London coroner, Mary Hassell, of refusing to facilitate prompt funerals in accordance with Jewish and Muslim practice, following the High Court ruling that her policy is discriminatory and unlawful? I ought to declare a potential posthumous interest.

[Lord Keen of Elie]

I deeply regret that the noble Lord’s interest is posthumous. I am not in a position to answer the specific point raised by the noble Lord, but I will write to him and place a copy of the letter in the Library.

[Lord Thomas of Gresford (LD)]

My Lords, what is the policy of the Government in issuing licences under these Victorian burial Acts which permit the digging up of bodies in order to hold new burials? For how long must a person be buried before his remains are exhumed? How many licences have been issued, and have there been any prosecutions?

[Lord Keen of Elie]

My Lords, as regards private burial grounds, the removal of a body from a burial ground would be an offence pursuant to Section 25(1) of the Burial Act 1857, unless there was a statutory consent for such removal.

[Lord Cormack (Con)]

My Lords, the noble Baroness drew attention to a particularly disturbing example, but can my noble and learned friend tell the House how many private burial grounds there are in this country and whether he has reason to suppose that the circumstances that she described are replicated elsewhere?

[Lord Keen of Elie]

My Lords, I am not in a position to give even an estimate of the number of private burial grounds in the country at present, but I will make inquiries as to whether those figures are available to the Government. In the event that they are, I undertake to write to my noble friend and place a copy of the letter in the Library.

[Lord Adonis (Lab)]

My Lords, does the noble and learned Lord know whether Karl Marx is public or private property?

[Lord Keen of Elie]

My understanding is that there is no right of property in a body.

[Lord Wallace of Saltaire (LD)]

My Lords, can the Minister tell us when last there was a prosecution under the section he quoted from the 1857 Act?

[Lord Keen of Elie]

As far as I am concerned, my Lords, it is not within my living memory.

[Lord Selkirk of Douglas (Con)]

Does the Minister accept that in the past I have had a particular interest in this because one of my ancestors was buried in an Egyptian sarcophagus? When efforts were made by respected members of the public to recover the sarcophagus, it could not be found. Perhaps I may say that where private sector measures impact on the public sector, it can often give rise to offence if it means interfering with other graves.

[Lord Keen of Elie]

I am obliged to my noble friend for his question. I am not aware of the present whereabouts of the sarcophagus in question.

Civil Liability Bill [HL]

Lord Keen of Elie Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Beecham]

My Lords, I refer to my interest as an unpaid consultant to my former legal practice. A distinguished former Member of this House in the late 19th century, Lord Bowen, who served as a Lord of Appeal in Ordinary, was a noted wit. He it was who wrote:

“The rain it raineth on the just


And also on the unjust fella;

But chiefly on the just, because

The unjust hath the just’s umbrella”.

In its enthusiasm to deprive the unjust claimant in whiplash cases of the umbrella of justice, the Government’s measures, embodied in Clauses 2 and 3, will effectively remove it from the just claimant—a reversal of Lord Bowen’s scenario. As the noble and learned Lord, Lord Woolf, asserted, this is,

“a proposal which involves a genuine victim of whiplash injuries receiving reduced damages in order to deter a dishonest claimant from bringing a claim”.

Let me be clear. There can be no one in this House who wishes to facilitate false claims. All of us support the need for any claim to be founded on objective medical evidence, and it is right for this to be a requirement of any out-of-court settlement. However, as the Bar Council points out, the effect of the Bill as originally drafted, and the draft regulations that have been published, would result in reductions of between 22% and 89% in compensation for the victims of whiplash injuries for up to two years, coupled with the costs that they will have to bear no longer being recoverable by the defendants. Thus the compensation under current Judicial College guidelines, set in 2017, for a four to six-month duration of injury, would drop from a range of £2,150 to £2,703 to £470 under the draft regulations, and for a 10 to 12-month duration from £3,257 to £3,810 as a range to £1,250. Of course, the new arbitrary figures for damages would relate only to the time factor and not, for example, to the intensity of any pain suffered.

The amendment proposed by the noble Lord, Lord Sharkey, comes closer to the Judicial College guidelines, but it would be better in my submission simply to delegate the responsibility for certain tariffs to the college rather than to either Ministers or Parliament. That should be a matter for the judiciary.

The Minister’s letter of 7 June contains some welcome changes to the Bill as drafted, including a triennial review of Part 1. However, it contains a statement that underlines the problematic nature of the Government’s response. The Minister avers:

“The Lord Chancellor should set those tariffs which will act to disincentivise unmeritorious claims to reduce costs for all motorists but which will also continue to provide a proportionate amount of compensation where genuine injury is suffered”.


In other words, a genuine claimant is to recover less compensation than he would otherwise receive in order to deter the fraudsters.

But why are the insurers not more rigorous in their assessment of claims, and what happens when the fraudsters cotton on to the implication that they simply need to moderate their claims and the insurers will be content to pay up, effectively on demand, without demanding proper examination of the claim? As the noble and learned Lord, Lord Woolf, averred in a note circulated some time ago, this proposal,

“involves a genuine victim of whiplash injuries receiving reduced damages in order to deter a dishonest claimant from making a claim”.

There is of course disagreement about the extent and cost of fraudulent claims, which should certainly be resisted by insurance companies. It has been suggested that they have been too ready to settle dubious claims rather than risk the costs of defending them. But, importantly, the insurance industry’s own estimates show that the amount paid out on whiplash claims declined by 17% between 2007 and 2016, while premiums rose by an average of 71%. Meanwhile, premium tax—imposed, of course, by the Government—doubled to 12% between 2014 and 2017, and the cost of repair bills has risen by 33% since 2013. The noble Baroness, Lady Berridge, gave us further illustrations of where costs are rising. I remind your Lordships at this point that there is not a consensus on the number of fraudulent complaints brought and settled hitherto. Of course fraud must be deterred—but again I say, not at the expense of genuine victims.

