Probate: Delays

Lord Keen of Elie Excerpts

Wednesday 12th June 2019 Lords Chamber

[Baroness Browning]

To ask Her Majesty’s Government what action they are taking to reduce delays in probate being granted to non-professional claimants.

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

My Lords, urgent action has been taken to address the delays that have been experienced in the probate service. Staffing is being increased and the digital service further improved to help to reduce waiting times.

[Baroness Browning (Con)]

I wonder whether my noble friend can tell us exactly what the waiting time is as of today, and when he expects his department to meet the recommended waiting time of 10 working days. He will know of my opposition—and, I must say, that of the Law Society—to the policy of a change in the £215 flat-rate fee to apply for probate to a sliding scale amounting to many thousands of pounds, with money up-front on the table. When does he think the department is going to meet that target?

[Lord Keen of Elie]

My Lords, historically the time taken for a personal application for probate has been about four weeks. In the recent past, due to a number of factors, that period increased to about eight weeks. The department then applied additional staffing to the matter of processing probate applications, and on average present grants are being issued within six to eight weeks. We anticipate further improvements as we roll out the online system of probate applications, and by October this year we anticipate that all forms of probate application will be available online.

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

My Lords, delays in grants of probate are causing frustration and hardship, not only for bereaved families, but for many people caught in sale and purchase chains whose property purchases cannot proceed. Does the Minister accept that the current delays result from a rush of applications brought on by the threatened increases in probate fees to which the noble Baroness referred? What consideration has been given to abandoning those increases since this House passed the regret Motion last December?

[Lord Keen of Elie]

My Lords, there were essentially two features that impacted upon the timing of probate applications earlier this year. First, as the noble Lord alluded to, there was a marked increase in the number of applications—about 22%—in March of this year. It is perceived that that may have been in response to the anticipation of fee increases for probate. A second, more immediate, factor was the move over in respect of the digital probate service from three probate registries to the Courts & Tribunals Service centre in Birmingham towards the end of March. To facilitate that move, it was necessary to transfer cases, both digital and paper, from the legacy system on to a new single system called CDM. During the first few weeks after the changeover, there were difficulties with the CDM system, which have now been overcome. There was also the need to further train staff in that new system, resulting in pressures on the service during that period. We have now met those pressures, we have stopped the increase in time taken for the processing of probate applications and we now hope to see it reduce.

[Lord Beecham (Lab)]

My Lords, is it still the Government’s intention to make a profit out of the charges levied for probate, or will the fees simply reflect the cost of providing the service, as they should?

[Lord Keen of Elie]

My Lords, the term “profit” is not really appropriate in this context. As the noble Lord is well aware, any fees over and above cost in the court system are attributed to its other features so that, for example, victims of domestic violence can have their fees waived with regard to court applications. As regards the present state of the legislation, an approval Motion has not yet been laid in the other place.

[Lord Bassam of Brighton (Lab)]

My Lords, is it not the case that when the probate fees were brought before your Lordships’ House, part of the argument for increasing them by as much as 200% was that this money would be set aside to fund part of the MoJ’s primary service? Does the noble and learned Lord think that this represents good value for money given the delays now occurring in probate?

[Lord Keen of Elie]

My Lords, I have already explained the reasons for the delays in March of this year with regard to the processing of probate applications, which were not related to the fees or the proposed new fees in respect of probate. In so far as there is any cost plus fee being charged for probate, that cost would be attributed to other court services provided by this department.

[Lord Tomlinson (Lab)]

My Lords, as the noble and learned Lord does not appear to like the word profit, can he tell us how much of the surplus was made available for distribution to other aspects of the justice system?

[Lord Keen of Elie]

My Lords, I am very content with the word profit, but it should be used in the proper context—that was the point I was seeking to make. As we have not yet applied the fee increases, there is no issue of a surplus at the present time.

[Lord Forsyth of Drumlean (Con)]

My Lords, might it not be a good idea, in order to incentivise the department to be more efficient, to waive the fees where people have to wait more than 10 days for their probate?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am all in favour of incentivisation, but there is ultimately a cost for any service provided by this department.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Keen of Elie Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, I am reminded that these provisions will apply to family law procedures. Of course, it may improve the resolution of family issues, which will benefit the children involved, but there is a concern that it may make resolution more difficult and thus adversely affect the children in those families. Has the family test been applied to the Bill? I do not see that in the accompanying notes and perhaps it is not appropriate to apply the family test to it. I would be grateful if the Minister could tell me whether the family test has been applied.

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

My Lords, I will speak to Amendments 1, 3, 4, 6, 10 and 11, which relate to the operation of the online procedure and how we can ensure that people using it are not disadvantaged. I intend to turn first to Amendment 3, which covers whether a user can choose between digital and paper channels. Then I will move on to Amendments 1, 4, 6, 10 and 11, pertaining to the online procedure and the matter of choice.

Amendment 3 suggests that claimants and respondents should have the choice of whether to use paper or digital channels when engaged in the simplified online procedure. I can confirm that the Government agree with this point, and indeed there is provision for this already. Essentially, where the online procedure comes into place, it will be possible to access it either by way of the digital portal or by way of a written document of claim. Other written documents may also be used when employing the simplified online procedure. The intention, which already applies to some of the digital procedures we have in place for small debt, is that the document will be scanned into the system and will therefore be part of the process. The idea is to ensure that parties are not excluded from the simplified procedure that will be brought in under this online procedure simply because they feel unable to employ, or are incapable of employing, the digital process itself. However, there is a distinction between that and the situation in which, when dealing with debt claims of under £25,000 for example, a claimant or any other party would be allowed to opt either for the simplified procedure that will be promulgated under the online procedure or to have recourse to the existing Civil Procedure Rules and the more complex procedure that pertains there. It is not intended under the Bill that claimants should have an option between the simplified procedure and the more complex procedure. I shall come on to develop that a little more in a moment.

Perhaps I may take this opportunity to confirm that we have no plans to remove the availability of paper channels for citizens under the remit of the Online Procedure Rule Committee. Of course, it is our intention to create a digital service that will be easy to access and use—indeed, so easy to access and use that it becomes the default choice for the majority of users. We recognise, however, that not everyone will be able to use it, or wish to proceed with that digital choice without support. For that reason, a paper route will remain open.

We want to be clear that users can expect an equity of service, regardless of whether they proceed with a digital approach or a written claim. Where different parties choose different channels, we will seamlessly join them together by means of a scanning and printing service, so users who want to send and receive papers will still have that choice—they will not need to resort to the online portal. To that extent, I offer my assurance that paper channels are still available and will be available under the Online Procedure Rules. The Bill will do nothing to remove them.

[Lord Pannick]

Does the Minister accept that nothing in the Bill guarantees that? He gives us an assurance, but surely it would be better to write that into the Bill.

[Lord Keen of Elie]

If every time we legislated we decided to guarantee everything from A to Z, we would end up with very long Bills. The position is this: there is the ability to proceed by way of the paper process. Nothing prohibits it, there is no inhibition on that process, and there is no intention to introduce such an inhibition.

Turning to Amendments 10 and 11—

[Lord Mackay of Clashfern]

Before my noble and learned friend leaves Amendment 3, I understood him to say he would accept it, so that it would go into the Bill—although without, I hope, the choice of the combination.

[Lord Keen of Elie]

No, I do not accept the amendment. What I say is that there are existing means by which we can assure people that they can proceed by way of a digital portal or by way of a written claim, which will be scanned and taken into the online procedure process once it is up and running.

[Lord Pannick]

I am very grateful to the Minister for giving way again, but I must press him. We are dealing here with fundamental issues of access to justice. Surely if the Minister recognises that paper procedures must always be available to litigants, it is absolutely vital that the Bill says so.

[Lord Keen of Elie]

I am afraid I cannot accept that. There is nothing in the Bill that would prohibit the employment of such a paper process once the online procedure is up and running. Indeed, the noble Lord will appreciate that, when it comes to the making of rules by the relevant committee, the process will involve the judiciary as well as the Executive.

We have heard reference already to the idea of consultation, and we will in due course look at amendments to the Bill that seek to shift the question of consultation to one of concurrence. Therefore, we will be in a position to rely on not only any decision-making on the part of the Executive but also the contribution of the judiciary to how it sees that these processes should best be applied in the interest of all litigants. I emphasise “all litigants” because, when we seek to simplify the court process and reduce its potential cost, we are doing so for the benefit of litigants in general. We will come to concurrence and consultation later.

We must bear in mind that this is not a case of Ministers dictating what the relevant rules will be. It is a case of the Executive setting out the machinery by which a rule committee can come into place and set out appropriate rules and regulations for the online procedure, in consultation with the judiciary and with its input, and potentially with its concurrence.

[Lord Marks of Henley-on-Thames]

I am sorry to press the point, but does the Minister accept that without the guarantee in the Bill of his intention, we could lose this procedure at some stage in the future, and that this House may well wish to see that guarantee entrenched in the Bill, so that primary legislation would be necessary to remove the procedure?

[Lord Keen of Elie]

I quite see that this House might wish to see it in primary legislation, but the position is this: a committee will be formed to put forward appropriate rules and regulations for the online procedure, under the essential supervision not only of the Executive but of the judiciary. There may come a point, at some unforeseeable time in the future, where the judiciary is of the view that it is no longer necessary to employ paper as a form of application or entry into the judicial process. I do not anticipate that happening—there is nothing here to suggest it will happen—and I do not see that there is a requirement for such a guarantee in the form of primary legislation. We intend to form an Online Procedure Rule Committee that will be well qualified to determine the appropriate routes into the online procedure for all parties concerned, including those perhaps not digitally competent or confident. That remains the position.

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may press the Minister on one point. It is easy to see that there is a distinction between an online procedure and the way the court works. If it was made clear that the online procedure is largely geared to ensuring that the systems that lie behind it operate efficiently across the system but that, in using that procedure, if people did not want to go online the court would undertake to scan the documents in—if that distinction was made—would the Minister accept that what really is needed, because these amendments do not grapple with the problem, is a guarantee to the litigant that he can go to court, hand in a piece of paper and it will be scanned into the system? That is all.

If that is the effect of these amendments—and it is limited to that—would that not achieve everything and give an opportunity to increase access to justice? In the current system access to justice is a figment of the imagination, but the use of an online procedure would enable this to happen. Will the Minister look at this issue again in the light of my suggestion to him?

[Lord Keen of Elie]

I hear what the noble and learned Lord has said and I will take account of those observations in going forward to the next stage of the Bill. However, at present it is not my intention to accept any of the amendments so far laid in respect of this matter. If there is a way through by which we can underline the right of a party to make an application on paper to the relevant online procedure once it is up and running, that would essentially achieve the objective that we have and I believe the House has. However, I do not accept that it will be achieved by means of the present amendments.

[Baroness Corston (Lab)]

The Minister will know that in a recent Constitution Committee meeting we discussed the Bill with him at length. If there is to be no indication in the Bill that there is a possibility of making a paper application to the court, what advice or direction will be given to this Committee to make it plain that there will be that advice? We know that a significant proportion of the population of this country might be able to use email but cannot use on online form.

[Lord Keen of Elie]

We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular.

[Baroness Drake]

Does the Minister accept that Clause 7 gives the Minister powers to override or disallow the views of the Online Procedure Rule Committee? However meritorious its views, the Minister would have the power to override them.

[Lord Keen of Elie]

There are circumstances in which the Minister may give directions to the committee—I accept that—and that reflects the current position with regard to the other rule committees already in existence, including the tribunal rules, the civil rules and the criminal rules. It exists by way of an executive direction and is there for good reason as a fallback. I understand that the power has been used only once with regard to the existing committees, to address a potential anomaly in the existing rules. It is an exceptional power but it is there because it reflects the existing power in the provisions for the other rule committees.

[Lord Woolf (CB)]

I apologise for not being at Second Reading but perhaps the Minister will indulge me by helping me with the purpose of Clause 1(1)(a), which states:

“For proceedings of a specified kind, there are to be procedural rules which … must require that kind of proceedings, or one or more aspects of that kind of proceedings, to be initiated by electronic means”.

