Human Rights: Vinter and Others v United Kingdom
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Lord Lloyd of Berwick
To ask Her Majesty’s Government what steps they will take to implement the decision of the European Court of Human Rights in Vinter and Others v United Kingdom.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, the Government are considering the implications of the judgment and will set out their conclusions as soon as possible.
Lord Lloyd of Berwick (CB)
My Lords, the noble Lord will know that there are now 51 prisoners serving whole-life sentences. He will also know that on 9 July the Grand Chamber decided by 16 votes to one that whole-life prisoners are entitled to have their sentences reviewed after 25 years, a right which they always had under English law and practice until they lost it, by an oversight it seems, as recently as 2003. It is now 16 weeks since the decision of the Grand Chamber. Why has it taken so long for the Government to reach their own decision in this matter? How can that delay be regarded as fair on the prisoners themselves, who are waiting to know the answer?
Lord McNally
Let us be clear: the judgment gave an opinion about our law as it stands; there was no case that the outcome of such a decision should make the three prisoners concerned, or indeed any other prisoners, automatically allowable for parole or release. It was a judgment on our law and I think that we have every right to give due consideration to what we should do when we receive such a judgment. I do not think that there has been a delay. As I said in my reply, we will come forward with our response in due course.
Lord Morgan (Lab)
My Lords, this judgment was supported by, among others, the English representative on the European court. Does it not show, first, that we are virtually unique in Europe, since every other European country has either no life imprisonment or the possibility of revising or reducing it? Secondly, does it not show that the United Kingdom has a far more punitive penal philosophy in these matters? This philosophy ignores the possibility of review or, perhaps, of release. It ignores the basic principle of rehabilitation and denies, in the words of the court, “the right to hope”. The Minister is a humane and progressive man. Is he not anxious about presiding over such a policy?
Lord McNally
I am anxious about living in a time when both major parties advocate a more punitive approach to crime and punishment. I hope that the leaders of both parties will ponder a trend over the past 40 years in our society which looks more to punishment and less to rehabilitation. I should also mention the chutzpah of the Opposition because it was under their watch that this right was taken away in 2003. Whether that happened by mistake or by intention, I do not know, but it was under the previous Government that the provision covered by the ruling just made against us in Strasbourg was passed. We have had to pick up a lot of debris about human rights. The previous Government sat on the prisoner decision for five years and did nothing, so I will not take any kind of lectures from that side of the House.
Lord Marks of Henley-on-Thames (LD)
My Lords, does my noble friend agree that we must comply with the Vinter decision in July, given our treaty obligations and our respect for the rule of law? Will the Government now reintroduce a review procedure for whole life cases to give prisoners serving them some hope of eventual release, other than purely on compassionate grounds, if and when their imprisonment plainly no longer serves a public purpose?
Lord McNally
That is one possible outcome of the consideration now taking place. At the moment, we are reviewing the matter in the light of this judgment. I cannot take the House any further in that direction. Nevertheless, it is a very interesting and, if I may say so, a very liberal approach to the problem that we face.
Lord Elystan-Morgan (CB)
My Lords, I respectfully urge the Minister not to regard this as a political matter at all. On 9 July, the court clearly suggested that an error had been made, quite inadvertently, when the Criminal Justice Act 2003 was passed. Prior to that period, all life sentences were reviewable after a quarter of a century. It did not mean that anybody was thereby released; it meant that the sentence was reviewed. That is the narrow point. By failing to review, we are—according to the judgment of 16 to one, including the United Kingdom judge—in breach of Article 3. We must set the situation right as soon as possible.
Lord McNally
That is why we are considering the judgment. I will give way very quickly: I do not want to make this a party political matter, but perhaps the author of the 2003 Act can tell us whether it was a mistake or an intention.
Lord Tomlinson (Lab)
Does the noble Lord accept that the longer we vacillate on this, the longer we appear to be in conflict with the European Court of Human Rights and the worse our reputation is becoming among the other member states of the Council of Europe? Justice in this case should not be delayed any longer. We should comply with the 16-to-one decision. Then we will have the moral authority to talk about the importance of other people abiding by the European convention.
Lord McNally
The noble Lord knows that I agree with him that it is very important that we co-operate with the court and that we take the commanding heights in terms of defending human rights. We have throughout our history set a good example and I want us to continue to do so.
Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013
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Lord McNally
That the draft regulations and draft order laid before the House on 20 May and 8 July be approved.
Relevant documents: 2nd and 8th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 15 October.
Inheritance and Trustees’ Powers Bill [HL]
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The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, it gives me great pleasure to introduce this Bill and to remind the Committee that we have had the invaluable help of Professor Elizabeth Cooke of the Law Commission, the law commissioner who led on the initial Law Commission project. I am a great supporter of the House using its powers in this area to get Law Commission reports into law. There was a period when, for far too long, they gathered dust on the shelves. The process that we have adopted enables us to do some useful work. We are always very grateful to the noble and learned Lord, Lord Lloyd, for volunteering to chair proceedings on these Bills.
The Inheritance and Trustees’ Powers Bill is a fairly short but technical Bill to amend certain aspects of the law of England and Wales as it relates to inheritance and trustees’ statutory powers. The fundamental issue at the heart of much of the Bill—arrangements for disposing of a person’s property after their death—is not one that many of us relish engaging in. It brings unwelcome thoughts of our own mortality. However, these issues must be faced by most of us in some form during our lifetime. In an ideal world such arrangements would be set out in a will—and I repeat that as the first message from this Committee: in an ideal world, the most sensible thing that individuals can do is set out their intentions in a will. However, we do not live in an ideal world. Many people, for one reason or another, do not leave such a document. It is only right that the law, in the form of the intestacy rules, makes appropriate and fair provision for the disposal of their property.
I know that several noble Lords present today have had the advantage of attending the briefing on the Bill by Professor Cooke which we held last week. The Government are very grateful to the Law Commission for the help that it has given in the preparation of the Bill for introduction and its continuing support for the Bill as it goes through Parliament.
The Bill will implement, with some modifications, the legislative reforms recommended by the Law Commission in its 2011 report Inheritance and Family Provision Claims on Death. The project that culminated in that report was prompted by a 2005 government consultation on increases to the statutory legacy. Responses to that consultation included calls for a wider review of intestacy rules with almost all consultees agreeing that such a review was necessary. The Law Commission was asked to examine this area of the law and duly published a consultation paper in 2009, followed by the report, which was accompanied by a draft Bill, in 2011. The Ministry of Justice then carried out a public consultation on the draft Bill earlier this year and then published a response in July, explaining the changes it proposed to make to the Bill. This extended and comprehensive consultation process has resulted in a measure that I believe has broad support and is suitable for the Law Commission procedure in your Lordships’ House.
Noble Lords will be aware that the Law Commission’s previous work in this area included recommendations regarding rights for cohabiting couples on intestacy. The Government decided that it would not be appropriate to take these proposals forward in the Bill now before us. Indeed, the Law Commission recognises that its work on cohabitation raised issues that do not apply to the Bill. The issue of legal rights for cohabiting couples is complex and potentially far-reaching. I believe that there is already more than enough to occupy this House in the Bill as it stands. In addition, the family justice system is already in the middle of a comprehensive reform programme and I do not believe that it would be wise to consider further reform in this area until that process is complete.
The first seven clauses of the Bill deal with two aspects of the law on inheritance: the intestacy rules and family provision. The former dictate the division of property when a person dies without leaving a will. The latter permits certain family members and dependants to apply to the court to vary the distribution of a deceased person’s property, whether that is under the intestacy rules or the terms of a valid will. The Bill will streamline and modernise the intestacy rules, reducing the cost of administering intestate estates and bringing them into line with public expectations. It will also correct some technical deficiencies in the operation of the family provision legislation.
Clause 1 amends Section 46 of the Administration of Estates Act 1925 and, most importantly, makes changes to the entitlement of a surviving spouse or civil partner of a person who dies intestate. The Bill proposes that in a situation where the intestate leaves no children or other direct descendants, the surviving spouse or civil partner will be the sole beneficiary of the estate. This changes the current law under which a surviving parent or full sibling or sibling’s issue is entitled to share whatever is left in the estate after the spouse or civil partner has received the deceased person’s chattels and what is commonly called the “statutory legacy”—in this case, the first £450,000 of the estate. This brings this part of the intestacy rules into line with public expectations. Empirical research has shown that the majority of people favour giving priority to a surviving spouse.
Clause 1 also proposes that where the intestate does leave children or other descendants, the surviving spouse or civil partner is absolutely entitled to the deceased’s personal chattels, a statutory legacy of £250,000 and half of whatever remains of the estate. The other half of the remainder will be shared between the children and other descendants. Under the current law, a surviving spouse or civil partner is only entitled to a life interest in his or her half of the remaining estate. Life interest trusts can be a source of confusion and cost, often for only marginal gain, and the Bill removes them.
Finally, Clause 1 makes several technical changes to the rate of interest which accrues from the date of death of the intestate on the statutory legacy. Clause 1 simplifies the sharing of assets on intestacy in a way that is fair to those who have been closest to the deceased: the surviving spouse or civil partner and any children or their children. Our aim here is to ensure that spouses and civil partners are appropriately provided for. By focusing solely on those closest to the deceased, we aim to simplify the current law on intestacy so that it can better reflect the arrangements that an individual is likely to have made had he or she executed a valid will.
It is impossible to design intestacy rules which satisfy every view of what is right or fair. The rules stand as a legal default position. They should reflect the shape of contemporary society and replicate what most people think is an appropriate division between family members. The changes in the Bill are intended to reflect real-life expectations of what provisions the intestacy rules should make.
Clause 2 and Schedule 1 make a number of changes to the way in which the statutory legacy, or fixed net sum as it is more properly called, is determined. Under the Bill, this sum is, of course, the amount to which a surviving spouse or civil partner will be entitled where the intestate deceased has also left children or other descendants. The most important of these changes impose a new requirement on the Lord Chancellor. At present, the Lord Chancellor has the power to set the level of the statutory legacy but is under no obligation to do so or to keep the level under review. The Bill proposes to change this state of affairs by requiring the Lord Chancellor to make an order setting the level of the statutory legacy at least every five years. As to the actual level to be set, the Bill provides that, unless the Lord Chancellor determines otherwise, the level should be set according to a procedure specified in legislation. The procedure will index link the statutory legacy by increasing it by an amount that reflects any increase in the consumer prices index measure of economic inflation. The legacy can therefore only increase; in the event of no inflation or deflation, the level of the legacy will not change.
Clause 2 enables the Lord Chancellor to set the level of the statutory legacy without using this index-linking mechanism such that he is at liberty to set a level that is equal to or even lower than the pre-existing figure. However, in such circumstances, he will be required to report to Parliament to explain why the mechanism has not been used. These provisions create a legislative framework that will govern the level of the statutory legacy and will ensure that it does not slip behind inflation and lose its real-world value. The changes will benefit surviving spouses and civil partners.
