Hillsborough: Collapse of Trials
Lord Wolfson of Tredegar Excerpts(2 years, 10 months ago)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, following the collapse of the trials relating to the Hillsborough disaster, on 10 June in response to the UQ in the Commons the Lord Chancellor said that he would very carefully consider
“the points made by the … Bishop of Liverpool …. in his 2017 report”
and the conclusion of the trials, and publish an
“overarching response … having further consulted … the families.”—[Official Report, Commons, 10/6/21; cols. 1128-29.]
In addition to this, the Government have undertaken to respond to the Justice Committee’s report on the coroners service by the end of July this year, specifically to its recommendation that bereaved families should be legally aided at inquests where public authorities are legally represented. Does the Minister accept that, in these two responses, the overriding concern should be that bereaved families and victims feel that their interests come first, and that no public authority or individual working for that public authority is above the law?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, on a personal note, I was still living in Liverpool at the time of the Hillsborough disaster. I remember listening to Radio Merseyside that fateful Saturday evening as the news of the deaths came in and the figure mounted higher and higher. I have nothing but admiration for the families and their supporters who sought justice for the 96 over so many years and in the face of so many obstacles. In response directly to the noble Lord’s question: yes, the overriding concern must be that bereaved victims and families feel their interests come first. We want to place them at the centre of our response to the inquiry under the former Bishop of Liverpool. Certainly, I agree that no public authority or individual working for that public authority is above the law.
Lord Marks of Henley-on-Thames (LD)
My Lords, Mr Justice Davis held that the offence of perverting the course of justice did not apply to a public inquiry, because it is an administrative function of the Government rather than a process of public justice. If that is the current state of the law, even given the specific offence under the 2005 Act mentioned by the Lord Chancellor, will that not undermine the whole point of public inquiries and destroy public confidence in them? Will the Government urgently amend the Inquiries Act to reverse this decision, particularly in view of the impending inquiry into the handling of the pandemic, where we know there will be significant conflicts of evidence?
Lord Wolfson of Tredegar (Con)
My Lords, we will of course keep this point of law under consideration but not for the reasons the noble Lord gives, if I may say so respectfully. The Prime Minister has already confirmed that the Covid inquiry—if I can call it that—will be established on a statutory basis with full formal powers. That means that Section 35 of the Inquiries Act 2005 will apply. That makes it an offence to commit acts that tend
“to have the effect of … distorting … altering … or preventing … evidence”
from being given to a statutory inquiry.
Lord Carlile of Berriew (CB) [V]
Will the Minister confirm that the DPP himself advised on charges brought in the trial and on the surprising decision not to appeal the trial judge’s terminating ruling? Will the DPP follow the practice of publishing his advice in important cases? Will the Minister explain why alternative charges of misconduct in public office were not brought against all three defendants, as they could have been?
Lord Wolfson of Tredegar (Con)
My Lords, the CPS sought advice from senior Treasury counsel pre-charge. Decisions on appropriate charges were made after consideration of that advice. Those decisions were taken in 2017, predating the current director’s term of office. As far as misconduct in public office is concerned, that charge was not available for Mr Metcalf, the solicitor for South Yorkshire Police’s insurers. The allegations against the two officers were related closely to his conduct. Therefore, it was considered that the same charge against each was appropriate. The CPS did not appeal the decision because, having carefully considered it, it concluded there was not a proper basis to appeal to the Court of Appeal. As for the point about the director publishing advice, he does not sit under the Ministry of Justice, as the noble Lord will be aware, but I will pass that point on to the director, whom I note is appearing before the Justice Select Committee tomorrow.
Lord Moynihan (Con)
My Lords, having flown up to the ground on the day of the tragedy as Minister for Sport, I spent time in the gymnasium that was divided into three: principally, an area for the dead; an area for families and friends to identify their lost ones through photographs; and an area for counselling and statements. I have rarely spoken about the appalling tragedy and the lasting effect it had on all of us involved, but does my noble friend the Minister agree that for all the criticisms levelled and questions about the decisions made by those in charge, the support given in tragic times to the bereaved, and the respect for those who had died—lying there in the gymnasium—has rarely been recognised? Does he accept that everyone I met that day, many in a state of profound shock, including many young police officers, did their level best to assist in harrowing circumstances?
Lord Wolfson of Tredegar (Con)
My Lords, in cases like this, it is important to distinguish between the institutional response—which in many cases was either lacking or appalling—and the individual response of individual police officers, emergency service workers and others who went out of their way to assist in the most distressing of circumstances.
The Lord Bishop of Leeds
My Lords, what have the Government learned about the process of justice and public confidence in law, when a trial can collapse one day and a defence counsel stands in the street outside the court and maintains unequivocally that this proves that there has not been a cover-up, yet almost the next day the police admit such cover-ups and compensation is duly paid?
Lord Wolfson of Tredegar (Con)
My Lords, as Prime Minister David Cameron said when he made the apology in the other place, the families
“suffered a double injustice: the injustice of the … events”
themselves,
“the failure of the state to protect”
them
“and the indefensible wait to get to the truth;”
and also the offence of
“the denigration of the deceased.”—[Official Report, Commons, 12/9/12; cols. 285-86.]
When I was at the Bar, it was generally regarded as unwise or sometimes improper to comment publicly about your cases. I certainly commend that approach to anybody who says anything about the acts of the Liverpool fans. The Sun itself had to provide a full apology. It well behoves everybody else to read the Bishop Jones inquiry if they want to find out what the truth actually is.
Lord Wills (Lab) [V]
My Lords, those of us who have been campaigning in support of the Hillsborough families for many years welcomed the positive and sympathetic response of the Lord Chancellor in the other place, and it has been echoed today by the Minister. Does he agree that it is time to meet the demand of the Hillsborough families—that no one similarly bereaved in a public disaster in the future will have to suffer what they suffered for so long? Does he also agree that the Public Advocate Bill, as first set out in the 2017 Queen’s Speech, will meet that demand by giving the bereaved real agency in the aftermath of such disasters and the ability to set up a Hillsborough-type panel to ensure that the truth is never again covered up?
Lord Wolfson of Tredegar (Con)
My Lords, the Government fundamentally recognise the importance of placing the bereaved at the heart of any investigation that follows a public disaster. The noble Lord has worked in this area for a number of years and a Bill on this has been proposed. There was a government consultation in 2018, the responses to which were somewhat varied. As the Lord Chancellor confirmed in the other place last week, we will work at pace to ensure that we have a proper, full consultation on this important topic. He also reiterated that we will work on this on a cross-party basis. It is important that the independent public advocate does three things: first, it has to be independent; secondly, it must have the confidence of those who use it; and thirdly, and most importantly, it has to make a practical difference.
Lord Alton of Liverpool (CB)
My Lords, even before the Hillsborough disaster of 15 April 1989, I had written to the Government questioning the safety of the ground. With the deaths of Liverpool constituents, including a child, and permanent brain damage to another constituent, I have waited patiently, along with the families, to see justice. This is justice delayed and justice denied. Reverting to the question asked by my noble friend Lord Carlile, presumably the Director of Public Prosecutions thought the perverting charge sustainable in law. Did he review the case himself, given its huge public importance, and will the CPS now consider prosecution for misconduct in public office for at least some of the three acquitted men? Does the Minister agree that the possibility of a private prosecution for other offences remains?
Lord Wolfson of Tredegar (Con)
My Lords, at the time of these events, I was living in the constituency next door to the noble Lord’s and I remember his significant leadership in the city then. Respectfully, I shall pass the question on the director to the director for him to respond to the noble Lord. CPS charging decisions must be a responsibility of the CPS and totally independent of government. It would be unwise for a government Minister to provide legal advice from the Dispatch Box on the sensitive topic of private prosecutions.
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, the time allowed for this Question has elapsed.
Criminal Justice Review: Response to Rape
Lord Wolfson of Tredegar Excerpts(2 years, 11 months ago)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, there is a lamentable state of prosecutions for rape in England and Wales. Equally, there is a shared desire between all parties to see better, fairer outcomes and support for victims as they travel through the criminal justice system. The Minister in the other place spoke yesterday about a new structural and cultural change to increase the number of rape prosecutions that we see in our court system. I have a couple of questions for the Minister. First, will the rape review, which we expect to be published relatively soon, commit to indicators of progress, similar to those that we see in the violence against women and girls Act in Wales? Secondly, will the review commit to a support plan for rape survivors, as recommended in the Labour Party’s recently published green paper? If the Minister can give positive responses to those questions, it will go some way towards sharing a way forward to improve this lamentable position.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the Minister in the other place made clear yesterday, the underlying statistics in this area are indeed regrettable. He made it clear that he is taking personal leadership on this matter because rape is a cross-agency issue. We have the police and the CPS, both of which are rightly independent of government, and we have the Courts Service and the judiciary. Everybody must come together to improve the current performance.
The rape review will be published shortly after the Recess. I am afraid I cannot provide advance notice of its details today but I very much hope that, when they read it, the noble Lord and the whole House will welcome it because we intend it to be a transformational document that will lead to transformational change. Supporting victims of rape is an absolute priority for this Government; we have invested significant sums in that.
Let me give the House just one example of a change that can be made and which has real consequences. We have put in £27 million to create more than 700 new posts for independent sexual violence advisers. They stand with victims throughout the process. We have seen what is terribly called victim attrition. People opting out of the system goes down by 50% and more than 50% of people stay in if they have these advisers to help them. We will work, I hope with the noble Lord, to improve the statistics in this area.
Lord Marks of Henley-on-Thames (LD)
My Lords, delaying the report to await the Court of Appeal judgment on CPS charging decisions is understandable, but one wonders why the report has taken two years. This is a dangerous crisis. Rape prosecutions were down from more than 5,000 in 2016-17 to fewer than 1,500 in 2019-20, in spite of an increase in reported rapes. In 2020, more than 52,000 rapes were reported but there were only 843 convictions. Potential rapists become ever more confident of impunity, and the lives of women and girls become ever more threatened.
Without second-guessing the report, may I press the Minister on two points? The first concerns ending the culture among young men and boys that condones harassment, even rape, and expresses the arrogantly sexist view that “she was asking for it”. We see it in schools, universities and colleges. Will he pledge substantial extra resources for citizenship education to turn this around and teach respect for women and girls?
The second point concerns that trauma of legal proceedings and probing the sexual history of rape victims. In his report from Northern Ireland, Sir John Gillen recommended that victims have legal representation to oppose the disclosure of their personal data, including mobile phone records, and to oppose them being cross- examined on their sexual history in cases where such issues arise. Will the Government agree to provide that?
Lord Wolfson of Tredegar (Con)
My Lords, it is not correct that the review was delayed solely because of the judicial review of the CPS policy. The noble Lord will be aware that the court concluded that there had not been a policy change, although, frankly, I accept that that does not mean that there were no important issues for the CPS to address. The delay was also in part because we wanted more engagement with victims’ groups. We are delighted that Emily Hunt has joined us; she can give us, and has given us, invaluable insight from her position as a victim.
As far as the culture is concerned, the noble Lord is absolutely right. This is a cross-governmental issue. It is fair to say that, in schools and colleges, there is now more understanding of what consent means and, if I can put it this way, of what consent does not mean. If I may be personal for a moment, frankly, I see that in the education my own children get at their schools. They get an education that I do not think people in this House would have got when they were at school.
On legal proceedings, the noble Lord is absolutely right. There are careful rules now over when a claimant’s sexual history is relevant to the case. Often, it is not. We have put in place a number of changes to ensure that complainants are better looked after by the courts system. For example, Section 28 is currently being rolled out. It will enable vulnerable victims and witnesses who are subject to intimidation to give evidence and be cross-examined online and on-screen in advance of the trial.
Lord Harries of Pentregarth (CB) [V]
Everyone is agreed that the present system is failing badly, with only 1.6% of rape allegations leading to a charge and so many victims left traumatised by the process. The Minister called this “regrettable”. To a lay person in this sphere, to put it bluntly, it comes across as quite appalling.
I want to press the Minister, if I may, on the question asked by the noble Lord, Lord Ponsonby, which I am afraid he did not answer. Does he agree that, if we are serious about the recommendations when they are published, the Government will need from the outset to do what the Welsh Government have done: put forward a number of progress indicators, with a report published each year? If it is anything like the Northern Ireland report, there could be hundreds of recommendations in a wide range of spheres, and it would be so easy for them simply to drop through the sand unless there is a proper system of prioritisation and annual reports to Parliament on the progress on their implementation.
Lord Wolfson of Tredegar (Con)
My Lords, I will not quibble over the adjectives we use. The present position is entirely unsatisfactory. We need dramatic improvement, and it is my hope and that of the whole Government—particularly my honourable friend Mr Malthouse—that we will see that improvement.
