Feltham Young Offender Institution

Lord Keen of Elie Excerpts

Wednesday 24th July 2019 Lords Chamber

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

My Lords, with the leave of the House, I will now repeat in the form of a Statement the Answer to an Urgent Question given by my honourable friend the Member for Charnwood. The Statement is as follows:

“I am grateful to the honourable Lady for tabling this Urgent Question and for the opportunity to respond on this very important subject. I am also grateful to Her Majesty’s Inspectorate of Prisons for its work and the scrutiny its inspections provide. I take the safety of all the young people in our custody very seriously, and clearly this urgent notification letter for Feltham A does not make for comfortable reading. It is clearly a deeply disappointing and concerning report.

Despite the significant efforts of staff at Feltham A, to whom I pay tribute, and the significant support and resources put in by the Youth Custody Service and the Ministry of Justice, it is clear that serious underlying challenges remain. I have been clear that progress to address these issues needs to be swifter to deliver the safe environment that we all wish to see—which, as recent reports acknowledge, we see in other parts of the youth custodial estate.

Therefore, we have already taken a set of immediate steps in addition to work already under way, including placing an immediate temporary stop on the new placement of young people to Feltham A, alongside additional resources and support for staff.

The governor is still relatively new in post, and she is working hard to drive improvements to an establishment that has one of the highest and most concentrated proportions of violent offenders in the country. She and her team are dedicated to turning Feltham A around, and we will continue to support them to do that.

As required by the urgent notification process, we will formally respond with an action plan within the required 28 days”.

[Lord Beecham (Lab)]

My Lords, I thank the noble and learned Lord for repeating that Answer. The state of the Prison Service in a country with one of the highest incarceration rates in Europe has long been a matter of concern. The chief inspector’s report on Feltham cites concerns about the safety and care of 15 to 18 year-old prisoners, with very little time spent out of their cells and an alarming increase in self-harm, physical restraint and attacks on staff. What steps will the Government take to remedy this situation and ensure that it is not repeated elsewhere?

[Lord Keen of Elie]

My Lords, I am grateful for the noble Lord’s observations. We have developed a clear process to respond to urgent notification letters. Senior officials, led by the executive director of the Youth Custody Service, will be directly involved in the work to ensure that immediate action is taken, along with a more in-depth plan to ensure that we see sustained improvement to the establishment in the long term. Of course, as part of the process, the department will publicly respond to the chief executive within 28 days.

[Lord Dholakia (LD)]

My Lords, I listened very carefully to the Minister. He said that steps were being taken to curtail new entrants to Feltham A. Is he aware that many of the people in Feltham A have family in the community who are seriously concerned about what is happening to those individuals? What method is being used to inform the near-enough families of the people in Feltham about what is going on? Has the Minister any plans to disclose for a proper way of establishing control and discipline, so that a proper programme of rehabilitation, education and training can take place?

[Lord Keen of Elie]

My Lords, education, training and rehabilitation are all critical elements of youth custody. To succeed, they require motivation. When motivation is lacking, it becomes extremely difficult to implement what is required.

We seek to improve the situation at Feltham A, in particular. The staff to prisoner ratio in Feltham A, and across all the youth capacity, is normally one to 12, based on full occupancy. The decision to reduce the operational capacity at Feltham A has meant that that ratio has been improved to one to eight.

As regards communications, families are able to keep in regular contact with inmates in the youth custody regime, and I do not understand that there have been any particular difficulties reported on that front at present.

[Lord Ramsbotham (CB)]

My Lords, this incident reminds me that when I was chief inspector, I used to have to inspect Feltham every year because it was such a troubled organisation. Can the Minister tell the House how many hours the individuals in Feltham A spent out of their cells and how many of them are occupied by day?

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[Lord Keen of Elie]

My Lords, Feltham A has had a progressive regime in place since early May to account for the fact that the prison is able to deploy only about 100 staff against a target of 151, due to temporary absences. Given the limited staff available, the progressive regime is designed to provide young people with greater consistency and predictability by laying down a weekly timetable whereby they are facilitated with a scheduled day and evening each week with a guaranteed minimum commitment from staff to them—that is, time out. However, it is fair to say that the regime has been disrupted, and we are now moving away from the progressive regime, with an increased use of other means of delivering out-of-cell time. I cannot give precise figures because it is in flux at present.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I visited Feltham just over a year ago. At that time, I was told by the prison officers who showed me around that the police unit based at Feltham had been withdrawn; as I understand it, the unit was looking at gangs within Feltham and how they relate to the wider community. Was what I was told correct? Was the police unit withdrawn, and might this have had an impact on the deterioration in behaviour that we have seen in recent months?

[Lord Keen of Elie]

My Lords, I am not aware of the withdrawal of a police unit from Feltham and therefore cannot comment on that point. But I undertake to write to the noble Lord and I will place a copy of the letter in the Library.

[Lord Garnier (Con)]

My Lords, the young offender estate has been troubled for a great many years. It is full of very troubled young people. As others have indicated, the institutions are overcrowded, and inmates are kept in their cells for far too long and are doing insufficient purposeful activity, be it learning to read or write, coming to terms with their offending or finding things to do that they might usefully do when they leave the YOI. Is not the churn of governors, not just prisoners, another problem that the YOI estate suffers from? Far too many senior members of staff at these places are in post for far too short a time; they can never get to grips with the many problems that they face. If we could keep them there a little longer, we might see the young offenders leaving the estate with something purposeful and socially responsible to do.

[Lord Keen of Elie]

I note the observations of my noble and learned friend. It may not be appropriate to generalise about the state of the youth custody regime. It is clear, and it should be acknowledged, that there have been real operational difficulties at Feltham A over several months—of that we can have no doubt. Indeed, there was a hiatus when a Feltham governor was promoted and, unfortunately, the incoming governor had to work out a period of notice before moving into post. Again, that created real difficulties. But there are also areas of success in the youth custody regime: for example, I will mention in passing Wetherby, where —my noble and learned friend made a good point here—a well-established governor has been in place since October 2016 and has therefore had the time and space to settle a once-troubled establishment. So I agree that continuity and consistency are important if we are to deal with these issues.

[Lord Carlile of Berriew (CB)]

My Lords, does not Peter Clarke’s shocking report reveal two things: first, that the Ministry of Justice has been asleep on the job and is not the right department to be running youth custody institutions; and, secondly, that issues concerning children in custody should be part of children’s policy, not penal policy, and should be run by the government department that is responsible for children?

[Lord Keen of Elie]

I cannot accept either proposition put forward by the noble Lord. The ministry has certainly not been asleep on the job. Our dedicated staff of civil servants and the immediate staff in these establishments apply themselves to the very demanding tasks with regard to the youth custody regime. We must remember that we are dealing with young people in the age group of 15 to 18 who, in some instances, have a tendency towards violence, may be disturbed and do have other problems. Earlier, I mentioned the very real issue of securing motivation before you can effect rehabilitation.

[Earl Attlee (Con)]

My Lords, the Minister will be aware that I recently visited Feltham and saw these young offenders. They are unbelievably difficult to look after. I saw high-quality teachers struggling just to get them to go into the classroom, let alone pay attention to what they were trying to teach—so it is not surprising that we get these difficulties.

[Lord Keen of Elie]

I acknowledge the point made by my noble friend. The issue very often is not the availability of staff or resources, or the ability to provide education and rehabilitation, but the underlying need to secure the appropriate motivation in what is often a difficult and disturbed cohort.

[Lord Swinfen (Con)]

My Lords, what training is given to the inmates to enable them to get a job when they are released, and what help is given to them to get a job?

[Lord Keen of Elie]

Again, we attempt to provide a regime of education and rehabilitation. I regret having to repeat the point I made earlier: underlying this is the need to secure motivation. It is a case not just of making training and opportunity available, but of trying to persuade those in this difficult cohort to embrace the opportunity they are given on these occasions.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Tuesday 23rd July 2019 Other Business

Moved by

[Lord Keen of Elie]

1: Clause 1, page 1, leave out lines 9 to 11 and insert “an enactment relating to the coming into force of the repealed provision or any other enactment”

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

My Lords, I intend to move Amendment 1 and speak to the other amendments in the first group. The amendments mainly relate to adding further exceptions in Schedule 1 to the Bill to the clean sweep. This will make sure that no offender will be subject to a greater maximum penalty than would have been available to the courts at the time the offence was committed, or subject to a minimum or mandatory sentence that did not apply at the time of the offence.

The amendments are largely required to reflect the most recent changes to the law, and to make sure that we can incorporate sentencing provisions in so far as they relate to the Armed Forces into the sentencing code.

Before I talk to the amendments concerning further exceptions to the clean sweep, I will briefly cover government Amendment 1, which is simply a minor drafting change in relation to the definition of “transition time” in Clause 1, namely the point at which a given provision was commenced, repealed or amended. As a result of this amendment, the provision will simply revert to the form as published by the Law Commission in its draft Bill last November. We thought that we would simplify that part of the Bill, but parliamentary counsel thought the contrary and we have reverted to the original drafting.

I turn to the further exceptions to the clean sweep. Government Amendment 3 ensures that recent increases to the victim surcharge are exempt from the clean sweep. That will mean that offenders who committed offences before 28 June this year—the date when those increases were commenced—will not be subject to a surcharge under the sentencing code greater than that which existed at the time of the offence.

Government Amendment 4 ensures that an increase made to the maximum curfew requirement that can be attached to a youth rehabilitation order is exempt from the clean sweep. As such orders can be imposed for non-imprisonable offences, this will mean that offenders aged under 18 on conviction who committed offences before 3 December 2012—the date when the increase to the maximum curfew requirement came into force—will not be subject to a maximum penalty under the sentencing code greater than the one that existed at the time of the offence. That is clearly an incredibly small group of cases—it would entail someone aged 10 committing an offence before 3 December 2012 and coming before the courts for conviction and sentencing aged under 18 at the time when the code is commenced—but we make the amendment, stressing the need to be comprehensive in our exceptions to the clean sweep.

Amendments 6, 7 and 8 extend existing exceptions in Schedule 1 which ensure that the addition of certain offences to Schedules 15 and 15B to the Criminal Justice Act 2003, which list specified offences for the purposes of imposing sentences on dangerous offenders, are exempt from the clean sweep, so that they cover not only civilian but military sentencing. Those amendments extend the existing exemptions so that they cover the corresponding provisions of the Armed Forces Act 2006; namely, Sections 218A, 219 and 221.

Amendments 5, 9, 10 and 11 all relate to new exceptions resulting from the Offensive Weapons Act 2019, with the added complication that the provisions in question have not yet been commenced. Amendment 5 ensures that if regulations are made under the Offensive Weapons Act 2019 before the sentencing code is commenced which extend the category of offences concerning prohibited weapons for which an offender aged under 18 can be sentenced to be detained under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, they are to be included as an exception to the clean sweep. That will mean that future amendments that extend the category of offences concerning prohibited weapons will not apply to offenders aged under 18 who are convicted of possessing certain prohibited weapons, but who committed their offence prior to commencement of those regulations.

Government Amendments 9 and 10 ensure that if regulations are made before the sentencing code is commenced which commence minimum sentencing provisions in the Offensive Weapons Act 2019 related to certain offences concerning prohibited weapons, they too are to be included as an exception to the clean sweep.

Finally, government Amendment 11 relates to the minimum sentencing provisions for offenders convicted under the Offensive Weapons Act 2019 of possessing a corrosive substance in a public place for a second or subsequent time. That amendment will mean that offenders who are found to have been in possession prior to commencement of those provisions will not be subject to a minimum sentencing requirement for a second or subsequent offence under the sentencing code. I therefore beg to move government Amendment 1, and later will move the remaining government amendments in the group, Amendments 3 to 11.

Amendment 1 agreed.

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Moved by

[Lord Keen of Elie]

2: Clause 5, page 5, line 3, at end insert—
“(6A) The power conferred by section 338 of the Criminal Justice Act 2003 (power to extend to Channel Islands and Isle of Man, and to modify) is exercisable in relation to any amendment or modification of that Act that is made by or under this Act.(6B) The armed forces provisions extend to—(a) the Isle of Man, and(b) the British overseas territories except Gibraltar.(6C) The powers conferred by section 384 of the Armed Forces Act 2006 (power to extend Act to the Channel Islands and powers to make provisions of that Act apply with modifications in relation to the Channel Islands, British overseas territories and the Isle of Man) are exercisable in relation to any armed forces provision.(6D) “Armed forces provision” means—(a) an amendment, modification or repeal made by or under this Act of a provision of the Armed Forces Act 2006;(b) an amendment, modification or repeal made by or under this Act of any other provision, so far as the provision is applied (by whatever words) by the Armed Forces Act 2006.”

