Digital Economy Bill

Lord Keen of Elie Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Monday 20th March 2017 Lords Chamber

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

My Lords, I am obliged to the noble Baroness, Lady Hamwee. Amendment 25YX and the related Amendments 28CB, 28CG, 28DV and 28FD seek to impose an express requirement that the public service delivery power may be used to share information only to the extent that it is necessary and proportionate to do so. That covers the changes to debt fraud research and similar civil registration provisions in the Bill. With respect, the amendments are unnecessary as the powers will need to be exercised in line with the Data Protection Act and the codes of practice, which already require that only the minimum data necessary to fulfil the particular objective may be shared. It is therefore unnecessary to amend in accordance with this proposal.

The effect of Amendment 25YYD would be that the list of specified persons permitted to use the public service delivery power could be amended only to add or remove bodies. The removal of the word “modify” would affect the way that minor amendments could be made. I do not believe that the noble Baroness, Lady Hamwee, expressly referred to this amendment, but as it is listed in this group as her amendment I just mention the point because clearly it is necessary that there should be a degree of flexibility in how that provision operates.

[Baroness Hamwee]

I apologise; I thought that was in another group, though I received a note later. I would like to understand how extensive a modification might be.

[Lord Keen of Elie]

I am obliged to the noble Baroness. I am happy to explain within this group, where I understand the amendment remains. The removal of the word “modify” would affect the way in which minor amendments could be made. For example, where a body changes its name or the description of the category of a body needs to be adjusted, you would then want to modify rather than delete and start again.

Amendment 26A seeks to remove reference to,

“the contribution made by individuals or households to society”,

from the public service delivery chapter. Again, I venture that the amendment is unnecessary because subsection (10) gives examples of “well-being” but does not provide an exhaustive list. Therefore we have three categories by way of example—but only by way of example. In response to the specific observation made by the noble Baroness, Lady Hamwee, I respectfully suggest that there is nothing paternalistic or judgmental about any of the examples given in the Bill. Indeed, where a party makes a contribution to society, that benefits the contributor as well as society, which is why it is appropriate that it should be given as an example in this context.

Amendment 28AU would provide a new definition of “personal information” for the purposes of the public service delivery power. This point was raised in Committee as well. The amendment expressly incorporates the definition of “personal data” under the Data Protection Act 1998 into the definition of personal information for the purposes of these powers, as well as making clear that the Bill’s extended definition also includes deceased individuals and companies. We consider that the existing provisions set out the same position, albeit in slightly different words. I note that reference was made to the issue in Committee, and to the provision of codes of practice in that context.

The intention of Amendment 28AY seems to be to provide greater transparency by ensuring that individuals would know when information about them has been shared. Existing provisions in the Bill already require those using the powers to comply with Data Protection Act requirements as to the information that people are given about the usage of their personal data. This, supplemented by the requirements imposed by applicable codes of practice, ensures that the use of these powers will be as transparent as it can be.

Amendments 28AR and related amendments seek to narrow the exceptions to the general rule in Clause 36(1) that personal information received under the public service delivery powers may be used only for the purpose for which it was shared, to the effect that such information may not be shared for the purpose of preventing anti-social behaviour, and to restrict the exception permitting disclosure for the purpose of preventing or detecting crime to “serious” crime, as indicated by the noble Baroness. These amendments would also bring in an offence of disclosing personal information for the purposes of anti-social behaviour. The prevention of anti-social behaviour and the prevention or detection of crime are matters of significant public interest. If information sharing indicates potential criminal activity, public authorities should be able to take action. Similarly, if information received under the powers indicates that anti-social behaviour is occurring or is likely, we consider that this information should be disclosable to maintain public order. Anti-social behaviour may itself be seriously harmful to those who become its victims.

Amendment 28BM seeks to remove the power given by Clause 40(4), which allows regulations to make disclosures by newly specified persons subject to the same conditions that apply to disclosures of information provided by HMRC. That power would be used to require the consent of the original provider to any subsequent disclosures of particularly sensitive information, as is the case for information provided by HMRC under Clause 38. The amendment is undesirable, as it would remove flexibility to give enhanced protection to information from certain sources. I do not believe the noble Baroness read the provision in that form, but it is there so that enhanced protection may be given in a particular circumstance.

Amendment 28CF would impose a duty on the Secretary of State to review the civil registration power after three years, akin to the powers already provided in the debt and fraud powers. This duty was included in the debt and fraud powers to assess whether the powers deliver demonstrable benefit via an initial piloting process. The information gathered in the course of the pilot process will provide evidence for the review. It is our view that a similar duty to review the civil registration power would not be appropriate. First, civil registration information is already a matter of public record. Secondly, the powers are simply looking to update outmoded legislation to simplify and provide the flexibility to share civil registration data within the public sector to avoid the need to enact specific powers whenever a new need arises. The power has been developed to support a range of public authorities at national and local government level to transform the services that they can provide to citizens.

Finally, Amendment 39 is intended to ensure that Part 5 could not be brought into force until after the GDPR comes into effect, which would be in May 2018. This would prevent the use of the powers until that date, which would be unhelpful given that a number of bodies are keen to use the powers to achieve particular objectives, such as extending the warm home discount scheme. As we have said before, we consider that the present provisions are compatible with the GDPR—compliant, therefore, in that context—and we are committed to revisiting the codes of practice before May 2018 to ensure that they reflect the latest best practice of compliance with the GDPR.

In those circumstances, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I thank the Minister, but all that will bear some reading. We felt it important to extend some of the comments that we made in Committee to get a more extended response. Noble Lords will be pleased to know that I shall not respond to all those points. On the Minister’s first point about “necessary or proportionate”, I do not know whether he means that I misread the ICO’s comments, that the Government disagree with the ICO, or whether some of the changes to the Bill since its initial form have dealt with them. Perhaps I should just leave that hanging.

The fact that the “contribution to society” is an example does not answer our concerns. I remain anxious about it, as I do about “anti-social behaviour”, which the Minister described as being a matter of significant public interest. I do not dispute that, but data sharing is a matter of significant public interest—I suggest, possibly greater. We are told that anti-social behaviour may be seriously harmful, but it is not criminal in this context, because we have other provisions to deal with crime.

I was indeed confused about the application of the HMRC powers to other bodies, and I remain confused about whether that extension is appropriate.

Finally, of course civil registration information is a matter of public record, but the updating takes us into a very different regime. The ability to share information in bulk is very different from that to look up individual pieces of information. Can the Minister tell the House today whether the consultation to which he referred extended beyond the sharing organisations to the sort of bodies concerned with privacy? He may not know, and I may be quite out of order in asking this on Report. I do not think he is going to leap to his feet—pause—no, he is not. I do not hold that against him. It is probably not in his brief. If there was not such consultation, that answers my point.

However, clearly, I should beg leave to withdraw the amendment.

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Moved by

[Lord Keen of Elie]

25YY: Clause 31, page 30, line 23, leave out “a specified objective” and insert “an objective which is a specified objective in relation to each of those persons”

[Lord Keen of Elie]

My Lords, the Delegated Powers and Regulatory Reform Committee made a number of recommendations on Part 5 of the Bill. The Government developed the information-sharing powers through consultation and partnership over a process that started over three years ago. These measures are about improving the way the Government operate for the public benefit. Of course, data sharing must be done with transparency, safeguards and oversight. It is in that spirit that we have accepted the bulk of the committee’s recommendations. The way in which Part 5 is structured in seven chapters to deal with different data-sharing powers has meant that it has taken nearly 100 amendments to implement the recommendations, so I will spare the House from referring to every one in turn. I believe that my noble friend Lord Ashton has written previously setting out all that detail.

Our amendments place the lists of specified persons able to disclose and use information under the public service delivery, debt and fraud powers on the face of the Bill rather than in regulations. We then also narrow the powers to amend the lists. For public service delivery, specified persons will be permitted to share information only for the purposes of an objective which has been expressly specified as applicable to that person, rather than any specified objective. We have also narrowed the ability to set and amend data-sharing objectives for public service delivery, so that any specified objective must support the delivery of a specified public authority’s functions.

For water and fuel poverty, we have restricted the powers to amend the list of support measures and to add to the list of permitted recipients of information under the clause, as the DPRRC recommended. Finally, we have adopted the committee’s recommendations to remove Henry VIII powers to make consequential amendments to primary legislation, as well as to narrow the powers to review and amend the fraud and debt powers. We have ensured that any amendments can be only to improve the operation of the fraud and debt powers and there will be no way to use these powers to undo the safeguards that the Bill provides.

In addition to the DPRRC’s recommendations, the Government have tabled amendments on the following matters. Amendments 28FE and 28FF remove repetition in Clause 60(5) relating to the criminal offences which protect personal information originating from HMRC, Revenue Scotland and the Welsh Revenue Authority. By removing this repetition, the amendments avoid any confusion which might otherwise be caused.

Amendments 28FG to 28FN correct an unintended consequence of measures that were agreed during Lords Committee stage to prevent disclosures by journalists in the public interest being caught by the anti-disclosure offences in Chapter 5. The unintended effect is that the criminal offence which protects personal information disclosed under Clause 60(1), and which originates from one of the tax authorities, now applies only to disclosures made by the person who first receives the information but not those within the accreditation system who subsequently receive the information—for example, to undertake peer review or via intermediaries. These amendments therefore restore a key safeguard to the research power, which ensures that information is protected in all parts of the process.

Amendments 28FW, 28FX, 37 and 38 provide new data-sharing powers for Scottish Revenue and the Welsh Revenue Authority. Clause 70 provides the power for HMRC to share de-identified data, allowing HMRC to share aggregate and general information more widely, for purposes in the public interest. Following discussions with the Welsh Government and the Scottish Government, as requested by them, we are providing equivalent powers for devolved tax-raising bodies.

Amendment 28FY, tabled by my noble friend Lord Hunt, is supported by the Government. There is a recognised sound public policy argument for supporting the more effective operation of the Employers’ Liability Tracing Office, referred to as ELTO. The discussions at Lords Committee sparked further conversations between HMRC and ELTO officials, resulting in an agreement to take this amendment forward. This Bill has offered a timely opportunity therefore to legislate. The current clause meets the objective of helping ELTO improve its records of employers’ liability insurance policies, making it easier to identify insurers and so enable claimants to pursue compensation. Both parties recognise that there remains some work to do and it is currently unclear as to how effective HMRC data may be in helping to populate missing data. However, an enabling provision would allow more robust testing of the possibilities, with the opportunity to take these forward.

Amendments 40 and 41 enable commencement of measures by area so that the Government can ensure that measures are not commenced for Northern Ireland in the event that the Northern Ireland Assembly has not given legislative consent. Consent from the Northern Ireland Assembly is required on a number of measures, including the extension of public lending right to e-book loans, Part 5 of the Bill on digital government, the Northern Ireland provision in relation to Ofcom and, should the government amendment be agreed, the offence of breaching limits on ticket sales.

In consequence of the potential need to commence the Bill by area, these amendments also provide the power to make necessary transitional provision. The transitional powers will also be used to define small businesses in the statistics chapter of Part 5 until definitions in the Small Business, Enterprise and Employment Act 2015 come into force. I beg to move.

[Lord Hunt of Wirral (Con)]

I declare my interest as a partner in the global law firm DAC Beachcroft, and other interests set out in the register, including chairing the British Insurance Brokers’ Association and being president of the All-Party Parliamentary Group on Occupational Safety and Health. Taken at face value, Amendment 28FY would appear somewhat technical, but the Employers’ Liability Tracing Office is working well, but it could work better, and this amendment would help to facilitate that.

I am so grateful to the Minister and his colleagues for the support that they have given to this amendment, which could make a substantial difference to the capacity of the office to help to secure compensation, expeditiously and effectively, for those afflicted by industrial illnesses. When someone faces a reduced quality of life and possibly an avoidably and unnecessarily early death because of an industrial illness innocently contracted, the least that we can do is to deliver compensation as quickly as possible in the hope that the individual with the illness can enjoy at least some benefit from it. I believe that in some small way the amendment will serve to make this a more civilised and compassionate country.

[Baroness Hamwee]

My Lords, we have two amendments in this group. The Minister was just a little previous in answering Amendment 25YYD on modification, so we do not need to go back to that. Amendment 33ZYD would remove several organisations from the list of specified persons for the purposes of fraud provisions, and the amendment is here to enable us to ask whether all these require the data-sharing gateway or, conversely, whether there are many other government-related organisations; I am not quite sure what the correct term might be for organisations such as the National Lottery or the British Council, but I shall use the term government-related organisations tonight. Are there not others that might use the power? What were the criteria used to select the ones that are in the schedule?