[Lord Keen of Elie]

It is to ensure that where, for example, there are debt actions below a certain level—let us take a figure of £25,000—they must be initiated by way of the Online Procedure Rules, the simplified procedural rules, rather than by way of the existing Civil Procedure Rules. It is for that purpose that the paragraph is there. In other words, it will not be open to a party who wants to make a small debt claim to decide they want to use the more complex and potentially more expensive Civil Procedure Rules as distinct from the Online Procedure Rules and the simplified procedure that goes with them.

I shall address Amendments 10 and 11, tabled by the noble Lord, Lord Beecham, alongside Amendment 4, which I believe was tabled by the noble Lords, Lord Marks and Lord Beith, and the noble and learned Lord, Lord Judge, as well as Amendments 1 and 6, tabled by the noble Lord, Lord Ponsonby.

Amendments 1 and 6 concern the continued availability of physical proceedings rather than online proceedings. Amendment 4 seeks to allow the parties to proceedings to choose whether to engage with the online procedure or the current procedural rules. This is a point that I just sought to touch upon. Amendments 10 and 11 are intended to deal with those cases where one party wishes to leave the online procedure, but another does not.

This is not what the Bill is intended to achieve. The Bill provides the flexibility for a case to progress via the online rules, or via the traditional rules of the civil procedure if necessary. Where a case is so complex that that the online procedure is clearly inappropriate, it will be for the judge to determine, and he will have the discretion to do so, whether a case should remain within the online procedure or should proceed by way of the traditional civil rules instead. Where both parties make a representation that the case should not proceed by way of the online procedure, then of course the court will hear those representations and take them into account, but ultimately it will be for the court to decide the appropriate procedure for the disposal of any claim. That is as it should be and is as it is with regard to our existing civil procedures. Ultimately, it is for the court to make these procedural decisions, not for the parties to dictate them, but of course their views will be taken into account. Equally, where parties, or one party, are of the view that an oral hearing will be required in circumstances where it might not ordinarily have been anticipated, it will be open to that party, or the parties if they are agreed, to make those representations to the court in order that the court can make the final decision about the appropriate procedure to be employed. Again, that is as it should be. It is ultimately for the court to decide the most appropriate process and procedure for the disposal of individual claims.

Under Amendment 4, users would in effect have the right to choose whether to use the Online Procedure Rules or the traditional rules. Similar points are made in the other amendments. We do not consider that that is the appropriate way to proceed. Users will have sufficient control over proceedings to ensure that they have access to justice, which will not be limited in any way, and certainly not in a way that would intrude upon any rights under Article 6 of the convention.

The online procedure system is simply designed to offer the ordinary user an easier way to access justice, while giving parties the choice to remain in a position to make paper applications to the online simplified procedure rather than engage with the digital portal. I reassure noble Lords that we are not seeking to impinge in any way upon the parties’ right of access to justice, but ultimately we must leave it to the court to determine procedural questions brought before it, albeit that it will make those decisions subject to the representations by or on behalf of the parties to the proceedings.

As I mentioned in passing and in response to the noble Lord, Lord Beith, where a physical hearing arises, it will be for the parties to make representations. Ultimately, it will be for the court to determine on the material before it whether such a physical, oral hearing is required for the disposal of a case. That, I suggest, is as it should be.

I hope that that also reassures the noble Lord, Lord Ponsonby, with regard to judicial discretion. That, ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice and for the benefit of the parties. With that, I hope that the noble Lord will consider whether at this stage it is appropriate to withdraw the amendment.

[The Earl of Listowel]

My Lords, before that happens, I express my apologies for not being able to take part at Second Reading. I thank the Minister for asking his office to contact me and I am sorry that I delayed replying until Friday. I just want to comment on the family test. This was introduced in 2014 to be applied to Bills and involved a number of questions such as, “What kind of impact might the policy have on family formation?” and “What kind of impact might it have on stability in the family?” Although the test is not mandatory, this seems an appropriate Bill to have had it applied to, and I simply express the wish that in the future it might be applied to Bills similar to this one.

[Lord Mackay of Clashfern]

My Lords, I have some difficulty with Amendment 1 and the answer that my noble and learned friend has given. As I understand it, the amendment deals with rules. It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that. He will say that he is sorry to whoever comes along with a bit of paper and explain that they are not able to do that because the rules dictate that it has to be done by electronic means, so they will have to get themselves a computer.

[Lord Keen of Elie]

With respect to my noble and learned friend, my understanding of the position is that the rules will require that certain forms of action—for example, small debt action—should be commenced under the simplified Online Procedure Rules by way of the digital portal, whether you go through electronically or, as I mentioned before, by way of a paper application. However, once that process is in train, there will be a retained judicial discretion to decide whether the case should remain under the simplified online procedure or whether it would be more appropriate for it to be removed from that procedure and to proceed under the ordinary Civil Procedure Rules to an oral hearing.

[Lord Ponsonby of Shulbrede]

My Lords, I thank all noble Lords who took part in this short debate, which has covered quite a wide area. I understand the point made by the Minister about these being civil actions for relatively small amounts of money, and not having the discretion as regards initiating proceedings on paper if that were the case. Although this is the main focus of the Bill now, it has wider connotations—a point made by the noble Earl, Lord Listowel. Some of us, including myself, are thinking about this from other perspectives such as the family jurisdiction.

When addressing Amendment 4, the noble Lord, Lord Marks, made an interesting point, asking what happens when both parties agree to proceed with online proceedings. I thought he intimated that there should be an expectation that they would indeed go ahead with online proceedings. Certainly, from the perspective of somebody who sits in the family jurisdiction, I would say that that would not be appropriate. Whether matters go ahead either online or otherwise should be retained as a judicial decision because it is not unusual for parties to agree to something that is inappropriate in the family courts; the court needs to take a separate view.

Having said that, I thank the Minister for addressing the points; I suspect we will return to them at a later stage. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I begin by responding to the observations made by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Thomas of Cwmgiedd. This is a piece of enabling legislation—a very welcome one, I suggest—it is not a case of us bringing in powers without limits or regulation. It will establish an expert committee, including judicial representatives, legal representatives and others, that will be able to call upon the expertise of others in particular areas as and when it comes to address them. I will come on to that in a moment in the context of family law. It will operate under the umbrella of not only the Lord Chancellor—or, in the case of employment tribunals, the Secretary of State for BEIS—but the Lord Chief Justice. It does not give free rein to some individual in the Executive to determine how court cases will be determined, but I emphasised that it is concerned only with civil procedure. As the noble Lord, Lord Beecham, acknowledged, the reference in his amendment to criminal procedure is otiose and unnecessary.

Over and above that, I seek to anticipate something that will arise repeatedly in the debate—the position of the Lord Chief Justice regarding the operation of this matter overall, a point we touched on at Second Reading. I am conscious of the desire in some quarters that certain of the Bill’s provisions should provide not simply for consultation with the Lord Chief Justice, which, let us be clear, is a formidable requirement: if you consult with the Lord Chief Justice you consult with him, and if you do so you do not ignore his advice or opinion. Indeed, if you did, it would be open to him to make a report to Parliament under Section 5 of the Constitutional Reform Act 2005, which I think one of my officials referred to as the nuclear option. It is not one that anybody would want to encourage.

I am conscious of the suggestion that, in some areas, we should move from the idea of consultation with the Lord Chief Justice to one of concurrence. That, in a way, touches on many of the issues that arise in the Bill. I can go no further at this stage than say that I have that under active consideration and would anticipate returning to the point on Report. I do not give any unequivocal undertaking, but I indicate that I appreciate how and why certain aspects of the Bill, if moved from consultation to concurrence, would meet some of the concerns, particularly those expressed by the Constitution Committee, regarding this matter. I make that general observation at this stage, because it is a point that we may well return to with regard to certain further amendments.

As I set out at Second Reading, the intention is, as far as possible, to make online procedure the preferred procedure for the commencement and defending of cases that fall within its remit. Of course, our ambition is to develop services that are easier to access and to use, so that over time, digital channels become the default choice for at least the majority of users. I emphasise “majority of users”, for the reasons which we have already touched upon.

As we have set out, our initial intention is that this procedure would consider civil money claims up to a value of £25,000 before widening its remit to cover other proceedings, so it is a question of taking it step by step to see how these procedures will work. It is not our intention that the OPRC would start to remake rules across other jurisdictions immediately. We want to complement and build upon the work of the existing committees in this area, to see whether this incremental approach to the extension of the OPRC’s remit can be successful. But no proceedings will be brought into the Online Procedure Rules without the views of the judiciary, of the committee and, in particular, of the Lord Chief Justice being taken into account—whether by consultation or by way of his concurrence.

Amendment 2, moved by the noble Lord, Lord Ponsonby, appears to be intended to transfer the regulation-making power set out in the Bill from the Lord Chancellor to the existing procedure rules committees—or at least make it subject to that. In effect, it would be for those existing rules committees to decide when proceedings may be subject to the Online Procedure Rules. We consider that this would pose a number of serious practical difficulties.

First, it would place the legislation required to bring proceedings under the remit of the Online Procedure Rule Committee on an entirely different footing from that for the existing rules committees for civil, criminal and tribunal. It would be on the basis of a negative resolution statutory instrument developed by an independent rules committee, as opposed to an affirmative instrument laid by the Government, and that, in itself, would not allow for the appropriate degree of parliamentary scrutiny which should be applied here.

The second difficulty is, I am sure, entirely unintentional. Under the existing civil procedure rules committees, there is a means by which—for example, with regard to employment tribunals and employment appeal tribunals—the Secretary of State in the case of the employment tribunal or the Lord Chancellor in the case of the employment appeal tribunal, can direct the making of regulations or rule-making powers. I do not believe that that would be a consequence one would seek in the present context.

Thirdly, the three existing rules committees cover three entirely independent jurisdictions, and it is unclear how they might decide among themselves which proceedings should be extended to the Online Procedure Rule Committee and which should not. We anticipate that in itself creating very real practical difficulties over the administration of the future Online Procedure Rule Committee. This is why we do not consider that this amendment would have an acceptable outcome.

The noble Lord, Lord Beecham, touched on housing. At present there is no intention to proceed with the simplified Online Procedure Rules in respect of housing cases. However, housing cases are governed by the Civil Procedure Act 1997, and are therefore subject to the Civil Procedure Rules, meaning that they would potentially be subject to the OPRC in the future. If and when that were to occur, it would be after consultation or concurrence with the Lord Chief Justice. It would occur because the committee had determined to proceed in that way—a committee which at that stage could be joined by suitable experts in housing law, and other related experts. Only at that stage would it be contemplated.

I notice, however, that although that is not presently anticipated, it is currently possible to initiate some housing enforcement claims online, through the Possession Claim Online website. That has been operational for almost a decade. There have been no difficulties—certainly no reported difficulties—over access to justice because of the use of that Possession Claim Online website. So I accept the potential width of the Bill.

This brings me to Amendment 8, in the name of the noble Lord, Lord Ponsonby, the issue of family proceedings and the concern that has been expressed there. There may well be situations, such as those posited by the noble Lord, Lord Pannick, where one would never anticipate online procedure or digital process being appropriate for types of family law cases, such as those concerned with children and their welfare. Nobody is suggesting otherwise, but it is not necessary for us to list particular exclusions, because in doing so one is liable to overlook something. It is far better for us to ensure there are appropriate safeguards in place, such as by judicial input, whether by consultation or concurrence; by having an appropriately qualified committee with the ability to bring in experts, particularly on areas such as family law or child welfare; and by ensuring that we proceed incrementally only where the introduction of these simplified procedures is in the interest of litigants. There are circumstances in which it may be in the interest of litigants, in family law cases, to have access to a simple, inexpensive online procedure for the resolution of some types of dispute.

[Lord Beith]

To support that approach, perhaps the Government should be using different language from that used in the Explanatory Notes in paragraph 1, which says:

“We expect the Committee to focus on the civil and family jurisdictions in the first instance”.