[Lord Keen of Elie]

My Lords, government Amendment 2 will ensure that any pre-consolidation amendments of sentencing procedural law made by or under the Bill extend to the Crown dependencies and British Overseas Territories in the same way as the legislation being amended, modified or repealed. It does so in two ways. First, the amendment inserts a provision in Clause 5 to replicate the power conferred by Section 338 of the Criminal Justice Act 2003. That power allows for any of the provisions in the 2003 Act to be extended to the Channel Islands and Isle of Man by Order in Council. As Schedule 2 to the Bill contains a number of pre-consolidation amendments of the 2003 Act, this provision will ensure that those pre-consolidation amendments can be similarly extended.

Secondly, this amendment inserts three provisions in Clause 5 that directly extend pre-consolidation amendments of Armed Forces legislation—namely, the Armed Forces Act 2006 and legislation applied by it—to the Isle of Man and British Overseas Territories except Gibraltar, and replicates the power conferred by Section 384 of the 2006 Act, which allows for any of the provisions of that Act to be extended to the Channel Islands by Order in Council. Those provisions will put beyond doubt that the pre-consolidation amendments of Armed Forces sentencing law contained in Schedule 2 to the Bill, for which the Government have tabled amendments, directly extend to the Isle of Man and the British Overseas Territories except Gibraltar, and can be extended to the Channel Islands.

It should be emphasised that to date the power in the permissive extent clause in the 2003 Act has not been exercised to extend any provisions that we are looking to consolidate in the sentencing code. Indeed, given that the Crown dependencies have autonomy in their domestic affairs and legislate for themselves on sentencing and criminal justice matters, we do not envisage a situation where there will be an extension of that provision. However, we are bound to put the provision in the Bill to ensure that sentencing procedural law can be consolidated faithfully in the sentencing code.

I acknowledge that there is a case to be made that the inclusion of a permissive extent clause in a UK Bill that contains provisions that fall within the Crown dependencies’ domestic competence should not ordinarily be necessary, save in exceptional circumstances connected with the UK’s constitutional responsibilities for the Crown dependencies. I can certainly see a case, when the law of England and Wales relating to crime is being updated in future, for our reviewing the permissive extent clauses that exist, including in sentencing, with an eye to removing them, but that is not the purpose or function of the present Bill. I beg to move.

Amendment 2 agreed.

[Lord Judge (CB)]

My Lords, before we get to Clause 5, I wonder whether this might be a convenient moment, this being a special Public Bill Committee, for me to say something about the way in which the committee has worked and the issues that we have resolved, so that they are a matter of public record given the unusual circumstances of the Bill.

The committee has met and taken oral evidence from Professor David Ormerod of the Law Commission and from the noble and learned Lord, Lord Keen of Elie, the Minister responsible for the Bill. We also received evidence from the Criminal Appeal Office and the Prison Reform Trust, and from Professor Andrew Ashworth and Professor Nicola Padfield, both of whom are acknowledged experts in sentencing law. We received supplementary written evidence from Professor Ormerod and the noble and learned Lord, Lord Keen, which addressed the issues raised during the committee’s oral hearing. The committee agreed that this written evidence should be accepted and indeed published. Beyond that, the committee had before it the sentencing code summary, the detailed sentencing code report and the sentencing code itself—all very substantial documents. This enabled us to examine the wide breadth of the consultation programme in which the Law Commission had engaged, and the responses to that process.

It is beyond controversy that the law relating to the sentencing powers of the courts is in desperate need of clarification. The adoption of this sentencing code is an imperative. The Bill, however, is mechanical. It does not, and is not intended to, address sentencing policy problems, nor is it a Bill intended to reform the law of sentencing. For example, one current policy question is whether there are any circumstances, and if so what, in which a short prison sentence may be imposed, or whether such sentences should be abolished. I suspect that if the members of the committee—some of whom are here today—had sought to address this single question, we might have been discussing and receiving evidence about it for many months.

There are many other outstanding questions, such as the continued detention, well beyond the normal sentencing tariff, of those ordered to be subject to imprisonment for public protection. There is a whole raft of policy questions. Therefore, it is important to emphasise not only that the Bill is not intended to address complex policy questions but that, if the Bill is enacted and the sentencing code comes into force, the policy questions will remain open for further public discussion and parliamentary decision.

Beyond the policy question, we also recognise that the consolidation provisions in the Bill do not cover every single aspect of every single sentencing enactment that might apply to conviction of a particular crime in particular circumstances by a particular offender. For example, the complexity of the confiscation provisions vested in the court after conviction is notorious. That issue is addressed in a separate further proposal.

Without wanting to suggest that they are not difficult, at the other end, there are also what may be described as the fiddly bits of a sentencing decision; for example, where and in what circumstances jurisdiction to make a protection order would arise. I am speaking for myself, although I think I speak for the committee also, when I say that I am satisfied that it would be contrary to the public interest to postpone the implementation of the code in its present form—it is a massive project, which has taken literally several years to bring before Parliament—until after the remaining questions have been addressed. At the moment, the code provides opportunity to improve and make the sentencing process much more straightforward and less prone to error; it is urgently needed.

Again, I emphasise that the enactment of the Bill and the coming into force of the sentencing code should not be seen as the end of the process but as a very large and important step in it. We were invited by Professor Padfield to treat the Bill as an interim measure; she made a powerful argument. As and when the further consolidation proposals are received from the Law Commission, I urge that the Government of the day see it as a matter of obligation to bring them to Parliament, not “as soon as practicable”—those are slightly weasel words—but forthwith. It is not a difficult process and we have not found it particularly time-consuming in Parliament, though the reading has been substantial.

The issue with which every member of the committee, and indeed many of those who responded to the consultation, was concerned can be summarised in a single word: “retrospectivity”, or perhaps in two words, “no retrospectivity”. If I may, I shall adopt Professor Ashworth’s identification of the principle at common law and embodied in Article 7 of the European convention: the defendant should not be subjected to a heavier penalty than the one that was applicable at the time the offence was committed. It is a simple and clear definition. The particular importance of applying this principle to this code and enactment is that, over the years, Parliament has steadily increased the maximum penalties for a number of offences including, for example, indecent assault. Many cases of sexual assault are now prosecuted and tried as historical cases, going back very many years. For such an offence committed in, say, 1988 or 1998, the sentence available then—not that available now—binds and limits the sentencing court.

We are satisfied that the retrospectivity issue has been properly addressed in what has been described as the “clean sweep” approach, in particular Clause 1(4). Beyond that, we did not find a single observation in the evidence which suggested or implied that there could be any doubt that the retrospectivity issue had been properly addressed. Yet further beyond that, my personal view is that if a sentence which infringed this principle were imposed, it would, at common law and under Article 7 of the convention, be corrected as an error. But importantly, the statute leaves the question beyond doubt.

Some concern was expressed in the committee about the possible extent of the regulation-making powers granted to the Secretary of State, in particular whether the Bill granted powers that would enable him or her, by regulation, to alter sentencing levels—especially, of course, to increase them. As Governments of different hues have developed what I describe as an unfortunate tendency, although that is rather polite, to try to create criminal offences punishable with imprisonment by the exercise of regulation-making powers, this concern obviously required careful analysis. I suspect that any court faced with any alteration to sentencing levels said to be derived from powers created in the Bill would be extremely dubious about construing the Bill in this way. Beyond that, however, in his recent written evidence the Minister pointed out that the regulation-making power in Clause 2(2) applies only to any potential amendments that facilitate, or are otherwise desirable in connection with, the consolidation process; and that Clause 5(3)(a) restricts the amending power to pre-consolidation amendments. In my view, the regulation-making powers in the Bill, which are concerned exclusively with the consolidation of legislative provisions currently in force, is not open to potential misuse by the Secretary of State.

We were also troubled by a problem over which we have no control and which I wish to highlight. It has nothing to do with the statutory provisions with which we are concerned, but with the danger that, unless great care is taken with the enactment of criminal legislation, particularly sentencing provisions—and, if I may say so, taken with infinitely greater care than in past enactments, which has caused all the problems—the code itself will be out of date within a major criminal justice statute or two. Given the rate at which such statutes are enacted, that would not be very long—possibly before the consolidating process of what I have described as the fiddly bits has been completed.

This code is pre-eminently a provision to which the words “living instrument”—my words—should be applied. It must be capable of adaptation and development as sentencing provisions and, in due course, policies change. The whole purpose of the code would otherwise have been lost. It would have been built, in the word used by one member during our discussions, on dust. That makes it imperative that when sentencing provisions are introduced, amended or repealed, express provision should be made in that primary legislation for the incorporation of those new provisions, as I shall now call them, into the sentencing code. We, and more importantly the Law Commission, given the extraordinary burden it has carried for several years now, will otherwise have been wasting our time.

Before long, sentencing courts will be struggling with the difficult problem of deciding what the sentence should be. If I may pause there, I think many judges would say to the Minister that, with the possible exception of deciding where children should live when there are problems at home, a decision about what sentence should be imposed on an individual is one of the most difficult problems that any judge can face anyway. They would be faced not only with the difficult problem of deciding what the sentence should be but with the ludicrous task of examining complicated legislation to ascertain what the court’s lawful sentencing powers are.

I have said all that I wish to say on this beyond thanking our team, led by John Turner, very much for their help and their immediate response to a Bill that has come through the House very rapidly and needed close attention from all those involved behind the scenes.

[Lord Keen of Elie]

My Lords, I want to make one or two observations for the record in response to the comments made by the noble and learned Lord as chairman of the committee.

Clearly, as was observed, the clean sweep mechanism is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available or subject to a minimum or mandatory sentence that did not apply at the time that the offence was committed. Of course, a clean sweep allows for a different sentencing disposal than would have been imposed had the code not been enacted. The guideline judgment in R and H v UK in 2011 sets out that sentencing exercises should be conducted on the basis of current sentencing law by measured reference to any definitive and relevant sentencing guidelines, and that while sentences must be limited to the maximum available at the time of the offence, it would be unrealistic to try to assess what the sentence would have been had the case been heard years, or even decades, earlier.

My only additional comment is that the clean sweep will extend the duty of the courts to follow sentencing guidelines, thereby removing the previous duty to have regard to sentencing guidelines in relation to offences committed before 6 April 2010. Accordingly, the code will extend the current duty to follow sentencing guidelines to all convictions that follow the enactment of the code.

Clause 5, as amended, agreed.

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Moved by

[Lord Keen of Elie]

3: Schedule 1, page 6, line 17, at end insert—
“5A_ Article 3 of the Criminal Justice Act 2003 (Surcharge)(Amendment) Order 2019 (S.I. 2019/985), so far as it relates to article 2(b) of that order.”

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Moved by

[Lord Keen of Elie]

12: Schedule 2, page 15, line 7, leave out “In section” and insert—
“(1) Section”

[Lord Keen of Elie]

My Lords, Amendment 12 and the other amendments in the group pertain to Schedule 2 to the Bill. Again, the amendments are mainly technical to ensure that sentencing procedural law can be consolidated accurately in the sentencing code for both civilian and military sentencing. In moving government Amendment 12, I shall speak also to Amendments 13 to 24.

The Offensive Weapons Act 2019, which I mentioned earlier, introduces minimum sentencing provisions that apply to offenders convicted of possessing a corrosive substance in a public place for a second or subsequent time. Existing sentencing procedural legislation that will be consolidated in the sentencing code contains a number of provisions that clarify the effect on certain aspects of sentencing procedural law of requirements to impose listed kinds of mandatory minimum sentences.

The amendments make consequential provision to ensure that reference is made in those lists to the mandatory minimum sentences for corrosives under Section 8(2) of the 2019 Act, so that they are treated the same way as other mandatory minimum sentences relating to knives and offensive weapons under the Prevention of Crime Act 1953 and the Criminal Justice Act 1988.

Government Amendment 15 clarifies that the power to make a driving disqualification order under Section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 is exercisable whether or not any other sentence, including a mandatory sentence, is imposed. This will ensure that Section 146 of the 2000 Act is aligned with Section 130 of that Act, which is already subject to a similar pre-consolidation amendment by virtue of paragraph 39 of Schedule 2 to the Bill.

Government Amendment 20 clarifies Section 166 of the Criminal Justice Act 2003, which allows a court to take into account mitigating factors in relation to youth rehabilitation orders with intensive supervision and surveillance, or with fostering.

Finally, government Amendment 22 ensures that Armed Forces sentencing law can apply sentencing law as consolidated in the sentencing code. It does this by making three changes to the Armed Forces Act 2006. First, it removes a reference in Section 178 of that Act to petty sessions districts in Northern Ireland, which were repealed by the Justice Act (Northern Ireland) 2015. Secondly, it clarifies the drafting of Section 212 of that Act in relation to detention and training orders, to ensure that a detention and training order made under Section 211 of that Act will take effect at the beginning of the day on which it is made, unless the court orders otherwise under Section 101(3) of the Powers of Criminal Courts (Sentencing) Act 2000. This change is in line with a corresponding pre-consolidation amendment for a detention and training order made in a civilian case, by virtue of paragraph 31 of Schedule 2 to the Bill. Thirdly, it makes consequential provision to ensure that reference is made in Section 213 of the 2006 Act, which lists provisions relating to civilian detention and training orders, to Section 101(12A) of the 2000 Act.

