Justice: Women’s Centres

Lord Keen of Elie Excerpts

Wednesday 12th September 2018 Lords Chamber

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

House adjourned at 7.48 pm.

Victims Strategy

Lord Keen of Elie Excerpts

Monday 10th September 2018 Lords Chamber

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Keen of Elie]

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

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

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

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

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

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

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

[Baroness Brinton (LD)]

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

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

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

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

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

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

[Lord Keen of Elie]

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

[Baroness Fookes (Con)]

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

[Lord Keen of Elie]

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

[Baroness Warsi (Con)]

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

[Lord Keen of Elie]

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

[The Lord Bishop of Chester]

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

[Lord Keen of Elie]

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

[Baroness Scott of Bybrook (Con)]

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

[Lord Keen of Elie]

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

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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?

--- Later in debate ---

[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?

--- Later in debate ---

[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?

--- Later in debate ---

[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.