That is pretty broad.

[Lord Keen of Elie]

It is intentionally broad. Again, this is not going to proceed without the input of the judiciary, in particular the Lord Chief Justice, and without application to the formulation of rules of a committee with expertise in all these areas. I suggest it would be counterproductive to introduce at the outset statutory limitations on the operation of these simplified procedures. That is an unnecessary straitjacket, given the way the legislation is formulated and how the simplified Online Procedure Rules will be introduced, not only by the Executive but by the judiciary and relevant committee. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Beecham]

Did the Minister imply that it would be possible to bring forward provision to include housing, presumably by secondary legislation? Is that what he has in mind? If so, would it be an affirmative or negative resolution?

[Lord Keen of Elie]

To clarify, I believe I said that many housing issues are currently governed by the Civil Procedure Act 1997. They are therefore subject to civil procedural rules and could, in turn, be subject to rules introduced by the OPRC for digital access. There is no present intention to address that in the context of housing. I went on to add that, at present, there is an online procedure for some forms of housing claim, such as possession claims, which can be made through the relevant website. I emphasise that housing cases fall within the wide remit of this legislation, but there is no present intention to embrace them within the OPRC.

[Lord Ponsonby of Shulbrede]

My Lords, I thank noble Lords who have spoken in this short debate. I understand the central point made by the Minister: that he does not want any statutory limitations on the relationship between the various committees. My Amendment 2 gave one model of a relationship between the two committees. I shall withdraw the amendment, but there is no statutory relationship between any of the committees at the moment. That may have to be developed over time. It may not be for this Bill, but all the committees will have to have a close working relationship which will have to be developed one way or the other. Nevertheless, I beg leave to withdraw the amendment.

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[Lord Garnier (Con)]

My Lords, before my noble and learned friend replies, I gently support the amendment and the way in which it was proposed by the noble Lord, Lord Marks. The policy behind the Bill is clear and sensible: it is to provide easier access, cheaper access and cheaper administration of litigation in certain types of cases. It seems from Clause 2 that the ambit of those cases is broad at the moment. For the reasons given by the noble Lord, Lord Marks, if we do not provide appropriate assistance—if not in the terms expressly set out in his and his supporters’ amendments, at least in some form—I fear that the good intentions behind the policy and the Bill will lead to the unintended consequence, again spelled out by the noble Lord, of a breakdown of the smooth operation of the system because people either do not understand the system or, having got into it, do not understand the technicalities behind internet access. As others have mentioned, that will lead to delay, expense and frustration within the justice system, which the Bill is surely designed to do away with.

I, for one, am certainly not wedded to any particular wording—like the noble Lord, Lord Marks, I am much more interested in outcomes—but the Government need to apply their mind to providing cost-saving and effective forms of assistance. It is not just to the elderly or people with language difficulties, whom the noble Earl mentioned a moment ago, that we need to offer our help: we need to make the system work well and efficiently and be genuinely part of the justice system.

[Lord Keen of Elie]

My Lords, I begin by saying that I entirely agree with noble Lords that digital support for those who want to access online services will be paramount to the effectiveness of the proposed changes in civil procedure. We are of course conscious that not all court and tribunal users have the confidence or ability to use digital channels unaided.

On the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, HMCTS already has an assisted digital strategy in place quite independent of the Bill. For simple support needs, HMCTS staff will talk users through queries over the telephone. In cases of more complex needs, there is provision for face-to-face support, currently being piloted by the Good Things Foundation, which is a charity that specialises in digital inclusion. That means that people can be taken through a digital process step by step. As the noble Lord, Lord Beith, noted, that support is being piloted in 18 locations throughout England and Wales, and in fact will now be rolled out across the country, in order that there is general access to it. We have that digital assistance in place and want to see it developed. We understand the need to ensure that such assistance is available.

We are also seeking to simplify some online forms, essentially by way of a “save and return” process. One frustration encountered by some users of online forms has been that, when they find themselves half way through a form, they decide to consult an appropriate oracle about how to complete the second half of the form but, by that time, the first half has disappeared. Simple steps like that can enable people to use these systems far more easily. We are entirely conscious of the need for such assistance.

I hear what noble Lords say about wanting to see some expression of willingness or intent in the Bill; I would be happy to discuss that further with them before Report. I cannot accept the proposed amendments in their present form—I will not seek to detail why at this stage—but we are willing to discuss an expression of intent that may appear in the Bill. I will leave the matter there at this stage.

Amendment 14, in the name of the noble and learned Lord, Lord Mackay of Clashfern, concerns fraudulent activity from persons perhaps pretending to act on behalf of the court. Of course, we take cybersecurity and online fraud extremely serious across all government services. We have cybersecurity professionals involved in the development of all our systems, including new digital services. Those are assessed by the Government Digital Service before they are ever rolled out for public access, so we have a means of ensuring that these systems are fit for purpose. Of course, we understand the importance of building appropriate data security and privacy measures into all such technological systems. Indeed, our systems are subjected to regular checks to ensure that there is no improper access or misuse. HMCTS has developed a risk assessment framework aligned to Government Digital Service standards. My understanding is that, on the basis of the present offerings online, it is unaware of any fraudulent websites claiming to offer access to such sites. Of course, we will maintain vigilance in that regard.

There is perhaps a distinction to be drawn here between some scams and the sort of online scam where somebody claims to be from Her Majesty’s Revenue & Customs and invites you to send them your bank account details so that you may be the happy recipient of a tax rebate, but you then discover that your bank has inadvertently been emptied rather than credited. In the context of the court process, we are vigilant against fraud but there is no scope there for that sort of fraud. As I said, we have not encountered fraudulent use, or attempts at fraudulent use, of the websites in so far as we already have certain online channels with HMCTS, so we would not consider it appropriate to accept the noble and learned Lord’s amendment at this stage. That said, I would be happy to discuss further the other amendments in the group. In the meantime, I invite the noble Lord, Lord Marks, to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to all noble Lords who have spoken in the debate. It appears that we are all committed to seeing a modernised and simple online procedure that enhances, rather than damages, access to justice. We regard it as essential that there should be a statutory commitment to designated assistance for the parties. For that reason, I am extremely gratified to hear the Minister say that he will discuss such a commitment in some form with myself and other noble Lords between now and Report. Of course, we welcome that invitation and will accept it.

I will just say one further thing in answer to the point made by the noble and learned Lord, Lord Mackay, about the providers of such assistance. As the Minister said and as the noble Earl, Lord Listowel, pointed out, we have in place not only the service provided currently by HM Courts & Tribunals Service but also by such law centres as still exist and by charities such as the Good Things Foundation and the charity mentioned by the noble Earl. I am wary of being too dogmatic about the providers that could by agreement with HM Courts & Tribunals Service provide designated assistance in the future. I hope that, when the Bill leaves this House, we have an acceptable commitment to designated assistance to help litigants in the future. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I simply add that the crowded Benches behind me will support the amendment. We are entirely in sympathy with all that has been said.

[Lord Keen of Elie]

My Lords, I begin with a simple point of clarification, although it may be that confusion reigns only in my mind. Where the Bill refers to the Secretary of State, it refers to the Secretary of State for BEIS, because of his responsibilities with regard to employment tribunals. Where it refers to the Lord Chancellor, that reference includes of course the Lord Chancellor’s appointment as Secretary of State for Justice. I say this lest there be any confusion about the two references in the Bill.

As I indicated at Second Reading, we have a number of concerns about the implications of these amendments. The Bill has been drafted precisely to ensure that the existing constitutional balance is protected. I will elaborate on that in light of some observations made by the noble and learned Lord, Lord Woolf, with reference to Amendment 28, which concerns the Minister’s power to direct the committee to include provision in the online procedure rules to give effect to a specified purpose.

I stress that this is not a novel power, nor would it apply only to the Online Procedure Rule Committee. The same power already features in the legislation which underpins the committees for the Civil Procedure Rules, Family Procedure Rules and Tribunal Procedure Rules. That is because Clause 8 reflects similar provisions in Section 3A of the Civil Procedure Act 1997, Section 79A of the Courts Act 2003 and Part 3 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. That power was one agreed by the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. The safety valve within the 2005 Act is Section 5, which confers upon the Lord Chief Justice the statutory right to make a report to Parliament if he is concerned about an issue relating to the administration of justice. I emphasise that this is not a novelty. The provisions of the Bill were drafted to reflect the existing statutory underpinning of the other civil rules committees with regard to civil jurisdiction, family jurisdiction and tribunal procedure.

In turn, Amendments 29 and 30 seek to ensure that the Lord Chief Justice concurs before the Lord Chancellor can make regulations under Clause 9. Clause 9 requires consultation with both the Lord Chief Justice and the Senior President of Tribunals, the latter in the context of tribunal procedure. Again, we suggest that this is as it should be. It is anticipated that, as in the past, these regulations would be used to make minor revisions to legislation; for example, to regularise and modernise terminology to match that in the new rules and ensure that the rules operate as intended. In other words, they will be used to make operability amendments. It is in these circumstances that consultation is considered to be the appropriate approach.

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[Lord Thomas of Cwmgiedd]

With the utmost respect to my predecessor, it would be usual for a magistrate to be appointed by the Lord Chief Justice rather than the Lord Chancellor. That would slightly affect the majority, but otherwise I agree with the points made.

[Lord Keen of Elie]

My Lords, it appears that we might avoid both potential problems if we retain the present membership of the proposed committee. Before I turn to the detail of the amendments, it may be helpful if I make some general remarks about the committee’s composition. We certainly support the need for a small, focused and agile committee responsible for making new court rules that are simple, tailored for the benefit of ordinary users and, therefore, understandable. In his final review of the civil justice system in 2016, Lord Justice Briggs as he then was anticipated—I accept—a very differently constituted committee of experts from across various disciplines reflecting users’ needs. A smaller committee allows the standing members to increase and adapt their membership quite easily every time they consider a different topic. That therefore allows them access to a greater spread of expertise and to ensure the rules are made by those who have an understanding of how they are most suited to the user.

The purpose of Amendment 15 from the noble Lord, Lord Beecham, is to add legally qualified members, or members with legal experience, to the committee. As I have indicated, we consider that there is considerable benefit in beginning with a small committee, but one where the membership and expertise can be adapted over time. We consider that adopting the amendment would create issues about who is appointing the membership of the committee and whether there was a disproportionate power of appointment between the Lord Chancellor and the Lord Chief Justice.

I remind noble Lords that the intention is that the online procedure will apply in the first instance to civil money claims up to the value of £25,000, but over time we of course want to widen the procedure’s scope so that it covers the civil procedures, potentially including family and tribunal proceedings. It would be difficult to see the value of insisting on an expanded legal membership at this stage without first gauging the overall value that could be addressed by bringing in specific experts in the area of specific proceedings being considered. In addition, as I said, Clause 6 would allow for the committee’s composition to be changed to incorporate particular experts or disciplines and particular areas of expertise if or when the committee came to address such issues as tribunal jurisdictions or some forms of family jurisdiction.

For similar reasons, we are not persuaded of the need for Amendments 16 and 17, which seek to add an additional member with IT expertise. Again, the argument is the same. Under Clause 6, the committee will have the ability to bring in additional expertise as and when it requires it, and that flexibility is seen as a considerable benefit.

In Amendment 18, the noble Lord, Lord Beecham, seeks to ensure a gender balance on the committee. Of course we support the wider aim of ensuring greater diversity among all senior appointments to public bodies but, to be truly effective, public bodies must bring together a mix of people with different skills, experience and backgrounds. The obligation with regard to appointment is always guided by the code of practice of the Office of the Commissioner for Public Appointments, which sets out the design principles and procedures for appointments with diversity in mind, including gender diversity. It is by these means that we can preserve accountability for diversity. That process is monitored by the Commissioner for Public Appointments, and is subject to a published report each year. We are certainly not complacent about the idea of gender representation at all levels on all committees, but we think it better that it is seen through the wider lens of the Equality Act, which protects a broader range of groups, not just gender. At this stage, we are not inclined to accept that there should be an express provision on gender balance.