On the specific point about data, we recognise the need for all partners across the criminal justice system to be held accountable for their part in improving outcomes for victims of rape and sexual violence, as well as for delivering on the action plan in the review. We will look for ways to address this. As Mr Malthouse said in terms in the other place yesterday,
“transparency is one of the key themes that we have been looking at … There will be an announcement, when the plan comes”,—[Official Report, Commons, 25/5/21; col. 267.]
as to how we will approach and publish the reporting of data.
Baroness Gale (Lab) [V]
Is the Minister aware that an analysis of Home Office figures published this week by the Guardian revealed this:
“While there were 52,210 rapes recorded by police in England and Wales in 2020, only 843 resulted in a charge or a summons—a rate of 1.6%.”?
Does the Minister agree that this figure indicates that there is very little sign of justice for victims, with most perpetrators just getting away with it? Is the Minister confident that, when it is finally published, the review will encourage victims of rape to come forward, give them all the support they need and mean that they can have confidence in the justice system—that is, that the perpetrator will be brought to justice?
Lord Wolfson of Tredegar (Con)
My Lords, I am absolutely aware of the figures referred to by the noble Baroness and recognise the need to do more to drive up the number of prosecutions and convictions. That is why this matter is a major focus for the Government and the CPS as we work to reverse what has been a negative trend over the past few years. It is fair to say that, if you look at the very recent history over the past quarter or two, the volume of prosecutions and the proportion of suspects charged have increased. However, progress is too slow and we need to do far more. I know that the CPS is working hard to continue the current trend.
We are putting in significant extra funds. I referred earlier to the independent sexual violence advisers. We have also put in an extra £51 million to increase support for rape and domestic abuse victims. However, more needs to be done, and the Government and I are determined that more will be done.
The Deputy Speaker (Lord Russell of Liverpool) (CB)
My Lords, all supplementary questions have been asked.
Queen’s Speech
Lord Wolfson of Tredegar Excerpts(2 years, 11 months ago)
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Lord Bates
That an humble Address be presented to Her Majesty as follows:
“Most Gracious Sovereign—We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament”.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, it is a privilege and pleasure to open this fifth day of debate on Her Majesty’s most gracious Speech. Today’s debate on justice, home affairs and cultural issues will allow us to explore some of the key themes that Her Majesty expounded in her Speech last week. Many of these matters are central to a well-functioning society, including the recovery of our justice system in the wake of the Covid-19 pandemic; the prevention of violent crime and the delivery of justice for victims; the basis and operation of our constitutional settlement; the way that our immigration and asylum systems work in practice; and how the United Kingdom will respond to digital and technological developments, including online safety and the security of our communications. Given the wealth of experience on all sides of the House, my noble friend Lady Williams of Trafford and I look forward to hearing the contributions that will be made by noble Lords in today’s debate.
The last year was like none in recent memory and has been difficult for everyone. None the less, this Government have remained steadfast in responding to the Covid-19 crisis. The pandemic affected all areas of life, both private and public, and the justice system is no exception. The past year has been particularly challenging for our courts and tribunals, so I first, and importantly, want to express my gratitude to those working across the justice system, whose efforts over the last year meant that the wheels of justice never stopped turning. They are now turning faster: almost all jurisdictions are now completing cases at pre-pandemic levels.
However, we are aware that there is much further to go—so, as we begin a new Session and social distancing restrictions ease, one of our top priorities will be to accelerate the work already taking place to address the effects of the pandemic on courts and tribunals, and we will also use this opportunity to secure further improvements for our justice system. As such, we will implement measures to ensure that the Crown Courts are running to their maximum capacity, using every judge and courtroom available, with no limit on sitting days this year. We will learn from our experience with remote hearings and seek to retain them where appropriate. These measures will enable us to deliver swifter outcomes for victims who might otherwise see their cases delayed. We know the old adage: justice delayed is justice denied. We do not want to see justice denied to anyone, so we will work hard to speed up the justice system, as it emerges from the pandemic.
However, our commitment to delivering justice for victims does not end at trial, and it certainly does not begin there. We want to ensure that victims are supported and their rights recognised at every stage of the criminal justice system. During the last Session, we published a revised victims’ code, which set out the rights to which victims are entitled. We will now go further: we will work to ensure both the standard and the availability of victims’ rights, beginning with a consultation on a ground-breaking victims’ Bill that will enshrine the new code in legislation.
We are acutely aware that crimes such as domestic abuse, rape and sexual violence, which disproportionately affect women and girls, shatter not only the lives of the victims but also those of their families. The whole country was shaken earlier this year by the death of Sarah Everard, which was a harrowing reminder of the violence to which many—far too many—women and girls in our society are subjected. As such, in addition to the landmark Domestic Abuse Act passed last Session, we will continue to make supporting victims and survivors of these crimes a priority. We will publish the end-to-end rape review action plan, working to ensure that, at each stage of our justice system, from reporting and investigation to trial and sentence, rape cases are considered with the diligence and gravity that they deserve.
We will publish a new tackling violence against women and girls strategy and a domestic abuse strategy, which will work in tandem to drive real change in this area. We received 180,000 responses to our call for evidence to inform these strategies. The views of victims, survivors and the public will be at the heart of our approach. We will also review our national statement of expectations, to ensure that police and crime commissioners approach these crimes in a collaborative and robust way.
This approach reflects our wider strategy. The Police, Crime, Sentencing and Courts Bill, which has been held over from last Session, will further our commitment to being tough on crime and its perpetrators. We will give our police more powers to tackle crime, we will protect our emergency workers and increase sentences for those who would harm them, and we will establish a new, smarter approach to sentencing that sees our most dangerous criminals spend longer in prison.
I am aware that there has been a lot of discourse about the public order provisions in this Bill, much of which is based on a misunderstanding of what the provisions actually do and the genesis of the legislation. These measures have been portrayed by some as draconian and a dismantling of our civil liberties; this is both misinformed and wrong. The right to protest is a fundamental and important freedom—but so is the right to go about your business unhindered. These provisions allow police to take a more proactive approach in managing disproportionately disruptive protests, which place an unnecessary burden upon our citizens.
It is that sense of balance that permeates a lot of the work which this Government plan to deliver over the next Session, and nowhere is this more apparent than in relation to our work on the constitution and judicial review.
I am sure everyone will agree that our uncodified—I did not say unwritten— constitution is something to be both celebrated and preserved. That includes examining the fine and critical balance between the Executive, the judiciary and the legislature.
That is why we plan to introduce a judicial review and courts Bill, which will not only introduce many of the court recovery measures I mentioned earlier, but will work to restore the balance between our institutions of state. We want to protect the judiciary from being unnecessarily pulled into political matters. Let me be clear and unambiguous: this is not about abolishing judicial review. We will ensure the integrity of the judicial review process. But the idea, put about by some who should know better, that the judicial review process cannot be improved or that it must remain a no-go area for government is false. Public law is too important to be left only to public lawyers.
We are still considering the submissions made to the recent consultation, which itself built on the work by the noble Lord, Lord Faulks, and his team, and considered further areas for reform. We expect to increase the flexibility provided to judges by ensuring, among other things, that more flexible and effective remedies are available, and to review the merits of the Supreme Court’s decision in Cart.
Our desire to ensure that our society’s vital systems function as fairly and as effectively as possible extends to our plans for the borders Bill that we will introduce. This will implement the most significant overhaul of our immigration and asylum systems for decades.
At the heart of this Bill is a simple principle: fairness. Presently, we have a generous asylum system that offers protection to the most vulnerable people around the world through defined safe and legal routes. But this system is collapsing under the pressure of parallel, often extremely dangerous, illegal routes to asylum, facilitated by criminals smuggling people into the UK.
We believe that access to our asylum system should be based on need and not on the ability to pay people smugglers. When people are dying, as they are, we have a duty to act. The Border Force already has a range of powers and capabilities to deal with maritime threats, but we will use this legislative opportunity to strengthen them further. We will introduce new powers to target the increasing use of vessels by criminal gangs to facilitate illegal entry to the UK.
Over and above that, our ability to enforce immigration laws, passed by and with the authority of Parliament, is being impeded, contributing to a downward trend in the number of people, including foreign national offenders, being removed from the UK. Our Bill will enable us to remove more easily those with no right to be here. Our time and resources should be directed to protecting and supporting those in genuine need of asylum, and to reclaim control of our borders.
Cicero’s maxim, “Salus populi suprema lex esto”—your Lordships will of course require no translation—remains absolutely true. The safety and security of the people of this country must be, and will be, the primary concern of this Government. We live increasingly in an online world, as the television screens above me show, so we also want to ensure that the United Kingdom is the safest place to be online as well as offline.
That is why we will deliver on our manifesto commitment to introduce an online safety Bill to set a global standard for safety online. It will include the most comprehensive approach yet to online regulation, requiring platforms and search engines contained within its scope to tackle illegal content and protect our young people from harmful material.
Major platforms will also be required to set out, with clarity, their own terms and conditions about legal but harmful content for adults, and to enforce these rules consistently and transparently.
The Bill will also enshrine in law safeguards for free speech. We will use this opportunity to defend freedom of expression and promote the valuable role of a free press that now exists online as much as it does in newsprint. This will allow us to usher in a new era of accountability for technology giants, and to protect our children, ensuring that future generations have a healthy relationship with the internet.
We are also aware of the importance of ensuring the long-term security and resilience of our telecommunications network. The Telecommunications (Security) Bill will create one of the most rigorous telecommunication security regimes in the world. It will protect and future-proof our networks as technologies grow and evolve, shielding our critical national infrastructure both now and in the future. It will allow us to manage the risks posed by high-risk vendors.
We will also ensure that the national telecommunications system flourishes. We will introduce a second Bill, the product security and telecommunications infrastructure Bill, to allow us to deliver on our connectivity ambitions by making sure that telecommunications equipment can be installed, shared and upgraded as quickly and efficiently as possible, and by assuring consumers that the smart devices that we all now bring into our homes—the so-called the internet of things—are secure. This legislation will underline the UK’s continued global leadership on cybersecurity and allow consumer-connected technology to continue to grow.
We also have to look at the threat posed to us by hostile activities from other states—a threat that is ever-growing, diversifying and evolving. Unlike terrorists, who rely on grabbing the public’s attention, this sort of hostile activity operates in the shadows and remains hidden. Although these acts fall short of open conflict, the consequences for our democracy, economic security and prosperity are real. To address this threat, we will introduce a counter state threats Bill, which will modernise our existing counter-espionage laws to reflect the modern threat and introduce modern legislative standards. It will create new offences, tools and powers to detect, disrupt and deter hostile activity in and targeted at the United Kingdom. We will do this through reform of the Official Secrets Acts 1911, 1920 and 1939, as well as the Official Secrets Act 1989, and the creation of a foreign influence registration scheme. The Home Secretary has published a public consultation on our proposals in this area, and the response to that consultation will help us shape the tools and powers at our disposal to make sure that they balance the protection of national security with the important rights and values that we all enjoy in the United Kingdom.
Lastly, we will introduce two new Bills to support the voluntary sector by reducing unnecessary bureaucracy for charities, and to unlock additional funds for good causes. The first is a charities Bill. Charities occupy a special place in our society, and the law should both protect and regulate them. The reforms that we introduce will remove or replace inappropriate and unnecessary burdens while safeguarding the public interest in ensuring that charities are properly run, so that charities will have more time and more resources to spend on their charitable objectives.
The second of these Bills is the Dormant Assets Bill. The dormant assets scheme has already released £745 million, including £150 million for Covid relief last year. Expanding the scheme using this Bill has the potential to unlock a further £880 million over the coming years.
These measures, as outlined in Her Majesty’s gracious Speech, will set a clear direction for the future of our country. By implementing them, we will ensure that we are a country where swift justice is delivered to victims and meted out to perpetrators of crime, and that victims’ rights are respected and enshrined in the law of the land. We will ensure that our police, judges and border officials have the powers necessary to secure our society and protect our citizens. We will ensure that when they are online, as well as offline, our citizens are protected, and that our systems are robust and secure. In the wake of a life-altering pandemic, and a year of prolonged difficulty and disruption, we will ensure that our country has all the resources needed to build back better, stronger and safer. Over the coming weeks and months, I look forward to discussion, discourse and debate, with your Lordships and with others outside this House, about the many measures which it has been my privilege to outline today.
Whiplash Injury Regulations 2021
Lord Wolfson of Tredegar Excerpts(3 years ago)
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Lord Wolfson of Tredegar
That the Grand Committee do consider the Whiplash Injury Regulations 2021.