Clause 3 deals with the statutory definition of personal chattels. Under the current law on intestacy, a surviving spouse or civil partner is entitled to all the deceased’s personal chattels that are not otherwise disposed of under a will. The Bill does not change that but it does propose to amend and update how these chattels are defined. Personal chattels are defined in the Bill as “tangible movable property”, replacing an anachronistic and arbitrary list of property and categories of property in the current law. The Bill also includes three defined exceptions to this definition.
The first is money and securities for money. This is not new. The second exception is for property used, at the death of the intestate,
“solely or mainly for business purposes”.
The words “solely or mainly” are new and will ensure that property—for example, a vehicle such as a van that was regularly used in the course of a business—would be excluded from the definition. The third exception is wholly new and relates to property which is held, at the death of the intestate, solely as an investment. This is a narrow exception that would only apply to property owned as an investment and which had no personal use whatever. For example, valuable jewellery which was worn by an individual, even if only occasionally, would still qualify as a personal chattel and would pass to the surviving spouse or civil partner, even if it was also bought and kept in the expectation that its value would increase.
The remainder of Clause 3 provides that where personal chattels are referred to in a will or a codicil to a will, the current pre-Bill definition of personal chattels will be used if the will itself is executed before Clause 3 comes into force. This will be the case even where a codicil is made after the date that Clause 3 takes effect. However, it is also still open to the person making the will or codicil to expressly state that the new definition of personal chattels should apply.
Clause 4 seeks to protect the position of children who are adopted after the death of a parent. The general rule in these matters is that after adoption, a child is regarded as the legal child of the adoptive parents and has no other legal parents. However, Clause 4 ensures that a child whose parent has already died before the adoption takes place will not lose, as a result of adoption, a contingent interest that he or she already holds in the estate of the deceased parent. This provision is relevant where a child is adopted, perhaps by other members of his or her family, as a result of the birth parents’ death. Adoption in these circumstances is typically open, involving no secrecy. The child has been tragically orphaned, and an aunt, uncle or other relative adopts the child. No one intended, in that situation, that the orphaned child should lose his parents’ estate; yet that is what will happen in cases where inheritance—as a matter of sensible estate planning—is contingent on the child reaching a particular age.
It is important to note that this provision affects only children who are adopted after the death of a birth parent. I believe that this is an important distinction and it is right that the law preserves the rights of children who, at the date of the adoption, already hold a contingent interest in the estate of their birth parents. The law already preserves vested interests held by a child at the point of adoption and ensures that those interests are not lost. Clause 4 simply adds contingent interests into that existing provision. It is wrong that the law can strip away a child’s inheritance simply because she has been adopted. Clause 4 will correct that injustice.
Clause 5 proposes to disapply Section 18(2) of the Family Law Reform Act 1987 in certain circumstances. This section provides that where a person dies intestate and his parents were not married to each other at the time of his birth, the administrators of his estate may presume that he was predeceased by his father and any other person to whom he may be related only by virtue of his father. In the case of a person who has a female parent other than his mother as a result of Section 43 of the Human Fertilisation and Embryology Act 2008, his administrators may presume that he was not survived by this second female parent or by anyone related to him through this parent. This is a pragmatic rule which derives from a time when it was common for the identity of the father of a child born out of marriage to be unknown. Tracking such parents down could present real difficulties to those administering intestate estates. The rule discriminates against unmarried fathers and, in practice, can make it less likely that the deceased’s estate will pass under the intestacy rules to such a parent. Nowadays, it is quite usual for both unmarried parents to be identified as such, and the practical justification for the rule is much reduced.
Clause 5 disapplies this presumption if a person is recorded as the intestate’s father or as a parent other than his mother in a specified formal register of births. In such a case, the estate’s administrators will have the same responsibility to the deceased’s father or other parent as they would to any other relative entitled under the intestacy rules. This amendment clarifies that where such a parent has been formally acknowledged as such, irrespective of the absence of a marriage certificate, that parent should, in general, have the same rights as his married counterpart.
Clause 6 amends various provisions in the Inheritance (Provision for Family and Dependants) Act 1975 by way of Schedule 2. Noble Lords will know that it was formerly the Government’s intention to create an additional ground of jurisdiction for family provision claims in this Bill. This was to enable claimants who were habitually resident in England and Wales to bring such a claim, regardless of the deceased’s place of domicile. Scottish Government colleagues have raised significant concerns about how this additional ground would operate in practice, particularly its potential to displace Scots law to the possible detriment of those who had inheritance rights under that law. We have carefully considered these concerns from our colleagues across the border. I do not now believe that it is possible to engineer a compromise on this point that would answer these concerns and retain the benefits of our original proposal. I am also aware that there has been a previous lack of consensus on the nature of the additional ground of jurisdiction—the relevant provision is at variance with both the Law Commission’s original proposal and the majority view expressed in response to the Government’s public consultation.
On that basis, my intention is to bring forward an amendment to the Bill prior to consideration by the Public Bill Committee which will delete the additional ground of jurisdiction in its entirety. I hope that, by doing so, parliamentary consideration can be better focused on the Bill’s other, equally important and worthwhile provisions.
The first of the remaining changes to the procedure for family provision claims is to extend one of the categories of person who can apply to the court for adequate provision from a deceased’s estate, whether distributed by will or intestacy. We wish to clarify that a “child of the family”—not a biological or adopted child, but a person who was treated as such—should now be understood by reference to any family in which the deceased had a parental role. Such a family need consist only of the deceased and the potential applicant. Currently, such an individual could bring a family provision claim only if they could prove themselves to be a child of the family in relation to the deceased’s marriage or civil partnership. This provision reflects the Bill’s attempts to modernise the law of succession to better reflect the realities of modern family life, and ensures that a claim by a deserving child will no longer be barred simply on the basis of the status of his or her parents.
Clause 6 also amends the wording of the 1975 Act, which defines a person who may make a family provision claim because they are considered to be a dependant of the deceased. The interpretation of the current law requires that when deciding such status, the court must balance the deceased’s contribution towards the applicant’s needs against any benefits flowing the other way. If the applicant is found to have contributed more to the deceased than vice versa, the applicant cannot be deemed to be a dependant. The Bill proposes to remove the “balance sheet test” while preserving the other, fairly strict requirements imposed on a person applying for family provision as a dependant. This reflects the important understanding that “dependency” can be mutual, and its benefits need not all, or largely, flow one way.
The remainder of Clause 6 makes a number of fairly technical changes to the procedure for family provision claims. I do not propose to set these out individually, but they include changes to arrangements governing a court’s power to make an order following a successful claim and changes to the way in which the net estate of the deceased is calculated. These changes, though technical in nature, have a significant practical effect and form part of a package of changes designed to modernise and generally improve the current arrangements for family provision claims.
Clause 7 makes various amendments to provisions which require certain types of grant to be left out of account when one is determining the date when representation with respect to the estate of a deceased person was first taken out. These are important changes, but technical, and they will be relevant in only a minority of cases. Again, I do not propose to go through each in detail. There is some uncertainty under the current law as to which grants start time running for these purposes and others and which do not. Clause 7, by way of Schedule 3, aims to clarify these uncertainties by replacing all the current provisions in this area with provisions that clearly and comprehensively set out which grants start time running and which do not.
Clauses 8 to 10 deal with trustees’ powers. Clause 8 concerns a situation where a trustee is able to use income from a trust for the maintenance, education or benefit of a beneficiary who is under 18. The Bill proposes that the amount of income that can be used for such purposes should be a matter entirely for the trustees’ discretion. Currently, an objective test of reasonableness is applied, together with a proviso listing factors that the trustees must consider—for example, a beneficiary’s age—and a specific restriction on the amount that can be paid out. These requirements are not necessary. They are sterile technical burdens and are commonly written out when trusts are professionally drafted. Clause 8 removes them. Given that the trustees must still comply with their fiduciary duties, the reform presents no threat to the interests of beneficiaries. It is right that trustees should in future be able to exercise their discretion flexibly and free from unnecessary restrictions.
Clause 9 deals with a similar situation in which trustees are able to use their power of advancement to make payments of capital to beneficiaries where this is thought necessary. Currently, such payments are limited to one-half of a beneficiary’s future share. The Bill removes this limit so that trustees could, if they think fit, pay out the whole of a beneficiary’s share under this power of advancement. This gives the trustees the flexibility that they would almost certainly be given if they were acting under a professionally drafted will or trust. It has no effect on their fiduciary duty to act in a beneficiary’s best interest, which is imposed by the general law. However, any such payments may still not amount to more than that beneficiary’s future share. Clause 10 sets out, in some detail, transitional arrangements for Clauses 8 and 9.
That concludes my brief description of the substantive provisions of the Bill. The Bill will modernise and simplify the law in a number of areas for the benefit of many people at particularly difficult times of their lives. It is a technical piece of law but no less important for that.
Finally, I must add, as I have done in introductions to previous Bills of this nature, that a Bill such as this demonstrates the importance of having a body like the Law Commission that can prepare expert recommendations for reform of the law in areas that would otherwise remain unchanged and possibly out of date. The Bill also demonstrates the advantages of having in your Lordships’ House this procedure that allows appropriate Law Commission Bills to be scrutinised as far as possible off the Floor of the House. This is the sixth Bill to be introduced under that procedure and I commend it to the Committee.
Lord McNally
My Lords, we have had a good debate, which I am sure bodes well for very interesting discussions in the Public Bill Committee. I again put on record my thanks to the noble and learned Lord, Lord Lloyd, for taking on the responsibility as chair of that Committee. As noble Lords will have gathered, I am also much reassured by the presence close by of Professor Cooke as I try to give answers to matters raised by noble Lords.
The first of my noble friend Lord Henley’s questions was about the situation where there is no surviving spouse or children. In such a case, the law remains the same. As to how the fixed sum was reached, that came out of a study in 2005, which made me think that it might be ripe for looking at again. On the question of whether this is a surprisingly large sum, one of the factors is housing, which makes it relatively easy for an estate to have quite large sums in it. Nevertheless, I am told that it affects at the moment only 2% of estates, partly because, as was mentioned, people who have a house and realise that its value is rising have the incentive to make a will.
The point that my noble friend raised about chattels is one that we may well explore in Committee. As I think my noble friend Lady Hamwee said, it is in respect not just of jewellery but of paintings and other things where there might be a wavy line between investments and chattels. That is certainly something to look at. For the same reason that I will refer to when I come to the interventions of my noble friend Lord Marks, I assure my noble friend Lord Henley that this procedure will be used only for non-controversial reforms. That is its strength and why Parliament has confidence in it. We should keep to that kind of discipline.