Amendments 20 and 21 deal with the number of committee members required to agree the rule changes. Amendment 21 from the noble Lord, Lord Beecham, would increase the number needed from three to five, and that would perhaps be a consequence of an extended membership. Amendment 20 from the noble Lord, Lord Ponsonby, would require a simple majority with regard to matters, rather than just the current number of three. I can see that there may be an advantage in having some flexibility here, if we look forward to the point where the committee decides to exercise the powers under Clause 6 and extend the numbers in the committee to embrace further areas of expertise. I would like to give further consideration to that point in light of that, because it seems that underlying this there is a point that we should address before Report. With that, I invite noble Lords not to press their amendments at this stage.

[Lord Beecham]

Does the Minister accept the possibility that if there is not a requirement to reflect gender balance, there should at least be a requirement to report on it periodically, as part of the provision of the Bill?

[Lord Keen of Elie]

Respectfully, it appears that there is already statutory provision for just such a report, because the appointments will be monitored by the Commissioner for Public Appointments, who will make an annual report for that very reason.

Amendment 15 withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, this is a fairly simple amendment requiring there to be an affirmative resolution, rather than a negative one. We are perhaps overdone with negative procedures. I suggest that this is an important area which should be subject to the affirmative process instead of the negative one.

[Lord Keen of Elie]

My Lords, might I be permitted to respond with equal brevity to the noble Lord’s proposed amendment? Our concern is that this should be a small committee which has the ability pursuant to Clause 6, for example, to extend its membership to other areas of expertise, and that it should be able to move relatively swiftly to do that. That is why, in this area and others covered by amendments including Amendments 26 and 27, we embrace the negative procedure. We are concerned that, if we introduced the affirmative procedure, it would be necessary to take the matter through both Houses of Parliament, with the potential for significant delay from time to time. In fact, we simply want to effect new draft rules following consultation with the Lord Chief Justice. Regarding the consultation provisions as well, we suggest that the negative and not the affirmative procedure is appropriate here.

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

My Lords, if I may say a word out of turn, I am grateful to the Minister for what he said about my Amendment 20 and for saying that he will consult about agreeing something along its lines. I also want to make a point about Amendment 15, which we have also passed, which is that magistrates are represented under statute, under the other rule-based committees.

[Lord Keen of Elie]

I will briefly clarify the position for the noble Lord, Lord Ponsonby. I was not undertaking to consult to agree, but to give further consideration to the matter before Report.

Amendment 20 not moved.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, our Amendments 31 to 33 in this group require a statutory review between three and four years from the date on which the Bill becomes law. They also require a report to Parliament from the appropriate Minister, prepared in consultation with the Lord Chief Justice and the Senior President of Tribunals, both of whom will be able to contribute independently to the report, should they wish to. The Minister’s answer to these suggestions to date has been that the Government will carry out a post-legislative review, so there is no need to incorporate a requirement for such a review into the Bill. Once again, I regret that we do not agree. Non-statutory promises have a nasty habit of being fulfilled well outside the time limits promised. Indeed, such reviews often seem to have as many delays as Crossrail. Statutory time limits, while not fool-proof, at least concentrate the minds of Ministers and officials. Furthermore, without further primary legislation, they do not bind future Governments. In any case, the requirement to review and report guarantees a certain thoroughness to the review and resulting report that might not otherwise have existed.

We regard as particularly important the requirement for the Government to consult the Lord Chief Justice and the Senior President of Tribunals in preparing the report and to have the opportunity to report to Parliament. That will guarantee that a judicial perspective is brought to bear on the review and formal report to Parliament. In this case, we regard the combination of judicial and political input as very important. Reviewing the operation of the legislation makes that combination important, as with making the changes and decisions that we discussed in the group of the amendments of the noble and learned Lord, Lord Judge. We also support the amendments in this group on further piloting these online procedures. Careful piloting and a staged introduction could avoid costly mistakes and improve the procedures as they are developed. Both providers and users will be able to see and report on what works and does not.

[Lord Keen of Elie]

I first turn to Amendments 22 to 24, tabled by the noble Lord, Lord Beecham, and address the issue that the rules should be piloted by the Online Procedure Rule Committee before they come into effect. I will then come on to Amendments 31 to 33, moved by the noble Lord, Lord Marks, and supported by the noble Lords, Lord Beith and Lord Pannick, and the noble and learned Lord, Lord Judge.

I assure the noble Lord, Lord Beecham, that when services are introduced, they are already subject to ongoing testing. HMCTS is rapidly testing and adapting new online services, based on user feedback and service data. That is important because it ensures flexibility and improvements in practice and procedures that enhance access to justice. Piloted online services cannot be rolled out to the public more widely without such rigorous independent assessment carried out by the Government Digital Service, and then confirmation that they are fit for purpose. In addition, some projects are also being more formally evaluated through their development by HMCTS itself.

Reference was made to a number of piloted measures in the existing digital portal for debt actions. The difficulty is that, if we accept measures of the kind proposed in these amendments, we will add a layer of bureaucracy to the rule-making process beyond current practice, thereby reducing the flexibility to respond to user needs and technological changes. The Bill permits the use of practice directions, which can support projects through development before formal rules are set out in statute, so one does not have to go to a formal set of rules immediately; one can simply have a practice direction that assists the piloting of particular projects.

I mentioned before the example of online civil money claims and the pilot that went live in March 2019, which is underpinned by practice directions that require the consent of the Master of the Rolls and the appropriate Minister. Such a project worked closely with the judicial sub-committee to develop the pilot. I emphasise that there is already a clear process in place through which such proposed rules are tested, piloted and reviewed. To that extent, we consider Amendment 22 unnecessary.

Amendment 23 would again limit the flexibility of the OPRC to make the small, minor changes required to respond quickly to changes in user needs or perhaps new technology. It would add time and consequently cost to the development of the online process. We do not consider it appropriate to go down that route.

Amendment 24 would require us to publish six-monthly reports. We regard that as simply unmanageable given the number of pilots across the services that we are in the course of transforming. Again, there is the issue of cost, so we are not persuaded of the need for such steps to be taken.

Amendments 31, 32 and 33 would place in the Bill a requirement for a formal review of the Act to which the Lord Chief Justice and Senior President of Tribunals were able to contribute independently. Clearly, reviewing legislation which has been passed by this House is of great importance. That is precisely why the Government already require departments to carry out post-legislative scrutiny of all Acts within three to five years after Royal Assent. We therefore consider this amendment unnecessary because post-legislative scrutiny of this legislation will be conducted—I emphasise, will be conducted—within that timescale.

Regarding the reference to the Lord Chief Justice and Senior President of Tribunals, of course, their views are incredibly important and are taken seriously. There would be no question of us laying a report on this or other courts legislation without taking account of their opinions. Again, we consider the amendments unnecessary, understanding the importance of what underpins and has prompted them. I hope that, with these assurances, noble Lords will accept that the amendments are unnecessary and I invite them not to press them.

[Lord Beecham]

My Lords, having listened to the Minister, I am happy to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

34: Schedule 2, page 18, line 41, leave out paragraph 5

[Lord Keen of Elie]

My Lords, I approach this amendment with some trepidation, but I shall explain it in this way. It removes paragraph 5 of Schedule 2 to the Bill, which itself provides for the omission of Clause 7(1); namely, the requirement for the Online Procedure Rule Committee to consult such persons as it considers appropriate and to hold meetings unless inexpedient to do so.

--- Later in debate ---

[Lord Blunkett (Lab)]

Is the original ever intended to be implemented?

[Lord Keen of Elie]

That is not a question that I am able to answer now because I cannot foresee the future, but I shall take further instruction on the matter and write to the noble Lord on the current position. I beg to move.

Amendment 34 agreed.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Keen of Elie Excerpts

Thursday 6th June 2019 Lords Chamber

Tabled by

[Lord Keen of Elie]

That the Bill be referred to a Second Reading Committee.

[Lord Young of Cookham (Con)]

My Lords, on behalf of my noble and learned friend Lord Keen of Elie, I beg to move.

Probation: Voluntary Sector

Lord Keen of Elie Excerpts

Wednesday 5th June 2019 Lords Chamber

[The Lord Bishop of Newcastle]

To ask Her Majesty’s Government what steps they are taking to ensure that the voluntary sector can contribute to an effective national probation service.

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

My Lords, voluntary organisations play an important role in helping offenders turn their lives around. We are determined to strengthen this role. In May, the Government set out our plans for future probation arrangements, including that the National Probation Service will directly commission specialist and voluntary sector organisations to deliver rehabilitation services. We are engaging closely with voluntary sector providers to ensure that our arrangements maximise their potential engagement.

[The Lord Bishop of Newcastle]

My Lords, I thank the Minister for his Answer and welcome the proposal in the Strengthening Probation, Building Confidence consultation, which promises a clearer role for the voluntary sector. My concern, however, is that the consultation proposes ongoing mini-competitions and a mixed market for services. Can the Minister tell us how the Government will ensure that smaller charities are helped to spend less time competing for contracts and more time serving the community?

[Lord Keen of Elie]

My Lords, commissioning of interventions for each area will be driven by a regional probation director, who will have a special responsibility to make use of locally available services and to adapt provision to match local need. In addition, we intend to remove some of the barriers that have been in place for smaller voluntary organisations, such as the requirement to provide parent company guarantees, which these voluntary organisations could not meet.

[Lord Dholakia (LD)]

My Lords, the National Probation Service has more than a quarter of a million people under supervision at any given time. A lack of resources and Chris Grayling’s reforms have not helped, as was clearly demonstrated by the National Audit Office. We welcomed the setting up of the National Probation Service, but we now have another problem about the extent of its workload. Is it not time to set up a thematic review to examine whether present resources are adequate to meet the implementation objectives of both the Prison Service and the National Probation Service? How do we involve the voluntary organisations in this critical exercise?

[Lord Keen of Elie]

My Lords, there is a determination to ensure that the voluntary sector is fully engaged in the future delivery of probation services. Indeed, although there are only 94 voluntary community or social enterprises delivering services in the current CRC supply chain, we know that there are many hundreds of such organisations that are either signposted by the present system or are available to be used, and we intend to go to them in so far as we can. As regards the future organisation of those services, we are in the process of gathering data on all staff across the probation system to inform our workforce planning for this new model.

[Lord Beecham (Lab)]

My Lords, this House debated the Government’s Offender Rehabilitation Bill, which was an early example of Chris Grayling’s ideological approach to policy and his limitless capacity to get things wrong—in this case, at the cost of over £400 million. Now, a year after a devastating report from the Justice Select Committee, in a belated decision the Government are abolishing the community rehabilitation companies, but why are they insisting, in effect, that the role of the National Probation Service is to contract out much of the service to private companies?

[Lord Keen of Elie]

The mixed-market model that we have engaged in has proved effective in a number of respects, and we continue to believe that that is the way in which to deliver services. Indeed, I notice that the noble Lord’s suggestion might well have the unfortunate result of excluding much of the voluntary sector.

[Lord Farmer (Con)]

My Lords, I ask my noble and learned friend how Her Majesty’s Government will ensure that the importance of family and other supportive relationships is recognised as the golden thread that runs through all probation processes, when they transfer responsibility for management of all offenders to the National Probation Service.

[Lord Keen of Elie]

My Lords, the support of family and other social networks is a critical factor in helping to reduce reoffending, and we want to build on that where possible. Over the past couple of years, we have been implementing the recommendation of my noble friend’s first report on male offenders, and we plan to act on his more recent report on female offenders.

[Lord Ramsbotham (CB)]

My Lords, the consultation response that the Minister mentioned is long on thoughts and ideas but particularly short on any implementation plan. Can the Minister please tell the House when the director-general of the probation service will produce an implementation plan to give effect to all these ideas in the consultation response?

