House of Lords
Tuesday 16 October 2018
Prayers—read by the Lord Bishop of London.
Personal Social Care: Funding
My Lords, the Government welcome and recognise the contribution of Independent Age and other stakeholders to the important debate around social care reform. The Green Paper that is to be published later in the year will set out proposals for a sustainable social care system that strikes a fair balance between what the state and individuals pay. Reforms must be affordable and fair across the generations, including to working-age taxpayers.
I thank the Minister for his response. The report sums it up when it says that,
“today … accessing such support has become a game of chance: based on where you live, your social class, and your ability to pay”,
all of which was echoed in last week’s CQC state of care report, which also made it clear that any future extra funding for the NHS will just be wasted and swallowed up treating people in hospital unless there is a similar major cash injection for social care. Will the Minister confirm that all the options set out for future social care funding in the Independent Age report, particularly the strong case made for free personal social care and support for older people, are under active consideration in the social care Green Paper? How are the proposed 10-year NHS plan and the Green Paper joined together to deal with the integration lottery and fragmented care that the CQC’s local systems reviews have highlighted?
I thank the noble Baroness for raising this important issue. She is quite right that extra funding is needed, which is why we have pledged £20 billion extra for the NHS and want to get this long-term funding settlement for social care. There are many proposals in the Independent Age document—nine, I think—and we are looking at a range of different options. As I said, there needs to be a fair balance between those who are working today and those who need care today, an issue that has evaded a number of Governments and which we sincerely hope to solve. On how the two plans will work together, the intention is that the long-term plan and the Green Paper will be published together around the same time and will therefore be complementary in trying to achieve the goal of integrated health and care.
May I press the Minister further on his Answer to my noble friend about the consideration of free personal care? Those of us who were at the memorial for Lord Sutherland earlier today remember that he chaired a Royal Commission that came up with a proposal for free personal care. Sadly it was not implemented then, nor has it been implemented by any of the endless reports we have had on this issue in the ensuing 20 years. We need to consider free personal care as one of the options. I ask the Minister again: will it be considered?
My Lords, Scotland has been giving over-65s free personal care for years now and is now running a feasibility study on extending it to under-65s. This is not the action of a Government who are unconvinced of the benefits. Will the Government consider running a trial in a defined English health community—say, the Manchester community or perhaps even Cornwall—to determine whether the benefits can be replicated south of the border; and, if not, why not?
I am not sure that a trial is required; what is needed is a systematic change in the way we do things for everybody. I am interested to hear what the noble Baroness says about the under-65s. One thing I can tell the House is that the Green Paper we will publish this year will deal with adults of not only retirement age but working age. Those were two separate streams that were working in parallel, but they will be contained within the same Green Paper.
It is the Scottish Government’s decision to do that. Of course, they receive higher public funding per citizen than we do in England, and we make different decisions, just as we have on higher education funding and so on. As I said to the noble Baroness, the details of the proposal will be set out in the Green Paper during the year, and I am afraid that the noble Lord will have to wait.
Will my noble friend resist the temptation to do what has been done in Scotland, which is to announce free personal care, only for people to find that the resources are not there and the care is not available to them because of rationing? We need a properly funded system which will give everyone the quality of care that they need.
Do the Government have any plans to reintroduce a proper meals-on-wheels service? When I worked for the City of London, it came to light that only five boroughs were left providing a rudimentary service, yet malnutrition and dehydration are among the main reasons why old people go into hospital. So we save 15 quid a day maximum and end up with a £700-a-day bed from which you cannot go home. The simple provision of a meal would be both humane and healthy.
The noble Baroness makes an excellent point. I do not know about the distribution of such services, but she is absolutely right that what everybody wants—the cared-for person and those looking after them—is to stay in their homes and remain independent for as long as possible, which is why so much more care must be delivered in the home. I will write to her on the specifics of meals-on-wheels services.
My Lords, the noble Lord talked about taking a firm policy decision. I have yet to understand why the Government commissioned the Dilnot commission, accepted the principles of its recommendation, legislated to introduce it but then failed to implement it. Why?