As the noble Lord, Lord Beecham, said, the noble Lord, Lord Wills, took us to interesting areas. However, the noble Lord was right to point out the danger of mischief and of the abuse of elderly and isolated individuals. Much of that is the responsibility of the Office of the Public Guardian, which also comes within my ministerial responsibilities. Allegations of theft or overcharging by any professional are serious and concerning but I do not believe that this Bill is the right place to tackle such misconduct. The Inheritance and Trustees’ Powers Bill does not directly deal with wills but instead focuses largely on situations where no will has been made. Dealing with the concerns raised by the noble Lord would not only expand the content of the Bill to deal with wills but would mean taking it into the territory of professional legal regulation, which would be a very significant step and is already dealt with under the auspices of the Solicitors Regulation Authority and the Law Society. However, the Committee will undoubtedly consider the points made by the noble Lord, Lord Wills, carefully unless the chairman rules that out. Not that I am not suggesting that will happen—we look forward to an interesting debate on any amendment tabled by the noble Lord, Lord Wills.
My noble friend Lord Marks gave us a glimpse of the detail into which Liberal Democrat conferences go in making policy. I cannot quite remember the debate myself, but I am sure there were many speeches from the floor that dealt with our policy on this. I have to say to my noble friend that he used a good deal of his speech to talk about things that we have not done and were not in the Bill. These are very relevant and may well need to be brought before Parliament, but he gave the game away at the end of his peroration when he described the issues that we have left out of the Bill: he will see when he reads Hansard that several times he used the word “controversial”. It is because they were controversial that they fell foul of the request of the noble Lord, Lord Henley, that we stay clear of that.
Lord Marks of Henley-on-Thames
My Lords, I draw my noble friend’s attention to a distinction that I hoped I had made between controversial proposals of the Law Commission, which I suggest ought to be brought before Parliament for legislation, and non-controversial proposals, such as are included in the Bill, which are suitable for this procedure. I hope I was making it clear that I do not suggest that this fast-track procedure is suitable for controversial legislation, but I do suggest that the Law Commission should not be frightened or intimidated away from introducing controversial proposals. Indeed, when considering its new, 12th—I think—programme of law reform, it has made it clear that it does not propose to steer clear of controversial proposals. I believe that that is thoroughly laudable.
Lord McNally
I could not agree more. I also say that I take very seriously my responsibility to bring the non-controversial parts of the work before the House.
Whether we should take the non-domicile question out of the Bill can be looked at in Committee. It seems to me that what we have done is no more than to recognise the realities we face in our relations with our Scottish colleagues, but I take on board the point made by my noble friend Lord Marks that in an increasingly international world some of this might have cross-border dimensions.
My noble friend Lady Hamwee made the point about housing now being a big part of any inheritance. She also raised the question of inheritance tax implications. We can look at that in Committee if necessary, but on her specific question about the commencement provision, there is no precise timing as yet, but the intention is that commencement will be all at one time.
I was extremely pleased by the contribution of the noble Lord, Lord Shaw, both for his welcome for the Bill and for the personal example that he gave, which was extremely helpful to the Committee. I shall treasure the compliment of the noble and learned Lord, Lord Lloyd; I shall tuck it away. We will have to leave it to the historians to decide whether it is Wills, Ashton, Etherton or one of the joint parentages we were talking about earlier in the debate. Nevertheless, the fact that the noble and learned Lord has been willing to take on the chairmanship has given an impetus and confidence to this procedure.
I was greatly sorry that the noble Lord, Lord Beecham, did not take this opportunity to give us a quote from Bleak House. Surely there is one somewhere here.
Lord McNally
It is the classic. There is an old joke of which I saw a picture in a bar in Scotland: one farmer was pulling a cow’s horns, another farmer was pulling its tail and underneath was a lawyer milking the cow. However, the noble Lord, Lord Beecham, made a spirited defence of his profession and put into perspective some of the suggestions made about malpractice. As I mentioned when I dealt with the contribution of the noble Lord, Lord Wills, this is looked at elsewhere in the law.
On the issue of two wives, only the wife of a marriage that was legally recognised under English law would be relevant as regards intestacy rules. However, if noble Lords would like to pursue this in Committee, we can look at it in more detail. You do not have to be a Muslim or a Mormon to have some interesting domestic arrangements; this is not personal, but I can think of one or two which might come into this category.
That just shows why it is extremely sensible to use this procedure and the careful research and advice of the Law Commission in carrying this forward. I hope that we can now move into Committee and do this work, which is one of the more satisfactory exercises in Parliament. As the noble Lord, Lord Shaw, pointed out, we manage to pick up pieces of the law that have fallen out of date and address them in an extremely practical way.
Children and Families Bill
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Baroness Benjamin (LD)
My Lords, I, too, support this amendment, and I want to make a case for qualified play therapists to be involved in this issue. Play therapists can play an important role with children and their parents, both in schools and in children’s centres, in breaking the cycle of continual problems within families, helping them fully to understand the importance of parenting and family bonding, and about relationships and responsibilities. Where play therapists have been allowed to carry out this type of work, there has been much success in keeping families living happily together. I know this because I am the patron of the British Association of Play Therapists, for which I declare an interest.
For many years I have spoken up about the need for parenting and relationships to be taught in schools. I have seen what this can do. I have even been into prisons, talking to men, in particular, about parenting and the importance of learning to live with their children, to love them and to bond with them. Many of them do not know how to do that and have never received the investment of time and effort in their lives that would make them understand the importance of this parenting and bonding. I hope that the Government will give this serious consideration and look favourably on the amendment.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, as I have come to expect with this Bill, the amendments are thoroughly debated and raise some fundamental problems, which I promise to take on board as the Bill progresses.
My response gives me the opportunity to explain a number of measures aimed at promoting the positive involvement of both parents in their children’s lives. In many ways, I am sympathetic to the noble Lord’s intentions in tabling this amendment. When we come to make decisions on this Bill, we will all have to consider deeply whether some of the responsibilities that have been raised in this debate are most sensibly written into this legislation, or elsewhere, or addressed by other means. However, I certainly do not doubt that there is an issue—which the noble Lord, Lord Northbourne, has rightly raised—about how we get the required level of parental responsibility. The noble Earl, Lord Listowel, referred to the knock-on effects of the problems of single parents, particularly in families without fathers. The noble Baroness, Lady Massey, emphasised the importance of early intervention, while the noble and learned Baroness, Lady Butler-Sloss, lent her support to the idea that it is sensible to set out those responsibilities in the Bill.
Baroness Howe of Idlicote
My Lords, I was intending to support Amendment 57 when we spoke earlier on Amendment 56. However, it is clearly essential that governors, sponsors, head teachers—those responsible for what goes on in the school—are alert to what is set out here. The point I make about this—others have made it too —is that there are a lot of amendments dotted all over this paper referring to different aspects of what we are discussing, so we are going to come back to this again and again. The ear-bashing and encouragement that the Minister has had will help to indicate the right way of making these important issues completely plain. It is crucial that what the school stands for is made clear to the pupils. I could not be more supportive of the importance of getting that principle across.
Lord McNally
My Lords, I again thank all contributors to this debate. As the noble Baroness, Lady Howe, said, we will return to some of the issues in different guises during the passage of the Bill. That is partly what Committee stage is for: to look at these issues and see where we can clean up the Bill.
Since 1998, all schools have been required to provide a balanced and broadly based curriculum which prepares pupils for the opportunities, responsibilities and experiences of later life. This includes academy schools by virtue of Section 1A of the Academies Act 2010, which is reflected in their funding agreements.
Baroness Massey of Darwen
I am sorry to interrupt but is the Minister aware that the recent Ofsted report on personal, social and health education indicates that many schools are not carrying out their duties in that regard?
Lord McNally
Yes, I am aware of that. Our PSHE review concluded in March 2013 and found that the existing guidance offers a sound framework for sex and relationship education in schools. Sex and relationship education is a sensitive area in which expert organisations and professionals have an essential role to play, but this does not require the Government to revise the existing guidance. However, I agree with the noble Baroness that there are problems from school to school and this is an issue that we must continue to pursue. As the noble Baroness, Lady Howe, said in the previous debate and on other occasions, the media do not always give the most constructive and positive support for this aspect of education.
As I say, the guidance makes clear that all SRE should be age appropriate and that schools should ensure that young people,
“develop positive values and a moral framework that will guide their decisions, judgements and behaviour”.
In particular, paragraph 1.18 states that secondary schools should, among other issues, teach about,
“relationships, love and care and the responsibilities of parenthood as well as sex”,
and,
“taking on of responsibility and the consequences of one’s actions in relation to sexual activity and parenthood”.
The point that the noble Baroness, Lady Massey, made is also relevant in relation to writing things into legislation. There is a gap—you can write the most careful guidance, but how it is practised and carried out at the sharp end is another task, and one that we should address.
It is vital that schools prepare young people for later life, and especially the responsibilities of parenthood. However, the Government strongly believe that teachers need flexibility to use their professional judgment to decide when and how to provide SRE in their particular local circumstances, and to do so in an appropriate manner. We believe that it would be inappropriate to introduce a requirement for pupils in key stage 3, including those as young as 11, to be taught about parenting and sexual relationships. Teachers should retain discretion about whether to do so, while having regard to the Secretary of State’s guidance. Publishing the information set out in the current school information regulations is the best way for parents to have access to information; teachers should be given more freedoms, not fewer, to decide the contents of the school curriculum and how it is taught.
I hope that I have covered most of noble Lords’ concerns in that reply. The noble Lord, Lord Ramsbotham, talked about the need for this kind of education in young offender institutions. I agree that it is absolutely essential that it should be provided there. The noble Baronesses, Lady Tyler and Lady Massey, referred to the use of outside experts. Again, schools are free to use outside experts, and some to very good effect. But the head teacher should have final responsibility for which outside experts are brought in, and that is important. The noble Baroness, Lady Benjamin, made the valid point that it is about teaching wider life skills and relationships. But this is not something that schools alone should do. The media, particularly television, have a responsibility. I sometimes sit with my daughter watching very funny sitcoms, whose messages about sexual relationships are easy, to put it mildly. I often say to her, “That’s comedy—that ain’t reality”. I think that by the time they reached 40 and called it a day, all the members of “Friends” had slept with each other several times—but they all lived happily ever after. Perhaps that is one of the dangers of that kind of media.
I cannot really comment on the hostel closure mentioned by the noble Baroness, Lady Howarth, without knowing all the facts, but I fully endorse what she said about making sure that there is a joined-up policy.
As with the previous debate, I have been impressed by the breadth of opinion in support of what the noble Lord, Lord Northbourne, has done.