Relevant document: 49th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I beg to move that the Grand Committee do consider the Whiplash Injury Regulations 2021 and the Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021.
These draft statutory instruments are key components of the Government’s whiplash reforms. They will simplify the process of settling whiplash claims, provide certainty to claimants as to how much their claim is worth, and benefit society by enabling an average reduction in insurance premiums for ordinary motorists of around £35 per premium. I remind the Grand Committee that the Secondary Legislation Scrutiny Committee has drawn both of these important SIs to the attention of the House.
The House had a number of extensive debates on the merits of the Government’s policy underpinning these SIs during the passage of the Civil Liability Act 2018—which I will refer to as “the Act”—so, with the limited time available to us today, my focus will be on the detail of these regulations rather than on rehearsing past policy debates.
The measures in Part 1 of the Act change the process for making whiplash claims by defining what constitutes a whiplash injury; introduce a fixed tariff of damages for pain, suffering and loss of amenity, or PSLA; provide for an uplift to be applied to the tariff amount in exceptional circumstances; and ban the practice of seeking or offering to settle a whiplash claim without first seeking appropriate medical evidence. In addition, we are increasing the small claims track limit in respect of road traffic accident-related personal injury claims from £1,000 to £5,000.
We had also previously committed to increasing the small claims limit for all other types of personal injury, including employers’ and public liability claims, to £2,000. However, the Lord Chancellor has confirmed today, through a Written Ministerial Statement, which I have repeated, that the Government have listened to the views of Members of this House and others, and have decided both to limit this increase to £1,500 and to defer its implementation until April 2022. I hope the Committee will agree that this is a sensible and pragmatic decision, which will give stakeholders additional time to prepare.
The Whiplash Injury Regulations set out a tariff for the amount of damages payable for PSLA for a whiplash injury or injuries of up to two years and any minor psychological injury suffered at the same time. They allow the court to apply an uplift of up to 20% to the tariff amount in exceptional circumstances. Regarding the ban on pre-medical report offers to settle, they specify what constitutes appropriate medical evidence and the experts who may provide it. That will differ depending on whether the injuries include a non-whiplash element.
The purpose of the other statutory instrument is to give powers to the Financial Conduct Authority to enable it to monitor and enforce the ban on pre-medical offers to settle.
Let me now provide a little more detail on each regulation, starting with the tariff figures, which present a rising scale of fixed payments determined by injury duration, with damages reduced less at the top end to recognise more serious injuries. Where the prognosis exceeds two years—in serious cases, that is—claims fall outside the tariff.
We have reviewed and updated the previously published figures to account for inflation. We have also added a three-year future-proofing element to ensure that they do not move out of alignment with future inflationary pressures before the required statutory review in three years’ time. That leads to an increase of about 11% over the figures previously provided to the House.
The reason for the uplift of up to 20% in exceptional circumstances is to balance the need for an effective tariff while also providing for judicial discretion. That 20% figure takes into account feedback received during consultation and in earlier debates, and reflects the position in similar jurisdictions such as Italy, which allow for an uplift of up to one-fifth.
During the passage of the Act we introduced, on the advice of the House, amendments to ensure that the views of the Lord Chief Justice were sought, we have undertaken this consultation, and we are grateful for his consideration of these matters. He was clear that the tariff figures
“demonstrate a material divergence in the levels of damages between those proposed and those which are generally currently awarded”.
He also acknowledged that the tariff figures were similar to those previously tabled before Parliament, when the Government’s intent that the tariffs would be lower than the figures in the Judicial College Guidelines was made clear.
The Lord Chief Justice emphasised that the tariff was a
“narrowly defined statutory derogation from the principle of full compensation through an assessment of damages by the courts”,
but considered that it was not appropriate for him to suggest a change. He made it clear that he understood the Government’s principles underpinning the uplift, but expressed the view that he would prefer the judiciary to have greater discretion.
Following receipt of the Lord Chief Justice’s response, further discussions with the legal advisers to the Joint Committee on Statutory Instruments led to a need to amend the tariff figures to distinguish between damages for claims for whiplash injuries alone and damages for claims for whiplash injuries and minor psychological injuries. We made the Lord Chief Justice aware of these re-presented figures and he was clear that his response, in substance, remained the same.
The Lord Chief Justice also considered that it would be beneficial to review the tariffs earlier than the statutory three years. We do not know now whether we will have enough data in a year’s time to make an informed assessment, so I cannot commit to an early review, but we are open to the possibility. We must first make sure there is evidence available to undertake a meaningful review from which effective conclusions can be drawn. Having considered the points made by the Lord Chief Justice, we will not change our position on the tariff amounts or the judicial uplift of 20%, but we will undertake an analysis of the available data after a year with a view to considering whether an early review is appropriate.
Turning to the medical evidence, the regulations provide that in cases where a claimant lives, or is examined, in England or Wales they must obtain a fixed-cost medical report from an accredited medical expert selected via the MedCo portal. If there are other more serious injuries, the expert has to be listed on the General Medical Council’s specialist register.
The other regulations, which relate to the Financial Conduct Authority, give powers to the FCA to enable it to take effective action to monitor and enforce compliance with the ban on seeking or making pre-medical offers to settle. The FCA is the regulator for insurers and claims management companies which may be involved in settling whiplash claims. These regulations therefore ensure that the FCA has the powers it needs to regulate Section 6 of the Act.
I emphasise that the measures in these regulations are necessary and important. They will provide certainty to whiplash claimants, create savings which will be passed on to consumers and enable the FCA effectively to regulate the ban on the offering and seeking of offers to settle whiplash and associated claims without appropriate medical evidence. I hope that on this basis the Committee will be able to support these measures. I therefore commend them to the Committee.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all noble Lords who have taken part in the debate. Given the time constraints, rather than give a speech in response, I will try to deal with the various points put to me.
My noble friends Lord Hunt of Wirral, Lord Bourne of Aberystwyth and Lord Naseby made the point that there is a risk that the regulations could be subverted by other injuries suddenly becoming the main injury. As the noble and learned Lord, Lord Hope of Craighead, mentioned, Section 3(8) of the Act provides that, where a claimant suffers injuries in addition to a whiplash injury, the court is not prevented from awarding damages that reflect the combined effect of the injuries sustained. The courts will therefore need to determine how mixed injuries are addressed. We are confident that judicial expertise will address these matters on a case-by-case basis, but we will look vigilantly to ensure that the regulations are not undermined, whether by the claims management industry or otherwise, by people reordering their claims so that minor injuries become the main part of their claim.
The noble and learned Lord, Lord Etherton, asked about legal advice. The short point is that the online system has been designed with the claimant firmly at its heart. It is a modern, user-friendly, digital system. There is guidance in the system and digitally disadvantaged claimants who cannot use it can be assisted by a dedicated telephone support centre. We will review the data produced by the system and monitor it. We will discuss the operational performance of the portal on a regular basis with a user group that includes representatives of claimants and defendants, together with third-sector and consumer representatives.
My noble friend Lady Gardner of Parkes asked about passing on savings. The short point there is that the competitive nature of the motor insurance market will ensure that savings are passed on. As she is aware, the regulations provide that insurers have to provide data to the FCA so that it can see the savings being made. I do not want to repeat what I just said, but I assure her that we are very conscious of people who are not online and we want to make sure that they are not disfranchised.
The noble Baroness, Lady Ritchie of Downpatrick, asked about correspondence with the Lord Chief Justice. I hope I gave the Committee a fair summary of that correspondence. We do not plan formally to publish the letters received from the Lord Chief Justice. I venture to suggest that it would not be appropriate to commit to publishing the full correspondence without discussing it with the Lord Chief Justice. It is also important that these discussions can take place on a proper basis.
As to a review of the tariff system, I hope I set out in introducing the regulations that we will consider a review on the timescale that I indicated. I appreciate that the noble Baroness said that some solicitors think that the tariffs are too low. I am afraid that is a debate that we have had on a policy basis on a number of occasions and, for the reasons I set out, the Government are confident that these tariffs are appropriate and give proper compensation where injuries are properly sustained.
I hope that I have dealt with the point made by my noble friend Lord Bourne of Aberystwyth. I have already referred to the contribution from the noble and learned Lord, Lord Hope of Craighead. I very much welcome his support on this matter.
The noble Lord, Lord Bhatia, asked about medical reports. I assure the Committee that the online system is fully integrated with MedCo, so that once a liability decision has been received by the at-fault insurer, claimants can proceed through the system to obtain their report from an accredited medical expert. Importantly, if the at-fault insurer has accepted any portion of liability, it will also pay for that report. We have worked very closely with MedCo to ensure that reports are presented in an accessible, user-friendly format, while continuing to include all necessary information on the claimant’s injury and prognosis. As I said, we will ensure that unrepresented claimants are fully supported through the process.
The noble and learned Lord, Lord Thomas of Cwmgiedd, asked a number of questions, first about the online system. The noble and learned Lord referred in particular to unrepresented defendants; I do not know whether he actually meant unrepresented claimants, whom I have already dealt with. So far as defendants are concerned, I assure the Committee that a full programme of webinars has been undertaken where professional users can learn more about the new process and ask questions. Information has been regularly disseminated through an e-shot programme and through social media channels such as LinkedIn and YouTube, and additional information pages will shortly be available on GOV.UK. Third-sector organisations have been taught about the new online service and, therefore, they will be able to signpost people to it. I am confident that, once the system is up and running, it will run well. I hope I have also dealt with the noble and learned Lord’s points about the tariff and a review of the system; I have sought to make the government position clear on that, and also on the data point. If I have misunderstood his focus, as to defendants or claimants, I will perhaps write to him to set out the position in more detail.
The noble Lord, Lord Bradshaw, regretted that it had taken so long. I am very conscious that this debate precedes my involvement in it by some years. All I can say is that we have got here, and the regulations will be up and running shortly—better late than never. The important thing now is to make sure that they work properly and fairly, and that is certainly what we will do. I am absolutely alive to the fact that there is a claims management industry, and that it will shift its focus. We will be equally vigilant to ensure that the purpose of these regulations is not undermined.
I therefore welcome—if I may say—the support in principle for the aims of the regulations from the noble Lord, Lord Ponsonby of Shulbrede. He asked me six questions in a rat-a-tat way. Let me give equally speedy responses, because I understand that we are all limited for time. First, I hope I have dealt with mixed claims; that is a Section 3(8) issue. On the 20% uplift, all I really want to say is that the word used in the statute is “exceptional”. I do not think it is appropriate for me to gloss that word, especially as we now have Pepper v Hart, so I will just say that it is an ordinary English word and falls to be interpreted in the normal way.
Thirdly, on the portal, I can assure the noble Lord that data is secure. I have already explained, I hope, the timing of the review. We will keep the question of its extent and timing under review, and we will look at it in a year’s time, as I said. I am afraid I did not quite understand the point about an inconsistency in application; I appreciate it was not the noble Lord’s point, but he was passing it on. The whole point here is that we have a tariff, so similar injuries really ought to be dealt with in a very similar way. If those who passed the question on to him are not satisfied with my answer, perhaps he will reformulate the question to me—and if he does, I am happy to provide a written response. But there should not be inconsistency, because we have a tariff. The fifth point was that there would be an incentive to claim that the minor injury is in fact the main one; I hope I have dealt with that already. The noble Lord’s last substantive question was on the review, and I hope I have dealt with that as well.
I apologise for running through this at something of a pace, but I have only 10 minutes, of which I have about 15 seconds left. I hope that I have dealt with all contributions. I will check the Official Report and write if I have not, but otherwise I respectfully commend these regulations to the Committee.
Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021
Lord Wolfson of Tredegar Excerpts(3 years ago)
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Lord Wolfson of Tredegar
That the Grand Committee do consider the Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021.
Relevant document: 51st Report from the Secondary Legislation Scrutiny Committee
Domestic Abuse Bill
Lord Wolfson of Tredegar Excerpts(3 years ago)
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Lord Wolfson of Tredegar
That this House do not insist on its Amendment 9, to which the Commons have disagreed for their Reason 9A.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the elected House has disagreed with Amendment 9 by a substantial majority of 130. The noble Baroness, Lady Finlay, has subsequently tabled Amendment 9B. While removing the requirement for accreditation of child contact centres and services in relation to public and private family law cases, it still requires the Government to introduce a set of national standards to which organisations and individuals would be required to adhere—in effect, a form of indirect accreditation.
I am grateful to the noble Baronesses, Lady Finlay and Lady Burt of Solihull, my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Ponsonby of Shulbrede, for taking the time yesterday to speak with me about the revised amendment. While the Government recognise that the provision of child contact centres and services is vital in supporting families and enabling parents to have contact with their children, this amendment remains problematic for a number of reasons.