In these circumstances, I beg to move.

Amendment 12 agreed.

Moved by

[Lord Keen of Elie]

13: Schedule 2, page 15, line 7, after “orders)” insert “is amended as follows.
(2) ”

Crown Prosecution Service: Rape and Sexual Offences

Lord Keen of Elie Excerpts

Tuesday 23rd July 2019 Lords Chamber

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

My Lords, I thank the noble Baroness, Lady Chakrabarti, for securing this debate. I join other noble Lords in expressing my thanks to the noble Baroness, Lady Newlove, and congratulate her on all the work she has done during the past seven years as the Victims’ Commissioner.

Clearly, rape and sexual violence are devastating crimes which have a significant and profound impact on complainants. It is clearly of the utmost importance that such crimes are dealt with robustly. The CPS has undertaken extensive work over the past decade to ensure that specialist prosecutors are fully equipped to deal with the particular complexities of rape cases. It is recognised that these are extremely serious cases that have to be approached as robustly as possible.

It is true that sexual offences continue to take longer to progress through the criminal justice system than other criminal cases. Clearly, that can be highly distressing for complainants and, indeed, for those accused in such horrific cases. Cases involving sexual offences, especially rape, are some of the most challenging and complex that the CPS has to deal with. They involve very little corroborative evidence in comparison with other cases, and often result in prosecutors having to consider one person’s word against another’s in trying to balance the strength of a case. Unfortunately, as a number of inquiries are needed to ensure that a case is thoroughly investigated, it means that they can take longer than other criminal cases.

A number of factors can contribute to the time it takes for a charging decision to be made. For example, the CPS increasingly gives early advice to police about reasonable lines of inquiry needed to build a case. This means that prosecutors may be engaged earlier in the process than they would have been previously, often before the police investigation is complete. That means that it may take longer from the point of initial referral for a charging decision to be made, as police investigations will often be ongoing after cases have already been sent to the CPS.

However, early investigative advice is part of the important collaborative work between investigators and prosecutors to ensure that a case is robust before it progresses to court and that issues do not arise late in the process. The noble Lord, Lord Hogan-Howe, alluded to the position of the procurator fiscal in Scotland and the system there. It may be that that has something to commend it. Wider reference was made to the system of criminal prosecution in Scotland: the issues of corroboration and the not proven verdict. These being devolved issues for the Scottish Government, I would not wish to venture an opinion on them from the Dispatch Box. As has been observed, they have been the subject of a recent report and will be subject to consideration in future.

There has been huge growth in the volume of digital evidence, particularly in rape cases. That is a complicating factor in the gathering and analysis of evidence in all cases, including those of rape. As part of ongoing work under the national disclosure improvement plan, the CPS continues to work closely with the police to improve the processing of digital material. On 10 June, my honourable friend the Solicitor-General and my right honourable friend the Minister for Policing co-chaired a tech summit on this issue to explore how technological innovations could be used to support and increase efficiency when handling these large quantities of data.

The noble Baroness, Lady Chakrabarti, raised the matter of CPS guidance on pre-trial therapy. I assure noble Lords that the CPS is clear that complainants and witnesses should not be discouraged or prevented from having access to therapy and counselling before or during the trial process. The guidance is reviewed regularly, and the CPS is working with the police, National Health Service and other voluntary sector providers to develop revised operational practice guidance on pre-trial therapy. The renewed guidance will enable all complainants to receive the therapy they require in a timely fashion, both to assist their recovery and to assist them in giving evidence to the best of their ability, having regard to the trauma they may have suffered in the course of the crimes in question. Consultation on the new draft guidance began last summer and has gone through more than 20 iterations. A final consultation with stakeholders on the guidance is now under way, and it is intended that the renewed guidance will be published later this summer. All CPS guidance is regularly reviewed and refreshed, to ensure that it supports prosecutors robustly in making charging decisions and that the tests set out in the Code for Crown Prosecutors are correctly applied.

Specific reference was made to the merits-based approach. The noble Lord, Lord Carlile of Berriew, gave a detailed analysis of the merits-based aspect of the approach in this matter. His observations and analysis closely followed those set out by my right honourable friend the Attorney-General in a letter of 3 July 2019 to Wera Hobhouse and other Members of the other place who had raised the whole question of prosecution in rape cases and queried the merits-based approach. Specific reference to that approach was removed from guidance for prosecutors, following an inspection by Her Majesty’s Crown Prosecution Service Inspectorate in 2016. This made clear that including separate reference to the merits-based approach only in the legal guidance on rape had caused confusion for some prosecutors and led to incorrect application of the code test. The code itself has never included specific reference to the merits-based approach because it is an integral part of the evidential test that is followed. The changes that have been made to guidance for prosecutors do not reflect an underlying change to policy, and the code that prosecutors follow when making a charging decision has not changed.

I assure noble Lords that the specialist prosecutors who work on these cases still have access to extensive guidance to assist them in making charging decisions, including on the need to avoid the myths and stereotyping which occur in this kind of case. That is particularly important because, at the end of the day, Crown prosecutors have to take a view on the evidence before them, putting to one side any idea that a jury could be swayed by the myths and stereotypes that in the past have so often been taken into account when looking at charging or proceeding to trial in cases of this kind. I emphasise that there has been no change in policy, and changes made to the guidance do not alter the code that is relied upon by Crown prosecutors.

Concerns have been aired in this House, and by the media and third parties, about the digital consent forms that were introduced in February. Some commentators have stated that these forms subject complainants to a “digital strip search”; that term has been repeated in this House. This language is extremely unhelpful. It is important that concerns should be heard, but inflammatory and provocative terms such as this will not help to improve public confidence in the reporting of these horrendous crimes. I urge noble Lords, the media and third parties to consider carefully before they resort to such inflammatory language. This is a complex area, and a sensitive balance has to be struck to support complainants and their right to privacy, while allowing the police to pursue all reasonable lines of inquiry to ensure that the defendant can receive a fair trial. The noble Lord, Lord Marks, referred to the case of Liam Allan, where the prosecution ultimately collapsed because of the disclosure of some digital material by the prosecution to the defence. The noble Baroness, Lady Gale, touched upon a conundrum. She said that data should be available only when it is relevant, but it should never be relevant where it is not relevant to the case. The question is how we determine whether the digital material is or is not relevant to the case, unless we examine it. That is the conundrum often faced by those dealing with matters in this complex area.

I reiterate a point made by the now Director of Public Prosecutions, Max Hill, who made it clear following his appointment in November 2018 that mobile telephones should not be examined as a matter of course and that only reasonable lines of inquiry should be followed. That approach has been endorsed by the Court of Appeal in a case where the CPS successfully appealed a Crown Court decision to stop a case due to a complainant’s telephone not having been downloaded. The CPS and the DPP are supporting the view that such material should be accessed only where it can be established that it would be relevant to the complaint in question.

I assure the House that requesting access to a complainant’s phone only in cases where it is relevant remains the position. The forms that have been introduced simply apply a consistent approach across all 43 police forces, to be employed where it is reasonable to make a line of inquiry that involves an appropriate examination of a complainant’s phone. However, it is of course important that we establish consistency and that there be a clear understanding as to the scope of the requests for digital data.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt the noble and learned Lord, but the problem that most of us have been concerned with on these consent forms is, first, the blanket nature of their use—the noble and learned Lord said something to respond to that—and, secondly, the implied threat that, if the consent form is not signed, no prosecution can proceed. That aspect of it is particularly worrying, and it is a matter that has been aired in the media quite heavily.

[Lord Keen of Elie]

As far as I am concerned, neither the DPP nor the CPS would endorse the implied threat that, if there was a reason for not signing a consent form for the disclosure of digital material, they would simply refuse to contemplate a charge on a case such as this, or indeed in any other case. I believe that the problem stems from the use of language, and that such terms as “digital strip search” merely seek to underline how it is possible for parties to misunderstand the scope of the inquiry that is being carried out here. What has to be emphasised is the need to secure justice for the complainant and for the accused.

[Baroness Chakrabarti]

On that point raised by the noble Lord, Lord Marks, could the Minister tell the House what the legal foundation for this form is? Does it have foundation in any statute? I think we can all agree that it at least to some extent creates an interference with privacy rights; if it does so, where is the foundation that makes it in accordance with law? If it is consent, and therefore not based on any statutory foundation, is that consent real if complainants fear that their case will not be taken forward?

[Lord Keen of Elie]

In so far as I follow what the noble Baroness is saying, it requires first of all a balance between rights that arise under the European Convention on Human Rights—the right under Article 6 to a fair trial and the right under Article 8 to privacy—and the need to ensure that any intrusion into these matters is in the public interest and can be properly justified. As to the specific foundation for the consent form, in carrying through a prosecution it is necessary for reasonable and appropriate inquiries to be carried out in the public interest. A consent form is therefore produced for the complainant to consider signing. The situation is this: the complainant may refuse to sign that consent form, but in those circumstances that might well intrude upon the ability of the police properly to investigate a particular complaint.

[Baroness Newlove]

I appreciate all this dialogue, and I know this is a timed debate, but in all of this we are losing the victim as a person with sound mind who has been told to sign this form. That is why I mentioned in my speech that this is about humanity; I am afraid that they are told that if they do not sign this consent form there will be no prosecution. I would really like the Minister to look at this and understand the victim’s journey, because we are losing sight of what they are going through in the first place to come forward and report this crime.

[Lord Keen of Elie]

I am not at all aware of a policy in place such that, if a complainant is presented with a consent form, they will be told, “If you do not sign it, there will be no attempt to pursue and investigate a complaint or crime”. That is the difficulty with taking matters from the way they are sometimes reported in the media.

In view of the time limit on this debate, I will add only this. As the House is probably aware, the Attorney-General’s review of the effectiveness and efficiency of disclosure in the criminal justice system was published last November. Further to the review’s recommendations, work is ongoing to update the Attorney-General’s guidelines on disclosure. The intent is to ensure that the guidance to investigators and prosecutors carrying out disclosure obligations is both clear and up to date. Changes to the Criminal Procedure and Investigations Act code of practice are also being considered so that we can bring all of this together later this year.

In these circumstances, I seek to reassure the House that cross-government work is ongoing to review all aspects of the criminal justice system’s response to rape cases, including CPS processes and decision-making, and the matter of disclosure.

Serco

Lord Keen of Elie Excerpts

Thursday 4th July 2019 Lords Chamber

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

My Lords, with the leave of the House, I shall repeat in the form of a Statement an Answer to an Urgent Question asked in the other place earlier today. The Statement is as follows:

“We very much welcome the fact that by court approval today the Serious Fraud Office has reached a conclusion in its investigations of Serco. These historical contracts ended in 2014 and were awarded as long ago as 2004. The agreement allows the parties to draw a line under the matter. Following the successful conclusion of this process, we see no reason why Serco should not continue to be a strategic supplier to the Government and compete for government contracts.

We conducted an investigation of the matters raised in the agreement announced yesterday and we are content that the matters were resolved in 2013-14, when Serco reached a financial settlement of £68.5 million with the Ministry of Justice and undertook an extensive self-cleaning exercise. While we deplore the wrongdoing identified in the deferred prosecution agreement announced yesterday, we have confirmed that since 2013 Serco has thoroughly overhauled its management, governance and culture, and that these changes continue to be effective today.

Serco is and will continue to be a strategic supplier to Her Majesty’s Government, working across the defence, justice, immigration, transport and health sectors”.

[Lord Beecham (Lab)]

My Lords, this issue arises out of the Government’s infatuation with the concept of privatising public services—in this area, largely in connection with prison and the probation service. In these areas, privatisation has been a signal failure. Why has it taken six years from the revelation of Serco’s fraudulent charging for the offender tagging contract between 2010 and 2013 to secure the payment of £19.2 million? Deloitte has also been fined £6.5 million for its role in the scandal. Why do the Government apparently intend to continue to allow these companies to tender for government contracts of this or other kinds?

[Lord Keen of Elie]

My Lords, the noble Lord refers to an infatuation of this Government. I remind him that the contracts with which we are concerned go back to 2004, at a time when, at least as I recollect, there was a Government of a different complexion. It was that Government who let these contracts to Serco in 2004 and for many years thereafter.

The resolution of the matter between the Ministry of Justice and Serco took place in 2013-14, when there was a financial settlement of £68.5 million. As to why it took six years for the criminal matter to be concluded by DPA, that is of course a matter for the SFO, to which we lent all our assistance during the course of this very complex inquiry.