[Lord Keen of Elie]

I am obliged to my noble friend Lord Hunt and note what he said with regard to the amendment. On the amendment proposed by the noble Baroness, Lady Hamwee, Amendment 33ZYD, which seeks to remove a number of non-departmental public bodies listed in the schedule for the fraud power, I accept that the list in the schedule is long but the fact is that many public authorities are at serious risk of fraud. Each of the bodies was considered individually before being added to the schedule, and the NDPBs have been included because they each administer many millions of pounds in grant expenditure each year, which exposes them to a significant risk of fraud.

[Baroness Hamwee]

Were any organisations considered and discarded for that purpose?

[Lord Keen of Elie]

I am not in a position to say what number of bodies were considered and discarded, but I will undertake to write to the noble Baroness on that point. All the public bodies included in the schedule must, of course, comply with the data-sharing safeguards in the Bill. Clearly, public authorities may not enter into data sharing lightly. They will have to follow the codes of practice, comply with the Information Commissioner’s requirements on data sharing and privacy and have in place all necessary protections to prevent unlawful disclosure.

The list of public bodies in the government amendments is shorter than the lists we have previously published in draft regulations although, as I indicated to the noble Baroness a moment ago, I do not know how many bodies were considered and removed before the process of listing them in the draft regulations took place. Care has been given to ensuring that we share only where there is a clear benefit, as required by the legislation. I hope that, with that explanation, the noble Baroness will withdraw her amendment.

[Lord Collins of Highbury (Lab)]

My Lords, I will take this opportunity to briefly comment on this group of amendments. These Benches did submit a series of amendments in Committee. The Minister responded that the Government were giving due consideration to the Delegated Powers Committee report, so there was no opportunity to go through some of those issues in detail. We welcome the Government’s amendments and the fact that they have responded to the Delegated Powers Committee. I have read the Information Commissioner’s briefing for Report, and I welcome the fact that she strongly supports the Government’s adoption of these amendments, which she believes will strengthen parliamentary scrutiny and government accountability.

The next group of amendments deals with the code of practice, on which we had lengthy debates in Committee, but I believe that the Government are now striking the right proportional balance between improving public and government services and the need to protect data.

[Lord Keen of Elie]

I am obliged to the noble Lord.

Amendment 25YY agreed.

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[Lord Collins of Highbury]

My Lords, in Committee I had my name to an amendment regarding the status of the codes of practice. At that time, the noble and learned Lord referred to the appropriate level of legal obligation. He certainly persuaded me that the wording “having regard to” or “complying with” did not relate to whether a public authority could ignore a code, but whether there were reasons for doing so. I was persuaded about that level of flexibility.

Of course, we were really concerned about what the codes of practice would ultimately look like, what the engagement of the Information Commissioner would be and what the Information Commissioner’s view was. On these Benches we were pleased to see not only the Government’s amendments but the Information Commissioner saying that she was extremely pleased that the Government had accepted her recommendations on there being references in the Bill to codes of practice and the privacy impact assessments.

In the light of the Information Commissioner’s overall comments and the fact that the Government have responded, we certainly welcome these amendments. However, I give notice that—the noble Baroness, Lady Hamwee, referred to this—what is in the codes and how public authorities operate them will be very important, and parliamentary scrutiny of and engagement in them will be critical in the future. I hope that we will see further drafts of the codes before they are ultimately laid before Parliament. It is really important not only that there is the highest level of consultation on them but that Members of Parliament are properly engaged in them.

[Lord Keen of Elie]

I thank noble Lords for their observations on these matters. There are of course government amendments in this group as well and perhaps I may begin with those.

This group of amendments concerns the codes of practice issued under Part 5 and those issued by the Information Commissioner’s Office. It includes the government amendments that implement the recommendations of the Delegated Powers and Regulatory Reform Committee and, as the noble Lord, Lord Collins, observed, the recommendations of the Information Commissioner’s Office. In addition, there are some opposition amendments on similar points.

We have already published draft codes of practice on data sharing. The Delegated Powers and Regulatory Reform Committee recommended that the first codes of practice and the UK Statistics Authority’s statement of principles should be laid before Parliament in draft and should not be brought into force until they had been approved under the affirmative procedure. Revisions were to follow the draft negative procedure. We agree and have tabled amendments to achieve this, and it is intended that Parliament should have a suitable opportunity to consider these drafts and any amendments thereto in due course.

A further series of government amendments will require persons disclosing personal information under relevant chapters of Part 5 to have regard to the Information Commissioner’s codes of practice on privacy impact assessments and privacy notices, transparency and control in so far as they apply to information which is being shared. As the noble Lord, Lord Collins, observed, the Information Commissioner called for explicit reference to these two codes to be made on the face of the Bill. We have worked with her office to develop these amendments, which supplement the existing requirement that the codes of practice prepared under the Bill must be consistent with the commissioner’s own code on data sharing, and I understand that she is satisfied with the steps we have taken in that regard. I hope that this will provide further assurance to noble Lords that we are committed to ensuring that best practice concerning compliance with data protection and transparency will be applied to the exercise of powers under Part 5 of the Bill.

I now turn to the opposition amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Clement-Jones. I hope I can persuade them that their amendments are no longer necessary, as the government amendments fully address the concerns of both the Information Commissioner’s Office and the DPRRC.

As the noble Baroness has explained, the amendments in their names seek to ensure further consistency with the ICO’s codes and to strengthen the role of those codes in the regime set up by Part 5, as well as providing for greater parliamentary oversight of the Government’s codes, and I believe that we are now there. The Bill already requires that codes of practice issued under Part 5 of the Bill must be consistent with the ICO’s data-sharing code of practice. The government amendments further require persons to have regard to the ICO’s codes on privacy impact assessments and privacy notices, transparency and control when exercising relevant powers under Part 5. So we are now referencing all the codes which the ICO felt were critical for the operation of Part 5.

Of course, this is not the first time we have discussed amendments that seek to strengthen enforcement of the codes of practice by requiring authorities that use the powers of determined specified bodies to “comply with” rather than “have regard to” these codes. The Government’s position remains that “have regard to” is the right weight to give to codes of this type. That is itself a legal obligation, as the noble Lord, Lord Collins, noted. Moreover, the public law will expect those who are subject to the codes to follow their stipulations unless there are cogent reasons why they should not. We note that the Information Commissioner’s own codes are themselves advisory. A requirement to “comply with” the codes could lead to their being applied in a tick-box fashion, without due regard to whether the recommendations are actually applicable to and desirable in the context of the specific data share.

On the issue of adding additional persons to the consultation obligations for the codes, since Ministers have committed before Parliament to consult publicly on the Part 5 codes of practice, we suggest that such a requirement is unnecessary. The present provisions reflect what the noble Baroness noted to be the normal position.

Finally, on parliamentary oversight, the Government’s amendments fully implement the DPRRC’s recommendations, including, exceptionally, the use of the affirmative procedure for the first codes and the draft negative procedure thereafter. They go further than the noble Baroness’s amendment, and I hope that that will be welcomed by all noble Lords. I therefore invite the noble Baroness not to press her amendments.

[Baroness Hamwee]

My Lords, I thank the Minister for that response. I had forgotten to say that I was glad to see the government amendments about the affirmative procedure—it was because of looking at those that we got those two stray amendments that were tabled in error.

The noble Lord, Lord Collins, is absolutely right about the codes of practice. I simply say, before begging leave to withdraw, that it will not be possible for amendments to be made once the codes are put formally to Parliament. That is why wide consultation and—I do not like the term—an iterative process is very important on what will be significant documents. I beg leave to withdraw my amendment.

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Moved by

[Lord Keen of Elie]

25YYH: Clause 31, page 31, line 1, after first “objective”” insert “, in relation to a specified person,”

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[Lord Collins of Highbury]

My Lords, I hesitate before intervening in this group of amendments because, the last time I intervened, my noble friend said that I must be slightly confused, as I was talking about electoral rolls, bread rolls and toilet rolls. We are, of course, conflating a number of issues in this group, but I think that there is a really good point. My noble friend has raised an important area where the public good can be served not by sharing confidential information but by ensuring the availability of information that will serve a specific purpose in relation to fuel poverty. We on these Benches are very sympathetic on that point. In Committee we tabled amendments on the common-law duty of confidentiality, and the noble and learned Lord responded to those amendments. The only point I would make now is that it is vital that medical records remain confidential. They contain information that can affect not only people’s health but their access to jobs and to insurance. Access to a whole range of things is at risk if it is felt that this information will not remain confidential. Of course, the consequence of that is another public health issue, because if people do not have confidence that their records will remain confidential, they will not go to their doctor, they will not tell their doctor and they will not seek the treatment that they perhaps should. So there is a very strong case here.

One other point—it is not related to this group of amendments so I ask for forgiveness—is that there is a balance between maintaining confidentiality and security. Many of the problems in the health service, and why people lack confidence in it, are not about policies and procedures but about the health service’s ability to maintain a secure IT system. I hope the noble and learned Lord will be able to address those issues. The assurances that my noble friend has sought about future ability are really important. The ability to communicate—not the details of people’s confidential records but one government department to another and one public agency to another, to serve a very clear public need—is vital.

[Lord Keen of Elie]

I am obliged to noble Lords, and in particular I thank the noble Lord, Lord Whitty, for his continued interest in this area and for taking the time to meet and discuss this matter at some length with me and the Bill team. Clearly, as the noble Lord, Lord Collins, observed, this is an important part of the fuel poverty agenda. That is why it takes on such considerable importance even when faced with issues such as medical confidentiality.

On the point about common-law confidentiality, and medical confidentiality in particular, it is not an absolute; there are already statutory gateways through which information can and must flow on occasions, and therefore one must not take it that medical confidentiality is somehow completely ring-fenced and separate from the world that we actually live in. There are circumstances where there should be, has to be and is disclosure. It may be possible—I put it no higher in terms of this Bill—to address a further gateway. However, one should not confuse any mechanism within the Bill with the consequences of human or IT failure, however regrettable they may be. I agree with the noble Lord, Lord Collins, that one has to have regard not only to the structure within which information is shared but to the need to ensure that the sharing process is itself secure. But they are separate issues.

The noble Lord, Lord Whitty, acknowledges that some parts of his amendment may not be necessary. Amendments 27 and 28 would provide that information can be shared with licensed electricity and gas distributors for the provision of fuel poverty assistance. They can already be added to the data-sharing arrangements in Clause 32 by regulations. The Government will consider whether to exercise this power in the context of considering the future role of electricity and gas distributors in delivering fuel poverty schemes. I reassure the noble Lord that the provision made by Amendment 26 is already covered by Clause 31, which provides powers to share information for,

“the improvement of the well-being of individuals or households”.

Of course, this includes,

“their physical and mental health and emotional well-being”.

While we do not consider the noble Lord’s amendment necessary in this instance, the objectives that he highlights are an example of how in appropriate circumstances information held by healthcare providers could, in future, be valuable to support the more effective delivery of public services to those in need. It underlines why the Government are unable to accept Amendments 28AV, 28AW and 28AX, tabled by the noble Baronesses, Lady Finlay and Lady Hamwee.

The Government do recognise the particular sensitivities with identifiable health information, as highlighted in the National Data Guardian for Health and Social Care’s recent review of data security, consent and opt-outs. Health bodies in England are therefore not included in the list of bodies now in the Bill that will be permitted to use these powers. However, as the noble Lord, Lord Whitty, noted, health issues are a key factor in the complex social problems faced by people, whom we are aiming to support with these powers. Excluding the use of identifiable health information altogether would remove the possibility of including such information in the future without amending legislation. It would be premature to take this step in advance of the implementation of the National Data Guardian’s review and the public consultation that that will engage.

An amendment to maintain the common-law duty of medical confidentiality is not considered necessary. Those powers enable information to be shared only where it is already held by specified persons, acquired in a different context from the patient-doctor relationship. Any information that would have been subject to medical confidentiality would have found its way into a specified person’s hands only through an existing gateway. As I indicated earlier, there are already statutory gateways through which such information can move. Of course, we are dealing with permissive powers.

At this late hour, I will attempt the impossible: to satisfy the interests of all parties in the context of these provisions. Beginning with the inquiry from the noble Lord, Lord Whitty, health bodies are not presently included in the schedules. As drafted, it would be possible for health bodies to be added to the schedules at a future date but—and I emphasise this—no decision will be taken until, first, the Government publish their response to the Caldicott review and any recommendations have been embedded and assessed; secondly, there has been a public consultation on the issue and the views of the National Data Guardian and appropriate representative health bodies such as the GMC and BMA have been sought; and, thirdly, there has been a debate in both Houses pursuant to the affirmative procedure required to add bodies to the schedule. I hope that that reassures the noble Lord, Lord Whitty, that it can be done, although it has yet to be done, and that there are steps that we will take to reassure the noble Baronesses, Lady Finlay and Lady Hamwee, before any such step is implemented.