First, there is not an issue in relation to private law cases of parties being referred to non-accredited child contact centres. That is because there are protocols in place, involving the judiciary, magistrates and Cafcass family court advisers, which require them only to refer parties in private law cases to NACCC-accredited child contact centres when referring parties in those private law proceedings for supported, supervised contact and handover contact. That protocol has been in place with the NACCC since 2000 and was revised a few years ago, in 2017. The memorandum of understanding between Cafcass and the NACCC has been in place since 2018. Cafcass has assured the Government, as well as NACCC, that it is compliant with that memorandum of understanding.
However, in light of what was said on Report, I have written to the President of the Family Division and to the CEO of Cafcass requesting that they raise awareness amongst their colleagues and officials of the judicial protocol and memorandum of understanding which has been agreed. I understand that the NACCC is updating that judicial protocol. It will be agreed with the President of the Family Division and reissued to the judiciary and magistrates.
Further to that, Jacky Tiotto, the chief executive of Cafcass, has responded to my letter to her confirming that she will write to all Cafcass operational managers and family court advisers, reminding them of the importance of the memorandum of understanding. While she is unaware of any evidence to suggest that Cafcass staff are not complying with the requirements, she emphasised that Cafcass is committed to working effectively with the NACCC to ensure that every child receives the best possible service.
That is in relation to private family law. I turn now to public law family cases where children are in the care of the local authority. Comprehensive statutory provisions are already in place determining how local authorities should discharge their duties, including in relation to meeting statutory requirements to maintain contact between a child and their family.
In that context, Section 22 of the Children Act 1989 places a general statutory duty on the local authority in relation to children looked after by it to safeguard and promote the child’s welfare. Section 34 of that Act establishes the presumption that there should be continued contact between the child and their family while the child is in the care of the local authority. It places a duty on local authorities, subject to certain provisions and to their duty to safeguard and promote the child’s welfare, to allow contact between a child in care and their parents. Details of contact are set out in a child’s care plan, which is governed by the Care Planning, Placement and Case Review (England) Regulations 2010. Those regulations set out the role of independent review officers to ensure that contact is supported. They will consider whether contact commitments in care plans have been implemented and whether the child is happy. In 2015, the Department for Education published guidance on care planning, placement and case review; further statutory guidance was published in 2018. That is the statutory architecture.
I turn now to the safeguards in place before each contact between a looked-after child and a parent is made. Whenever contact is arranged by a local authority, the social worker should undertake a full safeguarding risk assessment, meeting the requirements of the guidance for the assessment of contact produced by each local authority. A broad range of factors is looked at: the risk of physical, sexual and emotional abuse, including domestic abuse, and neglect; the risk of abduction; whether there is a history of violent or aggressive behaviour and whether the child or supervisor is at risk; and the parent’s ability to prioritise the children’s needs above their own. In outlining all that, I seek to reassure the House that there is already adequate statutory and regulatory provision in place.
I have spoken about private and public law proceedings. In addition, I should mention that parents can self-refer to contact centre services. NACCC officials themselves have suggested that very few parents actually do that, so any concerns that parents may be self-referring to non-accredited centres are not borne out by the evidence, and certainly not to any significant scale.
What is the essential argument behind the amendment? Those supporting it argue that there are large numbers of unaccredited child contact centres and services, posing significant risk to children and parents around safeguarding and the risk of domestic abuse. The NACCC provided some initial data on the number of unaccredited contact centres, but the current evidence base is insufficiently robust to support legislating on the issue. While I am grateful to the NACCC for compiling the data, I have to note that some of the “unaccredited” contact centres initially identified by it in fact turned out to be regulated by Ofsted or the Care Quality Commission. There is plainly more work to be done to understand the issue. The Government remain ready to work with the NACCC in this regard, but outside this Bill. In particular, I am ready to explore further whether there is a case for ensuring that there are appropriate arrangements in place for anyone who seeks to set themselves up as a provider of child contact services to be subject to criminal record checks.
I can therefore assure your Lordships’ House that the Government are committed to ensuring the highest levels of care and safeguarding where circumstances have necessitated involvement with the family justice system. However, given existing mechanisms within private and public family law, and the extensive regulatory environment which I have set out, without further evidence of a problem we do not believe that this amendment is warranted at this time.
Lord Ponsonby of Shulbrede (Lab)
My Lords, as is often the case, the noble and learned Baroness, Lady Butler-Sloss, put the point simply and persuasively: that there should be common standards for all those who provide services under child contact centres.
We have heard about the welcome exchange of views between the signatories to this amendment and the Minister. In the email we received from him, he seemed to acknowledge that the DBS regulations should be assessed, and potentially amended, to see whether they apply to individuals setting up contact centres—so, he has acknowledged that deficiency in the existing arrangements. Further to that, in the concluding paragraph of the Minister’s email he undertakes to ensure that appropriate arrangements are in place for anyone who seeks to set up as a provider, and to explore further whether that is indeed the case.
The starting point is that there are uneven levels of regulation across the network of child contact centre providers. I accept what the Minister has said regarding private law in our courts and that the existing memorandum of understanding is going to be updated and revised, but that very fact may be an acknowledgement that improvements are needed. I have to say, speaking as a family magistrate, that all the child contact centres I have ever referred children to have been accredited by the NACCC. The Minister also set out the existing public law statutory architecture, which is more complex, but as so many speakers have said in this debate, we are talking about private providers—providers who may come and go and may come from particular communities which do not trust existing services. Those are the difficult cases that we are seeking to include in this extension of regulation.
As the Minister will be aware, we are talking about some very difficult cases—cases which are difficult to put in the public domain—and a few cases, not the many cases which he claimed. The Bill is an opportunity to close this loophole. We on the Labour Benches will support the amendment in the name of the noble Baroness, Lady Finlay, if she chooses to press it to a vote.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all noble Lords who have taken part in this debate. I am mindful of the views which have been expressed across the House. I start with a point on behalf of the Government and of myself. So far as the Government are concerned, like the noble Baroness, Lady Finlay of Llandaff, they are committed to the welfare of children—that is not a phrase with which any of us would disagree. For myself, if I may accept the point put by my noble friend Lady McIntosh of Pickering, I do have a human side. Notwithstanding that I am a lawyer and a Government Minister, something of a human side still pokes through occasionally.
There is nothing between us on the aim; what is between us is the means. I therefore remind the House of two points. First, of course anything said by the noble and learned Baroness, Lady Butler-Sloss, in this area has to be heard with care and listened to diligently, but it is the case already that the vast majority of people in child contact centres will have to have certain checks through NACCC accreditation and because of the local authority obligations. That is the first general point.
The second general point in response to one of the points made by the noble Lord, Lord Ponsonby of Shulbrede, is that the fact that the memorandum of understanding is being updated and revised is no indication whatever that there is a problem with it. For example, one of the revisions which is being made is to substitute the name of the previous President of the Family Division, Sir James Munby, with the name of the new president, Sir Andrew McFarlane. Updating and revision of an MoU does not indicate that there is a problem. A lot of very good documents are continually updated and revised.
One is therefore back to the essential point, which is: what is the evidence which underpins the proposed amendment? It is all very well to talk of a loophole, but the real question is whether there is an underlying problem. It is the evidence base with which we have concerns. I say with genuine respect to the noble Baroness, Lady Finlay of Llandaff, that anecdotal evidence is not a sufficient basis in this area on which we should be legislating. Of course, staff must be trained and we must look to see whether there are legislative gaps, but we have to proceed on proper evidence.
So far as my email is concerned, I do not pull back from that at all; I stand by every single word of it. In particular, with regard to DBS checks, I am happy to repeat from the Dispatch Box precisely what I said in the email: “I am ready to explore whether there is a case for ensuring that there are appropriate arrangements in place for anyone who seeks to set themselves up as a provider of child contact centres to be subject to criminal record checks. The issue is that the regulations with regard to DBS are about eligibility for DBS checks, not whether they are mandatory.”
I suspect that where we end up is on the question of whether there is a proper basis to legislate in this space, given my assurances that we would be looking at the DBS point and that there is no cogent evidence that the current system is not working. The protocol is in place and has been endorsed at the highest level by the judiciary and Cafcass. There are statutory and regulatory requirements in the public law cases. Indeed, the only first-hand evidence which we have heard this afternoon from the noble Lord, Lord Ponsonby of Shulbrede, has been that the matter is working well. As he confirmed, he sends his cases to an accredited centre only.
That is the position. Even at this late stage, I respectfully invite the noble Baroness, Lady Finlay of Llandaff, to withdraw the amendment.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to all who have spoken, and particularly to my noble and learned friend Lady Butler-Sloss for her support, which I view as weighty. I stress to the House that a call for common standards seems to have come through in all the speeches in support of my amendment. I am slightly concerned that the Government decry an evidence base because I have seen no evidence that they have undertaken a systematic review of the standards of all the child contact centres and services around, nor have they looked at them systematically. When they asked for evidence, we brought it, and did what we could in the time available, and now it is being dismissed as anecdotal. We have gone round in circles and I therefore wish to test the opinion of the House.
Lord Wolfson of Tredegar
Moved by
That this House do not insist on its Amendment 33, to which the Commons have disagreed for their Reason 33A.
Lord Wolfson of Tredegar (Con)
My Lords, the elected House has disagreed with Amendment 33 and by a substantial majority, in this case of 143. In inviting this House not to insist on the amendment, I first take the opportunity to underline the Government’s recognition that comprehensive, high-quality and up-to-date training on domestic abuse is of critical importance for judges and magistrates involved in family proceedings.
Perhaps I may also take a moment again to record my thanks to the noble Baroness, Lady Helic, and other noble Lords who have taken time to discuss this matter with me, including most recently on a call to which the noble Lord, Lord Marks of Henley-on-Thames, was also party. While the Government recognise that victims and survivors of domestic abuse can face difficulty in the family justice system, especially during proceedings and in particular when giving evidence in them, there are serious and fundamental concerns with regard to the substance of Amendment 33.
The first point is a constitutional one, which I have made on previous occasions but reiterate today. Training for the judiciary is the responsibility not of the Government but of the Lord Chief Justice—not the Lord Chancellor. The elected House disagreed with this amendment on the basis—correctly, I would submit—that it fundamentally undermines the important constitutional principle of judicial independence. We have a number of constitutional principles in this country; some have been debated in your Lordships’ House in the last several months. But perhaps I may venture that judicial independence is among the most important principles, if not the most important.
The statutory responsibility for ensuring that the judiciary in England and Wales is properly trained rightly sits with the Lord Chief Justice and is exercised by way of the Judicial College. My right honourable friend the Lord Chancellor does not have a role beyond providing the resources required by the judiciary, through which the Judicial College is funded. As such, the Lord Chancellor simply cannot direct the judiciary on training with either a strategy or timetable, as would be required by this amendment.
Amendment 33B would therefore replace the reference to the Secretary of State in the original amendment with one to the Lord Chancellor. That correctly reflects the constitutional role of the Lord Chancellor, who, as opposed to the Secretary of State, has duties in respect of the judiciary. The amendment also adds the Lord Chief Justice to the list of those who must be consulted before the strategy and timetable are published. However, it does not alter the fundamental way in which these amendments impinge, I suggest, on the independence of the judiciary. That is the first point and it is an important constitutional proposition.
The second is a practical point. It is already mandatory for any judge or magistrate to have training in domestic abuse before they hear cases in the family court. More than 50% of the content of private law induction training for judges is now focused on domestic abuse, such is the judiciary’s recognition of its importance. There is not only induction training but ongoing training as well. Continuation training annually is compulsory for judges and any judge authorised to hear public family law cases must also attend the appropriate seminar for that authorisation at least once every three years.
Domestic abuse is covered in all family law cases run by the Judicial College, and training reflects the wide nature of domestic abuse. Therefore, it covers all areas recognised by the Government as abuse, ranging from serious sexual and other assaults, emotional abuse to coercive or controlling behaviour, including financial coercion and control. Let me explain what the training includes. This is not just one judge talking to other judges. The training includes practical exercises and role play and is delivered by a wide range of experts, including academics and experts in psychiatry, psychology and other professions and agencies working in this area, as well as victims. The Judicial College also advocates the use of specialists to co-train and provide an annexe of specialist organisations. In the e-learning, SafeLives, Cafcass and Cafcass Cymru and IDVAs have all contributed to the films provided to the Judicial College.
Thirdly—and importantly going forward—the Judicial College is committed to reviewing and improving training on domestic abuse for both the judiciary and the magistracy. The senior judiciary, including both the President of the Family Division and Lady Justice King, the chair of the Judicial College, both acting on behalf of the Lord Chief Justice, are working to further develop domestic abuse training.