[Lord Dholakia (LD)]

My Lords, could the Minister confirm that this is not the first time that allegations of this nature have been made against Serco and G4S? Is he aware that it is alleged that they were charging the Government for electronically tagging and monitoring people who were either dead, in jail or had left the country? Could he confirm whether any further contracts are being offered to Serco and whether it is a fit and proper organisation to undertake these tasks? Why have no criminal charges so far been brought against this organisation?

[Lord Keen of Elie]

My Lords, I will not comment upon suggested other allegations. There has been a thorough investigation by the Serious Fraud Office with regard to events between 2004 and 2014, and that has resulted in the deferred prosecution agreement, as indicated earlier. We are content that Serco, having carried out a thorough and extensive exercise in cleaning out those involved in this matter, is in a position to accept further contracts from the Government going forward, subject to the same rules and regulations that apply to other third parties. Therefore, it will continue to do so. I make no comment on G4S. It may be the subject of continuing inquiries, and it is not appropriate for me to say any more.

[Lord Garnier (Con)]

My Lords, I declare my interest as the law officer who introduced deferred prosecution agreements into our criminal justice system when I was in government, and I have also been instructed by the Serious Fraud Office on two of the deferred prosecution agreements—with Standard Bank and Rolls-Royce—since they came into force. Does today’s news and the Statement not illustrate the good sense of the deferred prosecution agreement system? It allows companies to come to terms with their wrongdoing, to compensate the victims of their wrongdoing and to pay a suitable penalty for that wrongdoing, while at the same time not causing collateral damage to the contractors, employees and pensioners of those companies who are not affected by, for example, a company being shut down. The events which caused the criminal conduct are to be much regretted, but surely the new board and management have in this case done precisely the right thing in coming to terms with the wrongdoing and making account of it to the public, and, having cleaned its debts, can now get on.

[Lord Keen of Elie]

My Lords, I entirely concur with the observations of my noble and learned friend. The underlying purpose of deferred prosecution agreements is as he has set out, and the consequences are as he has referred to. It would have been wholly inappropriate to see the jobs of many employees put in jeopardy because of the nefarious activities of some in management, who have now been removed.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, with the Carillion scandal, the Capita scandal and the Serco scandal, do the Government not see a pattern? Will they not learn a lesson and realise that these services—particularly in the NHS—are better in public ownership?

[Lord Keen of Elie]

My Lords, there is no pattern indicated by the parties to which the noble Lord referred.

[Lord Cormack (Con)]

My Lords, does my noble and learned friend not accept that many of us feel that penal matters should not be in any way administered by private companies? It is about as appropriate to have a private prison as it would be to have G4S guarding Buckingham Palace. I have held that feeling all my political life. Will my noble and learned friend accept that I am not unique in that?

[Lord Keen of Elie]

My Lords, I am prepared to accept that the noble Lord is not unique. Be that as it may, we currently have no proposals to contract out the guarding of Buckingham Palace or any other royal institution.

[Lord Judd (Lab)]

My Lords, when the Government are approaching these matters, do they evaluate or take into account the invaluable contribution to the quality of the service when people are working for it directly and taking pride in that, rather than feeling that they are working for the profits of a private company?

[Lord Keen of Elie]

With respect to the noble Lord, people can quite rightly take pride in the fact that they are working for a service even where it is privatised.

[Lord Harris of Haringey (Lab)]

My Lords, what lessons have the Ministry of Justice and other government departments learned from this instance? In particular, are the Government satisfied with the adequacy of the contract management arrangements that they have in place, and have they enhanced them as a result of the various incidents that have been discussed in your Lordships’ House today?

[Lord Keen of Elie]

I am obliged to the noble Lord for his question. In December 2018, the Chief Executive of the Civil Service wrote to central government departments asking each to include contract audit activity as part of the implementation of their outsourcing review. As part of this programme of audits, the Ministry of Justice, the Home Office and the Ministry of Defence have invoked contractual audit rights on five contracts with Serco, and those audits are under way.

[The Earl of Listowel (CB)]

My Lords, is the Minister aware that private prisons are 47% more violent than publicly run prisons? How does he explain this? Is this to do with the difficulties facing those prisons or is it something to do with the culture within private prisons?

[Lord Keen of Elie]

My Lords, I am not in a position to comment on the statistic that the noble Earl refers to. However, clearly there is an issue of violence and, indeed, of self-harm in all our prisons which we are anxious to address.

Sharia Law: Marriages

Lord Keen of Elie Excerpts

Thursday 4th July 2019 Lords Chamber

[Baroness Cox]

To ask Her Majesty’s Government what progress they have made in implementing the recommendations of the independent review into the application of sharia law in England and Wales published in February 2018 (Cm 9560), in order to protect Muslim women, and what assessment they have made of Resolution 2253 (2019) by the Council of Europe that all Islamic marriages should also be registered as civil marriages.

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

My Lords, further work on the issues raised began in the spring, as announced in the Integrated Communities Action Plan. This work will explore reform possibilities in relation to the issue that some people may marry in a way that does not create a legally recognised marriage. This exploration will be conducted independently of the wider Law Commission review of marriage ceremony law.

[Baroness Cox (CB)]

My Lords, in thanking the Minister for his reply, I ask whether he is aware that my Question is almost identical to the one I asked on 28 February. I have had no response, nor seen any evidence of progress on this crucial issue, which causes such suffering to Muslim women through the application of sharia law. Many come to me desperate, destitute and even suicidal, with no rights following asymmetrical divorce inflicted by their husbands, or trapped in unhappy polygamous marriages. The recommendations of the sharia law review and the message from the Parliamentary Assembly of the Council of Europe are totally consistent with the objectives of my Private Member’s Bill, which requires all religious marriages to be registered, thereby giving women the rights they so urgently need. Therefore, I ask the Minister for an assurance that the legislation will be introduced with great urgency, as so many women are suffering in ways that would make the suffragettes turn in their graves.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, we understand and recognise that there is a very real issue here, but it is more of a social issue than a legal one. I cannot accept that the proposed way forward set out by the noble Baroness in her Private Member’s Bill is appropriate. Her proposals would effectively deregulate marriage ceremony law and undermine the safeguards in it, including those relating to sham and forced marriages.

[Baroness Manzoor (Con)]

I disagree with my noble friend the Minister. It is not a social issue, but a legal one. Therefore, I entirely agree with the noble Baroness, Lady Cox, that this needs to be looked at urgently. We can have a register that allows imams to register nikah ceremonies easily. We need to do this as quickly as possible.

[Lord Keen of Elie]

My noble friend is perfectly entitled to disagree with me, and I in turn disagree with her. Let us be clear on what the position is, because some of this proceeds on a misapprehension. It is perfectly possible to perform a lawful marriage in England and Wales under sharia law provided that the relevant mosque has been identified and registered by the registrars as a place for the performance of that ceremony, and a person has been identified by the registrars as suitable to be present for that ceremony. The law of England and Wales has then to be adhered to. Sharia law is not the law of England and Wales; it has no standing. Our national marriage law prevails in these matters. I reiterate: we understand and appreciate that there is a social issue here, because many are not aware of the true position of our law in respect of marriage. Indeed, many are not prepared to adhere to that in circumstances where one or other party may be ignorant of their true position and its consequences.

[Baroness Burt of Solihull (LD)]

My Lords, the Council of Europe, referred to in the Question from the noble Baroness, Lady Cox, is very clear that where human rights are concerned there is no room for cultural exceptions. The independent review, commissioned by the Government in 2016, is also clear on its main recommendation that Muslim women undergoing Islamic marriage must be protected by British civil law. Too many vulnerable women are suffering and will suffer until the Government pull their finger out and implement this recommendation.

[Lord Keen of Elie]

My Lords, with great respect, some of what has been said by the Council of Europe in its Resolution 2253 does not reflect the true position of marriage law in England and Wales. In particular, the reference to civilly registering a marriage is inept. It does not reflect the true position of our law in England and Wales. Civil registration per se is not a route to a lawful marriage.

[Lord Desai (Lab)]

My Lords, in the present circumstances, what is the position of triple talaq? Is it still possible for a Muslim man to divorce his wife just by saying, “Talaq, talaq, talaq”? Is the Minister aware that in India a Bill is before the two Houses of Parliament to reform the triple talaq Act? Will Her Majesty’s Government follow that example?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, divorce in England and Wales is determined by the national law. It is not determined by religious observance or religious laws. Therefore, it will be necessary for a party seeking a divorce from a lawful marriage made in England and Wales to proceed under our national law. We appreciate that there are social difficulties regarding some religious groups in circumstances where a person might believe that they have been divorced under religious provisions, whether of the type the noble Lord just referred to, under sharia law, or indeed sometimes regarding the get in the context of the Jewish religion.

[Lord Singh of Wimbledon (CB)]

Does the Minister agree that culture should never trump human rights and that all citizens of this country should enjoy equal protection under the law?

[Lord Keen of Elie]

It is essential that all citizens have equal protection under the law. It is also important that they are treated equally under the law.

[Lord Garel-Jones (Con)]

Does my noble friend agree that it is perhaps a little misleading to refer to sharia rules as law? All religions have a perfect right to set out the regulations of their faith, but is it not wrong to refer to those regulations as law? With the exception of the Church of England’s ecclesiastical and religious regulations, they are subject to UK law. Consequently, does my noble friend agree that if sharia regulations—for example, on the treatment of women—conflict with UK law, then UK law, being sovereign, overrides these regulations?

[Lord Keen of Elie]

My noble friend is absolutely right. Clearly, national law must be adhered to. I do not take exception to the reference to religious law, or sharia, in a social context. There are parties who wish to adhere to that because of their religious beliefs, but they must understand that it is subject to the law of the land, and that sharia is not the law of the land and has no standing as such.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Keen of Elie Excerpts

3rd reading (Hansard): House of Lords
Tuesday 2nd July 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

1: Clause 1, page 2, line 4, leave out “technical”

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

My Lords, I am grateful to the House for its engagement on this Bill throughout its passage. I will first turn to government Amendment 3 on the topic of paper processors. I thank noble Lords once again for their engagement over recent weeks and commend the constructive discussions that we have had on this topic.

On Report, amendments were tabled by the noble Lord, Lord Beith; the noble Lord, Lord Pannick; and the noble and learned Lord, Lord Judge, to ensure that it was clear in the Bill that the ability to submit paper forms and documents would remain available throughout proceedings governed by online procedure rules, not just at the beginning of the application. I am aware that noble Lords were concerned that people should be able to receive documents from the court in paper form as well as to send them.

Of course, our original government amendment tabled before Report sought to address this issue, but I agreed to go away and look again at whether we could provide additional clarity. It has always been the Government’s intention to ensure that paper processors are available at each stage of the process. We are committed to an accessible justice system which supports the needs of all our users. I hope that our new amendments clarify this to the House.

The new amendments make provision for users to choose a paper option at any time throughout their proceedings, and this includes both the sending and receiving of documents. Our system must be accessible and useful for everyone, and with the Bill as drafted I now think that we have achieved that.

I will now turn to government Amendments 1, 2, 5 and 6. Before Report, the Government tabled two amendments relating to support for users of our online services. The first of these provided that, when making new court rules, the committee must have regard for the needs of those who require support to engage online. The second amendment followed this to ensure that the Lord Chancellor should also have regard for the needs of litigants who require digital support when deciding whether to allow or disallow the Online Procedure Rules. These amendments did, and still do, ensure that rules will be made with due consideration of the support which is in place for those requiring assistance to engage with digital services under the Online Procedure Rules.

I had tabled these further amendments to both clarify the intention and ensure consistency of drafting between the earlier government amendments and the amendment of the noble Lord, Lord Marks, which was accepted on Report. The amendment of the noble Lord, Lord Marks, places a duty on the Government to provide support for users of the online system. The amendment does not use the word “technical” to qualify this support, and instead requires the Lord Chancellor to provide support to assist those people accessing or who wish to access the online procedure by electronic means, in accordance with the electronic procedure rules. The support will be such as the Lord Chancellor considers appropriate and proportionate to assist users to gain greater access to and make better use of online services. The government amendments ensure consistency with that approach. They also underline our intention that users who might otherwise be digitally excluded must have appropriate and proportionate support to assist them to access the electronic services that will underpin the new online procedure.

In addition, there are consequential amendments. Amendments 4 and 7 are minor consequential amendments. Amendment 4 follows on from the insertion in Clause 5(7), by way of amendment on Report in the Lords, which allows the Lord Chief Justice to appoint a judicial member as chair of the Online Procedure Rule Committee. This amendment means that the Lord Chancellor, subject to the concurrence and consultation requirements in Clause 7, may if necessary amend Clause 5(7), as he may amend other provisions in Clause 5.