If health bodies or information were to be expressly excluded in the Bill, it would require primary legislation to enable those bodies to share information under the powers. If and when we decide that it would be helpful to have those powers—in implementing the fuel poverty initiative, for example—it would be most unfortunate if we were delayed by literally years before we could actually achieve the objective, when in fact there is provision here to do it by way of the affirmative procedure so that both Houses have ample opportunity for debate.

If we take those steps, there will be safeguards. When considering whether to add any health bodies to the schedules in the public service delivery, debt and fraud chapters, clear safeguards will apply. First, before a new body may be added to the schedule, it must show that it fulfils the relevant criteria relating to that specific power designed to ensure that only bodies with relevant functions for holding or requiring information relevant to that particular power may be added. The Minister must consider the procedures in place for secure handling of information before any new body can be added to the schedule—a point raised by the noble Lord, Lord Collins. A decision will be taken on whether it is in the public interest and proportionate to share identifying health information in order to achieve a specified objective. There would be no question of simply sharing this information more widely. The powers must be exercised in accordance with the Data Protection Act, which requires that only the minimum information necessary to achieve the objective may be shared. Under the Bill—and under the Data Protection Act—personal information may be used only for the purpose for which it was shared and data must be stored securely to ensure compliance with that Act. Again, this point was raised a moment ago.

Identifying health information will constitute sensitive personal data and so to ensure fair and lawful processing, it must fulfil one of the more onerous Schedule 3 conditions as well as the Schedule 2 condition under the Bill. In addition, new criminal sanctions have been included for wrongful disclosure with a maximum penalty of up two years’ imprisonment, a heavy fine or both. Further steps can of course also be taken to remove a body from the schedule if it does not comply with the requirements of the Act.

I do not suppose that I have satisfied anyone with that explanation at the end of the day. But, if nothing else, I hope that it has assisted in informing your Lordships as to why we consider that these amendments are not appropriate and that it would be appropriate to retain the ability to introduce health bodies by way of appropriate regulation. We feel that there will be appropriate safeguards and extensive consultation before any such step is taken, so I invite the noble Lord to withdraw his amendment.

[Baroness Finlay of Llandaff]

May I ask for clarification over one issue? Would a statutory instrument, when brought forward, envisage adding health bodies to the Bill in a blanket way, or would it be envisaged that there would be statutory instruments for specific purposes, such as health bodies for the purposes of identifying fuel poverty, and that when something else emerged it would require a separate statutory instrument so as to keep that gateway as narrow as possible?

[Lord Keen of Elie]

With respect, we clearly intend to maintain any gateway in as narrow a manner as is reasonable. The point that the noble Baroness raises is really a question for another day. We are not there yet; health bodies are not included in the schedule. If and when it is contemplated that they will be, there will be extensive consultations on the very issues that she raises.

[Lord Whitty]

My Lords, I thank the Minister for his ability to deliver a compromise position between what appeared to be diametrically opposed attacks in this group of amendments. He has done very well and almost satisfied me—I thank him for that and for his previous discussions.

Clearly, my amendments envisage a fairly narrow gateway, and in her latest remarks the noble Baroness, Lady Finlay, was responding to that. I am very grateful to the Minister for his assurance that the procedure could add health authorities and health bodies to the list in specific circumstances. When we come to the statutory instrument phase, I am arguing for only a relatively narrow inclusion, which may well be carried by the form of the statutory instrument which we eventually have to consider. I also recognise that the Minister has to await the outcome of these other considerations.

On the other hand, I would impress on the Minister that fuel poverty is a really big issue and that the lack of communication between the health and social security sides, and the other interventions, has proved a major inhibition in tackling fuel poverty. The information to be shared is in two directions. It would also allow a medical GP, for example, to access DWP information as to whether people in a household qualified for help. It is not simply a matter of disclosing medical information; it is one of ensuring that the medics actually understand the broader context of the household with which they are concerned.

I thank the Minister for his help in this direction. We will no doubt return to this at some subsequent stage but in the meantime, I beg leave to withdraw.

--- Later in debate ---

[Lord Stevenson of Balmacara (Lab)]

Briefly, the ground has been well covered by the noble Lords, Lord Foster and Lord Aberdare, and I have little to add. Three things strike me. I recalled in Committee that this was one of the areas where we had received the most external notifications and correspondence. It is still something that we need to take carefully. As has just been said, it is surprising that almost the entirety of the industry affected by the judgments of Ofcom have joined up to make the case.

Following on from both speeches, what is required is a statement from the noble and learned Lord. I am sure he is straining at the leash to give us all another compromise solution that will do the trick. He is shaking his head; maybe there are other things he has to cover as well. However, the situation seems to hinge on whether Article 4 of the EU directive applies sufficiently well after this Bill goes through, as before. Yet, as has been mentioned, there will be an opportunity, presumably in the great repeal Bill, to cover exactly this point. So what is the hurry?

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords. As the noble Lord, Lord Stevenson, observed, there have been quite a lot of external communications on this. Indeed, I notice that the quotation that the noble Lord, Lord Foster, gave on my observations in Committee was identical to that quoted in a letter from Towerhouse LLP to the Department for Culture, Media and Sport on 17 March. Everybody seems to be singing from the same hymn book.

At present, Section 195 of the Communications Act 2003 requires that appeals against Ofcom’s regulatory decisions are decided by the Competition Appeal Tribunal on the merits. I shall come back to “on the merits” in more detail in a moment.

Appellants argue that appeals “on the merits” should allow for a bottom-up review of the decision, inviting the tribunal to substitute its own view for that of the regulator—in effect, two tiers doing the same thing. Appeals are therefore seen as an opportunity to rerun arguments that were considered and rejected by Ofcom in reaching its decision, or to put forward swathes of new evidence to persuade the tribunal to reach a different decision. Such appeals can lead to extremely lengthy and costly litigation, with extensive cross-examination of experts and witnesses. This depletes the regulator’s resources and means that other regulatory action by Ofcom is inevitably delayed, allowing for the potential for providers to frustrate the regulator with speculative or even spurious appeals, causing considerable uncertainty in the market and delay to other regulatory decisions.

The Government consider that appeals in the communications sector need to be rebalanced to ensure that Ofcom is held properly to account for its decisions, but also enabled to regulate in an effective and timely manner in the interests of citizens and consumers, as it is required to do. Clause 80 does just that; it requires that instead of merits appeals, the tribunal must decide appeals against Ofcom’s decisions by applying the same principles as would be applied by a court on a judicial review. Judicial review is generally a well-understood standard of review against which very significant decisions made by most public bodies are tested. Importantly, this will ensure that appeals are focused on identifying errors in Ofcom’s decisions, rather than simply seeking to persuade the tribunal to reach a different conclusion.

Those affected by Ofcom’s decisions will remain able to challenge them effectively. In Committee, the noble Lord, Lord Clement-Jones, said that judicial review was,

“solely concerned with whether the decision is unlawful in a technical sense—that is, was the correct process followed?”.—[Official Report, 8/2/17; col. 1734.]

I hope I can reassure him that this is simply not the case. First, appellants are able to argue that Ofcom’s decisions are based on material errors of fact or law. Material errors will therefore be identified and corrected in a judicial review process. Secondly, judicial review is a flexible standard of review, which allows the court to decide on the appropriate intensity of review according to the individual circumstances of the case. For example, there may be more intensive review processes in the context of matters pertaining to human rights. In particular, Ofcom has various statutory duties to ensure that its decisions are proportionate—in other words, that they go no further than is appropriate and necessary to attain a legitimate aim. In reviewing whether a decision is proportionate, the courts can carry out a closer and more rigorous review of the decision.

Of course, appeals in the communications sector are required to ensure that,

“the merits of the case are duly taken into account”,

as a matter of EU law under Article 4 of the EU framework directive. That will remain the case under a judicial review standard. I understand that there is uncertainty about the extent to which requirements in EU law may become a part of UK law after the United Kingdom leaves the EU, but that will be a matter for Parliament to determine when the great repeal Bill is introduced, as the noble Lord, Lord Stevenson, observed, and will be looked at in the context of the overall future regulatory framework for electronic communications, including the appeals regime, once the UK has left the EU.

A number of Ofcom’s regulatory decisions are already appealable only by way of judicial review, and the Court of Appeal confirmed as long ago as 2008 that judicial review is capable of taking account of the merits of the case, as required by EU law and, in particular, by Article 4 of the EU directive. Lord Justice Jacob in the Court of Appeal in the T-Mobile case in 2008 said that it,

“is inconceivable that Art. 4 in requiring an appeal which can duly take into account the merits, requires Member States to have in effect a fully equipped duplicate regulatory body waiting in the wings just for appeals. What is called for is an appeal body and no more, a body which can look into whether the regulator had got something material wrong”.

He also held that,

“there can be no doubt that just as JR was adapted because the Human Rights Act so required, so it can and must be adapted to comply with EU law and in particular Article 4 of the Directive”.

Indeed, in a more recent case involving judicial review and Article 4 in 2016, Mr Justice Cranston observed that, as the Competition Appeal Tribunal had said:

“Ofcom enjoys a margin of appreciation on issues which entail the exercise of its judgment”,


and that,

“the Tribunal should apply appropriate restraint”.

It is not a second-tier regulator, and the fact that it might have preferred to give different weight to various factors in the exercise of a regulatory judgment would not in itself provide a sufficient basis to set aside Ofcom’s determination. It should not interfere with Ofcom’s exercise of a judgment unless satisfied that it was wrong.

These are the relevant judicial review standards that will be applied in these circumstances. We do not want a complete retrial—if I can call it that—or a situation in which, at two levels, we begin at the beginning and end at the end with an entirely different opinion and approach to the evidence, and, perhaps, entirely new arguments being advanced evidentially in support of the merits of a case. That is a never-ending process and is not common to any other area of regulation by a public authority.

The judgments I have referred to have been considered in a number of subsequent cases and it is clear that a judicial review standard is consistent with the requirements of Article 4 of the framework directive. In these circumstances, it is not considered that there is any real need for this amendment. It is appropriate that we proceed with Clause 80 and I therefore invite the noble Lord to withdraw the amendment.

Sky and 21st Century Fox: Proposed Merger

Lord Keen of Elie Excerpts

Thursday 16th March 2017 Lords Chamber

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

My Lords, with the leave of the House, I shall repeat a Statement delivered in the other place by my right honourable friend the Secretary of State for Culture, Media and Sport. The Statement is as follows:

“I came to this House on 6 March to give an update on the proposed merger between 21st Century Fox and Sky. At the time I said that I was minded to issue a European intervention notice on the basis that I believed there to be public interest considerations as set out in the Enterprise Act 2002 that may be relevant to this proposed merger and which warrant further investigation.

The grounds on which I was minded to intervene were, as I explained at that time, media plurality and commitment to broadcasting standards, but I also confirmed that, in line with statutory guidance, I would invite further representations in writing from the parties and gave them until last Wednesday to provide them.

Having carefully considered the representations from the parties and the other representations that I have received, I can now tell the House that I have today issued a European intervention notice on the grounds of media plurality and commitment to broadcasting standards. I have written to the parties, Ofcom and the Competition and Markets Authority, informing them of my decision.

While the representations from 21st Century Fox highlighted areas where it contested the position taken in my ‘minded to’ letter, none of the representations has led me to dismiss the concerns I have regarding the two public interest grounds that I previously specified. I am of the view that it remains both important, given the issues raised, and wholly appropriate for me to seek comprehensive advice from Ofcom on these public interest considerations and from the CMA on jurisdiction issues. I note that, overall, the parties have welcomed a thorough regulatory review, which is what will now happen as a result of the intervention notice I have issued.

Since my ‘minded to’ decision, I have also received just over 700 representations from third parties, the vast majority of which supported intervention. A number of these representations called for me to create a new public interest consideration which would require a fit and proper assessment of the parties to the merger to take place as part of the intervention process. They also argued that it should be made clearer that matters of corporate governance, accountability and conduct could be taken into account in assessing the merger. These issues relate to questions about the application of the fit and proper test by Ofcom—I will come to these issues shortly.