As part of my departmental responsibilities, I meet regularly—albeit at the moment virtually—with the President of the Family Division. My last such meeting was, in fact, yesterday and we discussed judicial training on domestic abuse in the context of this amendment. He has given me his categoric assurance about the importance he places on effective training in the area of domestic abuse. He has said that the training will continue and, importantly, that it will be updated in light of the Bill, the harm panel, and the recent Court of Appeal judgments in four conjoined domestic abuse cases. Lady Justice King has given me the same assurances. Specifically, I have been assured that the Judicial College already has in hand the training that will be required as a result of this Bill, which is a landmark piece of legislation, as we all agree.
While I respectfully commend my noble friend Lady Helic for raising this important issue, for the reasons I have set out, specifically the constitutional and practical reasons, I respectfully ask her and all noble Lords not to insist on Amendment 33 or to press new Amendment 33B in its stead. I beg to move.
Motion C1 (as an amendment to Motion C)
Lord Wolfson of Tredegar (Con)
My Lords, I am again grateful to all noble Lords who have taken part in this debate. I first pick up the contribution from the noble and learned Baroness, Lady Butler-Sloss. On the previous Motion I respectfully commended her experience. Even though I lost that vote, I do so again, because she has given the House a lot of detail as to the training that is actually provided. The House now ought to be reassured that, right from the top of the judiciary through to the Judicial College, there is a commitment to the importance of training, to ongoing training, to training from a variety of providers and not just judges, and, as the noble Lord, Lord Marks of Henley-on-Thames, picked up, to specific training on the Domestic Abuse Bill—or, as I hope it will soon be, the Domestic Abuse Act. I hope that that level of detail has been helpful to the House and, in particular, helpful and reassuring to my noble friend Lady Helic.
I also tried—I hope I succeeded, to an extent—to reassure my noble friend as to the extent and content of the judicial training. I repeat the constitutional point that we cannot force the judiciary on the nature, content or extent of that training. But there is, as I have said, commitment from the very top to make sure that the Judicial College fulfils its role and that all judges and magistrates are properly trained on domestic abuse generally, and specifically on this Act. The House can be assured that in my ongoing discussions and meetings with senior judiciary, including the President of the Family Division, I will keep the question of training on domestic abuse on the agenda. Even if I did not, the President of the Family Division would be totally focused on it anyway, but none the less I will ensure that it is part of our discussions.
I also respectfully agree with the point make by the noble Lord, Lord Marks of Henley-on-Thames, that we must remember the particular difficulties—and the judiciary is increasingly aware of this—that victims of domestic abuse have in court proceedings. The House will be aware that we have made a number of other provisions in this Bill to do with witnesses, parties and cross-examination that will improve the lot of victims of domestic abuse in our courts. That is something I personally am very conscious of and focused on. Courts can be intimidating places at the best of times, and if you are a victim you can double, quadruple or quintuple the amount of intimidation you feel merely from the process. We have made some good improvements there.
The noble Lord, Lord Paddick, correctly says that the proof of the pudding is in the eating. The danger with metaphors is stretching them too far, but in this context we are all committed to making the best possible pudding. The way you do that, if I can stretch the metaphor, is to have the best set of ingredients. That is why the Judicial College, in its training, has already engaged, and will continue to engage, training from a wide variety of providers—though the decision as to who those providers are has to be ultimately that of the Judicial College.
I hope I have dealt with all the points raised in this debate. I will take literally 30 seconds to respond to the noble Lord, Lord Kennedy of Southwark, on the judicial independence point. It is such an important point that I must not let it go past, if the House will indulge me. My approach to judicial independence is really very simple: you can disagree with the decision but you respect the decision-maker. It really is as simple as that. I fear that, for the second time this afternoon, I have touched on points of important constitutional principle. I will not continue the lecture any further. I hope that my noble friend Lady Helic will indeed withdraw her amendment.
Baroness Helic (Con) [V]
My Lords, I will be brief. I am very grateful to all noble Lords who have contributed and agree with a great deal of what has been said. The noble Lord, Lord Marks, has been an invaluable support throughout this process, not least on navigating the constitutional issues, and I commend his words on the feelings of survivors and the importance of up-to-date training.
The noble and learned Baroness, Lady Butler-Sloss, has been a powerful voice on training across all stages of this Bill. I am pleased we agree on the importance of training, even if we do not agree on the mechanism for reform. Her update on the specifics of training is very interesting. It is reassuring that the courts are at least heading in the right direction, even if I believe that there is still some way to go.
The noble Lord, Lord Paddick, makes the important point that not all training is equal. It is not enough to have training; it needs to be good training. That is why reform is important. The noble Lord, Lord Kennedy of Southwark, adds his support for updated, quality training. This really is a cross-party issue, and I hope that this will be noted by the judiciary, which I hope is following these debates.
My noble friend the Minister has been generous with his time and in his response. I also value his role as an intermediary with the judiciary. It is very good to hear from him that reform is under way. I hope he will continue to raise this issue in his meetings with the President of the Family Division and others, and to keep an eye on training, even if the Government will not direct it. I am certainly grateful for the assurances he has offered us today.
I hope that, in debating judicial training, we have helped raise its status as an issue and made clear to the Government and the judiciary how important it is in tackling domestic abuse. The greater detail on existing training that my noble friend offered was important. The assurances and commitments we are hearing from him, and from the judiciary via him, are very welcome. There is much more work to be done. I hope that this can be the beginning of a process, rather than the end. For now, I will withdraw the Motion.
Lord Wolfson of Tredegar
That this House do not insist on its Amendment 37, to which the Commons have disagreed for their Reason 37A, and do not insist on its Amendments 38 and 83, to which the Commons have disagreed for their Reasons 38A and 83A.
Lord Wolfson of Tredegar (Con)
My Lords, the elected House disagreed with these amendments by a substantial majority. In inviting this House not to insist on these amendments, I remind noble Lords that the amendments seek to create two new statutory defences. Although the Government are sympathetic to the aims behind the new defences, we were, and we remain, entirely unconvinced of their necessity.
Amendment 37 sought to extend the provisions contained in Section 76 of the Criminal Justice and Immigration Act 2008. In effect, if I can shorten what is a bit of lengthy law, the amendment essentially seeks to extend the special householder defence, where force is used for the purposes of self-defence. Amendment 37 sought to extend those provisions to any person who is, or has been, a victim of domestic abuse and who has been accused of a crime involving the use of force against their abuser. The current householder defence in Section 76 recognises the acute circumstances of dealing with an unexpected intruder and makes it lawful to use disproportionate force. Amendment 37, however, made the disproportionate use of force defence available at any time and any place if the person accused has suffered domestic abuse at the hands of the person they assaulted.
Although the Government are sympathetic to the aim behind Amendment 37, we remain unpersuaded of its necessity. We are not aware of any significant evidence that demonstrates that the panoply of the current full and partial legal defences available are failing those accused of crimes where being a victim of domestic abuse is a factor to be taken into consideration. Full defences, such as the defence of self-defence, are defences to any crime and, if pleaded successfully, result in an acquittal. In the circumstances of domestic abuse, there are partial defences available relating to loss of control or diminished responsibility that can be argued. Additionally, the fact that an accused is also a victim of domestic abuse will be considered throughout the criminal justice system process, from the police investigation through to any CPS charging decision, down to defences deployed at trial under the existing law and, if relevant, as a mitigating factor in sentencing. We are also concerned that the proposed defence could, because it provides a full defence to murder, be open to misuse, potentially even by an abuser who sought to claim that they were the victim of domestic abuse—which is very widely defined in this Bill, which is a very good thing—rather than the actual victim.
Turning to Lords Amendment 38, I remind the House this sought to create a new statutory defence for victims of domestic abuse who, by reference to a reasonable person in the same situation as the victim and having the victim’s relevant characteristics, are compelled to commit certain crimes on the basis of having no realistic alternative. Amendment 83, which would insert a rather long and somewhat intimidating schedule, set out the offences to which this proposed defence would not be available, but even though that schedule is long, it would still mean that the defence would be available for many serious criminal offences, such as drug dealing, serious assaults occasioning actual bodily harm and most non-fatal driving offences. Although, again, the Government absolutely understand that victims of domestic abuse may also be compelled to resort to crime, we are not persuaded that the model on which this amendment is based, which is Section 45 of the Modern Slavery Act 2015, is either apt or effective with regard to domestic abuse. As I have stated previously, we have several concerns in relation to this amendment in terms of the nature of the defence itself and the nature of the offences for which this would be a defence. I will not detain the House by setting them out again, especially as the noble Baroness, Lady Kennedy of The Shaws, has now put forward an alternative amendment, Amendment 37B. It instead calls for independent review of the defences available to the victims of domestic abuse. However, I thought was worth briefly restating our arguments against the original Lords amendments because we contend that the existing full and partial defences are up to the task, and because of that, we have significant doubts about the case for a review of the kind proposed in Amendment 37B.
We are of course aware of the horrific impact and often devastation posed by domestic abuse, not only for direct victims but also indirect victims, such as children and the wider family and the House has noted the way the early clauses of the Bill have been drafted with that in mind.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, my noble friend Lady Kennedy of The Shaws set out in detail the case for her amendments in Committee and on Report, and it is disappointing that they have been rejected by the other place. In response, she has tabled Motion D1 in her name. As we have heard, she is seeking an independent review to look at the issues that we have been talking about throughout our consideration of these matters. I think that is the right way forward.
I am conscious that the noble Lord, Lord Wolfson of Tredegar, is resisting the new Motion from my noble friend, but she made the point, as have others, that if the Government are resisting the issues raised in the amendment, he ought to address the question of whether they could be looked at by the review of sentencing—or is that a step too far for the Government?
There is a huge issue here. I recall the debates that we had when my noble friend and others presented harrowing cases. There is a real point here: if there is an intruder in someone’s house then, as the noble Lord, Lord Paddick, said, often a male can defend himself there and has a defence, but a woman attacked by her partner in her own home, which should be a place of safety, cannot rely on such a defence. That cannot be right.
The Bill is seeking to address the whole issue of domestic abuse in all its various facets. It is a good Bill, but it would be an even better one if we could make sure that all the gaps were plugged here. The fact is that women in their own homes, their place of safety, can often find themselves in very dangerous situations. If they have to defend themselves and end up injuring or killing their partner, we should understand that and ensure that they have the proper defences to take account of the difficult situation that they have found themselves in, often over many years. After all, these things escalate; they do not happen overnight.
My noble friend has identified an important point here, and I hope that when the Minister responds he can address it. We need to find a way to look at the issues that my noble friend raised in the review of sentencing, as he referred to in his earlier remarks.
Lord Wolfson of Tredegar (Con)
My Lords, I am again grateful to noble Lords who have contributed to these exchanges. Right at the start, I say that the noble Baroness, Lady Kennedy of The Shaws, was spot on when she characterised my position as disagreeing but sympathising—that is absolutely right. For the reasons that I have set out, I disagree but sympathise with the aims of the amendments.
Like the noble Baroness, I found the meeting with the representatives from the Centre for Women’s Justice extremely helpful. I have read a lot of material that they have produced, and, in particular, like her, I found the conversation with the survivor who joined us extremely powerful. Like my noble friend Lord Randall of Uxbridge, we have to remember that, while we may be debating what sometimes seem here to be quite dry and technical issues of law, there are real people—if I may use that terrible phrase—and, in this case, real victims of domestic abuse, who are affected. The House can be assured that I have that at the very front of my thinking.
I will not go over the substantive points that I made—I hope I am excused for that. As I explained, the review is of sentencing in domestic homicide cases, but it is a broad review. The terms of reference are still being developed, but it will look at the impact of defences on sentencing, and, while I appreciate that that is not as far as the noble Baroness, Lady Kennedy of The Shaws, would like me to go, I hope that it is an indication of the seriousness with which the Government take this matter and, in particular, the review of sentencing.
I pick up the point of the noble Lord, Lord Paddick. We respectfully disagree that there is a read-over to either the householder or the trafficking issue. As to the latter, I have made clear on previous occasions that we have concerns with the way that that defence is used in practice. Indeed, if I remember correctly, one of Her Majesty’s judges recently explained that in a case that he was hearing in, I think, Bradford—I may be misremembering that. As such, there is an issue as to how that trafficking offence is applied in practice.
Like the right reverend Prelate the Bishop of Gloucester, I am well aware that there is a substantial proportion of women in prison who have themselves been victims of domestic abuse—that is of course why a review of sentencing is so important. Without being trite, they are in prison because they were given a prison sentence; therefore, a focus on sentencing in the review is entirely appropriate.