As I said, the Government are cautious about trying to write piety into legislation rather than ensuring that what is happening on the ground is effective, but we will be taking this further as the Bill progresses. In response to what the noble Lord, Lord Northbourne, said at the end of the previous debate, if he and a number of colleagues would like to meet me separately to discuss these issues between now and Report, I would be glad to do so. In the mean time, I hope that he will withdraw the amendment.
Lord Northbourne
I am most grateful to the Minister and his advisers for all that information, particularly because most of it supports my amendment. My amendment is not about dictating what schools should teach; it is simply saying, “You decide what you should teach but then you must report on what that is and allow an inspection to see whether you are actually doing it”. Whether some schools will then have to have a rap over the knuckles is a second stage; I certainly have not suggested that.
I suggest that every noble Lord here does what I did, which is to take the names of six secondary schools in their neighbourhood and get the Library to find out what they say in their curricula. I think your Lordships will find, as I did, that five out of six of them either have nothing at all or are absolute rubbish. It is no good prescribing what schools should do. We have to encourage them and make them declare what they are doing, which may be a source of embarrassment to them if they are not doing frightfully well. A great many are not doing frightfully well and Ofsted absolutely confirms that. On that note, I am certainly going to bring this amendment back in some form, but for the time being I beg leave to withdraw it.
Baroness Butler-Sloss
My Lords, I entirely support what lies behind what the noble Baroness, Lady Jones, has said. Amendments 58 and 59 may go most of the way. Amendment 60, to which I speak, was proposed by the Bar, which is why I have put it forward. It is important that the Government understand that there are difficulties. The Child Abduction and Custody Act 1985 incorporates the Hague convention of 1980. I have spent a great amount of time as a High Court judge and in the Court of Appeal on the Hague convention. Under Article 5,
“‘rights of custody’ shall include rights relating to the care of … the child and, in particular, the right to determine the child’s place of residence”.
I congratulate the Government on their bravery as regards arrangements. Having tried cases with mothers and fathers, I do not believe that the proposal will work any better than custody and access or residence and contact. It is not the words but what happens to the child who gets one or other parent, or sometimes both parents, absolutely up in arms.
The difficulty is that the decision under the Hague convention is not made in England if an English child has been abducted. There has been a particular decision, with which I will not bore the House, except to say that where the applicant’s right of custody is an issue the question should not be determined by the English court unless it is unavoidable. It is a matter for the court where the child is taken to, where the other parent goes to that court through the arrangements in this country and says that this parent has lost the child because the child, in respect of which he or she has a right of custody, has been removed from this jurisdiction. The court of the jurisdiction where the child is found makes the decision on whether the right of custody has been breached.
As the noble Baroness, Lady Jones, has said, these are complicated cases. It is very often difficult in some countries to get that country to accept that nationals of that country were resident in this country. Therefore, while they may have been in Germany, they may not particularly want to send their children back although they had been resident here. Guatemala is a country that I particularly have in mind. Under the Hague convention, they should come back but if there is some uneasiness about what is meant by “arrangements”, it is a marvellous opportunity for the foreign court to say, “We are not satisfied on rights of custody, so we will keep the child here”. That is exactly what the amendments of the noble Baroness, Lady Jones, and my amendments are intended to deal with.
I do not mind whether the amendment drafted for me by the Bar or any other amendment is preferable. I would like to see an interpretation of the words “rights of custody”. It should be stated that arrangements made in respect of either parent equal—but put, obviously, in more legalistic language—a right of custody. I hope that the Government will accept that both the noble Baroness and I have got a really important, highly technical point that may have an adverse, practical effect on English and Welsh children being taken unlawfully out of the jurisdiction.
Lord McNally
If there is anything likely to chill the marrow of a non-lawyer Minister, it is the noble and learned Baroness, Lady Butler-Sloss, saying that the amendment that she is proposing is highly technical and important. I have no doubt about that and will try to deal with it with due thoroughness, well aware that the noble and learned Baroness is far more well read in the Hague convention than me.
I am advised that the Hague convention gives a wide interpretation. It is intended to predict all the ways in which custody of a child can be exercised. It is not just orders concerning residence that count; it is also rights arising from the operation of law and agreements between parents which have legal effect under our law. The child arrangements order will make it clear that other jurisdictions will consider where a child lives and has contact as evidence in determining whether an individual has rights of custody.
I welcome the support expressed by the noble Baroness, Lady Jones, for the government amendment, which is purely consequential. Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a reference to contact and residence orders. The amendment simply updates that to refer instead to child arrangements orders.
The remaining amendments relate to the recognition of the child arrangements order at international level. I agree with noble Lords that we must ensure that the order is recognised and enforced at international level in the same way as existing contact and residence orders. I welcome the thought which has been given to this issue.
The introduction of the child arrangements order stems from a recommendation of the family justice review. It seeks to move away from language which reinforces the perception that one parent is more important than the other. In terms of content, the court will, as now, be able to set out clearly in an order the person or persons with whom a child lives, spends time or has other types of contact, and when.
While the amendments which have been tabled do not change the scope of the child arrangements order, Amendment 58 would increases the focus on its distinct elements. In doing so, it risks undermining one of the key aims of the order, which is to shift the focus away from parents’ perceived rights on to the rights and needs of the child.
Amendments 59 and 60 relate more explicitly to the recognition of the order under the 1980 Hague convention. “Rights of custody” are a key concept under the convention and include rights relating to the care of a child, in particular the right to determine a child’s place of residence.
In considering whether there has been an unlawful removal for the purposes of the convention, a court will first establish what rights the applicant had under the domestic law of the state in which the child was habitually resident. What matters is what rights are recognised by that law, not how those rights are characterised.
The specific content of relevant decisions and orders, such as child arrangements orders that specify with whom a child is to live, will provide evidence as to the rights that a person has in respect of a child. However, the question as to whether those rights are properly characterised as “rights of custody” is a matter of international law. The phrase “rights of custody” is not confined to any national meaning, and it would not be appropriate to try to dictate the meaning of an international concept such as this in our law. I assure the Committee that we will be making full use of existing international groups and channels to raise awareness of the new order and ensure that it is properly understood. For that reason, I urge noble Lords to accept the Government’s amendment.
I say again that what I say here is not plucked out of the air; it is the result of considerable thought and advice from government lawyers and is on the basis of advice from the Norgrove studies. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Jones, suggested that we might possibly be causing confusion by what we are doing. I suggest that we meet between now and Report—I am getting a long list of engagements now, but it is important to get this right—and discuss this. If the Government’s expert lawyers persuade me that noble Lords are wrong, then on Report I shall try to persuade the House that they are wrong. However, if noble Lords convince them that there is confusion here, that is the last thing that the Government want out of this legislation. In that spirit, I hope that the noble Baroness will agree to withdraw her amendment.
Baroness Butler-Sloss
I do not believe that I have the right now to withdraw my amendment because it was grouped with the earlier amendment. I make one point: it is not the sophisticated countries that have signed the Hague convention about which I am concerned but the unsophisticated countries, some of which are in South America, the Far East, parts of the Indian subcontinent and the Middle East. Those are countries where it may not be as easy to explain to them what “arrangements” means as it would be to France or Germany.
Lord McNally
“Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10)70 In paragraph 13(1)(c) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services: orders mentioned in section 8(1) of the Children Act 1989) for “residence, contact” substitute “child arrangements orders”.”
Baroness Howarth of Breckland
My Lords, the noble Baroness, Lady Tyler, and the noble and learned Baroness, Lady Butler-Sloss, have put this very precisely. I was the chair of CAFCASS when the problem significantly arose and began the work to tackle the issue, together with the chief executive and the board. The real issue was the length of time that children were waiting for decisions in their cases, and every day for a child is vital. Experts were called to verify what another expert was saying or to give another opinion, and there has been a great improvement in the time taken to reach a decision in these cases since we have streamlined that.
I declare an interest as vice-president of the Lucy Faithfull Foundation, which prepares extremely complex expert witness reports in cases of very serious child sexual abuse. I think the Minister is well aware of its work. In those cases there have been real difficulties in getting the right expert to the right place because, as the noble and learned Baroness, Lady Butler-Sloss, mentioned, local authorities themselves have called the experts in to add to the decision.
All I want to say in this debate is: let us keep the focus on the child and make decisions as quickly as possible, but in complex cases let us make sure that those decisions are based on the right information.
Lord McNally
My Lords, perhaps I should make it clear from the start to the noble Earl, Lord Listowel, that we will resist this stand part Motion, and I am sure that he will withdraw it at the appropriate time. We want this change in the Bill. Let me be clear: experts play a vital role in many care proceedings. Their evidence can be necessary to assist the court in resolving a case justly and in a child’s best interests. It is the Government’s intention to ensure that where the court considers that expert evidence is necessary to assist it to resolve the proceedings justly, including evidence provided by independent social workers, that evidence should be used.
The reason for the measures in Clause 13 is simple: the family justice review found that, too often, expert reports were being commissioned in care proceedings when they added little real value to the decision-making process and contributed to delays. In many cases, expert evidence was provided where the evidence could be obtained from a party already involved in the proceedings. The Government believe that most social care evidence in cases could and should be supplied by local authorities and CAFCASS guardians, and I know that that view is strongly held by the present president of the Family Division, Sir James Munby. However, where a judge considers that it is necessary to have expert evidence, including an independent social work report, to resolve the proceedings justly, then that evidence will still be permitted.
We know that improvements to social work practice will be needed to deliver these changes. That is why the Children’s Improvement Board, together with Research in Practice, delivered a series of regional family justice training seminars to local authorities to highlight good practice in this area and how it may be replicated. In addition, CIB and RiP also recently ran a series of “train the trainer” workshops aimed at those responsible for training within local authorities. The workshops focused on the practical skills that social workers need to progress cases without delay. We have also funded new research distillations to assist social workers when assessing children on the edge of care, and continue to work with the College of Social Work to ensure that social workers receive training in the specific competencies required.
With regard to legal aid fees, which the noble Baroness, Lady Howarth, raised, the hourly rate for independent social workers was introduced in May 2011 following consultation. As the response to that consultation recognised, independent social workers undertake a variety of work for different organisations but the qualifications and experience of those undertaking that work, plus similarities in the work undertaken, meant that it was not considered an effective use of public money for the Legal Services Commission, as it was then, to pay higher rates than those payable by CAFCASS for similar services.
The Government have met organisations representing independent social workers on several occasions, but we have no evidence to suggest that the majority of work undertaken by this group should attract a higher rate than is paid to other social workers. However, where independent social workers provide services that are significantly different from those normally expected of other social workers, significantly higher rates are payable—for example, when acting as an expert risk assessor in cases where there is a substantiated relevant criminal allegation in the immediate background of the case, or where a finding of sexual abuse relevant to the case has been made by a court and the report is specifically required to address this risk.