Another consequence that is highly likely to flow from the Bill’s proposals is on the working of an already overstretched court system, with the increased number of litigants in person already causing delay likely to rise even further. Perhaps the forthcoming courts and tribunals Bill will impact on this, as more people who work in the system will be empowered to offer advice—although not representation, which is no longer available from legal professionals. However, there must be a risk in reducing the level of expertise in this way.

Amendments 6 and 8 in this group would restrict the application of the clause to 12 months rather than two years. Most cases are in that category, and two years of pain and discomfort is surely too long for the lowest level of compensation. Injuries that are serious enough to last over one year and up to two years are not “minor” by any reasonable definition. The effect of the reductions in damages is the removal of the right to claim full compensation. These are arbitrary and disproportionate measures.

Amendment 7 deletes an unnecessary requirement to mitigate the effect of damages which of course is already part of common law. We on these Benches support Amendment 9. On Amendment 10, there has been much pressure, understandably, for the tariff to be in the Bill. However, the problem with that amendment, and generally with Clause 2, is that the figures would be determined by the Lord Chancellor—with all due respect to former Lord Chancellors in your Lordships’ House. Our view is that, while any changes would be made by secondary legislation, the setting of the tariff should be determined by the Judicial College—and we concur with the argument of the noble and learned Lord, Lord Woolf, in that respect—in accordance with the practice as exemplified by the 14th edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases. It should be for the judiciary, not the Government of the day, to determine this, and we do not favour Amendment 10 on that ground.

Amendment 12 goes some way to meet that requirement, but still leaves it open to the Lord Chancellor of the day—now, of course, no longer necessarily someone well-versed in legal matters, as other noble Lords have pointed out—to take a position contrary to that of the judiciary. This could be a troublesome precedent for other areas of justice at a time when it seems to be increasingly difficult to recruit judges of calibre, let alone with the experience of the noble and learned Lords participating in today’s proceedings.

Amendment 29A follows in seeking to leave out Clause 13 and giving the court power where it seems that the tariff is inadequate in respect of damage inflicted. We on these Benches support Amendment 46, which would require regulations for the FCA to report on the effect of insurance practices in relation to premiums and savings.

The noble and learned Lord, Lord Woolf, made a powerful case for removing Clauses 2 and 3 from the Bill. If the real concern is the prevention of fraud, with which we all concur, we should look at other measures. These could include heavier sentences for insurance claims fraud, higher no-claims bonuses and, above all, not punishing a genuine claimant for the misdemeanours of the fraudulent or the laxity of the insurance industry in resisting the fraudster. Of course, the role of claims management companies demands rigorous examination and action.

In the light of our support for the noble and learned Lord’s proposal to delete Clause 2, we will not push our amendments to Clause 2 today, as we hope that the clause will disappear. However, should it remain, we will need to bring our amendments back at Third Reading.

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

I am obliged to noble Lords for their contributions. I will speak to Amendment 6 and to Amendments 7, 8, 9, 10, 11A, 12, 17, 17A, 17B, 18, 19, 20, 25, 26, 27, 29A, 30, 32, 39 and 46. I hope noble Lords will forgive me if I take a little time over some of the points.

I begin by picking up on some of the observations made by noble Lords but will begin with a generality. I sometimes have the feeling that, were some noble Lords faced with an enormous edifice, their response would be, “You have to explain how every component part is held together before I am prepared to believe that I face an edifice”. The reality was outlined by my noble friend Lord Faulks, who pointed out that there has been a 70% rise in whiplash-based claims in the past 10 years, during which time the number of road traffic injuries reported has dropped dramatically and during which time Thatcham Research has identified that the safety of seats and headrests in cars has improved in something like 88% of vehicles on the road, up from 18%.

Seven hundred and eighty thousand personal injury claims arising out of road traffic accidents were reported in 2016-17. That is the totality. Of those, 670,000 were whiplash claims. It is an astonishing statistic, and the edifice, let alone its component parts, is enormous. As some have already observed, there is clearly widespread abuse.

We have heard reference to the need to test the validity of claims. I noted the reference of the noble Lord, Lord Beecham, to the impact on the courts of increased litigation. One has only to stop and imagine the impact of trying to litigate 650,000 claims in the courts in order that liability can be established and the claim can be tested in each case. The cost implications of that go wider than just the impact on the courts.

There was a call from the noble Lord, Lord Marks, to do more to test the validity of claims. Again, one of the difficulties is the sheer magnitude of the problem that we now face. He also alluded to the need for further measures in relation to aspects such as cold calling, which feed this enormous industry.

To address that point, the GDPR and the Data Protection Act 2018 ensure that, where personal data is obtained through an unlawful cold call, further use of that data will not be allowed, and indeed the ICO can impose very large fines. In addition, the Financial Guidance and Claims Act bans any legal person, not just claims management companies, from making unsolicited calls relating to claims services without having first obtained consent. Crucially, changes made by that Act make it explicit that any organisation in the United Kingdom cannot make unlawful cold calls and, in addition, cannot instigate others to do so on their behalf. Notwithstanding that, there is an enormous unregulated industry out there, much of it based abroad where we cannot touch it, and it continues with these practices. It is a major social problem and requires a policy decision.