As I previously set out, this decision will now trigger action by Ofcom to assess and report to me on the public interest grounds that I have specified and for the Competition and Markets Authority to report to me on jurisdiction. They each have 40 working days to prepare and provide these reports. This means that I will expect their reports by Tuesday 16 May. I will then resume my decision-making role in relation to the merger. To be clear, this intervening period, and indeed any time after that until a final decision on the merger is taken, is subject to the constraints that apply to my quasi-judicial role.

Mr Speaker, I am sure you understand that I cannot, nor can any other member of this Government, comment substantively on the case as it proceeds. I will, as I have done so far, keep the House updated once I have considered the reports of Ofcom and the CMA.

What I will comment on is that much of the discussion in last week’s debate both here and in the other place focused on the question of Ofcom’s assessment of whether a licensee is fit and proper, including the ongoing duty which falls to Ofcom under the Broadcasting Acts 1990 and 1996.

I have received representations from the honourable Member for West Bromwich East and from the right honourable Member for Doncaster North, as well as from a number of other parties, on adding fit and proper as a new public interest consideration in the Enterprise Act. I want to assure them that I have carefully considered the arguments they have put forward.

The grounds set out in the Enterprise Act that allow for intervention in media mergers are aimed at ensuring plurality of the media, which is essential to a healthy democracy—something I know Members of this House and the other place support. It is a view which I fully and unequivocally endorse. I am also clear that assessing whether someone is fit and proper to hold a broadcasting licence is a different requirement, and one that, quite rightly, sits with the independent regulator, Ofcom.

On Monday, Ofcom announced that it will conduct its fit and proper assessment at the same time as it would consider any public interest test in response to my decision to intervene in the merger. This means that Ofcom will conduct its assessment within the 40 working days it has to report to me on the public interests I have specified in the intervention notice. I welcome Ofcom’s announcement, which will provide clarity for the parties but also provide reassurance to those who have expressed their own concerns about this issue, that this is a matter which Ofcom will now consider before the merger takes place.

I trust, as before, that this update is helpful to honourable and right honourable Members and that this Statement gives an opportunity to debate this important issue, but at the same time respecting the limits of what I can say, as I mentioned earlier, given my ongoing quasi-judicial role in relation to this merger. I commend this Statement to the House”.

--- Later in debate ---

[Lord McNally]

My Lords, I, too, welcome the Statement and the way that the Secretary of State is approaching her responsibilities in this regard. The big problem is that we have been here before. In many ways, we are dealing with an issue that we have faced many times—since the end of the war there have been five royal commissions on the press, and Leveson—and yet we still have these concerns about power and influence.

I am still haunted by the word that Mr Murdoch used at the height of the hacking scandal when he appeared before the Select Committee and said it was the humblest day of his life. I always thought that that was an odd word to use. It is not humbling, it is not regretting, it is not “I am going to mend my ways”. In fact, everything that has happened since has warned us that there has been no change in the approach.

Can the Minister tell us what were the points that Fox contested? It would be interesting to know how it contested what we thought a week ago was a very good Statement. As the noble Lord, Lord Stevenson, said, where does this sit in the timetable of other decisions to be made about Leveson 2 and about setting up one of the great prizes of Leveson—a genuine, low-cost arbitration system under Section 40? It is important that we look at this in a holistic way, not a siloed way. I also worry about the 40-day time limit. We should not put false timetables on these decisions because we will be stuck with them for a very long time.

I welcome the Secretary of State’s emphasis on her assurances about respecting her quasi-judicial authority. Will the Government also guarantee that any meeting or communication between Mr Murdoch and the Prime Minister, or their emissaries, is made immediately public, as well as the record of any meetings that do take place? There is a long record of Mr Murdoch having access outside the direct ministerial responsibilities, in all the jurisdictions in which he operates.

The wording of the Statement gives us confidence but will the Minister assure us that we are in a process which is going to satisfy somebody he will be well aware of—the man or woman on the Clapham omnibus? When we get to the end of this process, will it feel right? Will it smell right? Will it look right? If it does not, we will have created another problem that we will have to face further down the road.

[Lord Keen of Elie]

I am obliged to noble Lords for their observations on this matter. I will begin with a number of points raised by the noble Lord, Lord Stevenson; first, the question of commitment to broadcasting standards. When one is looking at broadcasting standards, one can have regard to broadcasting by way of television and radio within the statutory context but of course when actually applying a test of commitment, one is looking much more broadly at the behaviour of a particular party. That would include their behaviour in the context of news media, newspapers and other related conduct. This is not a narrowly defined issue. Commitment to broadcasting standards will embrace the conduct of a party. A party includes corporate parties and their relevant behaviour but also of course the behaviour of a controlling shareholder of a corporate party, or even a shareholder with less than a majority interest but a material controlling interest in a corporate entity. I seek to reassure the noble Lord that the question of commitment to broadcasting standards is approached on what, I suggest, is a broad basis.

With regard to plurality and the publication of reports, I understand that the last report was published in December 2010. We will publish reports arising out of this intervention, albeit I understand that they may have to be redacted to some extent on the grounds of commercial sensitivity.

On the question of a fit and proper person being undefined, clearly there is a crossover between “fit and proper” and the question of the commitment to broadcasting standards. As I understand it, that is why Ofcom has expressed confidence in being able to respond to the Secretary of State by reference to not only commitment but the fit and proper test that applies under the Broadcasting Acts of 1990 and 1996.

With regard to Leveson part 2 there is little I can say, as the noble Lord, Lord Stevenson, anticipated, in view of the undertakings given to the court pending the final disposal of the application for judicial review—an application, I would add, which was made not by this Government but against them. As regards the powers of Ofcom under the 2002 Act, it has expressed the view that it has sufficient powers. But I note that it does not, in the context of discharging its duty with regard to fit and proper under the Broadcasting Act, have the power to compel the attendance of witnesses. Nevertheless, where it requests their attendance or the provision of documents and witnesses and documents are not provided, that has a material bearing upon its assessment of commitment to broadcasting standards. Somebody who is not prepared to answer simple questions about how they would discharge their obligations as a licensee would throw into doubt whether they have a true commitment to those standards. That may appear a little circular to the noble Lord but it is essentially an effective mechanism by which Ofcom can control this process.

Coming to the observations of the noble Lord, Lord McNally, I am not going to enter into a debate about the definition of “humbling”. Nevertheless, it appears on the face of it that what occurred had hit home not only with the corporate structure—the shareholders—but with individuals who held those shares. It simply would not be appropriate for me to identify the contested points made to the Minister at this stage. The Secretary of State is going to carry out a quasi-judicial process, on the advice of Ofcom and the CMA. We have to await the outcome of that process. The noble Lord mentioned the 40-day time limit. Again, that is a statutory provision and Ofcom is confident that it can adhere to that time limit. We therefore feel that it is appropriate.

As regards guarantees with regard to meetings, I am not aware of any meetings being planned or proposed by Mr Murdoch. A quasi-judicial decision will be made by the Secretary of State and the noble Lord, Lord McNally, may accept my reassurance that there is no question of inappropriate contact from any party with the Secretary of State pending the determination of that decision. With regard to the gentleman and lady on the Clapham omnibus—as originally invented, I believe, by Lord Denning—we will have to await their response to this process. But we have confidence in Ofcom and in the CMA, and we will see in due course whether it is necessary to take this on to a phase 2 inquiry at the instance of the CMA. I am obliged to noble Lords.

[Baroness McIntosh of Pickering (Con)]

My Lords, does my noble and learned friend agree that one of the most worrying things about this link and takeover is the threat to the dominant position already enjoyed by Sky News, the Times, Sunday Times and Sun newspapers, as well as talkSPORT radio? This could impact on bidding for sports programmes, TV shows and movies, as well as eliminating potential competition in the news. I should declare an interest in that I spent six months as an intern—perhaps more glamorously called a stagiaire in French—in the European Commission’s directorate-general for competition. Does my noble and learned friend have the timetable for that investigation, which is ongoing, and the impact it will have on the Secretary of State’s decision?

[Lord Keen of Elie]

I am not going to make any comment that would touch upon the merits of the proposed merger but the European Commission will of course take forward its inquiry into the competition aspects of this merger. My understanding is that the timing of that will fall within the time limit for the present investigation at the instance of the Secretary of State.

[Lord Lansley (Con)]

My Lords, I welcome my noble and learned friend’s Statement. Perhaps I may elaborate on the question relating to the grounds for the intervention notice relating to the commitment to the attainment of broadcasting standards. That relates specifically to the standards as set out under Section 319 of the Communications Act on the content of programming for television and radio services. My noble and learned friend suggested that “commitment” enables one to go much wider on those grounds. However, it relates to the programming of television and radio services. If the question of commitment was raised in relation to something that did not relate to television and radio services, how could it be seen as directly relevant?

[Lord Keen of Elie]

I am obliged to the noble Lord for repeating an inquiry that he made at the time of an earlier Statement on this same issue, with reference to Section 319 of the 2003 Act. It does refer in particular terms to television and radio; however, I stress the use of the term commitment. In determining that more general issue Ofcom is confident—rightly confident, I suggest—that it can have regard to conduct in other areas of media. For example, the way in which a party has conducted its newspaper empire or whatever may be directly relevant, and indeed often will be, to the question of whether it has a genuine commitment to broadcasting standards when it comes to television and radio. I stress “commitment” as being important in this context.

[Lord Deben (Con)]

I thank my noble and learned friend for repeating the Statement, which will cheer a lot of us in its wording and in the commitment to high standards. Is he not also willing to accept that in a world in which we appear to be post-truth, and where there is considerable opportunity for people to create fake news, the position of broadcasters as a source of ensuring that what one understands to be true is true becomes even more important? When we talk about broadcasting standards, therefore, this now means something in our society that is a whole stage further than any consideration which we have had before. I therefore commend my right honourable friend for taking these steps, which enable so careful a consideration to take place.

[Lord Keen of Elie]

I am obliged to my noble friend and agree with him that any test, such as the commitment to broadcasting standards, has to be contextualised and must have regard to the current circumstances in which we operate with regard to our media. That would include the development on the internet of sources of news which may or may not be misleading. We must judge matters in that context.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I would be grateful if the Minister will endeavour to answer my questions, which I pose on behalf of the ordinary—“ordinary” is very much the in word these days—consumer. Does the Minister believe that the ordinary consumer has the confidence in Ofcom and in the CMA that he and the Government share? I am worried about Leveson, but I do not believe that the ordinary consumer is that worried. If one looks at the research that is undertaken among ordinary consumers, one will find that their interests are in costs and how they affect their pockets and their purses. The question that they would want to know that Ofcom is exploring in this context is: what benefit will accrue to the public from this exercise? What saving in cost, if any, will accrue to the individual consumer?

The majority of consumers do not spend their time watching TV programmes on parliamentary activities and politics, but a very substantial and increasing number of people in our country spend their time watching sport. They look at what Ofcom has endeavoured to do on sport. Last year, Ofcom and the CMA endeavoured to introduce competition into that area of activity, and we all support that, particularly between Sky, which had a monopoly at one stage, and BT, but we have ended up in a rather strange place—although we have competition, overall consumers are now paying much more money than they paid before. They are having to pay for BT and for Sky, and they are seeing precisely what they were seeing before. There are marginally more matches, but effectively they are paying more. I subscribe to Sky. I pay more to Sky now for an inferior service. It provides less than it provided five years ago. This comes about through Ofcom’s activities and its work in this area and also the work of the CMA.

I am endeavouring to represent and capture as best I can the view of ordinary people. Will the Minister say whether the cost side is being examined, what benefit will accrue and why the Government have such confidence? Ordinary people feel that the Government spend a lot of time chasing the BBC about its licence fee of £150 or thereabouts, but Sky is charging £600 a year now for sport, let alone for films and the rest on top of it. They see little taking place other than the Government falling in line with the requirements of Mr Murdoch and his company. I would like to hear some of those questions answered.

[Lord Keen of Elie]

I am obliged to the noble Lord. The question of cost relates directly to media plurality. The noble Lord suggests that because competition has been introduced into the market, he is paying more. That may appear to be an immediate effect of more than one provider, each with a cost base, dividing a limited resource, but nevertheless I respectfully suggest that a monopoly situation has never ultimately obtained in favour of the consumer, a point Adam Smith made some years ago.

Prosecutions: Defence Legal Costs

Lord Keen of Elie Excerpts

Wednesday 15th March 2017 Lords Chamber

[Lord Kirkhope of Harrogate (Con)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer to my register entry as a solicitor.

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

My Lords, in 2012 the Government limited reimbursement of the legal cost of defendants who had been convicted of a criminal offence. Where legal costs are still allowed—for example, where the defendant was not eligible for legal aid—the recoverable costs are limited to the equivalent of legal aid rates. A review will be conducted by April 2018.