As I have said, I believe that what we are doing meets the requirements that Dr Brophy set out, as the noble Earl, Lord Listowel, asked me. We understand the concerns that expert witnesses should be used when necessary, and I hope that I made it clear that that will continue to be the case. However, when the noble and learned Baroness, Lady Butler-Sloss, tells me that in one of her cases she had 11 expert witnesses, that almost makes me think that that is what we are facing, and indeed what Norgrove identified. As I said before to the noble Earl, although I take note of what he has said, this is something that I cannot offer a meeting on because we will continue to resist.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I am not briefed by the NSPCC but I have a brief from the Magistrates’ Association, which makes it clear that it also supports the 26-week time limit but also agrees that there should be specific extensions for eight weeks where people can apply to the court. It would probably be most helpful if I raised the questions that the Magistrates’ Association has raised in the brief that it sent me. Before I do so, though, I want to make the point that the examples of exceptions that my noble friend Lady Jones gave are very far from theoretical, because two of those examples I personally dealt with in the past month. They were very real examples of something that I understood very clearly.
The first of the questions that the Magistrates’ Association raised in its brief to me is really a concern that an application for an eight-week extension should resist that extension being a contested hearing, and obviously the decision of the court should be final. If there is to be a contested hearing on an eight-week extension, though, it should be as short and focused as possible. The second point that the Magistrates’ Association made was that it is not clear, from the association’s understanding, that there is any limit to the maximum number of successive extensions. The association’s final point is to ask whether there is any right of appeal if a lower court—although perhaps “lower court” is not the right expression—decides not to grant an extension. Is there any right of appeal to a higher jurisdiction?
Lord McNally
My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for her intervention in support of these proposals—I am also grateful for my momentary promotion. It gives me an opportunity to pay tribute to the work of Lord Justice Ryder when he was with the Family Division. He did a lot of ground-clearing in this area, not least bringing in some very useful comparative statistics which allowed us to see the variety in performance of courts, which was affecting children at a vulnerable time of their lives. When this exercise started, it took more than 60 weeks in some cases to come to a decision. The tri-borough project also demonstrated in advance of this legislation that this could be done more quickly. Certainly, the robust leadership that Sir James Munby has given in implementing the Norgrove proposals has meant that, as the noble Baroness, Lady Tyler, said, a culture of delay has been replaced by a culture of urgency. That is much to the credit of what we are proposing.
We all agree that delays in decision-making, whether by local authorities or in courts, can be very damaging. They can add to emotional insecurity and affect children’s prospects for returning to or finding a permanent loving home. Introducing a 26-week time limit for care and supervision cases will send a clear and unambiguous statement to all parts of the family justice system about the need to reduce delay. Removing certain cases from the ambit of the 26-week time limit at the outset, as proposed by Amendment 62, would undermine this effort.
I recognise that these cases deal with important and complex issues and not all will be able to be completed within this timeframe. The court will therefore have the discretion to extend the time limit in a particular case beyond 26 weeks if that is necessary to resolve the proceedings justly. The clause carefully strikes the necessary balance between putting in place a maximum 26-week time limit to tackle delay in all cases and allowing sufficient judicial discretion to extend time where necessary to resolve the case justly, having explicit regard to the child’s welfare.
Requiring extensions to last for a maximum of eight weeks at a time will help ensure that the court is focused on resolving cases as quickly as possible. To allow the court to grant an extension without imposing any limit as to the length of the extension, as proposed by Amendment 63, would potentially allow cases to drift. This could undermine the aim that we all share, of reducing unnecessary delay. There will always be some very complex cases which it may not be possible to complete within 26 weeks. Where that is the case, the court will be able to extend time, where necessary, to resolve proceedings justly. It is important, however, that we keep a clear focus on resolving cases as quickly as possible, and specifying a maximum eight-week limit on the length of extensions will ensure that this happens. There is, however, no limit on the number of extensions that can be sought.
I recognise the concerns of the noble Baronesses and have seen how successful intervention models such as the Family Drug and Alcohol Court approach can be. That is why I am very pleased that the Government are continuing to provide funding of £150,000 in each year of 2013-14 and 2014-15 to continue the development and rollout of the FDAC. As part of our funding of FDAC, we are proposing to continue work that will enable this model to meet the 26-week time limit in most cases. Proceedings in the FDAC model currently take the same time on average as standard care proceedings, and we believe that the 26-week time limit can be applied successfully in most cases.
I think I have just answered the point raised by the noble Lord, Lord Ponsonby. The noble Baroness, Lady Jones, asked about the Family Procedure Rule Committee. On the basis of its specific expertise, the committee has been invited to consider whether to further elaborate on the matter to which the court is to have regard in order to support Clause 14, and we await its response. The court rules may set out the matters to which the court must, may or may not have regard when making the decision whether to grant an extension to the time limit. It is, rightly, the remit of the FPRC to consider whether to make court rules under the clause; it is a statutory independent non-departmental public body responsible for making these rules of the court. Before making the rules, the FPRC must consult such persons as it considers appropriate, and we will update the Committee on the FPRC’s work before Report.
I am not sure whether there were any other matters that were specific to this; the questions come thick and fast. Yes, there was one: the noble Baronesses, Lady Jones and Lady Benjamin, raised the question of whether the 26-week time limit would impact on kinship care and whether it would be shoehorned into a one-size-fits-all solution. We are aware that, in spite of everyone’s best efforts, occasionally relatives are not identified until late in the proceedings. However, the 26-week time limit should not impact on kinship care. It is not for the courts to decide whether it is Granny who the child goes to; rather, it relates to the choice of the permanence plan being a relative if possible, followed by adoption or long-term foster care. After all, the court does not decide which adopters the child goes to when it agrees to a plan for adoption. We are continuing to use programmes such as family group conferences before proceedings start in order to identify family members from the onset of cases. In addition, we are working in partnership with the Children’s Improvement Board and the College of Social Work to support the continuing improvement of social work practice. Of course, the court retains the power to extend the case for longer consideration if necessary.
The public law measures in the Bill will tackle the damaging delays that exist throughout the system. These delays can deny children the chance of a permanent home and have a harmful long-term effect on a child’s development. The measures will also refocus the system so that the child’s best interests are part of the process. Our measures strike the necessary balance between tackling delay and allowing sufficient judicial discretion to resolve proceedings justly, and I hope that noble Lords will agree to withdraw these amendments.
The Earl of Listowel
My Lords, I briefly pay tribute to the Government. In the past week I met District Judge Crichton and his team from the NHS Portman trust. District Judge Crichton set up the Family Drug and Alcohol Court five or six years ago and has had great success, with about one-third of families coming through the court keeping their children, and the best evidence so far is that those children continue to do well and thrive with those families, so the family stays off drugs and alcohol. I pay tribute to the Government for their support of FDAC from the beginning and for their continuing support. I express the hope that perhaps in future FDAC might be made even more widely available across the country, always bearing in mind the heavy burden that local authorities are continually faced with as more and more children each year come into care and the challenges that that poses to all of us. Once again, I pay tribute to the Government for their support of FDAC, if I may.
Baroness Jones of Whitchurch
My Lords, I welcome the support of the noble Baroness, Lady Benjamin. I do not want anyone to be under any illusions: of course it is imperative that we tackle the court delays that have occurred in the system. We absolutely start from that point of view. We welcome all the steps that have been taken to modernise the family court system, including those to cut the time that is taken to deal with cases in the court. I agree with the noble Baroness, Lady Tyler, that it is a cultural issue as much as anything and we need to tackle that culture.
Our amendments were never intended to be an open door for judges just to sit on their hands and delay decisions. The intention was that in very particular cases, which people could see from the outset were going to take longer than 26 weeks, they would be able to make a decision and spell out and justify that decision at the time. It was not just an opportunity for a delay for the sake of it.
I am slightly concerned about how these eight-week extensions are going to work. For example, if a family is going through an intensive period of therapy, knowing that the case is going back to be reviewed every eight weeks is fantastically stressful and disruptive to them when they feel that they are making progress. The evidence shows that a lot of court decisions were delayed because the processes were not in place, reports were not received in time or the evidence was not there at the time. If you are then going to deal with a rolling eight-week review, there are all sorts of opportunities for things to go wrong and for the evidence simply not to be before the court at the right time. I would be interested to know how these eight-week extensions work in practice. We may well need to have a review of them in the short term.
My noble friend Lord Ponsonby said that my examples were not theoretical, and I thank him for confirming that. The point is that the families that we are talking about know from the outset that it is going to take time to turn their lives around. They know they are going on quite a long journey. To feel that that there is this time pressure hanging over them will have a negative impact on the whole process.
Lord McNally
The noble Baroness was asking about how the extensions would work in practice. The request to extend the timetable for proceedings will be considered during the proceedings, as far as possible, and should not result in additional hearings. I should also explain to the noble Lord, Lord Ponsonby, that there could be further extensions. On the right of appeal, I have an explanation in my brief but I would rather write to him to make sure that I get it right. There is a limited right of appeal. I am sorry for interrupting the noble Baroness.
Lord Storey (LD)
My Lords, I was not going to speak to this amendment. I have followed the debate with great interest. I am probably out of my depth in this discussion. I want to look at it from a different point of view.
I have heard about “likely”, “possible” and “thresholds”. I am always concerned about the protection and well-being of the child. In recent years we have seen children who have been physically and mentally abused at home, and no one has been able to help them. They have seen the abuse but they have not been able to go and do anything about it. Recently, there was a little boy who was emaciated; he was scrabbling around for food in the gutter and was allowed to be ill treated by his parents. If this discussion means that a social worker can knock on the door, get into the house and provide welfare and, presumably, safety for the child—not necessarily taking the child away—then that must be the right thing to do. It must not always be about a legal interpretation or a legal battle between two sides. We must always focus on what is the best for an individual child. Recently society has let those children down. We have to remember the case of Baby P to see where that happened.
Lord McNally
My Lords, perhaps I may follow my noble friend Lord Storey because he encapsulates a lot of why this is a very difficult debate. Earlier today we heard strong appeals to ensure that local authorities did not rush to judgment and deprive a child of staying at home and being brought up by their natural family. I have colleagues in the other place who are extremely critical of what they think is a tendency by authorities in Britain to too readily take children from their natural parents and from their kinship carers and family. Yet, as my noble friend says, every so often we get these horrific cases, and not just the media but everyone asks, “How could it happen? Where were the teachers, the social workers and the neighbours? How was it allowed to happen?”. The question of that balance has kept on coming up throughout the debate—the importance of the threshold that has to be cleared before we can intervene.
Again, I am not pretending to the Committee that these things are coming from the top of my head, but I say to the noble Baroness, Lady Howarth, that I am told Section 47 would allow statutory intervention in a child’s life if the child’s life warranted it. Under that section the local authority has a duty to investigate and can gain access to the child’s home if it deems the child to be at risk of significant harm, and then move for an emergency protection order. It may not be the barrier that the noble Baroness was suggesting.