Touching on the matter of the damages, the noble and learned Lord, Lord Woolf, referred to a highly complex judicial process, but I take issue with that. As my noble and learned friend Lord Mackay of Clashfern pointed out, the assessment of damages for pain, suffering and loss of amenity is essentially a jury question. Whether you give it to a judge or a jury is neither here nor there; it is essentially a jury question and it always has been.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

11: Clause 2, page 2, line 35, after “injury” insert “or injuries, taken together,”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

13: Clause 2, page 2, line 38, after “injury” insert “or injuries”

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Moved by

[Lord Keen of Elie]

19: After Clause 2, insert the following new Clause—
“Review of regulations under section 2
(1) The Lord Chancellor must carry out reviews of regulations made under section 2.(2) The first review must be completed before the end of the period of three years beginning with the day on which the first regulations under section 2 come into force.(3) Subsequent reviews must be completed before the end of the period of three years beginning with the day on which the previous review was completed.(4) The Lord Chancellor must prepare and publish a report of each review.(5) The Lord Chancellor must lay a copy of each report before Parliament.”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

21: Clause 3, page 3, line 31, leave out “a whiplash injury” and insert “one or more whiplash injuries”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

28: Clause 3, page 4, line 15, leave out “a whiplash injury” and insert “one or more whiplash injuries”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

33: Clause 4, page 4, line 27, after “injury” insert “or injuries”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

40: Clause 4, page 5, line 6, leave out “a whiplash injury” and insert “one or more whiplash injuries”

--- Later in debate ---

[Lord Sharkey]

My Lords, Amendment 46 is in my name and those of my noble friend Lord Marks, the noble Earl, Lord Kinnoull, and the noble Lord, Lord Beecham. I am grateful to them all for their support. The amendment addresses the question of pass-through. How much of the savings generated for insurance companies by whiplash reforms would in fact be passed on to motorists, in the form of reduced premiums?

Most of the insurance companies wrote to the Lord Chancellor in March. The penultimate paragraph of their letter said that,

“the signatories to this letter today publicly commit to passing on to customers cost benefits arising from Government action to tackle the extent of exaggerated low value personal injury claims and reform to the personal injury Discount Rate”.

There would obviously need to be clarity about: the definition of a cost benefit; whether all customers would share the promised distribution or just those with motor insurance; and how the savings would be passed on. This might be in lowered premiums or just the promise of lower than expected premiums in the future, for example.

The House of Commons Justice Select Committee again noted the problem in its May 2015 report. Paragraph 3 of its conclusion and recommendations said:

“Potential savings to motor insurance customers are central to the policy justification for these reforms, but we conclude that the Government’s estimate of the pass-through rate may be over-optimistic, given the lack of robust evidence and the unenforceable nature of insurers’ promises to reduce premiums”.


The committee recommended that,

“if the reforms are implemented, the Government work with the ABI and either the Prudential Regulation Authority or the Financial Conduct Authority to monitor the extent to which any premium reductions can be attributed to these measures and report back to us after 12 months”.

Our amendment would require the Treasury to make regulations specifying that the FCA would require all motor insurers to publish a report on the savings made as a consequence of the whiplash reforms in the Bill, and how and to what extent these savings have been applied to reduce motor insurance premiums. It specifies the period to be covered by these reports as 12 months after commencement and how long the insurance companies would have to submit reports to the FCA, which would be three months. The FCA would then have a further three months to make and publish a reasoned assessment of whether the insurers have made the promised passed-on savings. The amendment also gives the FCA the power to request further reports from insurers annually as it sees fit. Finally, it would ensure that the FCA has the power to force the insurance companies to pass on savings if they have not done so, or done so sufficiently, within 30 months of commencement.

I think most if not all noble Lords would agree that the insurers should be held to their promise. To do that, we need to monitor and assess whether they have in fact held to their promise and, if they have not, to have the power to force them to do so. To do these things requires a tough and experienced regulator. Only the FCA has the resource, reputation, toughness and experience to be the regulator to do that, which is why this amendment gives it the job.

I know that the Minister feels strongly that insurers must be held to their promise and I realise that achieving this may be a rather complex matter. However, it is critical that we achieve it. It would be absolutely scandalous if savings made by insurers as a consequence of the Bill were retained by insurers. Amendment 46 sets out a method by which we can hold insurers to account for their promises. I beg to move.

[Lord Keen of Elie]

My Lords, we have on several occasions referred to the savings under these measures, which will be passed on to consumers by motor insurers. I understand that a number of Peers clearly have concerns about ensuring that this actually occurs.

I should say that the Government hold firm that the highly competitive nature of the motor insurance sector will mean that insurers have little or no choice but to pass on savings to consumers or risk being priced out of the market. An in-depth investigation by the Competition and Markets Authority in 2012 found that the motor insurance market is highly price-sensitive, driven by low levels of market concentration and high levels of penetration by price comparison websites. Resulting estimates indicate that 85% of insurance savings from whiplash measures will be passed on to the consumer. Finally, as the noble Lord, Lord Sharkey, observed, motor insurers providing cover to 84% of the UK market have already written to the Lord Chancellor to make the welcome commitment that they will pass on any savings.

That said, the Government are not unsympathetic to the underlying intention of Amendment 46, as tabled by the noble Lord, Lord Sharkey. The point is that having made a firm commitment, insurers should be accountable for meeting it. It is, however, important that any amendment in this regard is drafted with care so that it is effective but does not also impose requirements that push beyond the recognised remit of regulators such as the Financial Conduct Authority. I also observe that we must ensure that any legislative requirement in this area does not infringe on the very important area of competition law.