I do not know whether there is anything I can do to help the noble Baroness, Lady Jones of Moulsecoomb, in her apparent dichotomy between lawyers on the one hand and common sense on the other. The point I was making about the majority in the other place was actually that it was not the standard government majority, so to speak: it was a significant majority—with the greatest respect, that is something that this House ought to bear in mind. However, my noble friend Lord Randall of Uxbridge did perhaps solve an age-old conundrum about a justification for the existence of lawyers, particularly in Parliament. He even came close to giving an explanation for their possible utility, so I am grateful to him for that.
My noble friend was also right when he said that people should not go to prison if they have been convicted of a crime that they were forced to commit—“forced” is a critical word, and that is where you get into the defence of duress. However, as I said, it is not only the question of the defence of duress: if there is a conviction, the nature of the force—if it does not amount to a defence—would still be relevant to sentencing and to mitigation.
As such, I hope that I have set out the reasons why the Government disagree. I hope that I have also responded to the particular point put to me by the noble Lord, Lord Kennedy of Southwark, on the scope of the review. However, for the reasons that I have set out, I hope that the noble Baroness, Lady Kennedy of The Shaws, will indeed not press her amendment.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I have received no requests to speak after the Minister. I beg your pardon; I see that the noble Baroness, Lady Jones, wishes to speak.
Lord Wolfson of Tredegar (Con)
As I explained, the review’s terms of reference are being set out. The date will depend on how broad the review is, which will obviously affect the date by which it reports. Certainly, as soon as there is a date fixed or anticipated, I can perhaps write to the noble Baroness to inform her of it.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, I am of course disappointed that there has not been any movement—because the suggestion of there being a review in relation to the defences was posited last week, and I had hoped that, in the interim, we might have heard that some movement had taken place behind the scenes. Given that the terms of reference have not been finalised, I will write to the Lord Chancellor and seek to persuade him that the terms of reference might extend to a look at the defences as well as the sentencing in homicide cases where there is a background of domestic violence or abuse.
As I indicated, I will not press this Motion. I beg leave to withdraw it, but I ask that the good offices of the Lord Chancellor’s Department might be open to some reconsideration.
Civil Proceedings Fees (Amendment) Order 2021
Lord Wolfson of Tredegar Excerpts(3 years ago)
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Lord Wolfson of Tredegar
That the Grand Committee do consider the Civil Proceedings Fees (Amendment) Order 2021.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
This instrument aligns the fees for online and paper civil money and possession claims. The instrument applies to fees in the civil courts of England and Wales and will come into force in May 2021.
First, I shall say a word or two about the purpose of the instrument. Her Majesty’s Courts and Tribunals Service plays an essential role in our society. Courts and tribunals provide a place where people can vindicate their rights and where the rule of law is upheld, and which is accessible to all who need it. I am proud to say that our courts and tribunals deliver a world-class justice system which is admired by all. The people it serves interact with it at some of the most difficult times of their lives and they trust it to be fair and effective.
For many years, the service has run on the principle that those who use courts and tribunals should pay the full cost of the service they receive, if they can afford to do so. I am sure that the Committee will agree that fees are a reasonable means of ensuring an effective and efficient justice system that is neither solely nor entirely sustained by contributions from the taxpayer. Fees are the main source of direct income for courts and tribunals, and the instrument I am submitting to the attention of the Committee today will further aid this endeavour.
Civil money and possession claims, which are the type of claims affected by this instrument, are regulated by the Civil Proceedings Fees Order 2008. Currently, the fees order offers lower fees, and some exemptions, for civil money and possession claims submitted via online platforms, with a higher fee payable for the same claims issued via the paper route. The instrument before us today removes the online discount and thus aligns the online fees with the paper fees which are currently charged in the Civil Proceedings Fees Order. More specifically, this instrument aligns fees for users of the County Court Business Centre, Money Claim Online, Possession Claim Online and online civil money claims.
Aligning these fees will create a single fee structure which will result in one, consolidated fee, payable by both online and paper users. In doing so, it will also provide much-needed additional funding to our courts and tribunals service. The need to ensure that courts and tribunals continue to perform efficiently and effectively is compounded by the challenges we are facing due to the pandemic.
This, therefore, is the right time to consolidate these fees. The online services were first introduced 20 years ago, in 2001, as part of the Government’s ambitious plans to digitise the service and contribute towards improved performance and increased functionality, while streamlining existing processes. To encourage uptake of what was then a new digitised system, a number of fee discounts for the online processes were introduced. They have therefore been enjoyed by users for many years. Users who issue bulk claims have had a discount on the issue fees since 2004, fees for claims issued via Possession Claim Online have been discounted since 2006, and fees for claims issued via Money Claim Online have been discounted since 2015.
I am pleased to say that the Government’s efforts have paid off. In 2018-19 online applications for civil and possession claims accounted for just under 90% of all claims up to the value of £100,000. So, the modern service is allowing 90% of users to enjoy a seamless journey from lodging a claim right through to settling the dispute as simply as possible. As part of this, users have the opportunity to access mediation as part of efforts to support more proportionate and appropriate dispute resolution.
The Committee will need no reminder from me of the Lord Chancellor’s personal and statutory duty to protect access to justice. The Government remain committed to upholding this fundamental principle, so we must provide an effective and efficient justice system that works for everyone. That means it has to be funded appropriately.
Removing the online discount does not infringe the principle of access to justice. Paper users are already paying a higher fee, and generally those individuals are over-represented among groups with protected characteristics. So, while we want the system to be funded effectively, we also want to build a fairer system that puts neither paper nor online users at a disadvantage.
The Committee should be familiar with the fees we are debating. They are enhanced fees, meaning that they are set above the cost of the service. Such fees can be set only with explicit parliamentary approval, following the introduction of the “enhanced power” provision in Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. The enhanced power is therefore used in a judicious and limited manner, because most fees in courts and tribunals are set not under the enhanced power but at or even below the cost of providing the service.
The income raised from enhanced fees such as these enables us to cross-subsidise other parts of the courts and tribunals system. That enables us to ensure access to justice for everybody. We do so to protect the most vulnerable members of society. This is not an exhaustive list, but, for example, no fees are now charged for applications for non-molestation orders, occupation orders, forced marriage protection orders or female genital mutilation orders—or for cases before the First-tier Tribunal concerning mental health.
Despite the provision of these enhanced fees, the income currently received from fees covers less than half the costs of running the courts and tribunals. In 2019-20 there was a net fee income of £724 million, against running costs of about £2 billion. That significant gap in funding should highlight for the Committee why the fee increase that this instrument introduces is appropriate, balanced and fair.
Of course, I do not claim that the additional income generated by these proposals will, alone, fill the gap. But it will certainly help the justice system to be better equipped for the many challenges it faces and will supplement the additional funding already being provided by the Government to aid Covid-19 recovery.
I should emphasise that for the vast majority of fees affected by this instrument, the proposed increase is generally modest, ranging from about £10 to £45—and every pound can be reinvested in our ambitious plan for the future of the Courts and Tribunals Service. That is in addition to the £377 million for the criminal justice system in England and Wales, including £275 million to manage the downstream impact of 20,000 additional police officers and to reduce backlogs caused by Covid-19 in the Crown Courts. There is also an investment of £76 million to increase family court and employment tribunal capacity to reduce backlog, £43 million to ensure courts and prisons remain Covid-safe, and £105 million for improvements to the court estate.
The Committee will be aware of the unprecedented challenges that this country has faced because of Covid-19. However, it is important—indeed, critical—to ensure that our world-class justice system operates efficiently and effectively, while minimising the cost to the taxpayer. This instrument allows us to do more work to achieve that aim. It aligns fees for civil money and possession claims, contributes towards the funding of courts and tribunals, and ensures that the existing civil fee structure is both fair and consistent. I therefore commend these fee changes to the Committee.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the contributions to this short but important debate; anything to do with our justice system is important. Perhaps I may therefore pick up in turn the points made by noble Lords.
The noble Lord, Lord Blunkett, asked about the principle of cross-subsidy and the amounts involved. I shall deal with each point in turn. The principle of cross-subsidy is in primary legislation; it was considered by Parliament as a matter of principle and considered correct for those who can pay more than the actual cost of the process to do so, so that other people can pay less than the actual cost of the service. So the principle of cross-subsidy is in primary legislation, as I have set out.
As to the figures involved, the Courts & Tribunals Service produces an annual report. The accounts for the year ending 31 March 2020 show that approximately £550 million of fee income was collected from court users in civil proceedings after fee remissions, whereas approximately £545 million was spent on civil jurisdiction, leaving a surplus overall of £4.9 million. Civil business as a whole—that is, civil and family jurisdictions together—showed a deficit of £80.1 million in the financial year, which was funded therefore by the general taxpayer. I shall look at the Official Report and, if I can provide the noble Lord, Lord Blunkett, with any further detail on particular figures, I shall write to him and set it out and copy my letter to other noble Lords who spoke in this debate.
I turn to the contribution of the noble Lord, Lord Thomas of Gresford. This provision is not being slipped “under the radar” at all. I have to say that I was a little surprised that the import of the noble Lord’s comments appeared to be that those who did not have internet access or capability should continue to pay more—more, indeed, than 90% of users of the service. I find that a remarkable proposition, but it is the necessary import of the approach that the noble Lord took. That is even more remarkable when one recalls, as I said when I opened this debate, that the paper group, if I can call them that, contains more people with protected characteristics proportionately than the online group. When one has 90% of people online, one has to level the fees.
The only real question is whether you move the online to the paper or the paper to the online. The position is this: were we to move paper to online, that would cost another £5 million in lost income to the service, which is another increase that the taxpayer would have to fund and a greater loss that the courts and tribunals would therefore be working under. Although I agree with the principle of equalising fees, one ought to equalise online to paper and not paper to online. The justification for a lower fee for online users, which was originally brought in to encourage people to go online, is, for the reasons I have set out, no longer present.
So far as the stakeholders are concerned, it is fair to say that a minority of respondents supported the proposal, but the main sticking point was the principle of cross-subsidisation in the first place. As I have said, that principle was established by Parliament in the Act that I mentioned and is therefore the legal background against which we operate.
Finally, on the, if I may respectfully say, more realistic contribution from the noble Lord, Lord Ponsonby of Shulbrede, he will understand that I do not accept the adjectives he used about the Courts Service, but I certainly agree that, after Covid, we need to rebuild the Courts Service and ensure that people obtain in the courts and tribunals the sort of service they are entitled to expect. He focused on the victims of crime. While I do not minimise the issues which we have to deal with in the criminal justice system, I hope he will allow me to say that because this is a civil measure, I will not respond to those comments in detail today. I am sure we will have many opportunities in the Chamber and in Grand Committee to debate the criminal justice system, the Crown Courts and the magistrates’ courts, and I look forward to engaging with him—I am sure constructively—on those occasions. For today, the instrument before us focuses solely on civil justice and, for the reasons I have set out, it is a measure which is both necessary and proportionate. I therefore commend it to the Committee.
Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) (Amendment) Regulations 2021
Lord Wolfson of Tredegar Excerpts(3 years ago)
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Lord Wolfson of Tredegar
That the Grand Committee do consider the Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) (Amendment) Regulations 2021.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the instrument before us today prevents enforcement agents—bailiffs—from attending residential premises in England to execute a writ or warrant of possession except in the most serious circumstances. The House will be familiar with the structure and content of this statutory instrument as it is the fourth that the Government have tabled to restrict the enforcement of evictions since November last year.
The instrument applies to enforcement action in England. It amends the Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021 in only one respect: by amending the expiry date of those regulations from the end of 31 March 2021 to the end of 31 May this year. On 18 March, when we debated the previous statutory instrument, a number of noble Lords expressed concerns about the short-term nature of these regulations and suggested that both landlords and tenants would benefit from greater clarity about how long the restrictions would be in force.
I explained in the last debate that the Government have to balance the need for clarity against ongoing developments in the pandemic. We believe that retaining the restrictions in this instrument until 31 May while the Covid-19 restrictions remain in place will align with the broader strategy for protecting public health and will continue to help to reduce pressure on essential public services as we move out of lockdown. Indeed, as I explained last time, the extension to 31 May, which I headlined in that debate, is broadly in line with the road map out of lockdown. Step 3 of the road map will be taken no earlier than 17 May following a review of the relevant data. That step will see a number of restrictions being lifted, including—importantly, in this context—the restrictions on domestic overnight stays.
Noble Lords might say, “Why 31 May and not a date linked to step 4, which is scheduled for no earlier than 21 June?” The short answer is that we must remember, when considering the date of 31 May, that in most cases bailiffs are required to give 14 days’ notice of an eviction. In practice, therefore, protection from the enforcement of evictions will be afforded in most cases until mid-June. We have sought to strike the right balance in the prevailing circumstances.