[Lord Kirkhope of Harrogate]

My noble and learned friend the Minister will be aware I am sure of the recent case of an 83 year-old gentleman of good character who was acquitted of violence against an intruder on his property, but was not permitted under current rules to claim his reasonable defence costs. How can we reconcile the presumption of innocence and an acquittal with the fact that claiming legal costs incurred to maintain innocence is no longer normally possible? I know that a review of these rules is taking place; I am delighted to hear my noble and learned friend confirm that. I would be grateful if he ensured that these and similar circumstances are part of such a review, bearing in mind that the present situation is not only a deterrent to innocent parties defending themselves, but positive encouragement to sloppy preparation and decision-taking by the prosecuting authorities.

[Lord Keen of Elie]

My Lords, we are of course aware of the particular case to which my noble friend refers. I observe that the individual in question did apply for legal aid, was eligible for it and was offered it, but declined to accept it. Had he accepted that offer he would have been required to make a relatively modest contribution, which he would have been able to recover upon being acquitted. However, the individual in question decided not to accept the offer of legal aid and instead instructed lawyers privately. In those circumstances he was not eligible for recovery of costs. Of course, all these matters will be subject to the review that is to be completed by April 2018.

[Lord Beecham (Lab)]

My Lords, I refer to my interests as, effectively, a non-practising solicitor. It would appear—I am advised by leading counsel—that a change was effected to the 1985 Act via Schedule 7 to the Legal Aid, Sentencing and Punishment of Offenders Act, which precluded an award of costs from central funds after an acquittal in the Crown Court, or after a successful appeal to the Court of Appeal. But where the acquittal occurs in magistrates’ court or an appeal is allowed in the Supreme Court, costs apparently may be allowed. Should not the practice be the same in all relevant courts, with the judiciary able to exercise its discretion?

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord. The practice with regard to legal aid in magistrates’ court is different from that in the Crown Court. Of 126,000 cases that were committed to trial in the last year in the Crown Court, legal aid had been granted in more than 105,000. In those circumstances cost recovery can be made on acquittal. In the event that someone is not eligible for legal aid and is committed to the Crown Court, their costs are again recoverable, albeit they are limited to the legal aid rate.

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

My Lords, in all legal aid cases these regulations are straight out of Alice in Wonderland. If you are financially ineligible for legal aid, you must nevertheless apply for legal aid to get a determination that you are not eligible for it. Only then can you get your costs if you are acquitted, and then at only legal aid rates. If your solicitor does not have a legal aid contract you have to go to another solicitor who does, make the application, have it refused, and only then can you go back to your original solicitors. Will the noble and learned Lord assure us that there will be changes to this absurd regime under the review?

[Lord Keen of Elie]

I am obliged to the noble Lord. I can advise him that Alice would find it far more straightforward than he suggests. Clearly, it is not possible to determine your eligibility for legal aid unless you apply for it. In the event that you wish to apply for it you must go to a solicitor who is recognised for the purposes of the legal aid scheme. If, however, you decide thereafter that you are not eligible or are told you are not eligible and you decide to go to another lawyer, you may do so. It is a relatively straightforward scheme.

[Noble Lords]

Oh!

[Lord Keen of Elie]

My Lords, not only is it a well- ordered scheme, but I was advised of this at a recent tea party.

[Lord Deben (Con)]

Does my noble and learned friend accept that those of us who are not declaring an interest because we are not lawyers find all this ridiculous? That is because it is very hard to explain to people who have been prosecuted and who turn out to be entirely innocent, and are 82, that they cannot claim their costs. If people are innocent until proven guilty, not being able to claim their costs against people who have inconvenienced them—to say the least—does not sound to ordinary people like justice.

[Lord Keen of Elie]

I say with respect to my noble friend that it is necessary in this context to have regard to the public interest as well as the private interest of individuals. A balance has to be struck in that context. On the case he referred to of an 82 year-old, as I indicated earlier, the individual in question was offered legal aid having been eligible for it. Had he accepted that offer, he would have recovered his costs.

[Lord Faulks (Con)]

My Lords, the rule used to be far more straightforward. If you were acquitted of an offence, you were entitled to your costs, but the judge had a discretion not to award costs if you had somehow brought the prosecution upon you. Is that not the best way to approach matters?

[Lord Keen of Elie]

My Lords, there are clearly a variety of ways in which this matter can be addressed. Nevertheless, I fail to understand how someone who has been acquitted could be accused of having brought the prosecution on themselves.

[Lord Foulkes of Cumnock (Lab)]

My Lords, is it simpler in Scotland?

[Lord Keen of Elie]

My Lords, many things are simpler in Scotland. However, in Scotland there is an entirely distinct legal aid scheme which differs in a number of principal regards. Therefore, it is not comparable to the system in England and Wales.

Solicitors: Professional Qualifications

Lord Keen of Elie Excerpts

Monday 6th March 2017 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare my interest as chair of the University of Leeds School of Law advisory board.

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

My Lords, as the legal profession in England and Wales and the bodies that regulate it are independent from government, we have not made any assessment of the Solicitors Regulation Authority’s recent proposals. As set out in the Legal Services Act 2007, it will be for the Legal Services Board to determine whether to approve changes to the qualification arrangements for solicitors, should the Solicitors Regulation Authority seek to proceed with its proposals.

[Lord Low of Dalston]

My Lords, I thank the noble and learned Lord for his reply. However, is he not aware of the widespread concern that the Solicitors Regulation Authority’s proposals will mean that universities have to teach to the solicitors qualifying examination if they are to remain competitive, potentially constraining the breadth of the curriculum that can be taught as part of an academic law degree and stifling innovation in curriculum development?

[Lord Keen of Elie]

My Lords, we do not believe that if these proposals were taken forward it would have such a stultifying effect upon the university law schools to which the noble Lord refers. I observe that there are currently 110 qualifying law degree providers, 40 providers of the graduate diploma in law and 26 providers of the legal practice course, and no consistency of examination at the point of qualification.

[Lord Beecham (Lab)]

My Lords, given the massive cuts in legal aid, the rising costs of tribunal and court proceedings, and the difficulties resulting from the consequential growth in the number of unrepresented litigants, should not any qualification programme include a requirement to provide pro bono advice and representation?

[Lord Keen of Elie]

My Lords, as I have already indicated, the question of what qualification requirements there should be is a matter for the Solicitors Regulation Authority and for the Legal Services Board. However, of course they are concerned to pursue their statutory obligations, which include a requirement to have regard to the demands upon the profession.

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

My Lords, we are seeing something of a turf war between the SRA and the Law Society. One can of course see the case for separation, with the SRA as regulator and the Law Society governing the profession. There may even be a case for a single legal services regulator. But the position at the moment is that the SRA wants to control standards for entry into the profession and the Law Society’s concern is not to lower those standards. Do the Government have a view on how those issues can be resolved, given the public interest in maintaining standards of legal practice?

[Lord Keen of Elie]

My Lords, the Solicitors Regulation Authority has no desire to see any diminution in standards. Its concern is to increase access to the profession in order that we have a more effective and diverse profession. As regards the test of what would be appropriate for the regulation of access to the profession, the Legal Services Board will make a determination in light of the SRA’s submission.

[Baroness Deech (CB)]

Has the Minister noticed the distinct lack of guidance for the Legal Services Board? Barristers are taking this opportunity to upgrade the qualifications while solicitors are going in the other direction. Given that there are very few jobs for new solicitors, this ought to be the moment to upgrade their qualifications as well. Does he agree that it is high time for a review of the Legal Services Board, which seems to have failed to produce over the past 10 years any of the reforms and improvements that were promised at the outset?

[Lord Keen of Elie]

My Lords, we do not consider that there is a need for a further review at this time. As the noble Baroness will be aware, the Legal Education and Training Review was undertaken jointly by the Solicitors Regulation Authority, the Bar Standards Board and the Chartered Institute of Legal Executives, which resulted in a report that was published in June 2013. The review did find weaknesses in the current system of legal education, and the SRA is seeking to address them in its submissions to the Legal Services Board.

[Lord Blunkett (Lab)]

My Lords, I draw attention to my interests as set out in the register. Perhaps I could tempt the Minister to reflect on the question raised by the noble Lord, Lord Low, about the narrowing of the curriculum. I accept entirely that the SRA and the Legal Services Board are independent, but would it not be of national concern if family law, disability rights and social welfare law were to be squeezed out in the narrowing of that curriculum?

[Lord Keen of Elie]

My Lords, I understand the point made by the noble Lord and I agree that we should not see a narrowing of the curriculum, but, with respect, where people undertake to study at a university, whether it be for a law degree or another subject, they do not do so for the sole purpose of passing a professional examination; they study in order to broaden their understanding in general and to extend their education and their understanding of the law. For example, the study of jurisprudence may not be regarded as absolutely essential to passing examinations set by the Solicitors Regulation Authority, but nevertheless it is appropriate for anyone expecting to pursue a career in law.

Sky and 21st Century Fox: Proposed Merger

Lord Keen of Elie Excerpts

Monday 6th March 2017 Lords Chamber

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

My Lords, with your Lordships’ leave, I will repeat a Statement made in the other place by my right honourable friend the Secretary of State for Culture, Media and Sport.

“I promised to give the House an update about progress on the process for the bid by 21st Century Fox to acquire the 61% share of Sky which it does not already own. I can confirm that formal notification for the proposed merger of Sky and 21st Century Fox was lodged with the European Commission on Friday 3 March and that I, on Friday, wrote to the parties to inform them that I am minded to issue a European intervention notice on the basis that I believe there are public interest considerations, as set out in the Enterprise Act 2002, that may be relevant to this proposed merger that warrant further investigation. To be clear, I have not taken a final decision on intervention at this stage but have indicated what I am presently minded to do. In line with the guidance that applies to my quasi-judicial role, I will aim to come to a final decision on whether to intervene in the merger within 10 working days of Friday’s notification. Before I make my final decision, and in line with statutory guidance, I have invited further representations in writing from the parties and have given them until Wednesday 8 March to provide them.

In December, I made clear that I would make this quasi-judicial decision independently, following a process that is scrupulously fair and impartial, and as quickly as possible with all relevant information in front of me. To enable this, I instructed my officials to commence work to analyse the relevance of the public interest considerations to the merger and to consider the available evidence. Since the 9 December announcement, I have received representations from the parties to the merger, as well as representations made in writing to the department from a range of people and organisations. They include more than 8,700 responses made in connection with the department’s consultation on the Leveson inquiry and its implementation which referred to the merger. Given my quasi-judicial role, I can consider only evidence which is relevant to my decision.

On the basis of this preparatory work, I have issued a ‘minded to’ letter to the parties on two of the public interest grounds specified in Section 58 of the Enterprise Act 2002. The first public interest ground on which I am minded to intervene is media plurality. That is, specifically, the need for there to be a sufficient plurality of persons with control of the media enterprises serving audiences in the UK. My concern here is that the merger will bring under common or increased control a number of significant news sources, including Sky News and News Corporation’s newspaper titles. As a result, I have told the parties that I am minded to ask for a report from Ofcom on the impact of the merger on media plurality before considering the matter further.

The second public interest ground on which I am minded to intervene is commitment to broadcasting standards. This ground relates to the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to attaining broadcasting standards objectives. As I have indicated to the parties to the merger, I am concerned about the nature of a number of breaches of broadcasting standards by 21st Century Fox as well as the behaviour and corporate governance failures of News Corporation in the past. In light of those matters, I am minded to intervene on this ground and to ask Ofcom to investigate them further.

I also want to be clear on what this means in terms of the overall process. My decision on whether to intervene is not the end of the matter. Instead, it would recognise that these public interest considerations may be relevant to the merger and will trigger action by Ofcom to assess and report to me on them and the Competition and Markets Authority to report on jurisdiction. There would then be a further decision-making stage for me to undertake in light of those reports, but we are not at that stage yet. As I said at the outset, I will aim to take the final decision on whether to issue a European intervention notice within the 10 working days set out in the guidance and will return to this House to notify Parliament of this decision.

I am today, as I said I would, keeping this House appropriately informed of developments on this important matter, and it is right that I continue to do so. However, given this remains a quasi-judicial process in which I retain a decision-making role for the next 10 days, and potentially beyond, it would be inappropriate for me, or any other member of this Government, to comment on the substantive merits of the case. I hope this update is helpful to honourable Members and that this Statement gives an opportunity to debate this important issue, but at the same time I hope that honourable Members will respect the limits of what I can say given my ongoing decision-making role”.