I therefore confirm that the Government will accept the views of Peers and develop an amendment, to be tabled in the House of Commons, that meets these requirements and provides an effective means for reporting on the public commitment made by the insurance sector, showing that it results in savings being passed on to consumers and thereby holds insurers to account. This is quite a complex and delicate process and it is ongoing at present.

I add only one further matter. Requiring a report to be made within 12 months of commencement is not likely to be the best way forward because claimants have a three-year period in which to make claims. After the Bill receives Royal Assent, there will therefore be an overhang for up to three years of claims that fall outwith the requirements for the tariff to be applied. We will have to look carefully as well at what point it would be appropriate for a report to be made and laid before Parliament. However, that is under active consideration and, in light of that indication, I hope the noble Lord will consider it appropriate to withdraw his amendment.

[Lord Sharkey]

My Lords, I am very grateful for the Minister’s answer and encouraged by it, too. I take the points about being careful on competition law and the period over which we assess the insurance companies’ return to the people they insure. I will follow with interest the progress of a government amendment as it goes through the House of Commons. Having said that, I beg leave to withdraw the amendment.

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[Lord Judge (CB)]

My Lords, as it has not emerged that the amendment is the property of the Opposition, perhaps I may add a few words in support of Amendment 47.

Lord Justice Jackson’s report was a remarkable document. It exhaustively analysed the entire structure of our civil justice system. It would not have supported the present Government’s position. I would love to read out the Justice Committee’s report—but, if I did, we would be here awfully late and no one would want to hear it. However, can we briefly recognise that the Justice Committee report is not adverse to the Government’s proposal but deals a series of hammer blows, each one individually worth noting?

“We recommend the Government should not increase the small claims limit to … £5,000”.


Bang.

“There is no policy justification for including vulnerable road users within the reforms proposed”.


Bang.

“We recommend that they be excluded from any higher small claims limit that is imposed on other RTA PI claims”.


Bang.

“We are deeply unimpressed by the inability of the Ministry of Justice to quantify”.


Bang.

And so it goes on. This is not one of those reports with recommendations that obscure their meaning, and perhaps the Minister will consider that as an important feature of this debate.

[Lord Keen of Elie]

My Lords, I will not begin with a bang but I will address the points that have been raised.

I begin by pointing out, with great respect, that the noble Baroness, Lady Hayter, may not be entirely correct in some of the propositions she advanced. She said that the £1,000 limit had been with us since 1999. It has been with us since 1991. The small claims limit in respect of claims other than personal injury and housing claims is now £10,000 and operates effectively and efficiently at that level. That has to be borne in mind as well.

The noble Baroness spoke with her consumer hat on and referred to the small guy. Reference was made to the worker with limited ability to deal with his claim. The noble Lord, Lord Bassam, referred to workers being pitched out on their own with no help and alluded to a number of examples given by Thompsons solicitors—I shall come back to that in a moment—of where they were perplexed by the way in which claims were dealt with by insurers. The noble Lord, Lord Monks, said rather modestly that Thompsons solicitors were one of the largest firms of trade union solicitors in the country. They must be the largest by quite a long way. They are well established and have been for many years. Why do we refer to them as trade union solicitors in this context? It is because one of the great benefits of union membership for workers is the availability to them of legal advice and assistance when they require it in respect of a claim, particularly one arising in the course of their employment—which is why legal aid is not available in those circumstances. So, far from the little guy, the worker, being pitched out on their own without any help, they almost invariably have the assistance of probably the largest and most established firm of trade union and personal injury solicitors in the country.

I do not decry that—it is an immediate and obvious benefit—but the disbenefit of increasing the small claims limit is that the extent to which the union will recover its legal costs will be more limited, and that will have an impact on trade unions. I understand that and one has to take it into account in the overall scheme of these provisions.

[Lord Bassam of Brighton]

The noble and learned Lord will probably accept that somewhere in the region of 6 million people are members of trade unions. That leaves a rather larger workforce who are not represented by trade unions. Those employees are in a more vulnerable position than that faced by those who are represented by a union. My guess is—perhaps the noble and learned Lord can help me here—that the majority of people will not be able to access the support they would get if they were a trade union member. So most people who come up against this limit will be affected by that.

[Lord Keen of Elie]

I note what the noble Lord says about national trade union membership, and no doubt the unions will try harder to recruit more widely. One of the obvious benefits they can hold out is the provision of legal advice and assistance for those who become members. I accept that there is a balance to be struck.

Amendments 47 and 48 seek to restrict the increase in the small claims track limit for whiplash injury claims to a maximum of £1,500, as opposed to the proposal that there should be an increase to £5,000. They also seek to restrict the ability of the Civil Procedure Rule Committee to make further amendments to the upper limit. As we have indicated before, motor insurance premium costs are increasing as insurers pass on the cost of dealing with the continuing high number and cost of whiplash claims. I referred earlier to the 2017 election manifesto provision that the Government were committed to cracking down on these claims and ensuring that the money saved was returned to consumers through lower premiums. These amendments would maintain the burden on ordinary motorists by restricting the flexibility of the Government to reduce the costs of civil litigation through changes to the Civil Procedure Rules.

Whiplash claims are generally straightforward and do not routinely require legal advice. The small claims track is suitable for such claims. It is designed to be accessible to litigants in person, and the Government are working closely with stakeholders to develop a comprehensive package of guidance and support for users.