[Lord Keen of Elie]

My Lords, our plans regarding this matter are more developed in respect of Wales, where the model was originally considered. We are looking to transfer offender management functions from the community rehabilitation companies to the National Probation Service before the end of 2019 in Wales. Beyond that, it will go into 2020. That is the sort of timescale we will have in mind when it comes to the position of further probation reports.

[Lord Tomlinson (Lab)]

My Lords, a few minutes ago, the Minister referred to the great successes of this mixed-market model. Can he help people such as me by giving a couple of examples of these great successes? Can he then explain why it has been so necessary to introduce such proposals for major reform?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am not sure I used the word “great”, but there have been successes so far as that model is concerned. Indeed, if we look at the statistics, we see that there has been an overall reduction, by a number of percentage points, in the reoffending rate for offenders managed by CRCs over the same offenders in 2011. In addition, we have seen that a proportion of CRCs have been consistently successful in reducing reoffending. However, we recognise that the model has not worked as we had hoped. In particular, it has not enabled us to engage with the voluntary sector in the way we had anticipated. We are desirous to achieve that objective.

Suicide Act 1961: Prosecutions

Lord Keen of Elie Excerpts

Thursday 23rd May 2019 Lords Chamber

[Baroness Meacher]

To ask Her Majesty’s Government what assessment they have made of whether the threat of prosecutions under the Suicide Act 1961 is causing suffering to mentally competent, terminally ill people at the end of their lives.

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

My Lords, the Government recognise the challenges faced by those suffering from a terminal illness, and the desire of some to have choice over how to end their lives without fear of prosecution of themselves or those close to them. In a recent case, the High Court found that Parliament’s decision not to change the current law strikes a fair balance between the interests of the wider community and those of people who are terminally ill and wish to be helped to die.

[Baroness Meacher (CB)]

My Lords, the Minister will be aware that Ann Whaley recently took her husband, Geoff, to Dignitas for a peaceful death. Geoff suffered from motor neurone disease and faced the complete loss of any movement and the ability to speak, swallow, eat, drink or breathe without a ventilator. In answer to a question from Ann, Lord Sumption, our Reith lecturer, said that the assisted dying law—that is, the prohibition of assisted dying—should remain but that compassionate families should break the law. I find that remarkable. If a former Supreme Court judge is telling people to break the law, does that not indicate that the law itself is broken and should be reformed? What plans do the Government have to prepare for a change in this broken law so that terminally ill people who suffer unbearably—there are a number of them—and have only six months to live can have a peaceful death?

[Lord Keen of Elie]

My Lords, the Government do not plan to change the law at this time. Lord Sumption is a distinguished author and retired judge, of course. In his retirement and in delivering his Reith lecture a few days ago, he is entitled to express his personal opinions on morality and the law. I remind noble Lords that, while sitting as a Justice of the Supreme Court in the case of Nicklinson and Lamb in 2014, he said that,

“there is a diversity of opinion about the degree of risk involved in relaxing or qualifying the ban on assisted suicide, but not about its existence. The risk exists and no one appears to regard it as insignificant. There is a reputable body of experienced opinion which regards it as high”.

[Lord Dubs (Lab)]

My Lords, how much longer can we say to people that the only legal thing they can do is take the lonely journey to Switzerland? Surely we as a society can show more compassion to people than that. Can the Minister confirm that all surveys show that the majority of people in this country want a change in the law?

[Lord Keen of Elie]

My Lords, I am not in a position to comment on all surveys because that may embrace ones of which we are not aware. The Government have always taken the view that this is a matter of individual conscience and for Parliament to decide, rather than one of government policy.

[Lord Mackay of Clashfern (Con)]

My Lords, noble Lords will remember that I chaired a committee of the House on this issue many years ago. Is it possible to take account of the suffering that may be experienced by vulnerable people, surrounded in their weakness by relatives whose interests may not be completely in the best interests of the vulnerable person? That is a serious risk to be taken into account. On the other hand, the Director of Public Prosecutions has issued very clear guidelines on these matters, in accordance with a requirement from what was then the Supreme Court, in his jurisdiction.

[Lord Keen of Elie]

The noble and learned Lord is entirely right. The Director of Public Prosecutions has issued very clear guidelines, which address not only the evidential test but the public interest test that arises in such a complex and difficult area. That is why we see the need for a careful and balanced approach to what is, at the end of the day, an issue of conscience.

[Baroness Brinton (LD)]

My Lords, many families do not have access to Dignitas. Indeed, before it was available, a family friend of ours waited until his wife was away for two days before killing himself because he was very worried that the police might take action. The DPP guidance states:

“A prosecution is less likely if the person made a voluntary, informed decision to end their life, and if the assister was wholly motivated by compassion”.


However, it then lists a string of reasons why a prosecution may be more likely. Despite the fact that Ann Whaley clearly fell into that first category, she was immediately interviewed under caution by police. The distress that caused was phenomenal. On Sunday, the Justice Secretary said in the Sunday Express:

“Personally I am in favour of reform in this area, and sympathise with calls to allow individuals choice”.


When will the Ministry of Justice change the guidance?

[Lord Keen of Elie]

My Lords, my right honourable friend the Secretary of State for Justice expressed his personal views on this issue of conscience, but it is not a matter of government policy. With regard to the involvement of the police in cases where a matter is reported to them, that is not prompted simply by Section 2 of the Suicide Act, because if the police receive a report that someone’s life is going to be terminated they would in any event investigate lest it be a case of murder or manslaughter.

[The Lord Bishop of Winchester]

My Lords, in a recent Royal College of Physicians survey just over 80% of palliative care doctors opposed the assisted suicide law reforms. The Secretary of State for Justice is committed to meeting organisations that support changes. Can the Minister assure this House that the views of those opposing such reforms, out of due concern for vulnerable patients placed at risk of abuse, have been and will be equally considered?

[Lord Keen of Elie]

I can give the right reverend Prelate that assurance. Indeed, we have had recent contact with some organisations representing the very parties to which he refers. They will be given an equal opportunity to express their views on this difficult matter.

[Baroness Finlay of Llandaff (CB)]

My Lords, do the Government accept the evidence from jurisdictions that have changed the law? A recent paper from Holland shows that a majority of Dutch physicians feel pressure when dealing with requests for euthanasia or physician-assisted suicide, and their confidential survey shows a mismatch of many thousands more between euthanasias and assisted suicides and the reported figures. In Belgium there are estimates that up to 50% may not be reported. It is on the basis of the danger to those who can be pressurised that many people feel that a change in the law is too dangerous to contemplate.

[Lord Keen of Elie]

The noble Baroness makes a very clear point with reference to the findings in Holland and Belgium. The British Medical Association and the Royal College of Physicians have come out with diverse views on this issue, which raises challenges for the medical profession in general.

Parliament: Freedom of Speech and the Rule of Law

Lord Keen of Elie Excerpts

Thursday 23rd May 2019 Lords Chamber

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

My Lords, I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his careful and well-considered contribution to this debate. I am also grateful for the contributions of other noble and learned Lords, and noble Lords, on this issue.

Parliamentary privilege is a critical part of our democratic process, and is essential if Parliament is to function fully and freely. Noble Lords, and in particular the noble Lords, Lord Norton and Lord Lisvane, referred expressly to Article IX of the Bill of Rights of 1689, which protects debates and proceedings in Parliament from interference from the courts. But let us be clear: the protection of absolute privilege belongs to the Houses of Parliament, not to its individual Members. This protection does not mean that Members are above the law, nor that they can ignore it. Indeed, parliamentarians have a duty to exercise the privilege of the House in a responsible manner that reflects the public interest. That includes being mindful of the sub judice principle and respectful of the jurisdiction of the courts.

It is a matter for Parliament, in the administration of its internal affairs, to regulate the conduct of its Members in the exercise of Parliament’s privilege. More particularly, it may be for the Committee for Privileges and Conduct of the House of Lords to consider the use of parliamentary privilege by Members of this House. The noble Lords, Lord Armstrong, Lord Parekh and, I believe, Lord Anderson of Ipswich, alluded to the apparent absence of procedures and perhaps sanctions to address that issue.

It is clear that the privilege of Parliament should not be relied upon in such a way as to undermine the independence of the judiciary and, consequently, the rule of law. Where the judiciary has seen fit to make a court order, that ruling should be respected. That is the case no matter what stage legal proceedings may have reached. There may, of course, be a tension, but the relationship between parliamentary privilege and the independence of the courts—and, indeed, the rule of law—should be one not of conflict but of mutual respect. Each individual parliamentarian has to be mindful of the tension between releasing information where he subjectively considers it to be in the public interest and, on the other hand, the absolute necessity of maintaining comity between Parliament and the courts.

As it happens, we already have in place appropriate guidance on how that can be achieved. The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords has already been referred to. It is quite clear, at least with reference to the issue of sub judice. Indeed, it is recorded that the House of Lords adopted a resolution on sub judice on 11 May 2000. That resolution, as amended, states inter alia:

“Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question”.


That is subject to qualification, as is necessary, because the Companion goes on to say:

“But where a ministerial decision is in question, or”—


I emphasise this—

“in the opinion of the Lord Speaker a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions”.

That, of course, is subject to a safeguard. The Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. That, in turn, will prompt the Lord Speaker to consult with the clerks and the usual channels when he receives intimation of such an intention.

The Lord Speaker cannot, of course, intervene in our proceedings in this House, but it is open to any Member to move that a noble Lord should no longer be heard on a particular matter. We do, therefore, have in place safeguards that can be properly employed. Regrettably, where those safeguards and recommendations are circumvented, there is a danger that the House will bring itself into disrepute, and that the comity that it is necessary to maintain between Parliament and the courts may be undermined. In those circumstances, noble Lords may wish to look further at the issue raised by a number of noble Lords concerning the present terms of the guidance given on this matter and the potential need for sanctions where such guidance is overlooked.

Clearly it must remain central to our proceedings that we maintain the privilege of Parliament. I emphasise again that it is the privilege of Parliament, not a privilege of individual Members. I am obliged to noble Lords.

Family Courts: Domestic Violence

Lord Keen of Elie Excerpts

Tuesday 21st May 2019 Lords Chamber

[Baroness Newlove (Con)]

My Lords, on behalf of my noble friend Lady Jenkin of Kennington and with her permission, I beg leave to ask the Question standing in her name on the Order Paper.

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

My Lords, the Government have today announced the establishment of an expert panel, which will hold a public call for evidence about how the family courts protect children and victims in child contact and other child arrangements cases relating to domestic abuse and other serious offences. The panel will report within three months.

[Baroness Newlove]

I am very grateful to the Minister for his reply. I am delighted to hear it, having met many victims and survivors of this horrendous abuse through the family courts, but will the panel be chaired by the Government and will it be independent of the family courts? Can he reassure me that this review will be underpinned by systematic gathering of data, evidence and analysis? Otherwise, it will have to be repeated several times and for me, that means too many lessons learned because of too many lives lost under that status.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, it is intended that this will be an expert panel with representatives of the third sector, the judiciary and the Ministry of Justice.

[Lord Beecham (Lab)]

My Lords, I declare my legal interests as set out in the register. Law Society research confirms that the legal aid cuts of 2012 and the accompanying means test operate as a barrier to people in poverty—including victims of violence and abuse—claiming legal advice and representation, requiring them to represent themselves against their abusers. Will the Government ensure, via their review of the legal aid means test, that adequate support is available? Will they address the problem that in 61% of cases of domestic abuse, there are no separate facilities for waiting or for giving evidence by screen or video link?

[Lord Keen of Elie]

My Lords, the Government are concerned to ensure full access to justice, particularly in such delicate cases as those involving children and domestic abuse. The draft domestic abuse Bill was subject to pre-legislative scrutiny this morning and will come before the House in the foreseeable future.

[Baroness Corston (Lab)]

My Lords, Women’s Aid published research last year showing very harmful gender-stereotypical attitudes to women survivors of domestic abuse and their children in our family courts. Does the Minister think that there is a connection between that and the fact that the Government’s gender strategy shows that 60% of the women in our prisons are victims of domestic violence?