The noble Lord is right: the Dilnot commission proposed risk pooling, which we legislated for, and it was decided that it was not the right time to proceed with those proposals. However, I can tell the noble Lord that Sir Andrew Dilnot continues to be involved in the policy-making process, as does Dame Kate Barker, who chaired another review. We want to ensure that we can draw on their expertise as we put our ideas forward.
My Lords, are my ears deceiving me, or did the Minister talk about a sustainable social care system in England? If so, he ought to talk to some people who are seeking social care at the moment, because they and their families think the current system is not sustainable.
My Lords, am I the only Member of your Lordships’ House who is not just frustrated but deeply angry that the Government, with all their warm words, consultations, Green Papers and the rest, will not grasp the nettle and recognise that we have to pay for proper elderly care? That will require taxation and taxpayers’ money to be invested in providing respite and a decent future for people who are living in miserable conditions with families stressed beyond belief. The Government ought to get on with it.
I agree with the noble Lord that we need to get on with it and to decide what is the fair burden of “who pays?”. I remind the noble Lord that for many years he served a Government who had umpteen reviews, Green Papers and royal commissions, and did not act. We are trying to grasp the nettle that his Government avoided.
Official Development Assistance
To ask Her Majesty’s Government, further to their response to the report by the House of Commons International Development Committee, Definition and Administration of the ODA, (HC 1556) published on 13 September, what steps the departments which administer official development assistance will take to address the concerns raised by the committee.
My Lords, the Government welcome the committee’s report. We agree and partially agree with many of its recommendations and are committed to maximising impact from the aid budget. External scrutiny helps improve how we spend aid. Several across-government oversight mechanisms exist, and departments are committed to improving transparency and raising the quality and coherence of UK aid.
I thank the Minister for his response, and if he were the Secretary of State, I would have great confidence in what he said, but he is not. What we have—I make no apology for raising this again—is a Secretary of State who does not appear to be so committed. Of course, the committee recommended that we continue with the internationally accepted definition of ODA through the DAC mechanism. In their response to the committee, the Government say, “Yes, we agree. We will continue to work on a consensus basis”—yet they add a “but”—“but only if the DAC agrees with our modernisation of ODA”. Surely that sends the wrong message. Does the noble Lord agree that we should be sticking with what the IDC says, and to the definition of ODA which is internationally accepted?
We of course achieved the 0.7% commitment, which was reiterated by the Secretary of State. As a former aid worker herself, she is absolutely committed to this, but absolutely committed to ensuring that we also get value for money. There is so much need in our world that we cannot afford to waste one penny of the amount available. It is also true to say that the rules which govern what is scored as development assistance are set by the OECD committee, which works on a consensus basis. Consistently, many members raise issues about what they would like improved in terms of the definition. We raised vigorously last year the response to the hurricanes in the Caribbean, and we continue to do that. We will continue to work for reform, but we are absolutely committed to improving value for money, and to the 0.7%, which is a matter of law. It was mentioned in the manifesto; the Prime Minister signed up to it; and the Secretary of State signed up to it.
My Lords, does the Minister agree with the committee’s recommendation on the middle-income countries, and whether they should be eligible for ODA? Are the Government reconsidering those middle-income countries—in particular, India, which has a substantial minority of poor?
It does indeed. Of the 750 million people in extreme poverty today in the world, 215 million —the greatest proportion—are found in India as a middle-income country. It is right that we work with countries across a range of issues to ensure that we tackle poverty. Of course, one of the DAC elements that we commit to and achieve—as well as being one of the few to achieve the 0.7% target—is the target to spend 0.15% to 0.2% in least developed countries. Again, that is a record of which we should all be proud.
My Lords, the Department for International Development is, quite rightly, respected and admired for its work throughout the world—both developing and developed—and most especially for its humanitarian work. Will my noble friend update the House on what is happening to the Rohingya refugees, many of whom have had to leave their homes and are currently ending up in Bangladesh?