The Government have chosen to increase the small claims limit for road traffic accident personal injury claims to £5,000 for good reason. This limit, as I said, has been set at £1,000 since 1991 and, as compensation levels have risen, the small claims track no longer covers the same breadth of claims as it once did. Following consultation, the Government believe that increasing the limit for RTA personal injury claims to £5,000 is a careful and proportionate increase, particularly having regard to the fact that the limit for other claims, with the exceptions I mentioned earlier, is now £10,000. A level of £5,000 will facilitate early and expedited settlement under the proposed tariff structure and will encourage insurers to challenge unmeritorious claims, many of which are not now challenged because of the potential legal costs.

A decision to tie such limits—currently, for good reasons, enshrined in secondary legislation—to a restrictive primary legislative process would be inflexible. The Civil Procedure Rule Committee, under the leadership of the Master of the Rolls, sets out the rules of procedure to ensure that the civil justice system is fair, open and effective. It is the body that sets the financial upper limits for the current three tracks of the civil justice system following consultation. That system has operated effectively for some time. It is flexible and it is appropriate that procedural changes should be made in this way to the civil justice system.

However, we listened to points made earlier about the position of those who are considered to be vulnerable road users. Noble Lords will be aware that they are already excluded from the provisions of Clause 1, and it is proposed that they may be exempted also from the £5,000 limit on the small claims track. We are giving further consideration to that at the present time.

Amendment 48 seeks assurances as to the recoverability of the cost of a medical report in respect of whiplash injury claims, notwithstanding the increase in the small claims track limit. That has been addressed already. The amendment also seeks to change the nature of the small claims track itself by permitting a claimant to recover their legal expenses. We consider that, given the nature of the small claims track for personal injury claims, it would be wholly inappropriate to introduce the recovery of legal expenses. The small claims track was designed to be a low-cost process accessible to litigants in person. The rules have been purposefully and carefully drafted to ensure that both parties share the financial burden of litigation and pay their own legal costs—or, in the case of a union member, have them met by the union. That is a key advantage of the process.

A number of noble Lords have questioned why insurers do not do more to challenge potentially inflated or fraudulent claims, particularly whiplash claims. Part of that answer lies in the cost of defending a claim in the fast track. Increasing the small claims limit so that more of these straightforward whiplash claims—where the insurance industry tells us that liability is admitted in around 90% of cases—are heard in a small claims court will encourage insurers to challenge unmeritorious claims. By contrast, challenging a claim in the fast track is an expensive process that insurers not unnaturally seek to avoid. So there are very clear cost advantages overall in increasing the limits for the small claims track. Where a case is considered to be of a degree of complexity such that it would not lend itself to the small claims track, clearly the court can direct that it should go on to the fast track.

Therefore, in respect of Amendment 48 in particular, the idea of having different cost rules in the small claims court based on the type of claim would create confusion, would undermine the whole purpose of the small claims track and would potentially be unfair to all users of the court system. In these circumstances I invite the noble Baroness, Lady Hayter, and the noble Lord, Lord Bassam, not to press their amendments.

[Baroness Hayter of Kentish Town]

I thank not the Minister but the noble and learned Lord, Lord Judge—I will get him to move things in future. He is so much more effective than I am.

I was very disappointed by the tone of the response. I stand here as the shadow Consumer Minister, talking about consumers, and we get a sort of suggestion that this is all about keeping trade unions happy. As my noble friend Lord Bassam said, sadly there are only 6 million people in trade unions—I wish it was more. It is exactly the low paid and the people who are most vulnerable to this who are not represented by trade unions—but, even if they were, I do not accept that that makes putting up the limit somehow acceptable.

I will not take up time. I acknowledge a movement on vulnerable passengers—for which, as a cyclist and a pedestrian, I am grateful—but I am afraid that the Government’s own figures show that, by their changes, one in four of the people compensated today would no longer be compensated. If on that basis the Minister thinks that we will save costs—in other words, it is injured people who will pay—I do not think that that is good enough. It should be done not behind the scenes but in the Bill. I beg leave to test the opinion of the House.

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[Lord Beecham]

My Lords, I shall attempt to provide some sort of explanation. The amendment seeks a review of what is actually happening in the light of the changing circumstances; it does not prescribe a particular solution. It offers precisely the opportunity for the professions to contribute to ensuring that the arrangements for periodical payments suit the client, particularly those who have suffered significant injuries and may be looking for lifetime support. It is very much an open request, and the expertise of the noble Lord—and others, of course—is very welcome in dealing with it.

Amendment 73A in my name also seeks a different review on the assumptions on which the discount rate itself is based and how investors have dealt with that over time. As will be seen, the review should, I hope, indicate whether the assumptions on which the discount rate is based need to be changed, and set out any recommendations.

This is entering new territory, and it is reasonable to have a report within a reasonable time—three years is probably long enough—to allow a proper examination of the impact of the new arrangements. For that matter, there is a question of course about how often there should be such a review. It would be difficult to prescribe, because interest rates and returns on investments change. We have been living in a fairly good period in terms of returns, but that may not last. So periodic reviews should be very much part of the agenda.

On the amendment proposed by the noble Lord, Lord Hodgson, I strongly support the position that he takes and hope that the Minister will feel sympathetic to it and to the other amendments in this group.

[Lord Keen of Elie]

I am obliged to noble Lords. In speaking to Amendment 49, I shall also address Amendments 50, 73, 73A and 89. Clearly, we welcome the support on all sides of the House for the appropriate use of periodical payment orders as a means of ensuring that the anticipated future needs of an injured person are met. Of course, periodical payment orders avoid many of the uncertainties inherent in taking damages for future loss as a lump sum.