--- Later in debate ---

[Lord McNally (LD)]

My Lords, from these Benches, I welcome both the speed and tone of the Statement from the Secretary of State. She has been careful to keep to the legal niceties, although any reading of this would welcome what she considers the merits of the case, particularly, as has been said, her emphasis on media plurality and the commitment to broadcasting standards. These were at the heart of the debate we had over a decade ago—putting into legislation the right to intervene on public interest grounds—led by my noble friend Lord Puttnam, with the support of the noble Lord, Lord Lansley.

It is important to remember that, if anything, the arguments we had then which finally persuaded the then Government to accept the public interest test have got stronger over the last decade, in no small measure because of the behaviour of companies and organisations in which Rupert Murdoch has had an influence. We now face that problem again. Does the noble and learned Lord agree that this is still a major issue with the Murdoch empire in particular, and given the need to take on board how these companies change their structures without really ever changing the spider at the heart of the web?

The other, equally important point, as has been said, is the changes in broadcasting and media over the last decade. Mr Murdoch may play a big part in many ways, but he will soon be a small player compared to some of the giants wandering the media jungle. Does the Minister agree that the danger is that, if we get this wrong, we will set precedents which, when those big boys come along, will leave us in a very weak position in defending the very principles the Secretary of State so eloquently expressed in the Statement?

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their observations, and will seek to respond to some of the points they have raised. The noble Lord, Lord Stevenson, asked “whose court”, as he put it, deals with this quasi-judicial decision-making process. It will be for the Secretary of State to carry out that process, with the appropriate officials advising her. It will not involve other government departments or Ministers; it will be her decision and her decision alone that instructs this matter. I hope that reassures the noble Lord as to how the process will be carried on.

As for the corporate structures and the past involvement of News Corporation, as the Secretary of State indicated in the Statement, when we address the question of commitment to broadcasting standards, account will be taken of past breaches of those and of behaviour and corporate governance failures, including those relating to News Corporation.

Ofcom, of course, has a fit and proper person test, but that applies in respect of broadcasting licences rather than this issue. It is a different test to the one that will be considered with regard to the merger, but it is important to bear in mind that the same evidence may of course be relevant to both tests. As the Secretary of State set out in her letter, she considered that a number of relevant matters warranted further investigation, including facts that led to the Leveson inquiry, for example, and the question of corporate governance at the News of the World. It will be open to Ofcom to look at all relevant areas—none are being ruled out in this context. The ultimate question will be whether the bidder shows a genuine commitment to broadcasting standards, which will raise very real and relevant questions with regard to past behaviour.

The noble Lord, Lord McNally, asked whether we might be in danger of setting an unhealthy precedent, given the other tests that may be put before us in due course by other media outlets. With respect, I do not consider that this decision-making process involves the setting of precedents. Each of these proposals will be considered on its individual, stand-alone merits. I hope that provides some reassurance to noble Lords.

[Lord Stevenson of Balmacara]

Before the noble and learned Lord sits down, can I just quote back to him what he said only a few moments ago at the Dispatch Box?

“However, given this remains a quasi-judicial process in which I retain a decision-making role for the next 10 days, and potentially beyond, it would be inappropriate for me, or any other member of this government, to comment on the substantive merits of the case”.


Is there a slight variance with what he said there?

[Lord Keen of Elie]

There is no variance. It would not be appropriate for any member of the Government to comment on it, but the decision-making process will be by the Secretary of State.

--- Later in debate ---

[Lord Puttnam (Lab)]

My Lords, first, I thank the noble and learned Lord for repeating the Statement, which is for the most part very welcome. Not frivolously at all, the two criteria the Secretary of State has chosen are precisely those for which all-party amendments have been put down for the Digital Economy Bill. I have a question relating to each of them.

The first is on media plurality. As the noble Lord, Lord McNally, has just said, it has been 14 years since we first raised this important issue. Everyone wants plurality and agrees that it is a very good idea, but at that time, we needed a framework. I apologise if the frustration is showing in my voice, but I and many others have sought agreement on that framework on repeated occasions. Ofcom was eventually asked to create a report on that, which was published as the Measurement Framework for Media Plurality on 5 November 2015, but there has been no response from the Government. Interestingly enough, the Secretary of State, in her long letter on Friday, said that one of her issues was that, before a decision could be made, there was a,

“need for qualitative assessment and perhaps further factual inquiries”.

The whole purpose of our current amendments is to help this Secretary of State and any future Secretary of State in making these judgments, based on evidence and on an agreed framework. Therefore, surely it is incumbent on the Government to make it clear that they will seek such a framework and, if necessary, wait until after these amendments have hopefully been approved by this House, and then accept them. That is what we are seeking.

The other issue, as the noble Lord, Lord Stevenson, said, is the fit and proper person test. I have looked carefully at this, because I believe we are making this unnecessarily difficult. Media companies are not football clubs, and in fact there is a very good definition set out by the Financial Conduct Authority, which covers,

“honesty (including openness with self-disclosures, integrity and reputation) … competence and capability … financial soundness”.

Can the noble Lord tell me whether there is any reason whatever why we should not adopt the Financial Conduct Authority’s definition in the Bill?

[Lord Keen of Elie]

I am obliged to noble Lords, and perhaps I may first respond to the noble Lord, Lord Birt, which I did not do before the noble Lord, Lord Puttnam, spoke.

At the end of the day, clearly, issues of demand and financial adversity will play a part in consideration of what is required, but that will ultimately be a matter for Ofcom in its report rather than for any decision of the Secretary of State.

With respect to the points made by the noble Lord, Lord Puttnam, again, media plurality changes not only over 14 years but year by year—indeed, more swiftly than that in the present environment. It will be for Ofcom to address matters in the present context, rather than trying to establish a framework which might limit the way in which it responds to these issues.

[Lord Puttnam]

That is exactly the answer that has been given for 14 years. Is it possible that for another 14 years we will use the changing environment of the media not to have a framework which can be applied by a Secretary of State when making these judgments?

[Lord Keen of Elie]

It respectfully appears to me that the reason that we may have had the same issue for the past 14 years is that it reflects the appropriate approach to take to these matters, rather than the straitjacket of some framework, as the noble Lord proposes. It may be that we differ on that point.

I come to the second matter of a fit and proper person. Of course, the fit and proper person test is applied by Ofcom in the context of a broadcasting licence, but we recognise that in looking to behaviour, which is relevant to this question, it would be appropriate to take into account fitness and past behaviour. Whether it is appropriate to adopt a test developed for the Financial Conduct Authority is another matter entirely, but it is clearly open to Ofcom, when approaching this matter, to have regard to how other regulatory bodies consider the questions of fitness and behaviour.

In a sense, the Financial Conduct Authority test is not peculiar to financial services: it reflects what most reasonable people would regard as the relevant litmus test to determine whether somebody is fit and proper for any post, let alone to control a broadcasting medium.

[Lord Deben (Con)]

I thank my noble and learned friend for the Statement. I raise again a point made by the noble Lord, Lord McNally. He pointed to the concern that one has when people say, “There are lots of other ways in which news is disseminated”, and therefore the comparison between one television channel and another is perhaps no longer as important as it once was. His point about it being an exemplar—although each case is judged on its own merits and never are other cases not referred to, at least in the mind of those making the decisions—was important.

It is also true that anyone who travels the world to those places where the media have become less and less plural realises the damage that that does to the free society. I hope that my noble and learned friend will pass on to his right honourable friend the concern of many of us that free speech and the free communication of ideas depend on multiplicity and plurality. If ever there were a case in which that has to be defended, it is this case.

[Lord Keen of Elie]

I am obliged to my noble friend Lord Deben. Of course, a vibrant free press and a plurality of press sources is a fundamental part of any democratic society. That is why the Enterprise Act provisions exist: to ensure that public interest considerations can be taken into account when looking at media mergers.

[Lord Wigley (PC)]

My Lords, perhaps the noble and learned Lord can help me with the question of potential implications of legislation going through the House. Clearly, every case has to be considered on its merits, but the Secretary of State has to undertake that consideration in the context of the legislative background. Can the fact that legislation is being passed influence the timing by which a decision is taken?

[Lord Keen of Elie]

It does not appear to me on the face of it that proposed legislation can properly impact in terms on the decision-making process which, in the first instance, will involve a decision in the next 10 days and, thereafter, a report from Ofcom, which I believe is normally, under ministerial guidance, to be produced within 40 days if a decision is made. It is very difficult to see how any proposed legislation can impact on that decision-making process.

[Lord Lansley (Con)]

My Lords, the second of the specified considerations to which my noble and learned friend referred under the Enterprise Act is for those carrying on media enterprises or controlling such enterprises,

“to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act”.

That relates to the standards code, which itself is related to television and radio services. In her review of this consideration, is the Secretary of State obliged to look only at issues related to television and radio services?

[Lord Keen of Elie]

I am obliged to the noble Lord. I do not understand that the commitment to broadcasting standards is limited simply to television and radio in that sense, but I will take further advice on that point and, if I am wrong, I will write to him and place a letter in the Library.

[Lord Razzall (LD)]

I wonder whether, when the Secretary of State considers this, the noble and learned Lord will ensure that she takes into account the remark that Mr Murdoch made to your Lordships’ Communications Committee some years ago when it visited New York and he gave evidence to it, when he said that he was very puzzled why Sky News could not be like Fox News.

[Lord Keen of Elie]

I am not aware of the remark, but no doubt it can properly be brought to the attention of the Secretary of State.

[Lord Elystan-Morgan (CB)]

My Lords, the fact that the Secretary of State has seen fit to issue this statutory notice will give great satisfaction to most—if not all—Members of the other House. We well understand that these two grounds are not luxuries, not dainty sympathies, at all. They are principles that are central to the concept of liberty and the conduct of a well-ordered society. It is on that basis that we heartily welcome the Secretary of State’s decision.

[Lord Keen of Elie]

I am obliged to the noble Lord. I should make it clear that what the Secretary of State issued is a letter that states that she is minded to intervene: no decision has yet been made and none will be made until she has had the opportunity to consider responses to it over the next 10 days.

[Lord Cormack (Con)]

Will the Secretary of State bear in mind that monopoly is always inimical to freedom?

[Lord Keen of Elie]

I have no doubt that the Secretary of State will have that point in mind in more than one context.

Assisted Dying

Lord Keen of Elie Excerpts

Monday 6th March 2017 Lords Chamber

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

My Lords, I am grateful to the noble Baroness, Lady Jay, for bringing before your Lordships’ House a matter which continues to be of great public interest and concern. As the noble Baroness herself observed in opening, the issue is complicated and difficult. Today is not the first occasion on which this House has debated this difficult and sensitive area of the law. Indeed, as today’s debate has illustrated, there are passionately and deeply held yet divided views on the issue. I certainly take issue with the suggestion by the noble and learned Lord, Lord Falconer of Thoroton, that this is “what everyone wants”. It clearly is not what everyone wants; indeed, I notice that the contributors to this debate are almost equally divided on this very complex and difficult issue. There is no arrogance to be attributed to those who take one side or other of this demanding debate.

It remains the Government’s view that any relaxation of the law in this area is an issue of individual conscience and a matter for Parliament to decide, rather than one for government policy. Of course, we are aware that assisted dying legislation has been introduced recently in some states of America and in Canada—very recently in four states of the United States—but since the Government have taken no policy position on the issue, we have made no assessment of such legislation in North America or elsewhere. I simply note that while five states in the United States have adopted such legislation, 45, of course, have not. Indeed, the only example that has been in place for some years is that of Oregon. As the noble Baronesses, Lady Howe and Lady O’Loan, and the noble Lords, Lord Alton and Lord Carlile of Berriew, observed, there are issues surrounding the attempted development of the law in Oregon. As the Supreme Court said in the case of Nicklinson and Lamb, information from the few jurisdictions where assisted suicide is lawful is,

“sensitive to underlying conditions such as standards of education, the existence of long-term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom”.

So it does not necessarily follow that a law which operates effectively—allegedly—in another jurisdiction would provide an appropriate basis for such legislation in England and Wales.

We should remember that “assisted dying” is not a term that exists in law. It is shorthand for two distinct things; namely, assisting suicide and euthanasia. However one interprets the term, assisted dying is a highly emotive issue. It polarises opinion among the public, in the media and across the political spectrum, even within groups which are generally supportive of or opposed to a change in the law, and it raises the most profound ethical, moral, religious and social issues. Of course, the Government are aware of opinion polls suggesting that there is strong public support for a change in the law. But even if one accepts that the law should change, there is no consensus—in Parliament or elsewhere—on where a line should be drawn and what safeguards should be in place and for whom.