I am sure that noble Lords will be familiar with the content of the statutory instrument. We have put a ban in place but there are the by now familiar limited exceptions to the ban in cases where we believe the competing public interests in ensuring access to justice, preventing harm to third parties or taking action against egregious behaviour and upholding the integrity of the rental market sufficiently outweigh the public health risks. The exemptions are: first, where the claim is against trespassers who are persons unknown; secondly, where the order for possession was made wholly or partly on the grounds of anti-social behaviour or nuisance, false statements, domestic abuse in social tenancies, or substantial rent arrears equivalent to six months’ rent; or, thirdly, where the order for possession was made wholly or partly on the grounds of death of the tenant, and the enforcement agent attending the property is satisfied that the property is unoccupied. In each case the court will have to be satisfied that the exemption applies, and that will be considered on a case-by-case basis.
We therefore think it is fair and proportionate to allow for an exemption to the ban in cases where a landlord has sought a possession order on the grounds of rent arrears, and where a full six months of rent arrears has accrued. We know that private landlords, in particular, can be vulnerable to rent arrears; 45% of them let just one property, and 29% rely on rent for over half their income.
Data from sources such as the National Residential Landlords Association and the Resolution Foundation indicate that the vast majority of renters who are in arrears will not have built up the extreme level of rent arrears—six months-worth—that would allow the landlord to apply for an exemption to this public health measure. We continue to monitor the impact of the exemptions.
In cases where a court has decided that an exemption applies, bailiffs have to give tenants at least 14 days’ notice of an eviction, in most circumstances. They have been asked not to enforce evictions where a tenant has symptoms of Covid-19 or is self-isolating.
In addition to these regulations, we have also introduced a requirement, in the Coronavirus Act, that landlords, in all but the most serious circumstances, must give six months’ notice before beginning formal possession proceedings. That is another protection for tenants. That means, essentially, that most renters served notice now by their landlord would be able to stay in their homes until October 2021. This measure will remain in place until at least 31 May. We will consider the best approach for after this date, taking into account the prevailing circumstances at that time.
I have set out in previous debates on such statutory instruments the significant help that the Government have given to try to prevent people getting into financial hardship by helping businesses to pay salaries—frankly, that is the most important measure to enable people to pay their rent—through the furlough scheme, which has been extended until the end of September. The Self-employment Income Support Scheme has also been extended, and we have boosted the welfare safety net by billions of pounds. The Committee will be aware that in the Budget we announced that the universal credit top-up of £20 per week would continue for a further six months, and there is a further one-off payment of £500 for eligible working tax credit claimants.
In the Budget there was also a recovery loan scheme, which was launched to ensure that businesses, in particular SMEs, are well supported in their ability to access the finance they need throughout 2021. More than 1.5 million businesses have benefited from Government-backed support, receiving over £70 billion in total.
Ministry of Justice statistics show that the number of possession claims being made to the courts has fallen significantly. The most recent statistics show that applications to the courts for possession by private and social landlords were down 67% in the last quarter of last year, compared to the same quarter in 2019. Temporary court arrangements and rules, which have been put in place by the Master of the Rolls working group, include a review stage at least 28 days before the substantive hearing, so that tenants can get legal advice. Any cases started before August 2020 have to be reactivated by landlords before the end of this month, and we are also putting in place a free mediation service, as part of the possession action process, to support landlords and tenants to resolve disputes before a formal court hearing takes place.
Let me reiterate that I am aware that there are landlords who have been adversely affected by these regulations. As I have also said on previous occasions, we have sought to strike a balance—to enable tenants to pay their rent, but also, in egregious cases, to enable landlords to obtain possession. We remain grateful to landlords for their forbearance during this unprecedented time. We consider that these regulations strike an appropriate balance between the interests of landlords and those of tenants, and I therefore commend them to the Committee.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to all noble Lords who have contributed to this debate. I shall try to respond to the points in the order in which they were made but some were made by more than one contributor so, with their permission, I may lump some noble Lords together.
The noble Lord, Lord Hain, made an interesting point, if I may say so. One must distinguish the cases into two groups. The first is where contracts were entered into after the start of the pandemic. In those cases, one would have expected the parties’ lawyers to advise them not to enter a legal commitment to make a purchase unless they knew that they could complete; the government guidance on moving home during the pandemic has been in place since 26 March 2020. However, in so far as people entered into legal obligations before that date, there are principles of English contract law, such as frustration, which might be relevant in this context. That is the sort of point on which, if the noble Lord will allow me, I will write to set out in a little more detail what I understand the legal position to be.
Turning to a number of points made by noble Lords, first, I should make it clear that, on 18 March, I set out that the Government would extend the SI not just to 31 March but to 31 May, so criticism that we have been doing this on a short-term basis is not well made, certainly in that respect.
A number of noble Lords asked about the plan for when we come out of the pandemic. I reiterate that I am a humble Ministry of Justice Minister. There are cross-government conversations about what will be put in place but, so for as a specific financial package is concerned, we have already done a number of things. For example, we have increased the local housing allowance rate to the 30th percentile of local market rents in each area. We expect that to provide 1.5 million claimants with around £600 per year of housing support more than they would otherwise have received. Those increased rates will be maintained at the current levels, in cash terms, in the current financial year—even in areas where the 30th percentile of local rents has gone down.
Going forward, however, I emphasise that this ultimately becomes a housing issue, not a Ministry of Justice issue. Of course, there are conversations across government; as I said, I will specifically bring the detail of this debate to the attention of Ministers in MHCLG. Although I appreciate that this point was made by a number of noble Lords—my noble friend Lord Bourne of Aberystwyth, the noble Lord, Lord Carrington, and the noble Baroness, Lady Grender—there is nothing more substantive that I can say this afternoon, bearing in mind that, as the noble Lord, Lord Ponsonby, reminded me, in whatever I say, I commit the Government too.
The noble Lord, Lord Bilimoria, rightly emphasised the important work that the Government have done with regard to commercial evictions. In both the commercial and residential contexts, it is our intention to avoid any sort of cliff edge.
I underline the noble Lord’s point about the importance of mediation. Mediation in civil disputes is always a very good idea. It has played a part in our civil justice system over the past 20 years or so and its importance is increasingly recognised. In the context of housing, we hope the free mediation service for landlords and renters will enable many landlords and their tenants to reach an agreement about the way forward without a formal court process, which must be to everyone’s benefit.
When I mentioned my noble friend Lord Bourne of Aberystwyth, I should also have picked up the beautifully double-edged compliment that he paid me, which started so well and ended so badly.
The noble Baroness, Lady Ritchie of Downpatrick, asked a couple of questions about speeding up the operation of the courts. There are a number of things that I should say in this context. First, as I say, landlords are obliged to reactivate old cases in order to make sure that the courts are not faced with cases that have become moot—for example, where the tenants have already moved out. Secondly, the introduction of mediation also speeds up the court process because it takes some cases out of the system.
Further, and in response to the noble Baroness, Lady Grender, one has to remember that parts of the court process lie outside government purview. For example, listing is a judicial function, and the order in which the judiciary prioritises cases is and remains a matter for the judiciary. However, the Master of the Rolls’ working group has put in place temporary court rules and arrangements to ensure that cases proceed through the courts as quickly as possible and that delays are kept to a minimum.
I respectfully agree with the point made by the noble Lord, Lord Carrington, that private landlords are not a bank. I have already said that there will be discussions across government about the position that is put in place when these regulations come to an end.
The noble Lord asked specifically about video technology to speed up the court process. That is already being used throughout civil courts. In this as in many areas of life, the Covid-19 pandemic has forced or perhaps encouraged us to do things that we probably would have done anyway but over a longer period. Video technology in court is certainly one of those things; it is now part of our civil justice system and I am sure it will remain so in future. The noble Lord is certainly right that video technology has the potential to speed up cases and enable them to be heard more quickly, and indeed to enable more cases to be heard at once.
The noble Lord, Lord Bhatia, emphasised in his remarks that what is sought to be achieved here is ultimately a balance between the various interests, and I respectfully agree with him.
I hope I have responded to the points made by my noble friend Lady Gardner of Parkes. I have dealt with the date point. We believe that 31 May is now the appropriate deadline for these regulations. We hope that the position will improve as per the road map and that we will not need to extend them thereafter, but obviously we have to keep that under constant review.
In the time that I have left, I turn to the points made by the Front-Bench speakers. I have already dealt with one of the points made by the noble Baroness, Lady Grender, but in response to her important point on Section 21, the Government are committed to bringing forward legislation to deliver a better deal for renters, including repealing Section 21 of the Housing Act 1988, once the urgencies of the pandemic have passed. That would represent a generational change to tenancy law in England, so we have to make sure that we get it right and that we balance the interests of landlords and tenants appropriately. If we are giving tenants more security of tenure, we must also ensure that landlords can recover properties where they have valid grounds to do so.
As far as the noble Baroness’s other point about giving judges more discretion in possession cases is concerned, we do not intend to bring forward such legislation. We believe that the current support package strikes a fair balance and that the rights of both tenants and landlords are appropriately balanced in this area. However, as I said, we plan to bring forward a renters’ reform Bill in due course, once the urgencies of the pandemic have passed. Respectfully, I therefore do not accept that promises have been broken. We made a promise to do the best we can in these difficult circumstances, and we have certainly fulfilled it, as I have explained on several occasions.
The noble Lord, Lord Ponsonby of Shulbrede, asked about the package going forward. I have said what I am able to say about that today. Like me, he found the point made by the noble Lord, Lord Hain, about home buying interesting. I will ensure that he is copied into my letter to the noble Lord, Lord Hain, on that matter.
I am grateful to the noble Lord, Lord Ponsonby, for outlining the Labour Party plan in this area. I do not want to introduce too much of a political element to these exchanges, but the plan highlights the point about where you draw the line. For example, we were told that the £20-per-week universal credit increase would remain beyond six months, but until when?
Ultimately, we must strike a balance in this area. I submit that these regulations strike the correct balance in difficult circumstances. I hope that we will not have to extend them further and that life will return to something approaching normal, so, although I have some regrets that this may be the last outing for these regulations, I commend them to the Committee.
Prisons (Substance Testing) Bill
Lord Wolfson of Tredegar ExcerptsFriday 16th April 2021
(3 years ago)
Lords ChamberRead Full debate Prisons (Substance Testing) Act 2021 View all Prisons (Substance Testing) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 12 March 2021 - (12 Mar 2021)
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am grateful to all noble Lords who have contributed to this short but important debate on this very important Bill, which the Government support fully and unequivocally. I say at the outset that, when one is talking about prisons, there is a whole raft of matters that one can talk about. There will be certain matters raised today that may be more appropriately debated, at greater length, in other Bills that will come before your Lordships’ House.
I start by thanking my noble friend Lady Pidding for introducing this Bill, and all noble Lords for their contributions. It has been a personal pleasure to work with my noble friend on this. But I must echo the tributes made to my right honourable friend the former Member for Chesham and Amersham, Dame Cheryl Gillan, who was a warm and kind-hearted colleague and a tireless advocate for both her constituents and numerous important causes throughout her career. I also note the work that she did for Wales, in particular.
In 2009, she successfully brought the Autism Act into law, following the introduction of another Private Member’s Bill, which boosted provisions for adults with autistic spectrum conditions. Therefore, as my noble friend Lord Bourne of Aberystwyth noted, it is a fitting tribute and a demonstration of her consistent contributions to society and Parliament that we are debating this important Private Member’s Bill this morning.
It is apparent that Members across the House recognise the benefits of this Bill and, as others have, I pay tribute to Richard Holden in another place for championing its cause and bringing it forward. I hope that it reaches the statute book before the end of the Session. The Government have taken a keen interest in the legislation; it has therefore been reviewed by parliamentary counsel to ensure that it is legally sound. The Explanatory Notes in support of the Bill, to which I will come back, have been prepared by the Ministry of Justice with the permission of my noble friend Lady Pidding.
I fully endorse the point made by my noble friend that, to use her phrase, the Bill is “simple and straightforward”. It will future-proof drug-testing frameworks in prisons and young offender institutions by adopting broader definitions of psychoactive drugs, prescription-only medicines and pharmacy medicines. It will enable us to have a robust and responsive drug-testing framework that can respond very quickly to new drugs emerging on the market, as criminals tweak the chemical composition of existing psychoactive drugs to evade detection.