I am grateful for the opportunity to do that. My noble friend Lord Ahmad and I had the opportunity to brief interested Peers on the situation there. How we operate there demonstrates what is great about this country. Not only are we at the forefront in delivering aid in cash terms—at £129 million, one of the largest commitments of any country—but we are also leading the charge with our diplomatic and security efforts at the UN Security Council and the UN Human Rights Commission. It is that spectrum of reach which makes our aid so effective.
That is very true. Because of population growth, Africa needs an extra 18 million jobs a year just to stand still. We have been at the forefront of the work of the UN Population Fund to ensure that women have access to safe methods of family planning and contraception. This work is much respected and will continue to play a major part in our aid programme.
My Lords, financial flows to developing countries, other than ODA, have increased over the last few decades. Does the Minister agree that, while these very welcome developments improve the financial landscape in which ODA operates, they make it even more important that ODA, which focuses resources relentlessly on the poorest in the world, is not undermined or redefined unilaterally by the Secretary of State for International Development?
I think I covered that. It is not undermined in any way. This Government’s record has shown the importance which we place on it. Looking at just one critical statistic, the cost of filling the gap to achieve the sustainable development goals—which the noble Baroness and I have often debated and totally support— is $2.4 trillion per year. Total global aid flows are $150 billion. We have to find ways for the money which we give through development assistance to be increasingly catalytic of further private sector investment which can help us bridge that gap and fulfil our commitment to the world’s poor.
Private Rented Sector Licensing Schemes
My Lords, on 1 October, new regulations that extend the mandatory licensing requirements for houses in multiple occupation came into force. We published guidance for local authorities in June and held a series of events with them through the summer. Licensing of HMOs is self-funding, as councils can charge fees for licences to cover their costs. In addition, since April 2017, local authorities have had powers to retain income received through civil penalties and rent repayment orders.
My Lords, in April the HCLG Select Committee described the current process of application to the Secretary of State to operate a private sector licensing scheme as “not fit for purpose”. It said:
“Decision-making is too slow, lacks transparency, and is overly bureaucratic”.
When are the Government going to remove the 20% cap, return to local authorities the powers that were taken away in 2015 and allow locally elected politicians, who have a far greater understanding of local needs and are directly accountable for their decisions, to decide these matters?
My Lords, the noble Lord will be aware that the great mass of selective licensing schemes do not involve that 20%—it is about eight of just shy of 60. The 20% is there for a reason. On one occasion, in the case of Redbridge, we turned the application down because the proper consultation process was not followed. The application has since been resubmitted and we have approved it. It is there for a good reason and that is the only case we have ever turned down.
Is my noble friend aware that there will be many in your Lordships’ House who remember the name of Rachman? Rogue landlords of his type have reappeared, particularly in our major cities. While my noble friend has put forward proposals that have some merit, I honestly do not think that they go anywhere near far enough to tackle these strong rogue landlords. I do not need to spell out to my noble friend what is happening on the ground. Will he have another look at how we are going to handle the modern Rachman?
My Lords, my noble friend is right that there is an issue, but it is partly addressed through selective licensing and through mandatory licensing, which, as I said, we extended on 1 October this year. There are other powers, such as the rogue landlords register, which, as I said previously, we hope to extend so that it is open to members of the public as well. We are taking action, but I do not want to belittle the problem that my noble friend rightly refers to.
My Lords, the scheme operated in the London Borough of Newham is very effective, as many of them are. We have studied it closely and give support to it. As I said, we are certainly not against selective licensing—we very much approve of it being used. It can be used under the 20% threshold by local authorities just proceeding with it. Where there is the 20% threshold, we will scrutinise the scheme to ensure that there has been a proper process and consultation. From memory, I think that Newham is below the 20% threshold, but it is a very good scheme.
My Lords, there is now clear evidence that licensing works. It gives councils better data on where these landlords and tenants are, more funding to do the job and additional powers. What we cannot accept is that the Government have chosen to take away those powers. Why deprive councils of the tools to do the job, given that, as has been said, the problem is growing and the sector is growing?