Finally, following amendment on Report in the Lords, Amendment 7 is consequential to the insertion of Clause 10(3), which requires the Lord Chief Justice’s concurrence before the Lord Chancellor may amend legislation in consequence of, or in order to facilitate the making of, Online Procedure Rules. It allows the Lord Chief Justice to nominate a member of the senior judiciary to give such concurrence. I beg to move.

[Lord Beith (LD)]

I think we are in danger of slight confusion, with too many amendments moved at the same time. This is obviously a mark of the Minister’s enthusiasm for his amendments, which is actually shared by Members around the Chamber, because they are the fruit of the discussions to which he referred. I simply want to say, before it all becomes water under the bridge, how very much I welcome the Minister’s Amendment 3, which fully achieves what I have been trying to do in amendments both in Committee and on Report. This is, as the noble and learned Lord indicated, to ensure that someone who does not feel comfortable with or able to use the online system can participate in the same process using paper, can receive any documents they have to receive and can put in any subsequent documents, not just the initiating documents, on paper, because the Courts Service will scan the documents and provide the necessary copies as well.

I suspect that this is a minority and even a generational thing. When people like me have ceased even to think of engaging with court cases, or are lying beneath the ground, everybody will be online—but that is certainly not the situation at the moment. We do not want the law to be blind to the concerns of those for whom this is a very new kind of proceeding, and one for which they do not have the necessary skills or experience, particularly when dealing with something as difficult as a legal case. So I am very grateful to the Minister for all he has done in this respect and I support this—and indeed his other amendments.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I too thank the Minister very much, even in relation to a Bill which, as the noble Lord, Lord Marks, has just said, seeks to reduce the role and importance of lawyers in litigation. I want to add two points. The first is to remind the House that the concerns which the Minister has so satisfactorily addressed arise from the report of your Lordships’ Constitution Committee, under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton. This confirms the value of the committees that serve this House—I am of course a member of that committee—and reinforces the importance of the non-partisan nature of these committees and the value of the work they do.

Secondly, without in any way undermining the sense of unanimity and gratitude to the Minister, I just remind him that there is one contentious issue which goes to the other place. Your Lordships’ House insisted on amendments, against the wishes of the Government, to what are now Clauses 9(4) and 10(3), requiring the concurrence of the Lord Chief Justice. I very much hope that the Minister will be able to use his good efforts to ensure a satisfactory resolution of that issue, as well as all the other issues. The Minister’s role in this Bill has been quite exemplary, and he has done a great deal to ensure that it will leave this House in a much better state than when we started it.

[Lord Keen of Elie]

I am obliged to all noble Lords and all noble and learned Lords for their observations regarding the Bill. As the noble Lord, Lord Beith, observed, it may be difficult to anticipate the speed with which these online procedures are taken up by individuals, but one is reminded of a character in an Ernest Hemingway novel who is asked how he became bankrupt and replies, “Gradually and then suddenly”. It may well be that we will see a similar development with these digitised procedures.

I note what the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, have said. The term “satisfactory resolution” is of course open to interpretation. I observe merely that the extent of permanent constitutional reform anticipated by some of the amendments that passed may not be as great as the noble and learned Lord anticipates. However, we wait to see the reaction in the other place.

Again, I thank all noble Lords for their contributions to the Bill. It leaves this House a better Bill than it came in—I have no doubt at all about that.

Amendment 1 agreed.

Moved by

[Lord Keen of Elie]

2: Clause 1, page 2, line 5, at end insert “, in accordance with Online Procedure Rules”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

4: Clause 7, page 7, line 19, leave out “(6)” and insert “(7)”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

5: Clause 8, page 8, line 9, leave out “technical”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

7: Clause 10, page 9, line 9, leave out “(4)” and insert “(3)”

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Keen of Elie Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

1: Clause 1, page 2, line 2, at end insert—
“(3A) For the purposes of subsection (3)(a), regard must be had to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means.”

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

My Lords, I begin by thanking noble Lords for attending this debate. I extend my thanks to those noble Lords who have engaged with me on the Bill through its last stages,

The amendments in this first group are all about access to justice under the new online procedure, an important topic that I know we all wish to get right. I shall open with the government Amendments 1, 4 and 18, which appear in my name. I believe that we are united in seeking to ensure that we get this right, particularly in our steps to ensure that unrepresented litigants have the right levels of support for this procedure.

On Amendments 1 and 18, as I indicated, we are committed to accessibility and to providing support to help many people to use the online services where otherwise they would find it difficult. Amendments 1 and 18 provide that, when making rules, the Online Procedure Rule Committee must try to ensure that the procedures are accessible and fair. They also require the committee to have regard to the needs of those who require technical support to engage with the online procedure.

I am, however, aware that the responsibility for making rules does not reside only with the committee. The Lord Chancellor must also allow the rules for them to come into force. Therefore, as an additional safeguard, Amendment 18 provides that, when allowing or disallowing the rules, the appropriate Minister must have regard,

“to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means”.

The amendments effectively cover support for those people who cannot easily access our digital services due to a lack of digital skills, a lack of confidence, perhaps, or a lack of tools.

I think it is clear from this that, throughout the rule-making process, our focus is firmly on the needs of litigants, from when the Online Procedure Rule Committee develops rules to the end of the process when the appropriate Minister decides whether to allow them. I consider that these amendments are comprehensive and wide-ranging enough to ensure that the system will be accessible and fit for purpose. In developing the amendments, we have listened to, and sought to address, the concerns expressed by noble Lords about the provision of support to unrepresented litigants. It is in these circumstances that I shall press Amendments 1 and 18.

The House has heard commitments from us, in Committee and at Second Reading, to the fact that paper channels will remain available for all litigants in person. We understand the importance of access to justice and recognise that, no matter how user-friendly our IT services are, some people will not have the ability or the confidence to use them. In the Committee debate, there was a strong feeling that, despite our reassurances, the Bill was not clear enough on the matter of a paper route. We have considered the points raised in that debate and, although it has always been our intention to provide a paper channel for users, I recognise that noble Lords wanted that commitment to be reflected in the Bill. Accordingly, the Government’s Amendment 4 clarifies that litigants can submit their online applications by non-electronic means, which of course includes the use of paper. It is in these circumstances that I will be moving government Amendment 4. I beg to move.

Amendment 2 (to Amendment 1)

Moved by

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, I declare my interest, as in the register, as an unpaid consultant with my former legal firm.

It is unusual for me to extend congratulations to the Minister, with whom it is usually an enjoyable conflict of arms over the Dispatch Box, but he has made it very clear in his approach to the Bill that the Government are seeking to secure improvements to the legislation. He has tabled nearly half the amendments that we are discussing on Report, which is an unusually high proportion. That says a great deal for his interest in securing support for and improvement of the legislation, and for that he is to be highly commended. I welcome Amendments 1 and 18, and the acknowledgement of the need to have regard to those involved in the justice system who will require support to engage in an unfamiliar process.

Amendment 7, in my name, does not appear to have attracted a great deal of support around the House. It is designed to ensure that either party may choose whether proceedings will be online or offline rather than restricting the choice to the claimant, which is the present position under the Bill. It would allow the relevant judicial officeholder to decide which rules are to be followed where the parties are not in agreement. I am frankly puzzled by the criticism on this occasion from noble and learned Lords with a rather higher status in the legal profession than I ever aspired to or achieved. But since the Bill itself provides under Clause 3(1) that the Minister may,

“by regulations, provide for circumstances in which the person initiating proceedings, or an aspect of proceedings, may … choose”,

one side of the case can choose. However, there seems to be an objection to the other party being able to make a choice with the ultimate decision made, if necessary—if there is conflict on that—by a judicial officeholder.

I understand that the suggestion I have made would make both sides able to opt for a decision—I remind noble Lords that they cannot concur on the decision to be made—by an officer of the court. This is consistent with the European Convention on Human Rights and is strongly supported by the Law Society. I hope that it may be looked at again, in either this Chamber or another place. It seems only equitable for both sides, if any is to have a choice in proceedings, to give an indication and provide for a system where an independent party could, if necessary and by way of being a judicial officeholder, decide which rules would apply.

[Lord Keen of Elie]

My Lords, I thank all noble Lords for their contributions to this debate. I propose to address Amendment 5, which touches upon government Amendment 4, and then go on to look at manuscript Amendment 9A and thereafter Amendment 7. I will also touch upon the two technical amendments, as they were termed by the noble Lord, Lord Marks.

On Amendment 5, the use of the word “initiate” was intended to capture all engagement with online services throughout the proceedings, as I indicated on a previous occasion—in other words, “initiate” was taken as a synonym for “engagement”, not “commence”—but I appreciate the uncertainty that is in the minds of some noble Lords with regard to that matter. The noble Baroness, Lady Drake, made the point about comparing the terms of an earlier clause with this clause, where it refers only to “initiate”. I intend to look further at that matter before Third Reading so that we can arrive at a conclusion as to the appropriate wording, because I believe we are as one on the appropriate outcome on that point. In these circumstances, I hope that the noble Lord may see fit not to press his amendment at this stage so that we can proceed with Amendment 4 and address that point further in due course.

[Lord Beith]

I thank the Minister for that indication. I will not seek to move the amendment at this stage.

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[Lord Keen of Elie]

I am most obliged to the noble Lord for that.

Perhaps I may turn to manuscript Amendment 9A, as distinct from Amendment 9, in the name of the noble Lord, Lord Marks. Again, I thank him for his extensive engagement with me and the Bill team over the last few days to address these matters. As I have sought to underline, we are committed to providing support to those people who cannot easily access online services. We share the observations made by the noble Lord, Lord Marks, and others about the importance of this issue. In these circumstances, we are prepared to accept manuscript Amendment 9A, as tabled by the noble Lord. However, it has an impact on the two other amendments that were tabled; first, in the use of the words “providing for”. If we accept manuscript Amendment 9A, it appears we are making explicit provision—indeed, we will have an explicit duty to provide—for these services. It therefore appears unnecessary to move that further amendment in these circumstances.

I have discussed the removal of the word “technical” with the noble Lord, Lord Marks. At this stage, I am not in a position to accept that amendment. Again, I would like an opportunity to discuss further what to do with the precise wording, in the light of our accepting manuscript Amendment 9A. It is in that context that I would like to resolve the matter, because we are concerned about the width of the obligation in those circumstances. I hope the noble Lord, Lord Marks, appreciates that and understands that, in accepting manuscript Amendment 9A, it is necessary for me to give further consideration to the two minor amendments he referred to. I understand where he is coming from and am content to address with him how we can ensure that the width of that provision is appropriate and sufficient as we go forward to Third Reading.

I am also content to commit on the Floor of the House that the Government will lay in Parliament a report on the provision of support, every two years. That report will be on the levels of assisted digital support being provided, and will give noble Lords the opportunity to request a debate on the topic and test the availability of support. Again, I had the opportunity to discuss that matter with the noble Lord, Lord Marks. I hope he accepts that that commitment meets the further concerns he had about the implementation of these provisions.

I turn to Amendment 7, in the name of the noble Lord, Lord Beecham. I am obliged to him for his remarks and observations. We do not feel able to accept the amendment. I notice the reference to Article 6 of the European Convention on Human Rights but, as the noble Lord is well aware—as is the Law Society, no doubt—there is an established common-law right of access to the courts and to a fair public hearing. More recently, that was included in Article 6 of the convention, which is part of our domestic law by virtue of the Human Rights Act. The effect is that these matters are already available and in train. We do not see that it is necessary to make explicit reference in the Bill to those established and fundamental rights. To make a specific reference to Article 6 of the convention without making reference to, for example, the common-law right of access to justice could simply sow the seeds of uncertainty or confusion.

The second part of Amendment 7 would remove, from the appropriate Minister, the power to determine the circumstances in which proceedings should not be governed by the Online Procedure Rules. It would instead leave the matter to be determined by a court or tribunal in cases where the parties to the proceedings disagree. We consider that not to be appropriate at present. The present balance, as indicated in Committee by the noble and learned Lord, Lord Thomas, is the appropriate way forward in these circumstances. I therefore invite the noble Lord to not move Amendment 7.

[Lord Marks of Henley-on-Thames]

My Lords, I will briefly address the Minister’s comments on my amendments. I had understood that Amendments 2 and 3 were accepted, but that discussion was before my Amendment 9A was drafted or accepted. I can see the point that having “providing for” in Amendment 1 may be rendered otiose by the acceptance of Amendment 9A. However, I will discuss it between now and Third Reading with the noble and learned Lord, as he suggests. However, I take the view that the word “technical” is important, for precisely the reason given by the noble Baroness, Lady Drake, so I will be urging that on him in our discussions.