My noble friend’s Amendment 49 would require new rules of court to be made to highlight features of PPOs that may make them more appropriate than a lump-sum payment for a person with a long-term injury who is risk-averse, who would otherwise receive a large award for damages for future pecuniary loss. In responding to the very similar amendment tabled by my noble friend in Committee, the Government underlined their support for the use of PPOs. However, they also recognised that claimants and defendants must be able to make choices, and that the best choice for any individual is dependent on the circumstances of their particular case. My noble friend Lord Faulks pointed out that under Section 100 of the 2003 Act it is open to the court to insist on a PPO being utilised. As far as I am aware, the court has never actually exercised that power, but it does exist in statutory form.

It is vital that claimants who have suffered long-term serious injuries are well informed as to the implications of their choice between a lump-sum payment and a PPO, irrespective of whether their particular case reaches such a stage that the court has to consider whether to order a PPO. The Government remain fully committed to ensuring that appropriate advice is available to claimants in all cases. We are working to encourage the use and understanding of PPOs. In particular, we will over the coming months provide, or at least endorse, guidance that ensures claimants fully understand the choice between a lump sum and a PPO, and investigate whether current advice received by claimants on the respective benefits of lump sums and PPOs is effective.

Over and above that, we have listened carefully to the points raised in Committee and in further engagement with noble Lords. I am obliged to many of them for their engagement in the period running up to this stage of the Bill. The Lord Chancellor has now written to the Master of the Rolls on this matter, and I am pleased to say that he has recently agreed in principle to the Civil Justice Council, with its specialist expertise, exploring the issue with a view to suggesting the most practical, beneficial steps to increase the use of PPOs within the current system. The Government are grateful to the Master of the Rolls for this.

Taken together, we believe that these steps will ensure that focused and practical action will be taken to identify effective reforms that will encourage the use of PPOs whenever they are suitable. These measures can be tailored to address specific identified problems. Rules of court may be part of the solution, but they will relate to the practice and procedure of the courts. That is the appropriate function of rules of court and their related practice directions, not providing guidance as to when one form of taking an award of damages might be better than another, which might be better in guidance itself. In light of that explanation, I hope that my noble friend would consider it appropriate to withdraw his amendment.

I turn now to Amendment 50 in the name of the noble and learned Lord, Lord Hope, which, as he says, would require the court to consider certain factors in deciding in an individual case whether it would be appropriate to take into account a different discount rate to that prescribed by the Lord Chancellor. As he pointed out, the wording in the present Bill reflects almost exactly the wording that appeared in the original provisions in the Damages Act 1996. The application of those earlier provisions is, of course, coloured by the decision of the Court of Appeal in Warriner, and the more recent decision in the Inner House in Tortolano. In light of that, I wish to give further consideration to the matter that the noble and learned Lord has raised to come to a view as to whether something might be done to tailor the wording to address the almost complete guillotine that is, in effect, in place in the two Appeal Court decisions.

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[Lord Hodgson of Astley Abbotts]

My Lords, I said that my amendment was designed to tilt the balance in favour of PPOs, and I am grateful to the Minister for his comments. It is good to know that guidance will be rewritten to draw attention to the PPO advantages, and to hear the news that the Lord Chancellor has written to the Master of the Rolls on using the Civil Justice Council to make improvements in that regard. Before I withdraw my amendment, can my noble and learned friend say how long he thinks it will be before the Civil Justice Council produces some results from that discussion and consultation?

[Lord Keen of Elie]

I cannot at this stage answer that question. However, I will consider the point and write to my noble friend, and place a copy of the letter in the Library.

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble and learned friend and, on that note, I beg leave to withdraw the amendment.

Civil Liability Bill [HL]

Lord Keen of Elie Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. In speaking to Amendment 53, in the name of my noble friend Lord Hodgson, I shall speak also to Amendments 56, 60, 63, 69, 75 to 77, 79 to 86 and 88. I shall not, however, be speaking to the amendments in the next group, although I appreciate that the noble Lord, Lord Marks, referred to them. On that point and the submissions made by him, the period for review is not fixed either at three years or five years. It is not the case that review would not be available in years one to four if it was five years. The Bill is clear that the three-year period following the last review is the outlier—it is the maximum period—and it is there to ensure that we do not face the situation that we have had in the past where, for one reason or another, no review takes place over many years whether or not a panel or anyone else believes that such a review should have taken place. I wish to make that clear.

The reason we have grouped the amendments in the way we have is because they are generally concerned with the creation of a standing panel or make provision for the panel rather than the Lord Chancellor to determine when the rate should be reviewed and how it should be set. Amendment 53 would replace the system proposed in the Bill for reviewing the discount rate with one without time limits under which the need for the rate to be reviewed would be determined by the expert panel; and it provides that the panel will make its decision by reference to whether the nature of returns on investment has sufficiently changed for a review to be needed. I recognise that Amendments 56 and 60 are consequential drafting amendments on Amendment 53 to remove references to the three-year maximum period that we find in the Bill.

Amendment 77, again in the name of my noble friend Lord Hodgson, would make the obligation on the Lord Chancellor to establish the panel a one-off obligation rather than an obligation on the occasion of each review. Again, that is clearly consequential—as is Amendment 81—because if there is a standing panel there would be no need to deal with the simultaneous review as the panel would not cease to exist at any point.

Amendment 63, in the names of the noble Lords, Lord Marks and Lord Sharkey, would require the Lord Chancellor to have regard to the views of the panel in deciding when to commence any subsequent review of the rate. The expectation underlying the proposal is that the panel will be established again on a permanent basis. I will come back to the observations of the noble Earl, Lord Kinnoull, about that in a moment.