My Lords, first of all, there are two systems: the mandatory licensing system, which we extended on 1 October, and the selective system. Here, I want to correct myself: Newham is above the 20% threshold, and the scheme works very well. We are seeking to work with boroughs. A review on selective licensing is being conducted; its first meeting has just happened and it will report by May next year. We hope to learn lessons from that review and take it forward according to those lessons. However, I do not want to pre-empt that—the work has just started.
My Lords, I declare my interest in this matter as listed in the register. In view of the Minister’s encouraging remarks, why have so many of his Answers to my Written Questions said that he is not willing to do anything at all or allow the boroughs to do anything? I welcome the change of tone, but I hope that he will follow through on it. I also strongly support the idea of a simple system of appeal where people can sort out their problems in the way that they could under the leasehold valuation tribunal. There is no alternative to that now, except court.
My Lords, unless I am mistaken, my noble friend is referring to a specific issue that relates to the Short Term Accommodation Association, as in her Written Questions. The Government certainly have not changed their position on that. We are working with the Short Term Accommodation Association to seek to provide answers to any problems that exist and I am confident that it is addressing those issues.
My Lords, the noble Lord brings forward a point that no doubt the selective licensing review committee, which has just started its work, will want to address. Selective licensing schemes can look at six different areas of activity, including where there are poor conditions or challenges due to deprivation in the borough, and that is what Newham is doing. The review committee will look at and report on these matters. The Government will of course want to study that in detail and share it with Members of the House and the other place to consider the best way forward.
Further Education: Teachers’ Pay
My Lords, all teachers are equally important to us. However, further education providers, including sixth-form colleges, are private sector institutions, independent of government. It is for individual FE employers to agree local pay structures, with unions, based on local needs. We are currently considering the efficiency and resilience of the FE sector, and assessing how far existing funding and regulatory structures meet the costs of delivering quality further education, ahead of the spending review.
But, my Lords, the Government do have an input into this. This is Colleges Week and we should acknowledge the part which further education colleges play in education and English education, with apprenticeships, with further technical and academic qualifications, and with adult learning. They have been lumbered with the wretched GCSE and maths resits, which really are an abomination that the Government need to reconsider. Can the Minister say why, in the last 10 years, college funding has been cut by around 30% and the value of staff pay has fallen by 25%? Why has the recently ring-fenced teachers’ pay grant for schools not been extended to FE colleges? The Government after all do have a part to play in this.
My Lords, to reiterate our acknowledgment of the great role FE colleges play, more than eight out of 10 are judged “good” or “outstanding” by Ofsted and, in the most recent data, 58% of pupils leaving go on to jobs and 22% go on into further learning. We absolutely recognise that. There are a couple of figures that might interest the noble Baroness. According to the ONS earnings data—which is, of course, only a survey—when accounting for inflation, FE teacher pay in England has remained stable since 2013. The other point—to pull on some of the broader strands that the noble Baroness mentioned—is that, by 2020, funding available to support adult FE participation, including the adult education budget, the 19-plus apprenticeship funding and advanced learner loans, is planned to be higher than at any time in our recent history.
My Lords, if FE colleges are doing such a good job—the Minister says that eight out of 10 of them are of high quality—why is it that Conservative Governments always fail to resource them adequately? Could he tell the House how he thinks the Government’s industrial strategy, which is dependent on a more skilled workforce, can be implemented while FE colleges are being decimated and their staff are leaving in droves?
My Lords, we have given a number of different strands of support to the sector. We have a strategic college improvement fund to help colleges improve and build partnership capacity. We launched National Leaders of Further Education in October last year, empowering the best principals and senior leaders across FE to spread their expert knowledge. We have also created an FE strategic leadership programme, run by the Education and Training Foundation, a sector-owned body responsible for professional standards in the sector.
My Lords, can we also include the Workers’ Educational Association in this discussion? It is doing profoundly interesting work in getting people out of long-term unemployment and into work and education. We would like to know what the Government’s plans are to support the Workers’ Educational Association because of the work that it does.
The Government are always, quite rightly, banging on about the importance of skills and skills training. We have heard from my noble friend that there has been a 30% cut in the FE budget and, in adult education, there has been a 61% cut. How on earth will we attract staff to develop the teaching to develop those skills? He mentioned—I was quite surprised about this—that the Government are looking at this sector. When can we expect to hear about this assessment of the sector?