As the law stands, there is no offence—or defence—of “mercy killing”; nor is there any statutory exception to the offence of encouraging or assisting suicide under Section 2 of the Suicide Act. That Act was amended in 2009. By amending the law, Parliament confirmed that an offence should remain in respect of assisted suicide. Whether the present general prohibition in Section 2 of that Act is incompatible with the right to a private life under Article 8 of the European convention was the central issue in the case of Nicklinson and Lamb, which the noble and learned Lord, Lord Falconer, referred to, in which the Supreme Court handed down judgment in 2014.

Like this House, the Supreme Court was divided on some of the issues before it. But the appeal in that case was dismissed by a majority of seven to two on the basis that it was not appropriate for the court to determine the issue of compatibility at that time. While not unanimous in its view, the court explicitly encouraged Parliament to consider the issue further, and Parliament has done so. Both Houses have subsequently had extensive debates on this issue. The Assisted Dying Bill, introduced by the noble and learned Lord, Lord Falconer, passed Second Reading without a vote on 18 July 2014, after almost 10 hours of debate, and was further debated on two full days in Committee, thereby indicating the level of interest and the division between Members over the fundamentally difficult issue that lay behind the Bill.

More recently, the other House debated the Assisted Dying (No.2) Bill in September 2015. That Bill was essentially the same as the Bill of the noble and learned Lord, Lord Falconer, as amended in Committee. It sought to legalise in England and Wales assisted suicide for terminally ill, mentally competent adults who are reasonably expected to die within six months. As the noble Lord, Lord Tunnicliffe, noted, following a lengthy debate, that Bill was voted down by a majority of 330 votes to 118. As things stand, therefore, the will of Parliament as a whole is that there should be no change in the law. Of course, that does not mean that the issue cannot be re-examined either in Parliament or in the courts. Indeed, today’s debate has again illustrated that the law in this sensitive area remains a matter of great concern to your Lordships. Reference was also made to further litigation that is ongoing in the courts. We are aware of that but it would not be appropriate at this stage to make any comment on such a case when it is still before the courts.

The debate on this issue is often characterised as being a choice between legalising assisted dying on the one hand and the provision of high-quality end-of-life care on the other, but the two are not mutually exclusive. Compassion for the dying person drives both sides of the debate. Wherever one stands on the desirability of legislative change, it is of the utmost importance that all dying people receive high-quality, compassionate care at the end of their lives. Equally, we are all as one, I am sure, in our desire to protect the rights of those who are vulnerable from direct or indirect pressure to take such a step. The central issue is then whether a blanket ban on assisting suicide is a necessary and proportionate way of achieving this.

Those opposed to change argue that any relaxation of the law would constitute too great a risk to sick and disabled people, and that safeguards would not necessarily give enough protection to vulnerable people who may feel pressure, whether real or imagined, to end their own lives. Those in favour of change argue that safeguards would protect vulnerable people from such pressure, while affording dying adults the choice of an assisted death if their suffering becomes too great. As the Supreme Court recognised in Nicklinson, there is a diversity of opinion about the degree of risk involved in relaxing the law in this area but not about the existence of the risk. It is unlikely that the risk of vulnerable people feeling pressure to end their lives can ever be wholly eliminated or that every person who thinks he or she has a legitimate right to assisted suicide can be assisted.

Whatever provisions may be proposed, therefore, the real question is: how much risk to the vulnerable is acceptable in order not to deny those who would genuinely wish to be assisted to commit suicide the opportunity of an assisted death? That is a very difficult balance to strike and there are no simple answers, especially when those who are vulnerable are not necessarily easy to identify. Whatever the arguments for and against change, it is important that the ongoing debate should not lead those whose lives are affected by illness or disability to feel less valued. If ever the law is changed, appropriate safeguards will need to be considered very carefully indeed.

The legal, administrative, practical and resource implications of any change to the law in this highly controversial area are considerable. We cannot in the very limited time available this evening do justice to them, although I would observe in response to the observations of the noble Earl, Lord Glasgow, that we of course take these issues seriously. I have no doubt that the debate will continue in one form or another, in Parliament and elsewhere. In the meantime, I thank all noble Lords for their contribution to this debate.

Personal Injury Claims: Motor Vehicle Incidents

Lord Keen of Elie Excerpts

Wednesday 1st March 2017 Lords Chamber

[Lord Hayward]

To ask Her Majesty’s Government what progress has been made in tackling the abuse of personal injury claims relating to incidents involving motor vehicles.

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

My Lords, reforms to address road traffic accident-related soft tissue or whiplash personal injury claims have been taken forward through the Prisons and Courts Bill, introduced on 23 February. These include a fixed tariff of compensation for whiplash claims and a prohibition on offers to settle such claims without medical evidence. A number of changes to the small claims limit for personal injury will also be made.

[Lord Hayward (Con)]

My noble friend will be aware that a year ago to the day I asked a Question in relation to John Elvin, who reported to his insurer, Sheilas’ Wheels, an accident that he was convinced would be the subject of a false whiplash claim. It was settled and we now have the figures. Sheilas’ Wheels paid £1,500 for damage to a car that was not inspected and the people concerned were given over £6,000 for personal injury, despite the fact that they were able to leap out of the car and protest about a non-existent injury. Is it not the case that the industry has enough to do in putting its position right, as well as dealing with other issues that apply in these cases?

[Lord Keen of Elie]

My Lords, I quite understand the point that has been made. That is why we have included in the proposed legislation a ban on insurers making offers to settle such claims without medical evidence. We have of course addressed the issue of medical reports through the MedCo scheme.

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant in the firm of solicitors in which I was senior partner. The increase in the small claims limit for whiplash cases is likely to lead to greater activity by claims management companies, which will take a substantial cut from any damages. Will the Government take steps to control this parasitic industry? This week, the Lord Chancellor announced changes to the way in which damages for personal injuries are calculated. Such damages are estimated to cost the National Health Service, which recovers the costs of treatment for motor accident claims, an estimated £1 billion a year, and they increase insurance premiums. Is this not a classic example of a ministerial car crash?

[Lord Keen of Elie]

No, my Lords, this is not a ministerial car crash. I remind the noble Lord that the increase to which he refers arises as a result of the application of the discount rate introduced by the Damages Act 1996, which was last reviewed in 2001. The object of the change in the discount rate is to ensure that those who suffer catastrophic and life-changing injuries are fully and properly compensated for those injuries by reference to the damages calculation for their future care and support.

[Lord Goddard of Stockport (LD)]

I have a copy of the report. Will the Minister comment on the following two simple statements? The report says that, once this is implemented, savings of £1 billion will be made and the average motor policy will come down by £40. Huw Evans, director-general of the Association of British Insurers, says that a 21 year-old’s policy will rise by £1,000 and 30 million other comprehensive policies will rise by £40 to £75 a year. Which is accurate, which is correct and which, in the long run, will prove to be right?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, there are two distinct issues to be addressed in this context. The reforms with regard to whiplash will, on the basis of completed impact assessments, result in very considerable savings in motor insurance premiums of the order of £1 billion. It is estimated by the industry that this will result in an average reduction in motor insurance premiums of about £40. The major operators within the motor insurance industry have undertaken to pass those savings on to the motorist, the consumer. However, the changes in the discount rate will inevitably impact on the cost of insurance, including motor insurance, and that will give rise to certain increases. One may offset the other, but I add that the Lord Chancellor indicated when announcing the change to the discount rate that this will be the subject of consideration and indeed a consultation, which is due to commence no later than Easter.

[Viscount Hailsham (Con)]

My Lords, I begin with a declaration of interest: I do not now practise as a personal injury lawyer but I have done in the past. Does my noble and learned friend recognise that the reduction in the Ogden tables to a discount rate of minus 0.75 will inflate the damages that are recoverable in personal injury cases to an extravagant and unconscionable extent, which is bound to inflate the numbers of fraudulent or unjustified personal injury cases in motor claims to the prejudice of all drivers? That being so, may I welcome the fact that these proposals are going to be looked at again, I hope constructively?

[Lord Keen of Elie]

My Lords, the way in which the discount rate is calculated will be examined with some degree of urgency. However, I do not accept that the discount rate will result in the inflation of the value of damages claims. It was designed originally to ensure that those claims would be properly calculated so that those who suffer life-changing injuries are properly compensated for the future.

[Lord Campbell-Savours (Lab)]

Does that mean that if the interest rate goes up, the discount rate goes up? I am only following the noble and learned Lord’s logic.

[Lord Keen of Elie]

The discount rate is related to the rate of return on government bonds, because there is an underlying assumption that those who receive large damages awards for future care will invest them in a very conservative manner, in bonds. Therefore, as the interest rate drops, so the discount rate will also drop.

[Lord Faulks (Con)]

My Lords, I should declare an interest in that I practise in this area. May I suggest to my noble and learned friend that one way to get round this difficulty would be for the Government to legislate to reverse the effect of Wells v Wells, which was decided on the basis that a notional investor would invest in gilts? That is not realistic and has resulted in this extraordinary change to the discount rate.

[Lord Keen of Elie]

My Lords, I agree with the observation that the level of the discount rate reflects a very conservative assumption about how a person would deal with a large lump-sum payment of damages in order to protect their future position. That has to be the subject of review, because it is clearly outdated.

[Baroness Kramer (LD)]

My Lords, surely the review and the consultation should have come before the change in the discount rate, which is, as the Minister has heard from around the House, absolutely preposterous. As he knows, it is a fixed number based on three-year index-linked government securities, a commodity in which nobody who is investing funds for an injured claimant will put their money—it is less than you would earn by putting it into a local bank account. The fact that the number is preposterous means a big increase in premiums for motorists and a billion pound additional burden for the NHS, as well as an unnamed additional burden for the Ministry of Defence.

[Lord Keen of Elie]

My Lords, I am glad that the noble Baroness acknowledges that the basis of the calculation of the discount rate clearly requires review. However, the Lord Chancellor was under a legal obligation to deal with the discount rate and we are now concerned to ensure that we consult fully and address the question of how it should be calculated in future.

Prisons: Staff

Lord Keen of Elie Excerpts

Wednesday 22nd February 2017 Lords Chamber

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

My Lords, private providers are obliged to maintain sufficient staff to ensure that prisoners and staff are safe and secure. We monitor performance against measures specified in the contract. High application volumes are generally received for prison officer and other vacancies in prisons outside London and the south-east, most of which have relatively low levels of staff turnover.

[Lord Beecham (Lab)]

My Lords, there are prisons outside the south-east that have acute staffing difficulties, such as Manchester, Liverpool and Leeds, where the problems have been exacerbated for some years by staff being sent on detached duty to southern jails. Will the Minister assure the House that the Government are addressing that issue? What assessment have the Government made of the impact of the new terms being offered to London and the south on recruitment by private prisons such as Birmingham and Northumberland, where already the low numbers of staff have led to serious, indeed shocking, incidents?

[Lord Keen of Elie]

As the noble Lord acknowledged, we have taken steps to improve the rate of recruitment in the south-east, and London in particular, by introducing a range of financial incentives. That is because in these areas there is considerable employment competition. That does not apply to the same extent in the north-east and north-west. Indeed, application rates in that part of the country are considerably higher than they are in the other parts of the country. Accordingly, it is not anticipated that these incentives, directed to particular areas where there are difficulties of recruitment, will have an adverse impact elsewhere.

[Lord Cormack (Con)]

My Lords, should we not look again at the whole question of private prisons? There are many people who feel that the incarceration and looking after of prisoners is the duty of the state and should not be farmed out?

[Lord Keen of Elie]

I am obliged to my noble friend. The state has many duties and obligations, many of which are successfully contracted out to independent contractors, as they are in the case of prisons.

[Lord Wigley (PC)]

Will the Minister tell the House about the position of recruitment for the new prison, HM Prison Berwyn in Wrexham, north east Wales, which is not a private prison? Will he say how recruitment is progressing and to what extent that is being met by transfers from within the system and by recruitment from outside the system?

[Lord Keen of Elie]

As I understand it, recruitment at the new prison is progressing in a satisfactory way and will be done in a staged manner. We will not, of course, suddenly introduce a large number of prisoners into a new prison at one time. I do not understand that there has been any need to recruit from elsewhere within the prison establishment, but I recognise that there are difficulties across the prison establishment, not only with recruitment but with retention of experienced officers. Of course, we are always looking at ways to innovate and deal with that matter. Indeed, the noble Baroness, Lady Walmsley, mentioned the possibility of golden handcuffs—which might be particularly appropriate in the case of prison officers.

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

My Lords—

--- Later in debate ---

[Baroness McIntosh of Hudnall]

My Lords, can the Minister tell the House how long prison officers are trained for and what are the core skills and competences which they are expected to have at the end of that training?