I should also say, which I did not mention in opening, that the agreement to have a biennial review and have that report laid in the way the noble and learned Lord said is very welcome and, I suggest, important for ensuring that digitally excluded people are always receiving the assistance to which they are entitled. As I said, I intend not to move Amendment 9 and to move Amendment 9A when the time comes. I beg leave to withdraw Amendment 2.

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Moved by

[Lord Keen of Elie]

4: Clause 1, page 2, line 4, at end insert—
“(4A) The provision made under subsection (1)(a) must include provision for proceedings initiated at a court or tribunal by non-electronic means to be treated as initiated by electronic means, where the proceedings are processed by the court or tribunal by electronic means.”

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Moved by

[Lord Keen of Elie]

6: Clause 2, page 3, line 20, leave out “consultation” and insert “concurrence”

[Lord Keen of Elie]

My Lords, the amendments in this group deal with the issue of concurrence. Again, I thank noble Lords for their contributions on this topic at Second Reading and in Committee, and for their continued engagement on the matter outside the Chamber. We listened to the points made in these discussions and sought to address some of the concerns raised. I have tabled a range of amendments which I hope will provide suitable assurances for noble Lords. The amendments in this group deal specifically with the matter of concurrence in Clauses 2, 3 and 12. That is because I am now persuaded that the question of which proceedings fall under the auspices of the new Online Procedure Rule Committee should be a matter for agreement between the Lord Chancellor and the Lord Chief Justice. Therefore, these amendments make the necessary changes to Clauses 2, 3 and 12 to provide for this.

The amendment to Clause 12 also allows the Lord Chief Justice to delegate agreement to other members of the senior judiciary, which is purely a matter of practicality. I hope the amendments will be welcomed by noble Lords. They provide an important safeguard for the operation of the new committee. In particular, they address the concerns expressed by noble Lords at previous stages that the future expansion of the role of the committee should be subject to appropriate scrutiny and that in such matters the right relationship with the Lord Chief Justice and Senior President of Tribunals is one of concurrence. On reflection, this is a position which the Government now accept, and in these circumstances, I beg to move.

[Lord Judge]

My Lords, the Government have come a long way and I am now addressing not only the amendments put forward by the Government but Amendments 22 and 23. I begin by thanking the noble and learned Lord, Lord Keen, for kindly listening to what we had to say and for acting on it, and the Bill team for helping him get the wording right. It means that the Government have come a long way towards understanding the implications of the constitutional changes in 2005, which changed the relationship between the Lord Chancellor and the Lord Chief Justice and placed on the Lord Chief Justice responsibilities that once attached to the Lord Chancellor. The Lord Chief Justice now has personal responsibility for the arrangements by which litigation is conducted. To the extent that this relates to tribunals, the Senior President of Tribunals has the same responsibility. I welcome Amendment 12 and government Amendments 6, 8, 25, 26, 27 and 28, and shall welcome government Amendments 10 and 15 in the next group.

The difference between being consulted and requiring concurrence needs no emphasis. If you are consulted, what you say can be totally disregarded; concurrence means what it says. Despite all that I have said, I am sad to say that although the noble and learned Lord, Lord Keen, has taken his car a long way down the road of logic and constitutional sense, his vehicle has run out of fuel and failed to reach its logical conclusion.

The position can be summarised very briefly. Amendments 22 and 23 to Clauses 8 and 9, respectively, concern two clauses which, as drafted, give exceptionally wide powers to a Minister. Indeed, Clauses 8 and 9, I am afraid, are in the sadly standard form of donating, handing over or retaining power to the Executive which we now find in just about every Bill that comes before us.

The first six clauses, whatever other comments may be made about them, recognise that the government amendments in group three address the constitutional responsibilities. That is fine. Clause 7(3) gives the Minister an unconditional power to,

“allow or disallow Online Procedure Rules made by the Committee”,

provided that written reasons are given for doing so. In other words, he does not have to consult the Lord Chief Justice if he thinks that the rules put forward are not sensible or appropriate, or that they would cost too much money. That prevents the committee going off on a frolic of its own—or, indeed, putting forward rules with the concurrence of the Lord Chief Justice which, for example, involve unreasonable expenditure. That is very sensible. I do not cavil at the idea incorporated in Clause 7(3) and the individual responsibility of the Lord Chancellor in that regard.

However, taken together, Clauses 8 and 9 unbalance the relationship. The Lord Chief Justice falls out of Clause 8 altogether—he does not get a mention. He is reduced or left to the consultation process in Clause 9, which is entirely inconsistent with the provisions in the Bill that the Government amended to allow for concurrence rather than consultation. Under Clause 8, the Minister has power to direct that the rule committee shall include provisions to achieve the Minister’s purposes and that, when such a direction is given, the committee has no option but to comply within a reasonable time. It is that stark; the power is vested directly in the Minister.

It is one thing—and perfectly sensible—to protect the Lord Chancellor from some wild or absurd rule committee proposal. It is, with great respect, quite another for him to have an unconstrained power to give it directions: in effect, to tell it what to do. The Minister may, by Clause 9(2), also don the tarnished crown of King Henry VIII, who is not, of course, King Henry VIII to the noble and learned Lord, Lord Keen; I am not sure what he is to Scottish history—probably nothing. Would it not be wonderful to have a history in which Henry VIII counted for nothing? It would certainly be a convenience to this House if he did not count for very much.

So, if he wishes, the Minister may don this tarnished crown if he considers it necessary or desirable to facilitate the making of the rules. On closer examination, if you put these two clauses together, this arguably means that the Minister may overrule the very rules which were made with the concurrence of the Lord Chief Justice or his predecessor.

The Bill should be logical. The Lord Chief Justice’s concurrence to the exercise of these powers is elementary. The Bill and the government amendments now recognise it; the Minister has his safeguards in Clause 7(3); Amendments 22 and 23 make similar safeguards available to the Lord Chief Justice. I invite the Minister to refuel his car and keep right on to the end of the road.

--- Later in debate ---

[Lord Beecham]

My Lords, I welcome the Minister’s acceptance of the need for the Lord Chief Justice to concur with the creation of rules rather than merely to be consulted. However, Amendments 16 and 19 look to enhance parliamentary scrutiny by requiring the affirmative process. The increasing reliance on the negative procedure has already roused concern in your Lordships’ House, and many Members are further concerned about its application to this sensitive area. The Law Society strongly endorses the amendments prescribing the affirmative procedure on the basis that it would secure further parliamentary scrutiny of the regulations.

Amendments 20 and 21, which are in my name, would empower the committee to decline a government request—in effect, an instruction—to create certain rules, which is really the issue that my noble friend Lady Drake has just referred to. If there is to be a really meaningful role for that committee, to my mind we need an amendment along the lines of Amendments 20 and 21.

Finally, we will certainly support the noble and learned Lord, Lord Judge, if he seeks to take the opinion of the House on the two amendments in his name.

[Lord Keen of Elie]

My Lords, I begin with two general observations. First, I am not conscious of having run out of fuel, but I leave that to others to judge. Secondly, it occurs to me that the Henrician view of executive power does not differ in any practical respect from the Stuart view of the divine right of kings.

Perhaps I should begin by making this point. Under the structure of the Bill, it will be necessary, pursuant to Clauses 2 and 3, to identify proceedings of a specified kind that may be subject to the Online Procedure Rules. In the light of the Government’s amendments, that can be done only with the concurrence of the Lord Chief Justice, as indicated, and subject to the affirmative procedure.

It is not open to the Online Procedure Rule Committee to make Online Procedure Rules in respect of procedures that are not of a specified kind—that would simply be ultra vires. There is scope the other way, for the Online Procedure Rule Committee to provide that certain proceedings that are of a specified kind are not to be governed by the rules; that is pursuant to Clause 1(6). So the point I seek to emphasise at the outset is that the definition of specified procedures—the specified kind of procedures—sets out the framework within which the Online Procedure Rule Committee can operate. If the Minister were at any time to direct the Online Procedure Rule Committee, pursuant to Clause 8, to make rules in respect of proceedings that were not of a specified kind, that would be ultra vires; that is quite clear. He can direct them to make rules only in respect of proceedings of a specified kind pursuant to Clauses 2 and 3.

It is not possible to utilise the Clause 8 power in order to run roughshod over the provisions in Clauses 2 and 3, which clearly set out the need for the Lord Chief Justice to give concurrence to the proceedings that will be subject to the rules. Perhaps I am stating the obvious, but it occurred to me that one or two observations made in the course of this debate were inclined to suggest otherwise. I do not accept that. One has to look at the entire structure of the Bill and have proper regard to the way in which Clauses 2 and 3 will operate in that respect.

[Lord Pannick]

I am grateful to the Minister for giving way. It may be obvious to him, but not necessarily to others, that there is this implied limitation in what appears a very broad power being conferred on Clause 8. I suggest to him that a possible way forward would be for him to introduce at Third Reading an amendment to Clause 8 that makes it clear in the Bill that it has the limitation that he tells the House it has.

[Lord Keen of Elie]

With great respect to the noble Lord, I do not consider that I am dealing with an implied limitation. If one construes the Bill as a whole, one begins with Clauses 2 and 3, which set out the framework within which the Online Procedure Rule Committee will be able to operate. That framework is subject to the concurrence of the Lord Chief Justice; that is quite clear. To read Clause 8 as though it stands entirely alone and independently of the rest of the Bill is not, I submit, at all appropriate. The circumstances in which Clause 8 directions may be given clearly apply to the rule-making power of the committee. The committee has no rule-making power except in respect of proceedings of a specified kind as provided for by Clauses 2 and 3. I do not suggest that an implication is necessary there; it is simply a matter of statutory construction. I hear what the noble Lord says and will give further consideration to the point he makes in light of it, but that is my position at present.

[Lord Marks of Henley-on-Thames]

Accepting what the Minister says about the framework, there is nothing in Clause 8 as I read it—he will no doubt correct me if I am wrong—that prevents the Lord Chancellor giving a Clause 8 direction in the context of rules already within specified proceedings, where the rules required to be made by the Lord Chancellor’s direction are offensive to the Lord Chief Justice.

[Lord Keen of Elie]

If they were offensive to the Lord Chief Justice, that would emerge in the course of consultation. I am glad that the noble Lord accepts my point about the proper construction of the statutory provisions as between Clauses 2 and 3 and Clause 8. What he is concerned about is an entirely distinct issue: that the Minister gives a direction for the making of rules in respect of proceedings of a specified kind, pursuant to Clauses 2 and 3, which the Lord Chief Justice might not like. If he does not like it, he can express that view during the consultation. If he is deeply disturbed by what is proposed, he can have recourse to Section 5(2) of the Constitutional Reform Act 2005 to make a report to Parliament, but that will not arise. One has to see these powers in their proper context.

I would add that, in the course of looking at the proposed amendments to the Bill, we have engaged with the Judicial Office to try to ensure that the Bill reflects constitutional arrangements consistent with those of the existing civil committees. That is precisely what Clauses 8 and 9 do and I am not aware of any objection from that source to the way in which those committees already operate, and in which it is intended that this committee should operate in respect of the same matter. I will come on to explain why, constitutionally as well as with reference to precedent, we consider that appropriate. I underline the point that the existing proposal in Clause 8 in no way takes away from or abrogates the provisions in Clauses 2 and 3, which establish quite clearly those proceedings, and only those proceedings, in respect of which the committee itself can make rules. It cannot make rules for something else entirely.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

8: Clause 3, page 4, line 3, leave out “consultation” and insert “concurrence”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

10: Clause 4, page 4, line 11, leave out “one person who is either” and insert “two persons, each of whom is either”

[Lord Keen of Elie]

My Lords, this group of amendments, beginning with Amendment 10, concerns the composition of the committee. I will therefore address Amendments 10, 15 and 17. The purpose of the amendments is fourfold: first, to increase the number of judicial members of the Online Procedure Rule Committee; secondly, to enable the Lord Chief Justice to appoint one judicial member as chair of the committee; thirdly, to provide that, when making rules, the majority of the committee must sign the rules, rather than the current requirement that they be signed by three members; and fourthly, to ensure that, where the committee is tied on the making of one or more rules, the chair’s signature will act as a casting vote.

These amendments, alongside our proposed amendment on concurrence in Clause 2, seek to ensure sufficient safeguards in the Bill to balance the role of Ministers on the one hand and the judiciary on the other in the making of online rules. The amendments aim to achieve a balance of nominees of the Lord Chief Justice and of the Lord Chancellor, such that each would have three nominees to the committee. In addition, one of these judicial nominees will now be designated by the Lord Chief Justice as the chair of the committee and will have the casting vote should the committee be tied on the making of any rule.