My Lords, we have reformed the high-needs funding and disadvantaged funding in this sector and we are now putting in some £520 million for disadvantaged students. As I mentioned earlier, we have the strand of support that I have already discussed. If we look at apprenticeships on their own, for example, we see that we have nearly doubled the amount of money going into apprenticeships since 2010. By 2020, it will be £2.45 billion, which is double the amount in 2010. The other thing we have done to try to support the sector is offer sixth-form colleges, where appropriate, the opportunity to academise, which gives them a VAT-recovery opportunity. So we are looking all the time at how we can support this important sector.
My Lords, the Minister beggars belief when he says in response to my noble friend Lady Blackstone that various strands of additional funding have gone into further education colleges. The Institute for Fiscal Studies reported recently that funding per student in sixth-form colleges and further education colleges has fallen by 20% since 2010. How can the average funding per student in those sectors be £4,000, compared to more than double that for universities with their tuition fees? In Colleges Week, which the noble Baroness, Lady Garden, mentioned, is there any possibility of the Minister saying that the Government will properly fund the new cost pressures on further education colleges of pay and pensions increases to ensure that an age group essential to filling the skills gaps in the economy in future years will not be further disadvantaged?
My Lords, we have already committed to holding baseline funding per pupil until the next spending review in 2020, and I can offer a couple more examples of where we are supporting the sector. We have the exceptional financial support scheme, the area reviews and the restructuring facility, with a fund of some £700 million that has been made available and is being drawn down upon to assist colleges in rationalising and improving—so I reiterate our strong support for this sector.
My Lords, listening to questions from noble Lords to the Minister this afternoon makes me recall the report of the ad hoc Committee on Social Mobility on the transfer from school to work, which I had the privilege to chair. Every single point raised by noble Lords this afternoon was raised in our report. What is the point of us having committees if the Government do not take any notice?
Syria-Jordan Border: Rukban Camp
Private Notice Question
My Lords, the conflict in Syria has resulted in the worst humanitarian catastrophe of this century so far. We remain immensely concerned by the ongoing situation at the Rukban camp in southern Syria. It is just another example of the Assad regime’s systematic and blatant disregard for international humanitarian and human rights law and for the well-being of its people.
The UK has been a leading voice among donors on this issue and we continue to raise it with the UN on a regular basis. In particular, we continue to lobby all parties for full humanitarian access to the camp to enable regular aid deliveries to take place. As a result of this lobbying, we understand that a humanitarian convoy from Damascus to Rukban later this month has now been approved. We call on all parties to ensure that this takes place to provide the assistance that these people so desperately need.
My Lords, I thank the Minister for his reply. Can he confirm that most of the people in this camp have come from Raqqa and can he say whether there is a possibility that they could begin to return home safely? However, in the present crisis of virtual siege, will the Government co-ordinate with Jordan and the United States forces so that people can have access to food and perhaps water to prevent further deaths immediately and not in two or three weeks’ time?
The situation is extremely serious. The information that I have is that we have not been able to identify the cities of origin of the people who are trapped there. However, we know from reports that almost 80% of them are women and children, which heightens the concern about their safety and safeguarding. We believe that our focus for attention in this area should be the Assad regime and Russia to ensure that access is made available. The fact that there is now a commitment that there will be an entry point on 24 October is progress in the right direction, but we believe that this offer of access should have come much earlier.
As to the situation of the United States, it stated as early as April this year that it would not block access. The situation in Jordan is more complex and we continue to make representations to both Amman and Damascus for access to these people, who the noble Lord rightly identifies as being in acute and urgent need.
As the Minister rightly says, access is the critical issue, with 60,000 people, many of them children, dying as a consequence of this situation. UNICEF issued a statement calling upon both the Syrian regime and Jordan to give access. Can the Minister tell us a little more about how we are approaching the Jordanians to ensure that we can get humanitarian access and aid workers can get in to offer proper support?