[Lord Keen of Elie]

I am not able to identify the link that the noble Baroness refers to. We have full confidence in our family courts system and in the ability of our circuit and district judges to discharge their functions objectively and without regard to issues of gender. In order to do that in cases of the kind that we have discussed, they will always be guided by the requirement for the interests of the child to be paramount.

[Baroness Burt of Solihull (LD)]

My Lords, perhaps I may ask about the Minister’s announcement of the setting up of an expert panel. Children are often victims too, whether the damage inflicted is physical or psychological. I am worried about the fundamental presumption of the family courts that the interest of the child is to have contact with both parents, sometimes even when abuse of the parent with care is proven or alleged. However, this is tricky territory, because parental alienation can enable one parent to use the children as a weapon. Will the review, called for by 123 colleagues in the other place, work alongside the panel or is it not needed now because we have the panel?

[Lord Keen of Elie]

My Lords, the intention is that the expert panel should meet in June, that it should report in a very short period and that we should then be guided by its findings. That will inform us more fully as to the evidential position that should properly be considered. I emphasise that the paramount consideration in these matters is always the interests of the child. The Children Act 1989 rightly places the child’s welfare as the paramount consideration, and there is no absolute right for any parent to have contact with a child.

[Baroness Chalker of Wallasey (Con)]

My Lords, what plans are there to train more judges for the family courts? Much of the backlog seems to indicate that we do not have adequately trained judges who specialise in the needs of persons who come before the family courts.

[Lord Keen of Elie]

We consider that we have a specialised group of judges operating within the family courts. Having regard to the potential for backlogs, to which the noble Baroness refers, we increased circuit and district judge sittings by 4,000 days in 2018-19 and it is our intention to allocate an additional 6,000 days in 2019-20.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, given that a very large number of homicides start with domestic violence, does the Minister agree that the criminal justice community should treat the early indicators, such as stalking activities, far more seriously?

[Lord Keen of Elie]

My Lords, I believe that the judiciary treat such early signs extremely seriously. Where an instance of domestic abuse comes before the courts, it is recognised that it may be just a beginning that could lead to more serious consequences.

Probation Reform

Lord Keen of Elie Excerpts

Thursday 16th May 2019 Lords Chamber

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

My Lords, with the leave of the House I will repeat a Statement made in the other place by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:

“I should like to make a statement on the Government’s response to the ‘Strengthening Probation, Building Confidence’ consultation. Earlier today I laid this government response for consideration by both Houses. It sets out our proposals for the future of the probation service. Across England and Wales, the probation service has over a quarter of a million people under its supervision at any one time, and an effective service is key to protecting the public, punishing those who have broken the law and reducing reoffending. I pay tribute to the hard work and professionalism of staff in both our National Probation Service and the community rehabilitation companies that deliver this work.

The transforming rehabilitation reforms from 2014 aimed to encourage innovation and more modern ways of working. We introduced a payment by results system creating incentives for providers to achieve reductions in reoffending; and we extended statutory supervision and resettlement to all offenders released from prison, supporting an extra 40,000 offenders for the first time. Since those reforms, we have seen a reduction in reoffending and other positive developments. However, there are challenges in the system. The changes I am setting out today are designed to make the system work as effectively as possible and meet our aims of a probation system that commands the confidence of the courts and the public. Last summer, we took action to stabilise current delivery and, as a result, there are now around 500 additional staff in place to focus on resettlement services for offenders. At the same time, we also announced a consultation on our plans for the future; I am grateful to the individuals and organisations that engaged and provided valuable feedback.

We have reflected carefully, and I considered how to most effectively use the innovation and expertise of both private and public sectors to continue to drive down reoffending. I am today setting out plans that will see responsibility for the management of all offenders transferred to the National Probation Service. These arrangements are different from those set out for England in the consultation last summer. However, I believe that bringing responsibility for delivery of all offender management within the NPS will remove some of the complexities that have caused challenges in the current model of delivery, and make it more likely that an offender will have continuity of supervision throughout their sentence, while strengthening processes for managing risk. Alongside these changes we will develop a more clearly defined role for the private and voluntary sectors in delivering core interventions to offenders and securing innovation in the provision of these services.

Each NPS region will continue to have a private or voluntary sector partner—an innovation partner—directly responsible for providing unpaid work and accredited programmes. The NPS will be expressly required to buy all interventions from the market, spending up to an estimated £280 million a year, and contracts will be designed flexibly, so that innovative approaches that show results can be quickly identified and spread across the wider system. These interventions, such as unpaid work, accredited programmes and resettlement and rehabilitative services, are central to delivering the sentences of the courts. Subject to market engagement, I look ahead to launching procurement for these services later in the year with competitions for unpaid work and accredited programmes.

We want to make sure that services are responsive to local needs, and for resettlement and rehabilitative services we will create a national dynamic framework. This will be accessible to all providers, including specialist, smaller scale and voluntary sector providers with the expertise to support the most complex offenders back into society. This direct relationship will create a greater role for providers in delivering probation services and ensure that innovation can be identified and replicated across the system effectively. I am confident that this model, based on the arrangements we consulted on in Wales, offers the most sustainable approach for probation and is the best option to build on the positive changes made under transforming rehabilitation, to strengthen the system and sentencers’ confidence in it, and to continue to break the cycle of reoffending. We have no intention of reverting to the former probation trust model.

Since the consultation we have established a director-general post in HMPPS responsible for overseeing probation delivery, and we will appoint probation directors across each new probation region. Probation works best when local partners work together and these directors will be accountable for the quality, delivery and commissioning of services in each area, alongside building stronger relationships with local partners to ensure real joint working, including through co-commissioning opportunities where possible.

Alongside these organisational changes in NPS, we will overhaul NPS capability in commissioning and innovation and deploy cutting-edge technology. CRCs have taken some steps to demonstrate how digital tools can improve practice. We will transform the use of technology in probation, investing in a digital and data strategy that will replace all our core systems and better utilise data to inform professional judgment. We will complement this with a new, targeted innovation fund. We will ring-fence an initial £20 million a year in a regional outcome fund, to attract match funding from other government departments or commissioning bodies, including social finance providers and social impact bonds. The fund will be reserved for innovative, cross-cutting approaches and will enable us to test proof-of-concept services before scaling these up.

I also want to go further than what was set out in the consultation. When parliamentary time allows, we will look to bring forward legislation to implement a statutory professional regulatory framework, putting probation on a par with teaching or social work. This will set ethical and training standards for different roles, to recognise the skills and expertise of probation staff and support their ongoing professional development and expertise in providing a critical public service.

The changes I have set out mean that in future, it will be easier to respond to the changing profiles of offenders and to drive improvements across the probation system. We will continue to leverage the innovation of the private and voluntary sector, and to ensure that probation is working with partners across the criminal justice system to reduce reoffending. It is essential that we take the time to get these changes right. We have put in place arrangements to allow us to extend CRC contracts to ensure we have the necessary time to get the transition to the new system right. We intend to use these arrangements to end contracts in spring 2021. My officials will now engage with prospective providers and wider stakeholders and finalise our proposals ahead of seeking to launch procurement exercises later this year.

These changes will help to deliver a stronger, more stable probation system that will reduce reoffending, support victims of crime, keep the public safe and merit the confidence of the courts and the public. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord Dholakia (LD)]

My Lords, I thank the Minister for repeating the Statement. All of us think that it has been a long time coming and it is right that we should broadly welcome the thrust of the Government’s intention to reorganise this service.

I take our share of the blame as part of the coalition Government, during which we supported some of the reforms of the National Probation Service in 2014. Some of the principles of these reforms were very sound when they were introduced. It was right that supervision was available for at least the first year when inmates leave prison. It was important to provide through-the-gate services, so that people can have a place to live as well as continuity of training and treatment between prison and the community. To do all this, it was vital that voluntary organisations working in the criminal justice field were fully involved.

Mr Grayling has bungled and underfunded contracts so badly that his reforms failed to achieve these objectives. No wonder it is estimated that these botched reforms have cost the taxpayer more than £500 million, according to the National Audit Office. He is the most unfortunate Minister whose record is dismal, and it is a surprise that he has lasted so long, even at the Department for Transport at this stage.

We need some guarantees to ensure that the probation service is not let down again. Who is examining the existing case load of probation officers? What further resources are available to make them more effective? Is there any way of tying probation resources to the rise in the number of prisoners in our establishments? Is there some way of ensuring that more incarceration of prisoners will effectively mean more work for the probation service? A good many well-trained but disillusioned probation officers have left the service in the last few years. What is being done to bring them back into probation work?

The Minister has just announced a new targeted innovation fund. What share will voluntary organisations have in such funds in order to make the probation service more effective? The new targeted innovation fund ought to make sure that such organisations are not locked out. Of course reforms are necessary, but we should never lose sight of the fact that when the state incarcerates prisoners, it takes full responsibility for each individual. We would do well, in very difficult times, to say to ourselves that if we lose that responsibility we will lose control of our criminal justice system.

[Lord Keen of Elie]

My Lords, I thank the noble Lords for their contributions. I do not accept the characterisation of these matters advanced by the noble Baroness, Lady Chakrabarti. Indeed, as I have often observed in the past, the gross overstatement of an argument simply diminishes it in the ears of hearers.

The position is that we have learned lessons over the past few years from the way in which probation was set up and carried through, as between the National Probation Service and the CRCs. Indeed, one of the difficulties that emerged arose not out of money being used to prop up CRCs, or money being taken from the taxpayer for the benefit of CRCs, but because the Government were actually too successful in negotiating the commercial terms of the CRC contracts, with the result that the CRCs made persistent losses on these contracts of such magnitude that they began to withdraw from the quality of service they should have provided in the first place. That created very real difficulties, and we accept that. We actually had to go to the CRCs and try to renegotiate in order to keep them on a reasonable path of provision.

One consequence of that has been that, for example, CRCs have paid out more than £9 million in respect of what are called service credits—which are, for them, service debits; they are credits to the taxpayer but debits to the shareholders of these companies—because of their failure to reach performance targets. So we responded to the very real difficulties that emerged in that context.

We are now developing a system whereby we will have the probation service on a regional basis. These regions will be coterminous with the PCCs, in the hope that, going forward, there will be greater linkage between the PCCs and the probation service. We will have a director-general of probation, which I think accords with a recommendation that has just been made in the interim report issued today by the noble Lord, Lord Ramsbotham, who was commissioned by the noble Baroness’s honourable friend, who I believe continues to be the shadow Secretary of State for Justice, Richard Burgon MP, who asked the noble Lord to look at this.

On the question of U-turning on nationalisation, I will quote from the interim report of the noble Lord, Lord Ramsbotham. He says:

“There is no doubt that the private sector has brought rigour to the oversight of probation. The best of them explained how they had introduced a forward-looking culture of delivering more with less, which must have relevance for the future, plus a better understanding of the relationship between cost and delivery”.


We are seeking to build on those benefits, appreciating that there were also deficits in the way in which CRCs delivered at the end of the day.

To take up the particular point raised by the noble Lord, Lord Dholakia, we are concerned to ensure that the voluntary sector has access to these contracts going forward. Indeed, one of the difficulties that emerged with CRCs was that, as they fell into greater financial difficulty, they drew back from their engagement with the voluntary sector and we therefore lost the immense benefit of that sector’s involvement in the probation service.

Taking this forward, we hope to re-establish clear, unambiguous faith in—for example—non-custodial sentences so that the courts can have more confidence in putting those forward and thereby, touching again on a point made by the noble Lord, relieve pressure on the prison system itself by virtue of an improved probation service.

[Lord Judd (Lab)]

My Lords, does the Minister not agree that in its earlier chapters the probation service attained an outstanding reputation and public confidence because of the quality, wisdom, experience and insight of its staff? That is crucial to the operation. Does he not also agree that, while there may be an argument about what happened in the last phase, there is very little doubt that, among many people, its reputation seemed to be in jeopardy as short cuts were taken and that there was a perception that the probation service had become an extension of the custodial system and had rather lost the purpose it was there to fulfil? Does he not therefore agree that, whatever happens—and we wish the new system well—commitment, quality of staff and the relationship and friendships that have to be built up between the officers and the people with whom they are dealing will be absolutely crucial?