On the issue of committee members signing rules, the previous iteration of the Bill simply stated “three” as that would have been a majority of the five committee members. However, having considered the observations of noble Lords, and having made a small change to ensure that in future the committee increases in size, a simple majority of members will always be required to make rules. In this instance, where there are six members, should the committee be tied, the chair, as I said, would have the deciding vote. The consequence would be that the judicially appointed members of the committee would in such circumstances always have the majority on the committee. It is in these circumstances that I commend Amendments 10, 15 and 17 to your noble Lordships.

[Lord Beecham]

My Lords, I rise to speak to the amendments in my name, Amendments 11, 12, 13 and 14.

Amendment 11 seeks to enlarge the Online Procedure Rule Committee to include members covering the legal profession and the magistracy, all of whom should be familiar with the difficulties experienced by people unused to the digital process. Importantly, Amendments 12 and 13 amend the provision of Clause 4(2)(d), under which two persons are added to the list of the committee members, one of whom must have experience in the advice sector, and the other two of whom must have IT experience and knowledge of end-users’ experience of internet portals. The amendment would add a third member with experience in representing the views of people who are digitally excluded. We regard this as imperative, not least in the light of the appalling experience of universal credit, which the organisation Mind cites as an example of “digital by default”, whereby 25% of people with long-term health conditions could not make claims online. Mind also cites a case, LH Bishop Electrical Co Ltd v Commissioners for Her Majesty’s Revenue and Customs, in which the First-tier Tribunal ruled that requirements to file VAT returns online discriminated against disabled people, older people and people living too remotely for digital access.

Mind, while supporting increasing the choice for core users and making the system easier to navigate, rightly avers that it is essential to make sure that there are safeguards to ensure that people who are digitally excluded are not locked out of the justice system. It goes on to suggest that the Online Procedure Rule Committee’s powers should be limited so that it cannot require that proceedings be initiated online without providing an alternative that is clearly advertised and provides for each stage of the proceedings. This reinforces the case with an approach that does not leave the decision as to whether proceedings should be online with one party. This is consistent with the view expressed in Lord Briggs’s report, which sought to include non-lawyers with the requisite skills. These amendments are supported by the Law Society.

Finally, Amendment 14 seeks to promote and ensure gender balance in the membership of the committee and invites further work by the Government to achieve that.

[Lord Keen of Elie]

My Lords, regarding Amendments 11 and 12, let me restate the point I sought to outline in Committee. In his final review of the civil justice system in 2016, Lord Briggs—or Lord Justice Briggs as he then was—anticipated a committee of experts from across various disciplines that would reflect the needs of users. Amendments 11 and 12 seek to increase the size of the committee to include respectively four more legal members and one additional other member. Combined with Amendment 13, which has the effect of adding a further member who must have experience of representing the views of people who are digitally excluded, this would add four members to the committee.

We have been clear all along that we want an Online Procedure Rule Committee that is small and agile. This will mean that it has the flexibility to make and adapt rules quickly to meet circumstances that might change rapidly. As Clause 7 makes clear, before making or amending rules the committee must consult such persons as they consider appropriate. The committee will therefore be able to benefit from the contributions of people with expertise relevant to specific matters, rules and proceedings as referred to by the noble Lord, Lord Beecham. This would include people with specific legal experience in a particular area, such as that of the disabled.

One consequence of adopting these amendments would be creating not only a much larger committee, but a much greater imbalance in the number of members appointed by the Lord Chancellor in comparison to the number appointed by the Lord Chief Justice. It would therefore defeat the very purpose of the amendments we have sought to move. At present, we have a committee of six on which there are three judicial appointees made by the Lord Chief Justice, one of whom is the chair. In the event of a rule being signed off by a majority, with three judicial appointees wishing to sign off the rule, the chair would have what is in effect a casting vote. These amendments would therefore take away entirely from the very force of the amendments the Government are moving.

Amendment 13 would add a member of the rule committee capable of representing the views of people who are digitally excluded. As I have already sought to explain, we consider that there are significant advantages in a small committee. Where it requires expert input, it has the power to seek that. Since we have brought forward amendments to ensure that all members of the committee always consider the needs of those who struggle to engage digitally—the amendments we dealt with earlier—and while I fully agree that digital support for those who want to access online services is absolutely paramount to the effectiveness of this system, we do not consider it necessary to achieve those objectives to have this addition to the committee. It is also important to remember that Clause 6 provides a power to vary the membership of the committee as and when required.

Finally, on Amendment 14 and the matter of gender balance, as I sought to emphasise in Committee, the Government of course support the wider aim of ensuring diversity among senior appointees to public bodies. When appointing members to the committee, the Lord Chancellor and the Lord Chief Justice are already bound by guidelines and statute relating to matters of diversity. Appointments to various procedure rule committees are governed by the Governance Code on Public Appointments, which sets out the principles that underpin public appointments, including openness, ministerial responsibility and integrity. It also includes a commitment to diversity:

“Public appointments should reflect the diversity of the society in which we live, and appointments should be made taking account of the need to appoint boards which include a balance of skills and backgrounds”.


Additionally, public appointments are regulated by the Commissioner for Public Appointments. He or she, in turn, may make audits of departments to see that they are complying with the principles.

Furthermore, Ministers are subject to the public sector equality duty set out in the Equality Act 2010. We therefore consider the matter of diversity to be well dealt with. It does not have to be brought within the four walls of this Bill; it is already addressed in statute and by other means. Also, as I have mentioned before, applying this specific statutory duty to this committee would differentiate it from the other civil committees—the Tribunal Procedure Committee, the Family Procedure Committee and the Civil Procedure Committee—and there is no compelling reason to do so. In these circumstances, I invite the noble Lord to withdraw the amendments.

[Lord Marks of Henley-on-Thames]

Can the Minister clarify a point he made in relation to Amendments 11 to 13? Having regard to the amendments which have already been accepted, the balance of the committee at the moment is three judicial appointments and three appointed by the Lord Chancellor, with the Lord Chief Justice having the power to appoint the chairman from the judicial appointments, and that chairman having a casting vote. The Minister commented on the effect of the proposed Amendments 11 to 13 on that balance. Is that right?

[Lord Keen of Elie]

The noble Lord is entirely correct in his summary of the position if we apply the government amendments that have been moved. The result is that, in light of the government amendments, we will have a committee constituted as he indicated. That balance would be removed by the amendments proposed by the noble Lord, Lord Beecham.

Amendment 10 agreed.

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Moved by

[Lord Keen of Elie]

15: Clause 4, page 4, line 43, at end insert—
“(6A) The Lord Chief Justice may appoint one of the persons appointed under subsection (2)(a) or (b) to be the chair of the Online Procedure Rule Committee.”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

17: Clause 7, page 7, line 32, leave out “at least three members of the Committee, and” and insert “—
(i) at least half of the members of the Committee, where one of the signatories is the chair, or(ii) a majority of the members of the Committee, in any other case, and”

--- Later in debate ---

Moved by

[Lord Keen of Elie]

18: Clause 7, page 7, line 35, at end insert—
“(3A) In deciding whether to allow or disallow rules, the appropriate Minister must have regard to the needs of those who require technical support in order to initiate, conduct, progress or participate in proceedings by electronic means.”

--- Later in debate ---

24: Clause 9, page 8, line 26, leave out “the Lord Chief Justice and

[Lord Keen of Elie]

Amendment 24 is consequential on Amendment 23 and therefore we accept it.

Amendment 24 agreed.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

25: Clause 12, page 9, line 12, leave out “consultation” and insert “concurrence”

Justice: Private Sector

Lord Keen of Elie Excerpts

Tuesday 18th June 2019 Lords Chamber

[Lord Wallace of Saltaire]

To ask Her Majesty’s Government what plans they have to review the principles of government outsourcing to the private sector, particularly in regard to justice matters.

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

My Lords, the Ministry of Justice has supported the Cabinet Office-led review into outsourcing. In February 2019, the Government published three new documents: guidance on financial distress, a revised supplier code of conduct and The Outsourcing Playbook. The playbook applies to all outsourcing decisions, but with a focus on complex outsourcing.

[Lord Wallace of Saltaire (LD)]

I am sure the Minister will agree that the underlying drive for privatisation of public services was public choice economics, which said that the concept of public interest and public service was not a strong motivating factor and that the profit motive was the only one. Behavioural economics has now accepted that there are other psychological motivations, including, in the words of economists themselves, “inequity aversion”, “fairness” and even “altruism”. Therefore, is it not correct that, in dealing with probation or rehabilitation in prisons—two obvious areas where outsourcing has got into trouble—factors other than the profit motive need to be given a great deal more importance, and that this undermines some of the principles of outsourcing?

[Lord Keen of Elie]

The noble Lord makes a perfectly valid point. The Government are extending the requirement of the social value Act in central government to ensure that all major procurements explicitly evaluate social value, where appropriate.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, does the noble and learned Lord agree that, in state activity that involves the detention of citizens, such as prisons, policing and some mental institutions, public service should trump private profit?

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[Lord Keen of Elie]

My Lords, it is not simply a case of seeking to have profit trumped by public service. There are areas where it is entirely appropriate to involve the third sector in the provision of some of these services and those related to them. Examples include the work provided by the third sector in prison education and offender well-being programmes.

[Baroness Howe of Idlicote (CB)]

My Lords, recent research by the Guardian shows that private prisons are disproportionately more violent than public ones, with almost 50% more assaults. Official figures show that private prisons are also more likely to be overcrowded. The third piece in this puzzle is staffing; understaffing, combined with overcrowding, often leads to more violence. Regrettably, the Government apparently will not reveal staffing levels in private prisons. Why? Does the Minister agree that we need an independent inquiry into why private prisons are more violent?

[Lord Keen of Elie]

My Lords, violence in the prison system is extremely regrettable and the Government have been working very hard to address the issues that underpin it, in publicly or privately funded prisons. We continue to monitor some of the worst performing prisons in this context, to ensure that we can achieve improvements in that area as quickly as possible.

[Lord Watts (Lab)]

My Lords, is it not the case that the Civil Service and Ministers do not have the ability to let contracts in the public sector? What will the Government do to address this problem, which is causing billions of pounds of taxpayers’ money to be wasted?

[Lord Keen of Elie]

The noble Lord raises a pertinent point. One of the objectives of the recent publications is to ensure that there is sufficient expertise to review and consider such contracts. Examples are: the need for pilots when the Government are outsourcing a service for the first time; the production of assessments of should-be costs; the need to produce resolution planning information lest a private contractor fail; the need to publish key performance indicators so that we have an objective means of determining the delivery of these services; and the requirement for the Civil Service and the Government to understand financial distress guidance when entering into these contracts. These are all being addressed in the light of the recent work done in the Cabinet Office.

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

My Lords, can the noble and learned Lord assure us that in future contracts, in view of the failures there have been, far more attention will be given to specifying requirements for service providers in terms of the numbers and professional qualifications of the personnel involved in delivering those services?

[Lord Keen of Elie]

My Lords, of course we will carefully review the ability of any proposed private contractor to deliver the services they are being contracted to provide. I shall not go into the minute detail of that examination but, as I say, it will include the need, first of all, to identify key performance indicators and ensure that they are adhered to.

[Baroness Smith of Basildon (Lab)]

My Lords, when talking about privatisation, it is not just about the Prison Service; we also have to look at the probation service. The Question mentions “the principles of government”. Surely, a pragmatic, sensible approach is better than the expensive ideological approach taken by Chris Grayling to the probation service. May I ask the Government to look at what works rather than at what is in the Government’s best interest, which has clearly been dangerous to offenders and victims alike?

[Lord Keen of Elie]

We are concerned to secure the best interests of all those affected by the provision of services, whether public or private. Probation service delivery is driven not by ideology but by a recognition that often in these areas a mixed-economy approach works best, not just financially but more broadly terms in the quality of delivery.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Monday 17th June 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

Considered in Second Reading Committee on 12 June.

Bill read a second time and committed to a Special Public Bill Committee.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

Moved by

[Lord Keen of Elie]

That the Committee do consider the Bill.

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

My Lords, this Bill makes mainly technical changes to existing legislation which will facilitate the enactment and operation of the Law Commission’s sentencing code—a consolidation of legislation governing sentencing procedure in England and Wales. I emphasise that it is concerned with sentencing procedure; it is not concerned with sentencing policy.

It is not a controversial proposition, I suggest, that one pillar of the rule of law is that the law should be intelligible, accessible, clear and predictable. It is equally uncontroversial to say that, in our criminal law, the law governing sentencing procedure has grown incredibly complex and disparate. We have seen numerous examples of even the most experienced legal minds in the country spending too much time trying to disentangle which law applies to particular offenders. This is exacerbated by the need to deal with multiple changes to the statute book, which may determine what sorts of disposals are available in a particular case. As a result, too much time is taken up by the Court of Appeal in appeals against unlawful sentences. That is not good for the victims of crime, who want closure on their cases, and certainly not good for confidence in our justice system.