I thank the noble and learned Lord, Lord Lloyd of Berwick, for raising this important issue and for meeting me and my officials last week to explain his concerns in more detail. This is clearly a complicated issue, and I welcome the opportunity to hear the views of noble Lords who have such expertise and experience in these difficult matters, even if that expertise causes them to come to different conclusions.
As noble Lords will appreciate, Section 31(2) of the Children Act, which the noble and learned Lord proposes to amend, has to balance the need to protect children from harm with the need to protect the child and family from unwarranted state intrusion—the balance that the noble and learned Lord, Lord Mackay, the author of that Act, has explained to us. Any amendment to this carefully worded section, which has stood the test of time, therefore should not be taken lightly.
The amendment would allow a court to infer that the threshold for making a full care or supervision order has been met solely on the basis that someone living with a child might—but was not proven to—have significantly harmed a child previously. This is a departure from the current balance in the Act. Currently there must be a factual foundation for the state’s removal of a child. Reasonable suspicion is a sufficient basis for authorities to investigate and even take interim protective measures in order to gather evidence, but case law has outlined that it cannot be a sufficient basis for long-term intervention.
The threshold for being able to intervene under Section 31 is there not only to protect the family but to protect the child, as unjustified removal can in itself result in significant harm to the child. This is the very reason why Section 31 was included in the Children Act 1989. It is possible that such protection would be eroded if it could be inferred on the basis of unsubstantiated suspicion that there was a basis for making a final order such as a care or supervision order.
I know that the noble and learned Lord has tabled this amendment following concerns about some specific judgments. But it is important to note that in most cases the court would be unlikely to a make a decision based on the sole fact that a person might—but was not proven to—have significantly harmed a child previously, as was the case in re J. The noble and learned Lord, Lord Mackay, made the point that it was a unique case.
It is important to bear in mind what happens in the build-up to care proceedings. Where there are child protection concerns, the local authority is under a duty under Section 47 of the Children Act 1989 to make inquiries and decide whether any action must be taken to enable the local authority to safeguard the child’s welfare. A Section 47 inquiry should assess the needs of the individual child. The statutory safeguarding guidance, Working Together to Safeguard Children, issued in 2013, is clear that assessment is,
“a dynamic and continuous process which should build on the history of every individual case”.
A good assessment investigates,
“the child’s developmental needs … parents’ or carers’ capacity to respond to those needs; and the impact and influence of wider family and community and environmental factors”.
Research shows that taking a systematic approach,
“is the best way to deliver a comprehensive assessment for all children”.
This should mean that, when the court hears an application for a care order, the court is presented with a full range of factors and evidence for it to consider. For example, the court may consider the child’s assessed development and needs, whether drink and drugs were present in the previous household and whether they are a factor in the new relationship, along with the factors surrounding any previous incident that may have occurred.
The judgment of the noble and learned Baroness, Lady Hale, has been quoted a number of times. What she actually said is:
“There are usually many readily provable facts upon which an authority can rely to satisfy the court that a child is likely to suffer significant harm unless something is done to protect him. Cases in which the only thing upon which the authority can rely is the possibility that this parent has harmed another child in the past are very rare. As the Court of Appeal pointed out, this case has itself been artificially constructed by the decision to treat the issue as a preliminary question of law”.
A real possibility of harm having taken place in the past will not be ignored by the local authority carrying out the investigation and would form the body of evidence presented to the court as part of care proceedings. We are therefore satisfied that the court would give appropriate consideration to those matters related to the child’s history that are relevant to whether the threshold test has been met.
Court of Appeal (Recording and Broadcasting) Order 2013
Lord McNally Excerpts(10 years, 7 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Court of Appeal (Recording and Broadcasting) Order.
Relevant documents: 8th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, when I first looked round the Committee, I thought we were at a casting session for a future television programme.
The order before us today sets out the conditions under which the recording and broadcasting of footage in the Court of Appeal Civil and Criminal Divisions will be permitted. Before setting out further details about this order, I will briefly explain some of the background to this policy.
There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it. Few people have direct experience of court proceedings, and public understanding of how the justice system works is limited. In principle, the majority of our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to see what happens in our courts in person. The justice system is viewed by many as opaque and complex. We believe that we should make our courts more accessible and make it easier for the public to understand court proceedings.
Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to changes in technology and society and to allow cameras into our courts, but it is important to do so in a balanced way which will protect the individuals involved and preserve the dignity of the courts.
Currently the recording and broadcasting of footage in courts below the UK Supreme Court is prohibited by Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013, which received Royal Assent in April, enables the Lord Chancellor, with the agreement of the Lord Chief Justice, to create an order specifying the circumstances in which the prohibitions contained within the Criminal Justice Act and Contempt of Court Act may be disapplied. The Court of Appeal (Recording and Broadcasting) Order 2013 is the first order to be made under that power, and sets the conditions under which the statutory prohibitions on recording and broadcasting will be disapplied to allow for recording and broadcasting of footage from the Court of Appeal. Any breach of the terms of the order may amount to contempt of court.
Recording and broadcasting of footage will be only of specified proceedings, as laid out in Article 5 of the order, where these proceedings are in open court and in front of a full court. Media parties may film only advocates’ submissions, exchanges between advocates and the court, and the court giving judgment. Filming of any other individuals—including appellants, members of the public, victims and witnesses—is not permitted. In cases where any party is not legally represented, only the court giving judgment may be recorded.
So long as any applicable reporting restrictions would not be breached by broadcasting, in many cases footage may be broadcast “almost live”, subject to a 70-second time delay, as agreed between media parties and Her Majesty’s Courts and Tribunals Service. We believe, however, that in some cases it is necessary to impose restrictions on broadcast in order to prevent prejudicing any potential future retrials, and to protect the interests of justice.
For this reason, any footage of proceedings where a retrial has been ordered may not be broadcast unless the court gives permission to do so. This means that in those cases where a retrial might be ordered, such as appeals against conviction, the court must give its permission before any part of those proceedings may be broadcast. Where a retrial is not ordered by the court, media parties may show footage immediately after the conclusion of proceedings. In certain limited circumstances, the court may give permission to broadcast even these cases from the outset. But until the conclusion of the case, the decision is solely for the judges in that appeal.
It is important for justice to be seen to be done but this cannot be at the expense of the proper administration of justice or the reputation of the courts. The courts deal with very serious matters that can affect the liberty, livelihood and reputation of all the parties involved. Therefore, we have taken steps in order to ensure that any report or presentation using footage recorded in the Court of Appeal should be presented in a fair and accurate way. It will have to have regard to the overall content of the presentation, and to the context in which the broadcast footage is presented. Furthermore, footage may not be used in party political broadcasts or for the purposes of advertisement or promotion. It cannot be used for the purpose of light entertainment or satire.
The technical and operational details governing the recording and broadcasting of footage from the Court of Appeal will be set out in writing and agreed between the judiciary and the media parties. This will be annexed to the written authorisation of the relevant media parties by the Lord Chancellor.
When the broadcasting provisions were debated in this House during the passage of what became the Crime and Courts Act 2013, concerns were expressed that the introduction of cameras into the Court of Appeal, while broadly supported, might be the thin end of the wedge and lead to the undesirable broadcasting of trials and proceedings in the lower courts. I reiterate the assurance given at that time that any extension to the circumstances set out in this order will require a new order that will require the agreement of the Lord Chancellor and the Lord Chief Justice, and the approval of both Houses of Parliament under the affirmative procedure.
We are conscious of the concerns that were raised regarding victims and witnesses, and of the perceived potential detrimental effects that court broadcasting might have on their experiences in court. In particular, the comments made by the noble Baroness, Lady Kennedy, during the passage of the primary legislation through Parliament, as well as a report by the Joint Committee on Human Rights, led directly to the publication of a full impact assessment alongside this order, and to our continued engagement with interested parties.
It is rare that a victim or witness will appear in person at the Court of Appeal, as the majority of cases will be appealing a point of law rather than the facts of the case. However, in the event that they are present, a number of safeguards will be in place to minimise any potential impact that broadcasting may have. As I said, the order does not permit filming of any victim or witness. Nor does it permit the broadcasting of any footage of them. In addition, existing reporting restrictions will continue to apply, and Section 32(3) of the Crime and Courts Act 2013 provides that the court may stop or suspend filming, or prohibit broadcast, in the interests of justice or to prevent prejudice to any person.
The Government are committed to increasing transparency and to providing the public with the information they need on the operation of public services. The justice system is no exception. To many people, the law remains mysterious. Public understanding of how the courts work is critical to confidence in the system and to its effectiveness in ensuring that justice is done. This order will allow for greater visibility of the courts, without undermining the seriousness and diligence that are central to the quality of our justice system.
I hope that, in making the presentation, I made it clear that we know that we are going into new territory. Certainly the observations of this Committee will be greatly valued. In the mean time, I commend the order to the Committee.
Lord Hope of Craighead (CB)
My Lords, I very much welcome the order. I rise to speak because I have some experience of the operation of a very similar system, which I introduced 20 years ago in Scotland. The position there is that there is no statutory restriction on the filming or audio recording anything that happens in any court. The matter is controlled entirely by the judiciary. When I became Lord President, it seemed to me—very much for the reasons given by the Minister in his opening remarks—that the public would benefit from seeing a little of what happened in the courts, and would thereby understand a bit more about how the process of justice was being administered. The opening remarks of the Minister were precisely to the point, and I very much agree with the reasons he gave for making this order.
On the other hand, I set as my criterion in deciding what to do about the other point that the Minister made, which was that the administration of justice and the respect that is due to the court itself were absolutely fundamental to any relaxation that might be made on any blanket restriction on the use of cameras or audio recording. The system which I set up was rather a modest one, but is almost exactly that which the Minister has put before this Committee. It depended entirely upon the consent of the court to the use of this equipment. Since we were allowing trials to be considered for audio and television purposes, it would require the consent of a lot of other people as well.
This is a very modest step, because it looks only to the Court of Appeal process. That is a good deal easier than the system at which I was looking. Nevertheless, I have one or two remarks. It is of course very different from the system from which I have just come in the UK Supreme Court, where there is a live feed of the hearings on Sky, and our judgments, when we give them, are reported instantly on YouTube. I understand from comments that have been made to me that both these systems are widely used by the universities, which like to keep track of what arguments have been presented to the court and what judgments have been given.
I do not think that, in not going that far, the Minister is making a mistake. When one looks to the Court of Appeal, as I was doing in Edinburgh, one has to be extremely cautious and move step by step. This step is carefully judged and very appropriate. However, I would like to suggest one or two points. First, the Minister might care to look for the future at the practice direction which I gave in 1992, which set out one or two other points to which people were expected to adhere. I do not have a copy with me today, but it is available in the usual way and provides some guidance to the way the system is operated in Scotland.