[Lord Keen of Elie]

I am not in a position to give details on the scope of core skills, but I undertake to write to the noble Baroness setting them out. I understand that there is an initial training period of five weeks—but, again, I will seek to secure confirmation of that and, if I have to correct it, I will again write to her on that point. I will add that, once prison officers are trained, there is a process of mentoring once they begin full-time engagement as a prison officer.

[Lord Marks of Henley-on-Thames]

My Lords, in HMP Northumberland, which is run by Sodexo and was exposed recently by “Panorama”, there was a 40% drop in staff from 2010 to 2013, and numbers have continued to fall since Sodexo took over in 2013. What specific requirements does the department impose on contractors in relation to staffing levels and training in private prisons, and do the Government have any plans to make those requirements more rigorous?

[Lord Keen of Elie]

The position with regard to private prisons is, as I indicated before, that private providers are contractually obliged to maintain a sufficient level of staff to ensure safety and security within the prison, but particular numbers and ratios are not specified by the Government in those contracts. Those contracts are of course monitored.

[Lord Ramsbotham (CB)]

My Lords, can the Minister tell the House how many reserve prison officers have been recruited, from the proposal made by the previous Government’s Chief Secretary?

[Lord Keen of Elie]

My understanding is that the number is very low indeed—potentially in single figures.

[Lord Lexden (Con)]

Does my noble friend agree that the vital work of prison officers is powerfully reinforced by voluntary initiatives such as that recently launched by the SPCK to raise literacy significantly among prisoners?

--- Later in debate ---

[Lord Keen of Elie]

Clearly, the primary function of our prisons is education and reform, which is why we look at prisons not in isolation but in the context of a further social need to ensure through-the-gate services for prisoners.

IPP Prisoners

Lord Keen of Elie Excerpts

Monday 20th February 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government what is their response to the recommendation of Michael Gove, the former Secretary of State for Justice, in his November 2016 Longford Lecture that the approximately 500 Imprisonment for Public Protection (IPP) prisoners “who have been in jail for far longer than the tariff for their offence” should be released.

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

My Lords, we estimate that there are approximately 200 IPP prisoners who have served longer than the maximum term available for their offence. Release of IPP prisoners is a decision for the Parole Board, made on the balance of risks the offender poses to the public. To improve the efficiency with which IPP cases pass through the parole system, a new unit has been established within the Ministry of Justice, working closely with the Parole Board.

[Lord Brown of Eaton-under-Heywood (CB)]

That is a disappointing if unsurprising Answer, and apparently an answer to an earlier question of mine about prisoners who had served beyond the maximum term. This refers to those who have served way beyond their tariff term. Would not the Minister agree that there comes a point in the life of an IPP prisoner, even if he cannot persuade the Parole Board that he will never reoffend, when he has served so many years—seven, eight, nine, 10—beyond his tariff term that simple justice demands his immediate release?

[Lord Keen of Elie]

The noble and learned Lord raises a complex and difficult problem. It was said previously that this sentencing policy was the legacy of a Labour Government. That is unfair. It was a wrong turning in sentencing policy undertaken with the best of intentions which fell victim to the law of unintended consequences. Successive Labour, coalition and Conservative Governments have wrestled with a simple solution to a complex question. If we were going to resolve this matter as simply as the noble and learned Lord suggests, we would not start from where are at present.

[Lord Morris of Aberavon (Lab)]

My Lords, is it the lack of political will that is virtually interning these prisoners or the lack of resources of the Parole Board? If it is resources, will the Minister seek the help of the Treasury in carrying out a cost-benefit analysis of the cost of incarcerating these prisoners?

[Lord Keen of Elie]

The noble and learned Lord raises a good point. The gateway for these prisoners is the Parole Board and, for the particular reason that we need to deal with this cohort of prisoners, we have provided further additional resources to the Parole Board. As a result, its numbers have increased recently by 49 members and the outstanding cases in this regard listed before it have reduced by about 40% in the period from January 2015 to December 2016.

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

My Lords, the Minister knows from this and questions from other noble and learned Lords that he has no sympathy from former judges in this House on this issue, and virtually none from the judiciary at large. He often says that sentencing is for the judges. Will the Government now listen to the judges on this, change the release test for the Parole Board, as he has power to do under the LASPO Act, and work to free the 3,000-plus IPP prisoners who have already served their tariff, thus both reducing the prison population by 4% and removing a manifest injustice?

[Lord Keen of Elie]

I note what the noble Lord says. Clearly we have a duty of care to this cohort of prisoners, who are deemed to be at high risk of committing further serious violent or sexual offences. That is one of the issues we have to deal with. However, our duty of care extends beyond this cohort of prisoners. It is also owed to those members of the public who would potentially be the victims of these persons if they were simply released without adequate determination and supervision.

[The Lord Bishop of Southwark]

My Lords, as an alternative, will the Government consider releasing those inmates on indeterminate sentences, a provision that no longer applies, if they have served longer than a determinate sentence for the same offence? The backlog has to be tackled in some form.

[Lord Keen of Elie]

I am obliged to the right reverend Prelate but I would point out that the backlog is being tackled and the rate of release of these prisoners is increasing all the time. The number of IPP prisoners is now at an all-time low, but we have to remember that these are individuals who for a variety of reasons pose a very serious threat to members of the public. Indeed, a recent analysis of IPP prisoners still in custody whose tariff was originally less than two years indicates that 88% were assessed as posing a high or very high risk of causing further serious harm.

[Lord Faulks (Con)]

My Lords, I think my noble and learned friend the Minister has suggested that 200 hundred prisoners come within the cohort that is the subject of the Question. Can he reassure the House that, as regards those prisoners, there will have been at least one determination by the Parole Board as to whether it is safe to release them? Can he also reassure the House that, if necessary, further determinations will be made or hearings held to reconsider whether it may be safe to release them?

[Lord Keen of Elie]

I am obliged to my noble friend. These prisoners have been the subject of assessment by the Parole Board and, where they have failed to satisfy the board that they cannot be released without a risk of serious harm to the public, further provisions have been put in place for psychological assessment and assistance. Where before there were long backlogs, various courses are now available to help these prisoners towards an open system of supervision.

[Lord Beecham (Lab)]

My Lords, last September the Chief Inspector of Prisons reported that there were 3,200 prisoners over tariff, 42% of whom—1,400—were five years or more over their tariff. The chief inspector called for decisive action to,

“ensure adequate resources and timely support are available to work with IPP prisoners to reduce their risk of harm to others and to help them progress through the custodial system towards consideration for release”.

How many of those 1,400 prisoners have since been released and what is the likelihood that they will be released over the next year or two?

[Lord Keen of Elie]

As regards the figures, the maximum term of imprisonment available to the courts for the offences that the vast majority of IPP prisoners were convicted for was and remains life imprisonment. Therefore the significant majority of IPP prisoners will never reach the point of serving more than the statutorily available maximum penalty. I do not know how many of the 1,400 cited by the noble Lord have been released but I will undertake to write to him if those figures are available. Their prospects for release must depend on an assessment by the Parole Board, but I would add that the ministry is addressing the question of whether the onus that lies with regard to those Parole Board hearings should be reconsidered.

Lay Magistrates

Lord Keen of Elie Excerpts

Monday 20th February 2017 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist]

To ask Her Majesty’s Government what steps they are taking to encourage more people to come forward to train as lay magistrates.

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

My Lords, while magistrates’ recruitment is the responsibility of the Lord Chief Justice, the department is supporting the judiciary in endeavouring to improve the application process to make it more accessible and suitable for a wide range of applicants. There is generally no shortage of applicants for the vacancies that arise.

[Baroness Bloomfield of Hinton Waldrist (Con)]

I thank my noble and learned friend for his reply. As he will be aware, the number of lay magistrates has plummeted in the past 10 years, from 30,000 to 17,000 today, and is predicted to fall to 11,000 in 2020. Can the Minister assure me that the drive for diversity, which I strongly support, is not compromising the principle of merit that should apply to all public appointments? Does he agree that the solution lies in more prominent and proactive recruitment drives?

[Lord Keen of Elie]

While the number of serving magistrates has reduced significantly in the past decade, it is important to make it clear that this is not indicative of any difficulties with recruitment. The reduction in the number of magistrates is due primarily to changes in workload. Recruitment is undertaken in each local justice area, with 44 advisory committees responsible for recruiting and selecting magistrates. Of course, the aim is to recruit on the basis of talent but to ensure that talented people represent all backgrounds and communities they serve.

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

My Lords, we have made no progress on diversity in the lay magistracy. At least gender diversity is not a problem, with a roughly equal number of men and women, although ethnic diversity has hardly moved. However, younger people are woefully and increasingly underrepresented. In 2000, about a third of lay magistrates were over 60. Now that figure is 55%. How will the Government address this? Currently, employers must allow staff time off to serve. Will the Government consider offering employers modest incentives as well to encourage recruitment of working-age magistrates?

[Lord Keen of Elie]

Magistrate remains a sought after role, and competition for vacancies tends to be strong. Advisory committees employ a range of techniques to reach out into their communities for applications to the Bench. This can and does include advertising in public places such as libraries, community centres and the local press. At present, there are no plans to put forward further financial incentives.

[Lord Pannick (CB)]

My Lords, in light of the concern about the age of magistrates, will the Minister look again at the unreasonably low retirement age of 70 for magistrates?

[Lord Keen of Elie]

I remind the noble Lord that the unreasonably low retirement age of 70 applies also to justices of the Supreme Court.

[Baroness Berridge (Con)]

Statistics from the Ministry of Justice show that 10% of magistrates are from a black and minority ethnic background, but can my noble and learned friend the Minister outline whether there is a specific recruitment drive that also addresses the need for young people from those communities? When black and minority ethnic young people come before a youth justice panel, it is very important that it is representative of their communities in a way that unfortunately the police force that arrested them might not have been.

[Lord Keen of Elie]

It is of course important that the magistrates’ Bench should be representative of the communities they serve, but it is equally important that we have regard to the skills, experience and talent required of those who sit on it. That tends to come with age and experience.

[Lord Beecham (Lab)]

My Lords, some 7,000 magistrates will reach retirement age in the next five years. That is something like eight times the membership of your Lordships’ House. Fifteen per cent of cases are heard by Benches of two magistrates, yet district judges are still being recruited at salaries of around £100,000 a year. Is not the increasing reliance on district judges, alongside the failure to extend the recruitment of lay justices beyond the middle and upper classes and the impact of court closures, eroding the concept of local justice rooted in a sense of local community?

[Lord Keen of Elie]

The noble Lord draws attention to a number of issues concerning the disposal of cases between the district court and the magistrates’ court. That will be further addressed in detail as we proceed with the prison and courts reform Bill, which is presently under consideration. I reassure the noble Lord that there is no attempt to direct recruitment towards particular social classes or backgrounds. The 44 advisory committees responsible for recruiting magistrates in England and Wales are concerned to ensure that they recruit talented people from all backgrounds and all communities.

[Lord Foulkes of Cumnock (Lab)]

Has the Minister noticed, as I have, that in response to powerful pleas from Peers on all sides he and his noble friend Lord Nash have merely read out extracts from the brief provided by their civil servants? Are Ministers in the House of Lords no longer allowed to say, “I’ll take that back and discuss it with my colleagues”?

[Lord Keen of Elie]

I was not aware that the noble Lord had read my brief before I arrived in the Chamber. I rather think that if he did he did it in a cursory manner, because I can assure him that the answers I have given have not simply been a recitation of what was in the written brief.

[Lord Faulks (Con)]

My Lords, my noble and learned friend referred to the reduction of workload among magistrates. Can he confirm that that is at least in part due to the reduction in the rate of crime in the UK at the moment? Will he also register his and the Government’s approval of the contribution that magistrates make to the criminal justice system? I think they decide something like 90% of all cases.

[Lord Keen of Elie]

My noble friend is absolutely right: more than 90% of all criminal cases are disposed of by the magistrates’ Bench. If I may read a little further—

[Noble Lords]

Oh!

[Lord Keen of Elie]

—it might be noted that of course they take on an increasing burden but against the background of a decreasing rate of criminal activity.

[Lord West of Spithead (Lab)]

My Lords, the captains of RN ships are trained, to an extent, as lay magistrates to conduct summary trial, and they must form a nice pool, when they retire, to go into this area. Does the Minister agree that if we had more ships and more people, this would help?

[Lord Keen of Elie]

The noble Lord raises an interesting cross-departmental issue. One downside to his proposal would be its negative impact on our concern to ensure the age spectrum of those sitting on the magistrates’ Bench.