Amendments 75 and 82 would require the panel to be responsible for advising the Lord Chancellor, broadly on an annual basis, whether the rate should be reviewed and also for advising him or her in respect of the second and subsequent reviews of the rate. Again, Amendments 76, 79 and 83 through to 86 are consequential on these changes.

On the point made by the noble Earl, Lord Kinnoull, about who the Lord Chancellor would consult in deciding whether or not there should be a review if there was no standing panel, the answer is that he may consult who he wishes in that context—for example, it is open to him to consult with the Government Actuary and Her Majesty’s Treasury as to whether or not economic conditions are such as to prompt him to consider a review. There is no limit as regards the inquiries he may make in order to inform his decision—I emphasise his decision—as to whether or not a review will be required.

The panel’s expertise will be in technical matters and its introduction will inject expertise and help to ensure that the rate is reviewed properly with full expert consideration of the issues. However, deciding whether the current rate is no longer appropriate engages issues of judgment as to the level at which the rate should be set and we do not consider that the panel would be well placed to make that decision. It is a question not only of monitoring investment returns, but of making a broader judgment as to the social impacts of, for example, a change in the rate.

The Government therefore consider, as did the Justice Select Committee, that the Lord Chancellor should be responsible for this decision. To ask the panel to make, in effect, a substitute judgment as to what the rate should be would be contrary to its nature as an expert panel in providing merely technical advice. Again, we do not consider that the panel should be in that decision-making position. The Lord Chancellor, of course, has to make a properly informed decision in reaching a conclusion on the outcome of a review.

We have listened to concerns expressed by noble Lords and others in Committee that a long-stop fixed review period might result in all parties to litigation somehow engaging in what is termed gaming the system in expectation of a change to the rate. Obviously, we share a desire to ensure that as far as possible that sort of conduct does not take place. On one view, a standing panel might mitigate some of the potential gaming at the end of a fixed period, but we fear it would increase the frequency of gaming around the intervals at which the panel would meet. Claimants and defendants can also watch changes in rates of return, and it will not take long for them to anticipate when there might be a degree of change in investment returns that might trigger the panel’s interest in a review. We consider that whichever route we take there is always the risk of gaming. It is something we want to minimise, but we are not persuaded that a standing panel would be the means by which to minimise the gaming of the system, as it has been termed.

Delivering regular and broadly predictable timings for reviews was the principal concern of those we consulted when they replied to the consultation in March 2017. We know from responses to the consultation and pre-legislative scrutiny that the majority of claimants and defendants want and benefit from certainty and predictability. We consider that the approach proposed in these amendments would make the system less certain and perhaps less predictable. We consider that the present approach will deliver a process that will see the rate reviewed at least every three years following the first review. As the noble Lord, Lord Marks, conceded, it is not a fixed term. This will ensure that there is not the possibility that the rate will again be left without formal review for a period of about 16 years, but, of course, the Lord Chancellor will be able to review the rate at any time in the period if he or she consider that the rate is no longer set at the right level.

The reality is that there will always be litigants anticipating what may happen because of changes in the market and seeking to take advantage of them, but we must seek to mitigate and minimise that risk. I emphasise again that the fixed period within which a review must be begun is a maximum period.

I accept that in theory it would be possible to combine a standing panel with the Lord Chancellor deciding when the rate is to be reviewed, but such a panel would probably be inactive for considerable periods and it would increase the level of cost and bureaucracy required. That is something that we do not consider desirable. While the precise estimate for these will depend on how often the panel would consider whether there should be a review, a permanent appointment would require some form of continuous funding and administration.

Amendment 88, which is also in the name of my noble friend Lord Hodgson, would remove the provisions in paragraph 8 of the new Schedule A1 that cover the possibility of the Lord Chancellor deciding on the occasion of the review to set no rate or no rate for a particular class of case. They make clear, for example, that a reference to a review of the rate includes reference to a review of a situation where no rate has been prescribed. Even if the Lord Chancellor decided not to set a rate, paragraph 8 ensures that the review mechanisms in the Bill will still apply and that “no rate” will be reviewed at the next appropriate juncture in the same way as if it had been a rate. The provisions of paragraph 8 do not, contrary to some of the fears expressed in Committee, provide a means for the Lord Chancellor simply to dismantle the machinery for the required reviews of the discount rate.

It may be helpful in understanding paragraph 8 to consider the present law. The new section A1(1) reproduces provisions in the Damages Act 1996 that indicate that the court must take into account such rate of return, if any, as may from time to time be prescribed by an order made by the Lord Chancellor. The wording implies that the Lord Chancellor might decide to set no rate under the present law, and the provisions in paragraphs 8(2) to (4) are intended to clarify how this power would operate.

I concede that the possibility of no rate being set for some or all classes of case may well seem an unlikely eventuality. However, just as is envisaged in the present law, circumstances might arise in which a category of rather unusual cases occur that call out for individual assessment of an appropriate discount rate. Preserving a “no rate” provision would enable the parties in the cases affected to plan their litigation with the certainty that the discount rate would have to be settled as part of the case. That would be a potential benefit for claimants and defendants in unusual cases. Removing these provisions would be unhelpful to future users of the Bill.

Amendment 80 in the names of the noble Lords, Lord Marks and Lord Sharkey, aims to indicate that the four appointed panel members are expected to approach the work of the panel as experts with the objective of advising the Lord Chancellor in a way that is fair to the interests of both claimants and defendants. This is the spirit in which the appointed panel members are intended to approach their work. That is one of the reasons why they are required to take account of the duties imposed on the Lord Chancellor in determining the rate. The amendment is expressed in terms that appear to be aspirational in nature rather than obligatory, leaving us a little uncertain as to what the effect is intended to be.