Secondly, to give noble Lords a little idea of how the system is actually used, one of the points which came over clearly to us was that the broadcasting corporations want quick feed for news broadcasts but do not have available space for a good deal of dispute and discussion in court unless, as Sky does, they provide it live on a feed which is simply available all the time. I cannot see the live system working here because, quite rightly, there is a check on what is being put out, so that the court must give its permission. The Minister said it could be almost live but cannot be actually live; I fully understand that. That being so, the use that could be made of argument would be rather limited.
However, I see real value in the broadcasting of, at least excerpts from, what judges are saying when dealing with an appeal against sentence. I confess that once or twice in the past two or three years I have wished that the noble and learned Lord, Lord Judge, who was sitting as Lord Chief Justice, had been seen on television. I knew that his remarks were extremely well judged, but I would have thought that they would have carried much more weight if people had seen him actually saying them. That will be the great value of this in the future, almost certainly the most valuable from the court’s perspective and also from the point of view of the broadcasters.
Two things may be missing here. First, in Scotland, we find that the television companies now mostly use the system for ceremonies that take place in court. When a new judge is introduced, which happens fairly frequently these days, there is a fairly colourful ceremony which takes place in court. When the First Minister for Scotland is sworn in, that takes place in court as well. These things do not happen, of course, in the Court of Appeal. On the other hand, things do happen in the Lord Chief Justice’s court which might be of interest to the public, and they are not on the list of things which can be broadcast. It may be that experience will allow for a little bit of relaxation to allow that kind of thing to take place; for instance, when a new Lord Chief Justice is sworn in.
The other thing is documentaries. I think—but I would be grateful if the Minister could confirm—that the recordings referred to here would be available for broadcasters for use in documentaries. That was what happened in our experience in Scotland. Six programmes were made to show trials as they happened and, in one or two cases, the appeals that followed after trial. There has been another one very recently in Scotland, the case of Nat Fraser, where the same technique is being used. It has been broadcast, using recorded material from the proceedings in court. I can see some interest in the way this is done, although of course it will lack the draw for the broadcaster of having the evidence, but at least some of the argument could be helpful. It would be interesting to know whether documentaries would be covered.
Those are the three points for further reference: first, checking how it is done in Scotland for some guidance as to how the system actually works in practice; secondly, ceremonies; and thirdly, documentaries. Otherwise, I very much welcome this measure and I am sure that in due course we will find it beneficial.
Lord McNally
I really appreciate what the noble and learned Lord has said. Perhaps it is a factor of age but it is fair to say that I was the least enthusiastic of Ministers about this. I have used in ministerial discussions the term “slippery slope”. The noble and learned Lord’s endorsement is very clearly on the record. I am interested to know whether there has been any downside in Scotland. Has any abuse by the television authorities been later used to call into question a court judgment or anything like that?
Lord Hope of Craighead
No. I think I had the upper hand, to be perfectly frank. When I introduced it in 1992, the broadcasters understood that if they abused the rules, that would be the end of the system. My experience was that they stuck precisely to what we asked them to do. I was not aware of any abuse of the system. My noble and learned friend Lord Mackay of Drumadoon, who is more familiar with Scotland than I am, may have other experience, but that was my experience. Of course, as far as the Supreme Court is concerned, we have to keep a careful watch on what is being used and what is done with what is being used, but in my experience we have not been let down by that either.
I think the broadcasters will appreciate that this is very much up to them. If they abuse the system, that will be the end of it and judges will not give their consent. That is why that particular part of this order is so important. It is a crucial point of the whole system.
Lord Mackay of Drumadoon (CB)
I am conscious that not every Lord Mackay has any right to say anything about the judicial system in England, and he should confine himself to the system to which he belongs, in Scotland. However, it might help Members of the Committee if I endorse what the noble and learned Lord, Lord Hope, has said here today.
My impression of the proceedings recorded in Scotland is that the lawyers and judges who took part were confident that the trust placed in the broadcasters was merited. I have heard no criticism of the recording or, ultimately, transmission, of the broadcasts. On the other hand, among one’s lay friends—including legal friends—who watch some of these programmes, there is a range of opinions on the success of the venture. Sometimes it is clear from questioning the viewer that he or she has not followed everything that was broadcast. One reason may be that a documentary can only last an hour or so but must represent filming of a trial lasting 10 days or 20 days, or whatever. To some extent the fact that programmes are sometimes misunderstood or not fully appreciated may—in a funny way—be a further justification for taking a small but very well thought-out step towards deciding whether broadcasting has a role to play in the judicial system in England.
Lord McNally
My Lords, I am extremely grateful to both noble and learned Lords for giving us the opportunity to hear about the Scottish experience. I notice that the two juniors of the noble and learned Lord, Lord Hope, have remained silent during this debate, but I know that their presence is nevertheless welcome.
I think the Scottish experience has been trailblazing, and none of the fears I had about broadcasting the courts have applied to the Supreme Court. It has greatly enhanced public appreciation and awareness of the Supreme Court to have the live feed and the ability for the public to watch it at work. I am sure my officials have already taken note of practice direction 1992. The noble Lord is quite right that the question of ceremonies and swearing-in is not covered by this order, and I will reflect on that, because it would be useful. It would be nice, when a Lord Chief Justice hands over, if there was some kind of accompanying televisual ceremony. I agree with that. Furthermore, the broadcasters will be able to create documentaries. I understand there have been some good ones. There is one in my pile about a Scottish trial, made by Channel 4. I have not watched it yet but am told it is very good.
To be fair, the evidence is that this can be helpful. I am sure that all our views are coloured by the images of the OJ Simpson trial and the trial in South Africa, which seemed to move from court of law to three-ring circus very quickly. I remain cautious in this area, but the Committee can be doubly reassured because the Lord Chief Justice has gone through this at every step and, equally, any changes will have to be agreed by the Lord Chief Justice of the day. As I said, both Houses of Parliament will also have to be convinced. We have put in the safety catches—that is, if you can put safety catches on a slippery slope.
I am very grateful to the noble and learned Lords, Lord Hope and Lord Mackay, for what they said. We will review the arrangements in due course, including with the senior judiciary to make sure that it is comfortable with how they are working.
Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013
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Lord McNally
That the Grand Committee do report to the House that it has considered the Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, the draft Legal Aid (Information about Financial Resources) (Amendment) Regulations 2013 amend the Legal Aid (Information about Financial Resources) Regulations 2013 that came into force on 1 April this year. The draft regulations make provision in relation to requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport to facilitate a determination for the purpose of legal aid that a relevant individual’s financial resources include an interest in a motor vehicle. This amendment is intended to support the Criminal Legal Aid (Motor Vehicle Orders) Regulations 2013 that came into force on 30 July this year. These provide for mechanisms of enforcement in relation to unpaid contributions towards the cost of criminal legal aid in the Crown Court imposed under the Criminal Legal Aid (Contribution Orders) Regulations 2013.
The motor vehicle orders regulations authorise the magistrates’ court to order the clamping and sale, through motor vehicle orders, of an individual’s vehicle when the contribution required to be paid by the individual towards their Crown Court legal aid costs is overdue. Before granting a motor vehicle order, the court must be satisfied that the defendant owns the vehicle, and it is for this purpose that the amendment before the Committee is significant. Requests for information by the Director of Legal Aid Casework to the Secretary of State for Transport, in practice the DVLA, in accordance with the amendments made by these draft regulations will enable the director to confirm whether an individual is the registered keeper of a particular vehicle. If the individual is the registered keeper of that vehicle, the director will also be able to request any particulars contained in the register in relation to that vehicle. An applicant for legal aid is required to indicate in their application whether they, alone or with anyone else, own a motor vehicle, and if so, the registered vehicle number of that vehicle. The individual’s statement that they own a vehicle, taken together with the DVLA’s confirmation that the individual is the registered keeper of the vehicle, will be a way of evidencing that the individual owns the vehicle for the purposes of the motor vehicle orders regulations.
These draft regulations also add the Armed Forces Independence Payment to the list of prescribed benefits in the schedule to the 2013 regulations. If an individual is in receipt of a prescribed benefit, the director may request information about the benefit from various other government departments, including the amount the individual is receiving. Due to the timing of the secondary legislation that created the AFIP, it could not be included in the schedule when the 2013 regulations were first made; it was always intended to add the AFIP to the schedule at the earliest opportunity.
Having accurate information about the financial resources of an individual who is applying for or in receipt of legal aid is an important part of ensuring that only those eligible for legal aid receive it and that those who can afford to contribute to the cost of their legal representation are made to do so. I should stress that the proposed data sharing arrangements with the DVLA will in no way impact on defendants, solicitors or courts in terms of forms or process. There is therefore no risk of any delay to existing court proceedings or any additional burden on court users. As was the case with the original 2013 regulations, nothing in these regulations dilutes the Government’s obligation to protect an individual’s personal information and to maintain confidentiality.
These draft regulations support the Government’s proposals to make the legal aid system operate more efficiently, and to improve confidence in the system as a whole by ensuring that those who are entitled to help receive that help while those who can afford to pay, do so. I beg to move.
Lord Beecham (Lab)
My Lords, I begin by welcoming the noble Lord, Lord Bates, to the Front Bench. I am not sure that he has a relevant interest—to quote the appropriate phrase, perhaps—in these regulations, but it is good to see another Peer from the north-east occupying a position of some influence, I hope, with this Government.
The regulations refer to an “interest” in a motor vehicle. That can take more than one form and need not necessarily be ownership. Presumably, somebody might be the keeper of a vehicle which is rented or hired, or indeed owned by somebody else, and I am not quite clear how the regulations would apply in those circumstances. It is also interesting that the explanatory notes refer to the fact that details of the scheme were to be published in an addendum to the consultation response alongside an updated impact assessment. I do not know whether that has been published and I confess that I have not been able to find an impact assessment. Will the noble Lord indicate what the potential impact is, for example, in terms of the number of vehicles that might be expected to be reported and, for that matter, the number of vehicles about which action might be taken, presumably in taking possession of those vehicles?
Will the noble Lord also indicate the approach that will be taken in relation to possible removal or disposal of such a vehicle and what criteria would be likely to be applied? For example, if someone, whatever his involvement in an offence might be, was dependent on having transport, for example, to work, would that be a material factor or would the process be directed simply at taking into account a financial recovery? Presumably, if a contribution was sought from somebody, he would be expected to dispose of any financial interest in the vehicle, which could conceivably cause difficulty. Is a process to be directed to that question? What other impact is anticipated in relation to the application of the order?