One has only to compare the speech of the noble and learned Lord, Lord Morris of Aberavon, who explained the position some years ago, when drugs were virtually unknown in prison, with the evidence provided by the right reverend Prelate the Bishop of Gloucester, who explained the ingenious ways in which criminals now get drugs into prisons. If I may break into Latin in the court of Parliament, because I am not allowed to any more in the courts of justice—tempora mutantur, nos et mutamur in illis. Your Lordships will need no translation.
The Bill also puts prevalence testing on a firm statutory footing. As my noble friend Lady Pidding explained, prevalence testing equips the Prison Service with better information to identify new and emerging drug trends, so that it can quickly react to changes in drug use. So this is a distinct Bill with a distinct purpose.
Drug misuse in prison is not only harmful but disruptive, both to the prison and its staff. It prevents hard-working staff in prisons delivering safe, meaningful and rehabilitative regimes. As my noble friend Lord Cormack reminded us, it is almost impossible to have proper rehabilitation if drugs are flowing through the prison. For too long, our interventions have been restricted by limitations in our drug-testing capabilities. That is why the Government support the measures in the Bill to tackle drugs in prisons and young offender institutions.
I was going to explain to your Lordships’ House some of the other work that the Government are doing in prisons but, given that I have limited time and have been asked a number of questions, I hope your Lordships will permit me to respond to those, as so far as I am able to, standing on my feet today.
First, the noble Lord, Lord German, asked three questions. The first was about publishing the findings, a point echoed by the noble Baroness, Lady Ritchie of Downpatrick. The position there is that Her Majesty’s Prison Service currently publishes data annually, as part of the annual digest, and data on psychoactive substances, prescription only and pharmacy substances, as a result of this Bill, will be included in those future annual publications.
The noble Lord’s second question was about funding, which a number of noble Lords asked about. The position there is that although the Bill provides power to test for a wider range of substances than is currently covered in the testing framework, the legislation will not significantly affect the practice or, we think, the volume of mandatory drug testing in England and Wales. There may well be additional lab costs, but that will be covered by existing budgets, so we anticipate that any financial impact will be modest. Depending on how the Bill’s powers are ultimately used and what the results are, they may give rise to a larger number of positive test results and, if that happens, there could be increased costs for providing therapeutic support, such as substance misuse treatment or increased adjudication costs. Again, we do not anticipate that those will be significant, but we will obviously keep that under review.
The noble Lord’s third question was about research. Data captured from the changes in the Bill will contribute to the wider picture available to the Prison Service and, in particular, to the drugs strategy and delivery unit. Analysis of this data will enable us to more accurately model future substance treatment interventions, as well as the implementation of suitable security countermeasures.
The noble Baroness, Lady Watkins of Tavistock, asked about the cost point, which I hope I have answered. She also asked about a review. I can assure her that this issue is kept under constant scrutiny by the department, and in particular by the Minister in the other place, whose policy area this is. My noble friend Lady Sater asked about rehabilitation and funding in that context. In January this year, we announced £80 million investment in drug treatment in England for the coming financial year, 2021-22. This will obviously increase the number of available drug treatment services in England for prison users with substance misuse issues.
The noble Lord, Lord Ramsbotham—as others have said, his experience in this area is, unparalleled—spoke about delivery. With respect, he is absolutely right. Of course, testing must be done on a proper basis, and I will say a little more about that when I respond to the point put to me by the noble Lord, Lord Thomas of Gresford. In fact, I turn to that now.
The first issue I should respond to is a rather legal one, so I will be brief, given the time. The noble Lord mentioned Article 8 of the ECHR. The Explanatory Notes, to which I draw the House’s attention, in paragraphs 34 to 42, provide that, although the Minister—in other words, me—does not have to give a certificate for the Bill, because it is a Private Member’s Bill, the Ministry of Justice has looked at the issue and we are satisfied that the Bill is compliant. Those paragraphs set out why we think the Bill is compliant with Article 8. I emphasise that prevalence testing is done only on samples already provided for mandatory drug testing: there is no further Article 8 interference and there is no power in the Bill to take intimate samples such as blood. I heard what the noble Lord said about the Act, if it becomes an Act, being challenged; we will cross that bridge when we come to it, but we have considered the issue.
On random and targeted testing, the position is that prisoners can be required to undertake monthly random mandatory drug tests or suspicion-based drug tests, or they can volunteer for compact-based drug tests. Prisons across England and Wales must carry out random mandatory drug testing on at least 5% to 10%, but no more than 15%, of the resident population each month. Where suspicion-based drug testing is employed, staff are required to undertake unconscious bias training to help prevent prisoners and young offenders with protected characteristics being dispro-portionately affected by the testing regime. I hope that that deals with the random and targeted point, as well as the anonymous point that the noble Lord put to me. As for the purpose, I think I have explained that in what I have already said.
I note the time, but I want to reply briefly to the point of the noble Lord, Lord Ponsonby of Shulbrede, about Holme House. That is a £9 million project which provides an innovative, whole-system approach to tackling substance misuse in prisons. It is subject to four evaluation elements. There is a process evaluation which will report by the end of spring this year, and an impact and economic evaluation which will report in 2023. If I am able to add any more to that, perhaps the noble Lord will permit me to write to him.
I am very conscious of the time, and also conscious that I have not replied to everybody who has contributed, but I hope I have dealt with the main points put to me and very much hope that this House will endorse and support the Bill, which has been so ably brought to us by my noble friend Lady Pidding.
Child Trust Funds: Children with Learning Disabilities
Lord Wolfson of Tredegar Excerpts(3 years, 1 month ago)
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Lord Young of Cookham
To ask Her Majesty’s Government what progress they have made towards enabling children with learning disabilities to access their Child Trust Funds.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, since my noble friend’s last Question on this matter six weeks ago, I have met ministerial colleagues and Members of the other place. I have considered the legal issues that arise. I have also met the acting president and vice-president of the Court of Protection. While court processes are a matter for the judiciary, I have been assured that child trust funds and the application forms will be on the agenda of the next Civil Procedure Rules Committee meeting to be held on 20 April.
Lord Young of Cookham (Con)
My Lords, I am grateful to my noble friend for his personal commitment to solving this problem, but he will understand my disappointment at his letter of 23 March, which says basically that no progress has been made since I raised this issue in January. Hollie Squire requires 24-hour care. Her mother Tammie is managing on £605 a month that Hollie gets from the DWP. If Tammie can be trusted with this money from the taxpayer, why can she not be trusted with Hollie’s money from her own trust fund without complex and time-consuming court procedures?
Lord Wolfson of Tredegar (Con)
My Lords, my noble friend raises a very good point. I can assure Tammie and Hollie Squire that it is not a question of trust. It is, I am afraid, a question of law. The DWP benefits appointee scheme applies only to benefits from the state and does not extend or apply to an individual’s own assets. That legal position is governed by the Mental Capacity Act. I have to work within the confines of the Act, which is why I am working with the judiciary to make the legal route easier, cheaper and quicker.
Lord Wigley (PC) [V]
My Lords, I draw attention to my registered interest as vice-president of Mencap, which has been working with the MoJ on this issue. Can the Minister give the House an update on what progress the advisory group has made to date?
Lord Wolfson of Tredegar (Con)
My Lords, the advisory group has been meeting not only organisations in the third sector such as Mencap but the financial providers. We have looked at a number of legal and regulatory issues. We believe that the way through this is by working with the Court of Protection. Quite properly, judges control the court and that is the way through to resolving this long-standing problem.
Baroness Altmann (Con)
I do not envy my noble friend’s position at this point. In the past he has said that the rules need to be appropriate, accessible and proportionate. Given the time it takes to access money that the child might have been waiting for, and that the parents of disabled children have so much to deal with, will my noble friend take back to the department the idea of adopting the change in law that was adopted for families whose children have life-threatening conditions in order to allow access to their own money in these circumstances? The industry itself, commendably, wants to help them with this.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to my noble friend. We have looked at the legislative options. Amending primary legislation is not likely to be quick or easy. However, I must emphasise that the rules of the Court of Protection are a matter for the judiciary, not the Government. We therefore have to work with the judiciary, which I know is committed to this issue. Indeed, the Court of Protection has been working hard during the pandemic to ensure that its business is kept up to date.
Baroness Finlay of Llandaff (CB) [V]
My Lords, I declare that I chair the National Mental Capacity Forum. The Mental Capacity Act aims to protect against exploitation and support decision-making, but Covid lockdowns have caused delays in the Court of Protection. How is the backlog of these financial cases being mitigated by digital processes to ensure that the welfare of a young person is appropriately safeguarded, in particular if they are in a care home or have other care arrangements?
Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness is right that fundamentally this is about safeguarding the interests of the young person. On the Court of Protection, staff have been coming into the court throughout the pandemic to make sure that it can continue to function. They are putting in place new digital ways of working to streamline and simplify their processes and will ensure that there is as little administrative and procedural delay as possible.
Lord Touhig (Lab) [V]
My Lords, I declare my interest as a vice-president of the National Autistic Society. The needs of autistic youngsters differ: some lack capacity to make financial decisions, the capacity of others may fluctuate, but the need for parental support is vital. Yet the Mental Capacity Act code of practice says that family members should be appointed as welfare deputies in only the most difficult cases. This adds to the problem that parents of autistic youngsters have in accessing the child trust fund. Mr Justice Hayden in the High Court said that the wording of the guidance should be revisited; when are the Government going to do this?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord for referring to Mr Justice Hayden, with whom I have met and who I know is personally committed to resolving this. It is fair to say that our understanding of all sorts of mental capacity is considerably greater now than it was in 2005, when the Act was passed, and in 1995, when the Law Commission reported on this issue. We are therefore looking to address this.
Lord Addington (LD)
My Lords, I thank the noble Lord, Lord Young, for bringing this to our attention and for his wonderful summary of that letter. If we agree that the money is for the children, and that they are capable of spending money in other situations, why have the Government not used the capacity of this Chamber and the other place to make sure that this happens?
Lord Wolfson of Tredegar (Con)
My Lords, the position is this: in 1995, when the Law Commission reported on this, it recommended a small claims exception to the Mental Capacity Act. Parliament did not do that; it put in a Mental Capacity Act with no exceptions at all. That is the legislative background against which I now have to operate.
Lord Flight (Con)
My Lords, increased legal requirements have made it ever more expensive to gain access to children’s trust funds. The Government justify the extra costs as providing the necessary protection needed for those who lack the mental capacity to act for themselves. More straightforward and less expensive access paths to child trust funds are needed. Does the Minister agree that a more robust approach is now justified in dealing with the Mental Capacity Act?
Lord Wolfson of Tredegar (Con)
My Lords, the short answer is yes. We have put in place mechanisms on fees to ensure that anybody applying to the Court of Protection, in respect of a child trust fund only, does not have to pay any fees. I know that the court is looking at the forms to make sure that they are suitably accessible, so that one can fill them in and make an application without having to pay a solicitor.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, the Minister last met The Investing and Savings Alliance some two months ago and, as far as I understand, there are no further dates in the diary. When will the Minister next meet The Investing and Savings Alliance?
Lord Wolfson of Tredegar (Con)
My Lords, I am looking to arrange meetings with it, but have been working on the issues that it has raised in any event. In particular, I have looked at whether there is a trust law solution to the problem, but I am afraid that there is not. The route is to make sure that people can get applications through the Court of Protection as quickly and cheaply as possible. That involves the judiciary, which rightly controls the Court of Protection, and I am getting good engagement from the judiciary.
Baroness Wheatcroft (CB) [V]
My Lords, some providers of child trust funds are allowing parents access to them with other proof, without going through the procedures of the Mental Capacity Act. Can the Minister assure me and the House that those who offer such expedited help to parents or carers will not be subject to any sanctions?
Lord Wolfson of Tredegar (Con)
My Lords, I cannot give that assurance because sanctions are not a matter for the Government; independent bodies are in place. Whether these industry providers are complying with the protections under the Mental Capacity Act is not something on which I can give an opinion. I am sure that they have looked at that issue. Ultimately, the Mental Capacity Act is there to protect vulnerable people.
Lord Vaizey of Didcot (Con)
I declare my interest in the register of interests from working with The Investing and Savings Alliance. I pay tribute to my noble friend Lord Young for his assiduousness on this and to my noble friend Lord Wolfson for the way that he is gripping this issue. In the absence of a legislative solution, there has to be a practical one. The Government Digital Service has a mantra: “What is the user need?” Simpler forms and no fees—we can get a lot done without legislation.
Lord Wolfson of Tredegar (Con)
My Lords, with respect, I agree. No fees are in my bailiwick; we have done that. Simpler forms are in the judiciary’s bailiwick; I am working with the judiciary to encourage it to put simpler forms in place. Ultimately, there is a constitutional position here. The courts are run by the judiciary, not by government Ministers, and that is how it should be.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.