The Government have already made clear in the response to the Justice Committee our intention to recruit panel members who will act as independent experts and that appointed panel members will be required to disclose potential conflicts of interest. The provisions in the Bill and the assurances already given will lead to advice from the panel that will be fair to the interests of claimants and defendants. We do not consider that any further express provisions are needed in order to ensure that result.

Amendment 69 in the name of the noble and learned Lord, Lord Judge, raises the question of the Lord Chancellor being expressly required to consult the Lord Chief Justice during the review process. I note the point made by my noble friend Lord Faulks with regard to the potential implications for the Lord Chief Justice. There are some grounds for that because under other legislation—such as, for example, the 2007 Act with respect to the regulation of the legal profession—there is a provision where a party applies for regulatory status, but the Lord Chancellor will consult with the Lord Chief Justice on such an application. Indeed, that occurred recently; the Lord Chief Justice gave his opinion and that is now subject to scrutiny in the context of an ongoing application for judicial review. It is a rather unfortunate situation that the views of the Lord Chief Justice, which he is obliged under the statute to express, come under the scrutiny of his own Administrative Court. So there are potential difficulties here.

Nevertheless, I recognise the force of the point that is made under reference to Amendment 69. On the one hand, I can say that the Lord Chancellor is of course free to take evidence on the question of how he is going to fix the rate, and that could include evidence from the Lord Chief Justice, but that is hardly a complete answer to the suggestion that he ought to be consulted. In light of what has been said on this matter, having regard to the difficulty that was identified by my noble friend Lord Faulks, I would like to take that proposal away and consider it further in anticipation of Third Reading. I will give it further thought and will be happy to speak to noble Lords on that point in due course. In the meantime, I invite my noble friend at this stage to withdraw the amendment.

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[Lord Beecham]

My Lords, I am inclined to agree with the noble Earl about Amendments 68 and 71, but I am afraid I remain unconvinced about the five-year period as opposed to the three-year period, and find myself in the rather strange position of agreeing with the Minister. It is not as though all claimants will be five years off a review. Some will be and others will not necessarily be. There will be different timescales for individual claims, and I do not think five years is necessary to protect the integrity of the system. Some people will try to game, whatever the period. Five years is not necessarily more likely to protect against that than otherwise. Rather unusually—I am sure the noble and learned Lord will stick to the three-year period in the Bill—I will have to agree with him.

I should like to say at the end of this very long day that the House has done its usual very good job of scrutinising difficult legislation. It is a little late to try to recall everything that we have discussed and agreed, but a good job has been done today and I hope the Bill will be improved. The Minister has offered to consider a number of matters before Third Reading—and, in any case, the Bill will go somewhere else in another week’s time and come back to us eventually for further consideration. There may be changes that we have to consider at that stage.

On behalf of these Benches—or what is left of us—I thank the Minister for his running of the Bill. He has been more than willing to talk to colleagues, even when some of them, like me, are rather slow on the uptake in this rather technical area. It is not one where, in practice, I had very much to do with cases at this level, as a personal injury lawyer—thank heavens. Around the House, we have heard some very important contributions from Members from all sides, and there is every prospect of further changes being made at Third Reading or in another place on the basis of the level of debate, discussion and argument that we have had. That is a signal tribute to the work of the House.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions, not only to this grouping but to the debate as a whole that has taken place this afternoon and evening. In speaking to Amendment 54, I shall speak also to Amendments 57, 61, 62, 67, 68, 70 and 71. I do so because, although they were not formally moved in this grouping, the noble Lord, Lord Marks, made it clear that he was addressing the amendments in this group when he spoke earlier. I appreciate his determination not to repeat himself.

As I explained in Committee, the choice between three and five years is not one of principle. The three-year period adopted in the Bill represents a compromise approach based on the responses received to the March 2017 consultation, which included a wide range of views, ranging from automatic reviews at short intervals up to a 10-year fixed maximum. We have listened carefully to the arguments this evening and in Committee from noble Lords about the potential for the gaming of the system, depending on whether there is a three-year or five-year maximum between periods.

I note the observations of the noble Lord, Lord Beecham, who brought himself to agree with the Government on this matter. Tempted as I am to move away from the Government’s position in light of that, I maintain that, overall, it would be appropriate for us to look to three years. But there is no clear-cut case, and I am perfectly content to speak again to noble Lords before Third Reading if they wish to make further representations to the Government with regard to the period. So I do not close the door on that, but our position is that three years would be appropriate, and we would have to be persuaded by something that might be termed “new evidence” before we would consider moving away from that position. However, as I say, the door is open.

Amendment 67 largely replicates the provisions already in the Bill for the conduct of a review, but applies them only to the second and subsequent reviews, in light of Amendments 65 and 66. But Amendment 67 in isolation makes a relatively small number of changes to the procedure for the conduct of the second and subsequent reviews. First, it adopts the language of advice rather than response to describe the panel’s reply to the Lord Chancellor. Secondly, it makes clear that it is not just the question of whether the rate is to be changed but what the new rate is to be that is subject to the provisions for determining the review in paragraph 3 of the new Schedule A1—and that, in reaching these decisions, the Lord Chancellor should have regard to the advice from the panel. Finally, that amendment would introduce a requirement that the Lord Chancellor will consult the panel within 10 days of the start of the 180-day period for the completion of the review. This is new, but noble Lords’ proposals for the first review contain a similar provision, albeit with a 25-day period, and we are conscious of that.