In relation to the other part of the regulations, given the concern about members of the Armed Forces, I find it a little surprising that a benefit specifically directed to, presumably, members of the Armed Forces who have suffered a disability, possibly in the course of their service, should be taken into account. Will the noble Lord inform your Lordships about the rationale for that? I appreciate that it might be regarded as analogous to the disability living allowance but one might have thought that, if a disability is incurred in the armed services, a rather different view might be taken. Will the noble Lord indicate the potential impact of this, in terms of the number of cases which it is envisaged might arise on an annual basis? Obviously, we are not going to take a point about these regulations, except to note that they seem to have been in force for some seven months before coming to this House for consideration. It does seem an inordinately long time after regulations have come into force to proceed with the process of parliamentary approval. None the less, we as an Opposition are not going to take any point against them as such.
Lord McNally
My Lords, I thank the noble Lord for that helpful intervention. On the point about publication, the impact assessment was published on 5 July 2013. On discretion, the primary legislation already puts in a number of safeguards. The court may make a clamping order only if it is satisfied that a defendant’s failure to pay the amount sought was due to wilful refusal or culpable neglect. The clamping order must not be made unless a defendant has an interest in the vehicle, and a clamp may not be fitted to a vehicle that displays a current disabled person’s badge. So safeguards are there. The court may grant an order only if the individual has an interest in the vehicle. If the individual shares a vehicle with their spouse or partner, this would be sufficient. However, we would not go after a vehicle which was the subject of a hire-purchase agreement, for example.
I appreciate the noble Lord’s probing. I was one of the initiators of this tightening of the regulations, because I had in my mind the idea of the drug-pusher who was kingpin of his estate and who seemed to be able almost to defy the law by driving around in a swanky car. It might at least send a message to those who saw him as a role model if his swanky car was taken off him. However, I understand that that needs to be carefully balanced against other matters in law—and I think that it is balanced.
On the Armed Forces matter, AFIP is a benefit for Armed Forces veterans to protect them from any possible financial detriment as a consequence of the replacement under the Welfare Reform Act 2012 of disability living allowance with personal independence payments from 8 April 2013. Like the DLA and PIP, AFIP is a benefit which is deducted from the gross income of an individual when their eligibility or liability to make a contribution towards the costs of legal aid made available under Part 1 of the Act is being calculated. It is therefore four-square with other benefits in that respect. With those assurances, I commend the regulations.
Inheritance and Trustees’ Powers Bill [HL]
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Judicial Appointments Commission Regulations 2013
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Lord McNally
That the draft regulations laid before the House on 20 June be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 July.
Lord Scott of Foscote
Before your Lordships pronounce on the satisfactory or unsatisfactory quality of these regulations, I have a point which I endeavoured to make when these Motions were debated in the Moses Room a week or so ago. It relates to the provision regarding the appointment of members of selection committees, whose job it will be, once the committees have been established, to deal with the applications for appointments to senior judicial roles. The arrangement is that senior judges—the president, the Lord Chief Justice, the Masters of the Rolls or whoever it may be—will have the power to nominate the members of these commissions. However, the regulations go on to say that, in the event that the Lord Chancellor of the day is of the opinion that the senior judge in question suffers from an incapacity—presumably an incapacity to discharge the role of nominating members of the commissions—somebody else has that power.
I am bound to say that, when I first read these regulations, I thought it was thoroughly unsatisfactory for a senior member of the Executive to have the power to pronounce on his or her belief in the incapacity of a senior judge to discharge a statutory function that would otherwise be exercisable by that judge. I made this point in the course of the debate in the Moses Room and, since then, the noble Lord, Lord McNally, has been kind enough to write me a letter about these points. He drew my attention to similar provisions that can be found in primary legislation—in particular, the Constitutional Reform Act 2005 but there was another Act that he referred to where similar provisions are to be found. I was not aware of that. It is profoundly unsatisfactory that provisions of that sort allow a member of the Executive to remove powers from a senior judge on the Executive member’s belief in the incapacity of the judge to exercise those powers without any apparent necessity for the opinion to be backed up by medical evidence or psychiatric evidence. It is not consistent with the constitutional requirement of the separation of powers and I voice these objections now.
The sting is taken away by the fact that similar provisions have already found their way into primary legislation but, nonetheless, the existence of these provisions is unsatisfactory. I wish I had known that they were there in primary legislation. I would have taken the same objections at that stage. It is difficult to see why the opinion of a Lord Chancellor, who is not a medical person or necessarily even a lawyer, on the incapacity of a senior judge to exercise a particular statutory function should by itself be enough to relieve the individual of the power to exercise that function. The House should be aware of this matter before allowing these regulations into legislation. I am not proposing that the regulations should be voted down but the House should be aware of this. I regard it as unsatisfactory in principle and, up to a point, unconstitutional.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble and learned Lord, Lord Scott, goes even further than he did in Committee. These matters are not unconstitutional. Let me be clear that the role of the Lord Chancellor to determine the incapacity of the Lord Chief Justice and the President of the Supreme Court is not newly created by these regulations. As the noble and learned Lord, Lord Scott, has acknowledged, this role is already set out in extant primary legislation. It is also true that these regulations come before the House after extensive discussions with the President of the Supreme Court and the Lord Chief Justice. The regulations have been examined in detail by the Justice Committee and I think by the Constitution Committee of this House—but I may be wrong on that. Certainly, they have gone through quite a thorough mincer of committees and they were discussed in Committee in the Moses Room.
The Lord Chancellor’s letter to the Scrutiny Committee set out in some detail why the normal procedure for determining incapacity of the Lord Chief Justice was not appropriate in these circumstances. In short, the heads of division who normally make this determination may themselves be applicants in the appointment process in question. Therefore, to ensure there is no perception of conflict of interest, they do not have a role. It may also be helpful if I explain why we consider it entirely appropriate for the Lord Chancellor to determine incapacity. The Lord Chancellor has a significant number of responsibilities through the process from requesting a panel is convened, determining the content of the panel’s report and, of course, making the final selection decision. The system is therefore reliant on the Lord Chancellor discharging a range of duties and powers appropriately. The Lord Chancellor, under Section 3 of the Constitutional Reform Act, also has a statutory duty to protect the independence of the judiciary. Therefore, if the Lord Chancellor were to determine incapacity where that was not in fact the case, this would be a breach of that duty. This means that in reality it is very likely that the Lord Chancellor would consult the relevant members of the judiciary to determine incapacity, but we do not consider it necessary to spell out the nature of that consultation in the regulations. That is particularly the case as relevant persons may be different in different circumstances.
As regards determining the Lord Chief Justice’s incapacity, it may be appropriate to consult him or her personally to determine whether, for example, the incapacity results from a planned operation; or it may be appropriate to consult the heads of division if they are not the subject of the appointments process in question. Alternatively, it may be appropriate to consult the President of the Supreme Court.
The role of the Lord Chancellor in determining incapacity is taken from extant primary legislation. We do not consider that the role gives rise to any risk of inappropriate behaviour, particularly as the Lord Chancellor could not, of course, do anything that would breach his overriding duty to protect the independence of the judiciary.
Prisons: Child Suicides
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Lord Sheldon
To ask Her Majesty’s Government what steps they are taking to reduce the number of suicides of children in prisons.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are committed to reducing self-inflicted deaths of children in prison. Since the tragic deaths of three children in 2011-12, the National Offender Management Service has established a working group to extract and disseminate the learning to prevent further deaths. Additionally, a review of the assessment, care in custody and teamwork procedures for young people is being undertaken.
Lord Sheldon
The actual task is down to the mothers. The mothers should really not take the children to prisons; that is the task.
Lord McNally
I am not sure how that links to the Question on the Order Paper. If the noble Lord is asking about mother and baby units, I can try to give an answer on that. However, the Question was about the number of suicides of children in prison. That is what I was responding to.
Lord Laming
Would the Minister agree that, no matter how serious the offences committed, or alleged to have been committed, by these young people, they are also often vulnerable young people who are confused and capable of serious self-destruction? Can the Minister expand on his earlier Answer to say what steps are taken to ensure that the assessment of risk is as strong as possible? Is he satisfied that prevention plays a key part in dealing with these young people?
Lord McNally
My Lords, first, we are talking about six deaths over 10 years; that is six too many, I readily acknowledge. We also now have an all-time low of young people in custody, for which both Administrations and those working in the youth justice system should take credit; there are fewer than 1,400 in custody, including only a handful of girls. However, the noble Lord is absolutely right that we are dealing with young people who, as well as often having a great capacity for violence against other people and self-harm, are extremely vulnerable and quite often exhibit mentally unstable behaviour. We are bringing in both initial and ongoing assessments to try to make sure that we can identify those who are at risk of either self-harm or, ultimately, of killing themselves. Looking at the briefing on this, an awful lot of hard work and deep study is going on, with the realisation of exactly the problem that the noble Lord highlights: these are vulnerable young people, who are difficult to manage and need a great deal of care and attention.
The Lord Bishop of Guildford
Would the Minister care to comment, in the light of the reports of HM Inspectorate of Prisons of May this year on the increased violence at Ashfield and Feltham—it is 10 years to this month since the Commission for Racial Equality produced its report on Feltham—on the desirability of the elimination of the use of batons and routine strip searches in juvenile prisons?
Lord McNally
Every inclination I have is in that direction. Carrying on the policy of the previous Administration, we have tried to make sure that order and discipline in young people’s institutions of various kinds are maintained with the minimum of physical intervention and with the maximum attention on trying to manage difficult situations. A lot of the training addresses how the staff themselves are able to manage down situations before they become violent. However, we also have a duty of care to our staff and a duty of care to other inmates in these institutions, who may become victims of uncontrolled violence.
Lord Patel of Bradford
My Lords, what mental health and therapeutic services are available not only to assess but to support young children and others at risk of suicide and self-harm?
Lord McNally
My Lords, the Department of Health has made a commitment to provide access to liaison and diversion services for offenders of all ages who come into contact with the youth justice and criminal justice systems by 2014. A national liaison and diversion development network has been created, bringing together 101 sites for adults and young people with the aim of aligning service provisions where appropriate, while recognising the different pathways required for different ages. There are 37 youth pathfinder sites in this operation. The sites screen young people under suspicion of committing an offence, whether in police custody suites or in custody, and this will be followed by a full health assessment capable of identifying a range of vulnerabilities. One of the good things that has been done in recent years is the introduction of real health and mental health testing in this area. Again, I freely acknowledge that it carries on work from the previous Administration.
Public Bodies (Abolition of Victims’ Advisory Panel) Order 2013
Lord McNally Excerpts(10 years, 9 months ago)
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Lord McNally
That the draft order laid before the House on 25 April be approved.
Relevant documents: 1st Report from the Secondary Legislation Scrutiny Committee, 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 15 July.