[Lord Keen of Elie]

My Lords, I without hesitation and qualification commend the professionalism, integrity and ability of the staff within the probation service. That is why we are intent on implementing a statutory professional regulatory framework that will recognise the degree of professionalism that they have exhibited and continue to exhibit in the discharge of their demanding functions. The National Probation Service has extended its staff in recent years by about 500, and is bringing on further training of such staff. Going forward, we have appreciated the need to ensure consistency in the delivery of probation services and are not looking back to the prior form in which probation was delivered. When there were 35 probation trusts operating, with commendable staff, there were 35 ways of doing things. We have found that it is far better to try to identify a single, unified way of doing things for the entire probation service.

[Lord Ramsbotham (CB)]

My Lords, I am grateful to the Minister for quoting the interim report that I was required to write by the Shadow Minister for Justice. I note that he quoted my paragraph saying that not all had been lost by the community rehabilitation companies and citing the economic rigour that they had to bring to their role. Perhaps I might ask Minister two questions. First, he will have noted that the Justice Select Committee and the Public Accounts Committee—plus the National Audit Office and Her Majesty’s Chief Inspector of Probation—issued very critical reports of the whole transforming rehabilitation process. They said that the procedure had been rushed and unpiloted. Are the new proposals again to be rushed through unpiloted? Secondly, will the 11 areas correspond to the existing 11 government regions within which the police and crime commissioners operate, or will we have yet another division? By adopting Department for Work and Pensions boundaries, Transforming Rehabilitation completely crossed every single common-sense boundary that had been followed by the probation service for years.

[Lord Keen of Elie]

I am obliged to the noble Lord and welcome the fact that he has given consideration to these issues and is able to contribute to this matter with his interim report. No doubt he may take that further. On his second point, I had mentioned that the 11 proposed areas will be coterminous with PCC regions. There are more than 11 PCCs, of course, but we will ensure that the regions are coterminous so that we can develop the appropriate relationships between the PCCs and the NPS in that context. It is certainly not our intention for this to be rushed. I would mention two points: first, although the existing CRC contracts, as adjusted, run to the end of 2020, we have the ability to extend them to the spring of 2021 to have time to bring in these reforms; and, secondly, there will be a pilot in some sense because the model we are now adopting is the one we had already decided to adopt for Wales, which will be implemented from 2019. We will be able to see how this actually operates in practice before we proceed further with the rollout across the rest of England.

[Lord Beith (LD)]

My Lords, if the Government do not succeed in putting right the failings which many of us identified in previous reports, they will not win the confidence of sentencers and be able to proceed with getting rid of short custodial sentences, which is part of their policy. Surely, in order to get these things right, you do not want too complicated a structure. The intermediate body which is doing the commissioning from the voluntary and private sector seems a rather cumbersome structure, and we have to deal with telephone reporting being relied on, excessive workload for probation officers and features demonstrating that the system is not delivering what it ought to deliver.

[Lord Keen of Elie]

My Lords, I acknowledge that under the present scheme we have seen instances of excessive caseloads being placed upon probation officers, and we are concerned to address that issue. Equally, we are concerned to ensure that appropriate contact between probation and the persons to be released from prison can be achieved. I entirely concur with the noble Lord’s observation about the need to ensure that probation works in an effective manner, such that we can instil in both the courts and the public a confidence in non-custodial sentences. That is one of the objectives we have in mind with regard to these reforms.

[Lord Birt (CB)]

My Lords, I declare an interest as my wife was the founding director-general of the National Probation Service. The Minister is surely right to observe that it was a vast improvement on the hotchpotch of arrangements that had preceded it. I welcome the Government’s Statement; first, because it is entirely right that the state should take back full responsibility for managing all offenders; it is right too—and here I disagree with the Opposition Benches—that both the private and voluntary sectors should continue to provide specialist services to the NPS. Secondly, I welcome the Statement because of the Secretary of State’s willingness to reverse an error. That genuinely took courage and is to be applauded.

[Lord Keen of Elie]

I am obliged to the noble Lord for his observations and insight into the initial transformation that we brought about. I recognise, as he does, that there were deficiencies in that, which is why we proceeded with the consultation and have put forward these proposals for further reform.

[Baroness Donaghy (Lab)]

My Lords, there was mention in the Statement of bringing the probation service to the same level as that of social work. That filled me with some dread, as an Oral Question earlier today revealed across the House that the social work service is on its knees. I am looking for some reassurance that these new proposals will not make the same mistakes as the old ones, and I would be interested to know how much this appalling shambles has cost the taxpayer.

[Lord Keen of Elie]

I am obliged to the noble Baroness for her questions. As I indicated earlier, the real cost of the recent changes fell not on the taxpayer but on the shareholders of the various CRCs, which made immense losses arising out of the way in which the contracts were made and handled. The consequence was that the numbers that they were going to be dealing with were wholly wrong, and they found themselves with an unsustainable financial model. That is what led to some of the difficulties we faced. In the context of the comparison with teaching and social work, I was referring to the need, and indeed the desire, to implement a statutory professional regulatory framework. We believe that that should—and will—reflect the clear and high professional standards exhibited by the probation service and will therefore maintain standards going forward.

[Lord Paddick (LD)]

Would the Minister agree that we are now in a position where government Ministers no longer have confidence in the ability of short-term sentences to rehabilitate offenders, and the judiciary has no confidence in the ability of the Ministry of Justice to provide effective alternatives to short-term sentences? Is the Minister confident that the reforms he has outlined today will result in effective rehabilitation of offenders, and how long will it take before that is achieved?

[Lord Keen of Elie]

I do not agree with the propositions advanced by the noble Lord at all, and I have confidence in these proposed reforms.

[Lord Scriven (LD)]

My Lords, the Minister says there has been no cost to the taxpayer, but the taxpayer has had to pay £500 million extra, including the early closure of these contracts, which cost £170 million, which in turn included a cost of £115 million for waiving some fees. Is it not the case that there is an extra cost of £500 million to the taxpayer for bringing these contracts to an early close, and that they have not performed?

[Lord Keen of Elie]

No, with respect. The cost of these contracts was estimated at about £1 billion more than the actual cost incurred for the foreshortened contracts.

[Lord Bates (Con)]

I thank my noble friend for repeating the Statement, for the political courage which underscores its key message and for its particular focus on reducing reoffending. In the original consultation paper, in paragraph 58 on page 23, a worrying statistic was given: 70% of offenders who need ongoing treatment for drug or alcohol misuse had not been linked with that treatment within 21 days of their release from prison. Can my noble and learned friend assure me that, whatever new arrangements are brought forward, we will do everything possible to ensure that there is 100% availability from day one?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I welcome my noble friend Lord Bates back from his perambulations. We are of course concerned to ensure that through-the-gate services in particular can be developed to the point where such essentials as support, accommodation, the addressing of mental health issues and attention to misuse of drugs issues are brought to bear as swiftly as possible. One cannot give a time limit for that at this stage but clearly that underpins the proposals that we have put into this document.

[Lord Purvis of Tweed (LD)]

My Lords, will the Minister state on the record categorically that the National Audit Office was wrong to say that this has cost the taxpayer £171 million?

[Lord Keen of Elie]

I did not say that the National Audit Office was wrong but pointed out that the actual cost of the CRC contracts was in fact substantially below the figure that had been budgeted for originally, which arises out of their termination.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Keen of Elie Excerpts

Tuesday 14th May 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

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

My Lords, this Bill is a further step in delivering legislation to underpin our ambitious court reform programme. Most of these measures have already been before Parliament as part of the Prisons and Courts Bill, which fell when the general election was called. Since then, the Courts and Tribunals (Judiciary and Functions of Staff) Act has achieved Royal Assent, representing the first legislative step towards delivering our aims. This Bill follows on from that, continuing our legislative programme. We will bring forward further courts legislation as parliamentary time allows.

In our manifesto, the Government committed to modernising our courts and tribunals so that they are fit for the 21st century. Following that commitment, we have been pressing on with reform in areas where primary legislation is not required and we are making significant progress in enabling access to justice through online and digital means.

Clearly, the modernisation of the courts system must have ordinary court users at its heart. People need new digital services to be accessible, understandable and easy to use. They need to have confidence that the justice system of the future will deliver justice as fairly as it has in the past, although with greater efficiency. This means that, for online proceedings in particular, our court rules across the civil, family and tribunal jurisdictions must be designed with the aim of making our services accessible and straightforward for the everyday user.

This vision formed part of Lord Justice Briggs’s Civil Courts Structural Review published in 2016. The review supported the concept of an online process governed by simplified rules and overseen by a new rules committee. This Bill will allow that to happen. It creates an Online Procedure Rule Committee which will be responsible for making new court and tribunal rules to enable further innovation and to support people to access our online services with ease.

Digitisation of the court process is now a well-established feature of the civil justice landscape. For example, the Online Civil Money Claims service that went live in March 2018 offers people the opportunity to resolve financial disputes online and has attracted in excess of 63,000 users, with an 87% satisfaction rating. It is these existing online services, which already form part of our modernisation programme, that we expect to be the initial focus of the new committee.

All our online services will be accompanied by appropriate and robust safeguards to protect and support users and to ensure that access to justice is maintained. In pursuing this approach, we recognise that there will be people who will need help accessing a new digital system. That is why we are putting in place a comprehensive “assisted digital” programme of support that will include telephone and face-to-face help for court users. These safeguards apply equally to future online provision under the new committee. Our online services offer a straightforward and efficient alternative to traditional paper routes, but we recognise that not all court and tribunal users will be able to engage online and so paper routes will continue to be available for those who need them.

I turn now to the measures in the Bill. It will establish an Online Procedure Rule Committee to make procedural rules. The committee will have a particular focus both in its membership and its purpose on creating rules to support services designed around the people who use them. To ensure that the new rules achieve the desired effect, the Bill makes it explicit that they will be accessible, fair and simply expressed to assist the efficient resolution of disputes.

The new rule committee will have five members, be chaired by a member of the judiciary and will include laypersons and IT experts. This combined expertise will ensure that our online services continue to maintain our renowned standards of fairness and justice, while also offering a straightforward, accessible and proportionate experience to those who use the courts system.

The Bill also sets out the procedure for appointing members to the committee and for altering its composition, with the agreement of the Secretary of State, the Lord Chief Justice and the Senior President of Tribunals. This measure will ensure that the committee retains flexibility to respond to emerging technologies and user needs.

The Bill will provide a power to specify in regulations which proceedings should be subject to the online procedure. This means that any proceedings likely to benefit from an online procedure can be brought under the remit of the new rule committee. Before we extend new proceedings online, however, HMCTS will conduct appropriate piloting of online services to ensure that they are fit for purpose. We expect the committee to start by focusing on the online services that already form part of our modernisation programme.

The Bill also provides that the new online committee will operate with the same powers as apply to existing rule committees. For example, the new committee will be expected to consult appropriate persons during its rule-making process. It also provides the Lord Chancellor with the power to issue the online rule committee written notice that the rules should achieve a specified purpose. This is a standard power that already applies to existing rule committees. The Bill provides to the Lord Chancellor the power to make amendments to legislation introduced prior to the introduction of this Bill to facilitate the making of online procedure rules. It is anticipated that that will be used to make minor revisions to the legislation in order, for example, to regularise and modernise terminology to match that in new rules. Before making such regulations, the Lord Chancellor must consult the Lord Chief Justice and the Senior President of Tribunals. Again, this is a similar power to that provided in the legislation that establishes the current rules committees.