Against this background, it was agreed in 2014 that the Law Commission should undertake a project designed to consolidate the law relating to sentencing procedure. The resulting sentencing code brings together the procedural provisions which a sentencing court would need to rely upon during the sentencing process into one Act, and structures them in an order which follows the chronology of a sentencing hearing. The aim of these improvements is to assist legal professionals in identifying and applying the law, thereby reducing the risk of error, appeals and delay in the sentencing process. The sentencing code will also enhance the transparency of the process for the general public.

The Law Commission consulted extensively over the four years of the project and published a concluding report in November last year. The sentencing code project has received a broad consensus of support from across the judiciary and the wider legal profession. Alongside the report, the Law Commission also published a draft version of this Bill and a draft sentencing code Bill. The enactment of both pieces of legislation is the core recommendation of the report. This Bill has therefore been deemed suitable to be considered by your Lordships under the special procedure for Law Commission-recommended Bills. Before the sentencing code can be taken forward, changes to existing legislation are needed to facilitate the consolidation of sentencing procedural law in the code. This is a common feature where consolidations take place, and this Bill will make those necessary changes.

One of the reasons behind the complexity of current sentencing law is the layering of changes to sentencing legislation over time. We are concerned, among other statutory enactments, with the Justices of the Peace Act 1361. Different provisions apply to different offences and offenders, depending on when the offence was committed. Sentencing courts often have to refer to historic versions of sentencing law to ensure that the sentence passed is in accordance with the applicable law at the time of the offence. Identifying and applying historic versions of sentencing law can be difficult and, indeed, time-consuming. When an offence has occurred several years ago—which is not uncommon—and new disposals have been introduced, others have been updated and some discontinued, it is not always clear what types of disposals are available in the case before the courts. On top of that, the precise details of how those changes to the law have been commenced or saved may be scattered across the statute book.

Let me give some examples. In one recent case, the offender was sentenced to a community order with a three-year supervision requirement, following a conviction for an offence committed between March 1981 and March 1983. The Court of Appeal substituted a sentence of 24 months’ imprisonment, suspended for 12 months, following an application by the Attorney-General. However, as the offence had been committed before 4 April 2005, a suspended sentence was not available to the court under the Criminal Justice Act 2003. Instead, the court could only impose a suspended sentence in line with historical sentencing provisions under the Powers of Criminal Courts (Sentencing) Act 2000. That meant that the court had to follow a different test concerning the availability of a suspended sentence, and no community requirements could be imposed as part of it.

Difficulties in identifying the applicable disposals available to the court can also lead to significant injustice. In another case, the offender was sentenced in August 2006 to a sentence of imprisonment for public protection under Section 225 of the Criminal Justice Act 2003 with a minimum term of six years, following a conviction for an offence committed between August 2004 and January 2005. However, Section 225 of the 2003 Act had been commenced prospectively, and only applied to offences committed on or after 4 April 2005. As a result, a sentence of imprisonment for public protection was not available for the offender. The sentence imposed was therefore unlawful. Perhaps incredibly, it was only two and a half years after the expiry of the minimum term that the offender appealed against the sentence and the imprisonment for public protection sentence was quashed and replaced with a sentence of 12 years’ imprisonment, with an extended licence of 10 years. This resulted in the offender’s immediate release.

Clause 1 seeks to remedy this sort of issue by giving effect to what the Law Commission calls a “clean sweep” of sentencing legislation. That will remove the need for sentencing courts to identify and apply historic versions of sentencing law. It does this by extending provisions which have been partially commenced and completely repealing provisions that have previously been repealed but partially saved. It deems that “transition time”—the point at which a given provision was commenced, repealed or amended—to have occurred at a notional point in time before what we might term a “trigger event”. The “trigger event” is the event which governs what sentencing procedure applies in a given case. The obvious example of that is the point when the offence was committed.

For example, let us say that an old rule about sentencing currently applies to offences committed before 1 January 2010. The Bill will deem that provision to have been repealed completely at a point in time before any pre-2010 offence was committed. Likewise, any successor provision will be deemed to have commenced before the offence was committed. As a result, the current law as enacted in the sentencing code will apply to all sentencing decisions when an offender is convicted after its commencement, irrespective of the date the offence was committed. The two important terms here, I suggest, are “transition time” and “trigger event”.

Importantly, the clean sweep is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available, or to a minimum or mandatory sentence that did not apply at the time the offence was committed. Those exceptions ensure that the clean sweep does not contravene the general common law presumption against retroactivity, and accords with human rights protections against retroactive criminalisation and retroactive punishment, as provided for by Article 7 of the European Convention on Human Rights. That is an important step, and a very neatly designed legal tool, which will help to minimise the risk of error caused by having to look through various historic layers of sentencing legislation, and one which the Law Commission considered very carefully during its considered and lengthy consultation.

Since a consolidation must operate on the current law, Clause 2 refers to the amendments and modifications of sentencing legislation contained in Schedule 2. Making changes to facilitate consolidation in this way is a standard measure that precedes consolidation Bills. These pre-consolidation amendments are generally limited to correcting minor errors and streamlining sentencing procedural law—for example, changing language to avoid inconsistency or updating existing statutory references, such as omitting references to local probation boards, which were abolished by Section 11 of the Offender Management Act 2007, or where there are amendments replacing references to the education and library boards, which were abolished by the Education Act (Northern Ireland) 2014, with references to their replacement, the Education Authority.

Other amendments come about as the process of consolidation itself creates the potential for anomalies that otherwise might not matter. For example, there are amendments in Schedule 2 that repeal provisions of the Powers of Criminal Courts (Sentencing) Act 2000 and the Crime and Disorder Act 1998, which provide express powers of appeal against restitution orders and parenting orders. These orders may be appealed anyway under the general powers available in Section 108 of the Magistrates’ Courts Act 1980 and Section 9 of the Criminal Appeal Act 1968. So removing the specific appeal rights provided for does not alter the legal position, but keeping them in the consolidation could put appeal rights against other sorts of disposal in some doubt.

Other amendments resolve unnecessary ambiguity. For example, Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 governs the minimum sentences for repeat drug trafficking offences, but in defining what is an “appropriate sentence” for those aged 18 to 20 the provision does not currently refer to the power of the courts to impose a sentence of custody for life. It is clearly not the intention that, where a minimum sentence applies to an offender aged 18 to 20, the courts cannot impose a sentence of custody for life where they consider that the seriousness of the offence and the danger the offender poses to the public justify it. The Bill therefore amends the 2000 Act so that it is clear that the court may impose a sentence of custody for life where the minimum sentence applies, the offender is aged 18 to 20 and the offence carries a maximum penalty of life imprisonment. All this applies already in current law, but the Bill simply makes the statute book clearer and, we hope, easier to use.

Finally, some amendments look to continue to give effect to the clean sweep approach relating to future amendments to the law. These amendments alter the Secretary of State’s power to amend things such as the maximum period of a conditional discharge, the limits for unpaid work requirements and alcohol abstinence and monitoring requirements, or the list of offences considered to have a terrorist connection for purposes of sentencing. The changes in the Bill mean that, if changes are made by order in the future, those can apply to any offender convicted after the change comes into force, not only for any offender whose offence was committed after that time. It should be emphasised that none of the amendments in the Bill makes changes to existing offences or penalties, nor do they introduce any new substantive law or sentencing disposals.

In summary, the Bill has two main objectives: first, to remove historic layers of legislation; and, secondly, to make changes to the existing law of sentencing procedure to facilitate the consolidation in the sentencing code. The sentencing code will be introduced to Parliament at a later date under the special procedure reserved for Law Commission consolidation Bills. I finish by acknowledging that the Government are very grateful indeed to the Law Commission, in particular the Law Commissioner for criminal law, Professor David Ormerod, and his staff for the work they have undertaken over the last few years. Indeed, I express my personal appreciation for the work he has done more recently to try to inform me as to the details of this proposed legislation. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am pleased that we have been able to find the parliamentary time to progress this Law Commission Bill. As has been acknowledged, the Bill paves the way for the sentencing code legislation which will address the need for clarity and accessibility in sentencing procedure. The noble Baroness, Lady Mallalieu, referred to the requirement for certainty and transparency, and that was echoed by many noble Lords in their contributions to this debate.

I will address how the Law Commission approached the clean sweep and the reasons behind the regulation-making powers in the Bill but before I do that I will pick up on a number of points. The noble and learned Lord, Lord Hope, referred to paragraphs 90 and 92 of Schedule 2 where there is a reference to the law of Scotland in the context of community orders and suspension orders. There is an anomaly in the present law which it is hoped will be addressed by means of the provisions in the Schedule. We have engaged with the officials of the Scottish Government on this matter. Indeed, we have indicated to them that an LCM may be required. We have not had an official response to that as yet, but we do not anticipate there being any difficulty in regard to this matter. If further regulatory powers were used to amend provisions in Scots law, we would, of course, follow the usual convention of engaging with officials of the Scottish Government on that matter.

On the clean sweep, I will attempt to elucidate a little further how it was approached because the noble Lord, Lord Davies, among others, raised whether there should be any concerns surrounding the clean sweep mechanism. The objective is to apply the codified law to all those convicted after the enactment, subject to the important caveat noted by the noble and learned Lord, Lord Hope, that no one can be sentenced to a heavier penalty than could have been imposed on the date of the commission of the offence. In approaching that, the Law Commission had regard to the jurisprudence of the European Court of Human Rights interpreting Article 7 of the convention and to domestic law, as reflected in cases such as Docherty in the Supreme Court, about non-retroactivity with regard to the imposition of maximum penalties in matters of crime. So how did the Law Commission approach the clean-sweep task? First, it identified the sentencing procedure provision in the present law in its most up-to-date form. Then it asked whether consolidating that most present form of the law into the code and making it apply to anyone convicted after enactment, irrespective of the date of the commission of the offence, would infringe Article 7 of the convention or the common law provisions to which I have referred.

In approaching that matter, the Law Commission asked itself a series of questions. First, will this impose a heavier penalty than could have been imposed at the date of the commission of the offence? In deciding what is a heavier penalty, it had of course regard to the jurisprudence of the European Court of Human Rights, to the domestic law—such as Docherty, which I referred to—and to whether the penalty is heavier than the maximum available at the time, given that that is the relevant test in convention law and domestic law. If there was no risk of a heavier penalty than could have been imposed, it could then consolidate the present law.

The Bill achieves that by deeming the date of commencement for the most up-to-date form of the law being consolidated, and/or the partial repeal of versions of the law that were also applicable for historic cases, to have occurred before the trigger event, which, as I noted earlier, is the commission of the offence. If I may say so, that is a neat means of addressing what is otherwise a potentially quite complex issue on retroactivity. If to impose the current law would risk imposing a heavier penalty, then an exception is created within the Bill to preserve the previous forms of the law by specifying the dates to which they would apply. That is the purpose of what are perhaps, on the face of it, these rather lengthy Schedules.

As the noble Lord, Lord Bassam, observed, a regulatory-making power is there to enable the Secretary of State to address a number of issues that could arise. First, in this complex area of law—I believe everyone acknowledged that it is a somewhat complex, layered area—there may have been some oversight. It is therefore to deal with that issue. Secondly, there may be circumstances in which an exception should have been made to prevent a heavier penalty and was not made; it is to deal with that as well. Thirdly, there may be some change in sentencing policy, between Royal Assent being granted to the present Bill and the introduction of the sentencing code, with regard to a particular offence. That, too, would have to be addressed. It is for those purposes that the regulatory-making power is there.

The noble Lord, Lord Bassam, raised a pertinent point about the Armed Forces. It is intended that the code should extend to the Armed Forces. Work is still ongoing with regard to that; we hope that that work will not hold up the passage of the sentencing code Bill itself. There might, in the course of its passage, be some further amendment to ensure that that is done. One or two complexities about incorporating the Armed Forces are being addressed at present.

As to a guarantee on when the sentencing code Bill will be brought forward, I regret to say that, like the noble Lord, Lord Bassam, when in his ministerial position at the Home Office, I am not in a position to offer guarantees. Clearly, though, we are anxious that once we have laid the groundwork for the sentencing code it should be brought forward as soon as practicable. It is in those circumstances that we will seek to address this.

Noble Lords also referred to the other work of the Law Commission. We commend that work and are conscious of the need to address the Commission’s work, and to look at law reform in light of its findings. We engage on a regular basis with the Law Commission and it presents an annual report to Parliament. Parliament has an opportunity to see the work that is ongoing and the work completed by the Law Commission. Again, I cannot give any commitment about particular areas of its work at present. I notice that the noble Lord, Lord Davies, took the window of opportunity to advertise his wares to the Law Commission. No doubt when the commission reads Hansard, it will be conscious of his concerns.

With that, I thank all noble Lords for their contributions to this debate and commend the Bill to the Committee.

Motion agreed.