In summary, the Bill, in combination with our wider package of reforms, will ensure that our courts and tribunals system remains fit for the 21st century and for the digital age. It will help to ensure that the judges and staff of our courts and tribunals are able to respond to the changing demands of the justice system, and ultimately it will deliver a more flexible framework, supporting better services for court users. The Bill reinforces our enduring commitment to delivering a reformed courts and tribunals system, and I commend it to the House.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, on the last point, I am not aware of any proposal to attempt to replicate the ability of our judiciary with artificial intelligence. I am obliged to the noble Lord, Lord Beith, for his acknowledgement that the Government are seeking to leap into a gap rather than an abyss.

I will begin by making a number of general observations before I respond to the particular points raised by noble Lords—at this stage in the process we are listening and will consider the points made. First, there is concern that powers under the Bill will enable the Lord Chancellor to take extraordinary steps with regard to the judicial system; for example, by requiring rules that dispose of rights to an oral hearing across the board, perhaps, rather than just in particular cases. Let us be clear, those powers already exist. They are not exercised in that fashion and there is no intention to do so. That is not the purpose of this legislation.

The overarching powers of the Lord Chancellor with regard to the rules and the rules committee already exist with respect to the civil, family and criminal rules committees. This simply reflects that fact. There has been no suggestion in the past that the Lord Chancellor, who ultimately would always be answerable to this Parliament, would seek to abuse any powers he might have in that respect.

Furthermore, the Bill is intended to introduce the opportunity for additional, but simplified, court processes. It is not replacing the existing processes. At the prompting of Lord Justice Briggs’ report, it introduces the idea of a far simpler and more accessible system of disposal with regard to civil courts, family courts and tribunals. It is intended that it should be implemented in the first instance in the area of financial claims, where we already have some digitisation—a digital portal—and extend, in due course, to family law claims. I do not understand there to be any intention to extend it to the Court of Protection. I am not aware of any intention to extend it to housing claims but I will take further soundings on that point and respond to the noble Lord, Lord Beecham, when I have done so.

I emphasise again—and this is partly in response to the points made by the noble Lord, Lord Ponsonby—that we are intending to introduce an additional, much-simplified procedure that people can employ. Of course, we recognise that not everyone will wish to engage in that procedure, although why they would want to pursue a more complex and less accessible procedure might be difficult to fathom. We understand that some people will find it difficult to engage with such a digital procedure and that is why we intend to take steps to make assistance available to people, whether by telephone, other electronic means or face to face. As the noble Lord, Lord Marks, indicated, provisions are already in place for such face-to-face advice to be given.

Some people may want to engage in the simplified procedure but to do so in writing. There will be scope to do that. Somebody may put their claim in writing, rather than online, and that written claim may then by scanned on to the system. Somebody may respond to a claim in writing. Whether it is then appropriate for the claim to remain on the online system will be a matter of judgment at the time, depending on how parties respond to the system. As I understand it, there will be the ability to engage in the simplified process even if there is difficulty in actually entering the online system itself. However, there may come a point where there is really nothing to be gained from having people pursue such written forms along the lines of this new set of rules, and they may then revert to the existing civil procedures. That remains to be seen.

The noble Lord, Lord Ponsonby, talked about consultation and the potential for pitfalls with new technology. We are very conscious of that. The intention is to pilot the schemes and reflect what has already been done with regard to small financial claims by extending the limits for those claims. Overall, though, I emphasise in response to the noble Lord that we intend to introduce a simplified process that does not replace the existing process but will provide the means by which people without recourse to legal advice and guidance will be able to pursue a claim; in other words, as Lord Justice Briggs observed, a process that is designed not by lawyers for lawyers but for the use of the lay person.

[Lord Ponsonby of Shulbrede]

My Lords, the Minister has made that point twice. Does that mean that we will see two systems operating within the family jurisdiction: the simplified online system, to which the Minister has referred, and the existing paper-based system, which the Minister is saying is more complex? Will there be two systems operating in parallel?

[Lord Keen of Elie]

I do not suggest that there will be two systems operating in parallel, although it is perhaps the use of that word that I am concerned with. This will be the staged introduction of a simplified process that will cover simplified claims and, in due course, family law claims. It will not replace the family rules that already exist; it will be an additional, simplified process that people can engage in through a digital portal.

As I say, those wishing to use the simplified process may begin in writing and then see that written claim scanned into the system. They will still be using the simplified system of rules that it is intended should be introduced. There may be cases—this is where judicial discretion will come into it—where it is determined that it is not appropriate for a case to continue in that simplified process. There could be any number of reasons for that to occur and I would not seek to speculate on what they might be. That will be the outturn of the application of these processes once the relevant rules have been made and applied to particular types of claim.

The noble Lord, Lord Beith, asked what would happen when one party wanted to use the online process and another did not. As I have sought to explain, it will be essentially a situation in which a claim will be made using the simplified process. If it is not made online, it may be made in writing and then scanned into the process. Whether it is feasible for it to continue in the digitised process, we will have to wait and see. However, the idea is certainly to give the claimant the option as to where he begins with the claim. At the end of the day, there is an element of flexibility, I hope.

I turn to the observations of the noble and learned Lord, Lord Judge. He touched first upon the membership of the rules committee. The intention is that the rules committee should be kept relatively small and flexible. There is of course provision in the Bill for changes to be made in the constitution of the committee depending upon our experience, but this is going to be the starting point to see how easily it can work. Regarding the membership of the committee, with two appointed directly by the Lord Chief Justice and three by the Lord Chancellor after consultation with the Lord Chief Justice, the noble and learned Lord brought out the idea that where we have consultation within the Bill, we should replace it with concurrence. I question whether that would be appropriate. I hear what has been said on that point by number of noble Lords, but there is a balance to be struck here. For example, within the provisions of the Bill itself, where there is a need for regulation to be made subject to the affirmative procedure, noble Lords will see that there is to be consultation with the Lord Chief Justice.

Examples can be found in Clause 2, which addresses “‘Specified kinds’ of proceedings”. Regulations there are,

“subject to the consultation requirement”,

with the Lord Chief Justice, among others, and,

“subject to affirmative resolution procedure”.

The same applies to Clause 3. However, in circumstances such as those in Clause 6, where there is to be consultation, there is also a provision for the negative resolution procedure.

At the end of the day, it is the Lord Chancellor who will be answerable to Parliament. It strikes us as unattractive to have a situation in which the public, the Executive and Parliament wish to see a change in procedures and process, but the Lord Chief Justice can effectively veto any such change because he is not prepared to give his concurrence. The Lord Chief Justice is not answerable to Parliament but the Lord Chancellor is. In those circumstances, it would be for the Lord Chancellor to answer to Parliament after consulting the Lord Chief Justice.

Before I go on to a contrasting situation, the noble and learned Lord, Lord Judge, said that of course the Lord Chancellor can always come back to Parliament if the Lord Chief Justice will not give concurrence. Yes, he could, to try to seek primary legislation to overcome that issue and amend the existing Act. Given the legislative process, it might take years to address a situation in which changes are desired, if the issue is one of concurrence not consultation. Therefore, I do not believe that that is an answer to our concern on this point.

I will mention a contrast. Parts 1, 2 and 3 of Schedule 1 to the Bill deal with practice directions, which are given by the Lord Chief Justice to the judiciary. Those are very much the responsibility of the Lord Chief Justice, and in these circumstances, his obligation goes only so far as to consult the Lord Chancellor. I suggest that there is an element of balance here. When a matter falls very directly within the responsibility of the Lord Chief Justice, as with practice directions, he is required only to consult the Lord Chancellor, and when a matter falls very much within the responsibility of the Lord Chancellor, because he is answerable to Parliament, he is required only to consult the Lord Chief Justice. That is the balance that the Bill seeks to achieve in this context. It may not be a balance that is acceptable to everyone, including the noble and learned Lord, Lord Judge. I hear what he said on this point and it is something I will consider before Committee. Nevertheless, that is how I would explain the present position.

I turn to a number of points made by my noble and learned friend Lord Mackay of Clashfern. He mentioned the dangers of any electronic system and what he termed “leakage” therefrom. That is a perennial problem for us all, but it is one we are conscious of and will seek to guard against. I see no reason why there should be any greater problem there than there is with the present judiciary.

My noble and learned friend Lord Mackay also asked whether the Court of Protection would be covered. Strictly, one could argue that the proceedings of that court are civil proceedings, but there is no intention to make them subject to this simplified procedure. As I understand it, we are concerned in the first instance with financial claims, and thereafter with developing this in respect of family law claims. Each step of the way will involve a process of consultation, not only with the relevant committee but with the Lord Chief Justice, the Secretary of State—in so far as it deals with employment tribunals and employment appeal tribunals—and the Senior President of Tribunals.

My noble and learned friend Lord also raised an issue about the quality of justice being attributable to the judiciary—with which I entirely concur—and concerns about such matters as pensions, which are currently being considered and addressed by us. I do not take that matter further.

He also raised the question of Scotland, because, in respect of the employment tribunals and employment appeal tribunals, these provisions extend to Scotland. Of course, at present, these are UK-wide jurisdictions, which is why the provisions with regard to appointment to the committee are set out as they are. There will be developments there because, under the amended Scotland Act, the Scottish Government will, in due course, be able to take up responsibility for employment tribunals and employment appeal tribunals. As and when that happens, the whole process will be handed to them and will come under their own tribunal legislation. In the meantime, we have consulted, not only with officials but with Ministers in the Scottish Government, who have expressed themselves content with the way the present provisions are formulated. I hope that brings some relief to my noble and learned friend.

The noble and learned Lord, Lord Thomas of Cwmgiedd, also welcomed the Bill. He raised a number of questions about how it would operate in practice. He emphasised a point made by Lord Justice Briggs: the whole point of this process is to bring forward a set of rules—a system of justice—that is not only accessible to lay people but understood by lay people. That is what lies behind much of what we propose in this legislation. We will ensure that those lay persons are given assistance in accessing these digital portals. I do not consider it necessary to place that in the Bill, and I question the way in which that might be done. I suggest that it is better that we have sufficient flexibility to ensure that, as technology develops, we can respond to those developments and make the appropriate provision available for those lay persons who wish to employ these processes.

My noble friend Lord Faulks and other noble Lords referred to the programme of court closures. There is no direct link between these proposals and court closures, but if this digital process is successful, we may see a reduction in the demand for physical court structures. However, that is an incidental point and not the intent behind this legislation, which is to improve access to justice for all. On that last point, I am reminded that my noble and learned friend Lord Mackay also raised the question of small businesses being anxious about fees and related matters. Of course, if we can develop this digital process successfully, the cost of litigation should be reduced. I hope that gives some reassurance to parties such as small businesses.

The noble Lord, Lord Beecham, raised a number of issues—including housing, on which I will write to him—about the powers available to the Lord Chancellor. He referred in particular to Clause 9. The Lord Chancellor’s power there is subject to the affirmative procedure. That is expressly provided for already. There are a number of instances in which there is provision for the negative procedure, but the power in that clause requires the affirmative procedure.

The noble Lord referred to Clause 8 and asked what would be a “reasonable period”. I have to respond: how long is a piece of string? That would be addressed in the facts and circumstances of any case, but it is not something we could anticipate at this stage. The purpose of these provisions is to provide the maximum flexibility for the provision of a simple and accessible set of rules for disposing of civil claims, family claims and tribunal matters. To achieve that flexibility, we have somewhat wide-ranging provisions, but they are no greater or wider than those for the existing Civil Procedure Rules and Family Procedure Rules. They will be exercised subject to consultation or concurrence with the judiciary and disposed of by an independent committee, with the Lord Chancellor being answerable ultimately to Parliament not only for their terms but for their effects.

Finally, on review, it is intended that we will have an interim review in about 2021 and a completed review in about 2023 or 2024. It would not be sensible to seek a review any earlier than that because we need to see how these processes will work in practice and evaluate feedback from those who engage with them.

In these circumstances, and having regard to the reminder I keep getting from my Whip about the amount of time I have, or do not have, left, I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Wednesday 27th March 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 11 February be approved. Considered in Grand Committee on 25 March.

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

And now for something completely different, my Lords. I beg to move the two Motions standing in my name on the Order Paper en bloc.

Motions agreed.