Those representations are ongoing through diplomatic channels and through the Syria support group process in Geneva. It has met and, in many ways, the response to and the access of the aid convoy were driven through that process. We are supporting the activities of a key actor in this area, the UN special envoy, Staffan de Mistura. I understand that he is due to give a report on potential solutions to the UN Security Council tomorrow. That has not been confirmed but I understand it to be the case.
Can my noble friend clarify what the role of the ICRC is in this situation? In the difficulties over the war in Sri Lanka, when the UN withdrew at a certain point from supplying food and medicines and so on, the ICRC continued to provide supplies of food and medicines which, in the end, proved to be adequate. Can he tell me whether or not the ICRC is deeply involved in this case?
The ICRC is always involved—it has a particular place in international humanitarian law and a responsibility to deliver assistance, so it is there. However, the problems and the challenges are not so much at the level of UNICEF or the ICRC but are more related to a political will to honour the humanitarian commitments which were given in UN Security Council Resolution 2393.
It is reported that the Syrians and Russians are blocking aid from getting into this camp. What assessment have the Government made of the apparent plans of the Syrians and the Russians to transfer these IDPs from this camp? What inherent risks do they see?
The plan has been put forward and we are familiar with it. It contains some challenges and we are still working through the detail. The UN has expressed some concerns about it. The briefing and support for the leadership of Staffan de Mistura and his reporting back to the UN Secretary-General and the Security Council within the next day or two will be crucial in determining what shape the response to that proposal takes.
My Lords, I am sure the Minister believes that Assad will, within the next 12 months, effectively gain control of Syria, with the help of the Russians. He might be a loathsome man—indeed, he is a loathsome man when one looks at what has happened—but the only way to help the poor, benighted people in that country is, surely, for us to have proper links with him and work to the future to look after them? Certainly the end of the civil war is one of the best things possible for the people of Syria because while it continues there will be more deaths and more refugees, and so it goes on.
We are certainly supportive of the fact that the only real solution is for there to be a lasting political discussion. That is why we are putting so much energy into the Syria support group process in Geneva and at the UN. I accept that. There is a particular challenge faced by the effects of Daesh and it was right that the UK played its role as part of the international coalition seeking to drive it out of its bases in Syria.
My Lords, will my noble friend not reflect on what the noble Lord, Lord West, just said? Time and again in this House, some of us have urged on Ministers the need for a diplomatic presence in Syria. It is completely wrong for us not to have that. We decided not to interfere in the civil war at the beginning but nevertheless derecognise the regime, thus reducing any influence that we might have had. Can we now try to regain some of that influence?
I am afraid that I do not have what my noble friend would regard as a satisfactory answer on the latest situation in these matters. For some time now, diplomatic representations have been based in Beirut rather than Damascus, the status of which is of course dependent on future negotiations through the UN Security Council and discussions with our colleagues in government.
My Lords, the Minister rightly said that Syria’s humanitarian situation is the disaster of the century. Why on earth do fair-minded states—one thinks of those in the West in particular—not do more to prevent such catastrophes occurring in the first place, whether in Yemen, Burundi, DRC or countless other places?
I agree with the noble Viscount. The international community has done something extremely good in building a first-class A&E department where we provide humanitarian access to patch up the wounded and the sick from conflicts around the world. At some point, we need to start devoting more energy, effort and cash to preventive work to stop conflicts breaking out in the first place. Once they break out, of course, it is incredibly difficult to do anything to meet the humanitarian needs of the people.
Following up on the points made by my noble friend Lord Cormack and the noble Lord, Lord West, we can be proud in this country of the humanitarian effort that we put into the Middle East. However, is it not a fact that we got the fundamentals of the policies we pursued in Syria—indeed, ever since Iraq, in Afghanistan and Libya too—wrong? To avoid these catastrophes in future, is it not time to go back, reflect on where we got things wrong in our foreign policy over the past 20 years and see if there is a better way of pursuing things?
That would be a worthy topic for a short debate, or even a long one, in your Lordships’ House. These are major issues. The ultimate urgency at present is to stop the fighting and conflict and have a pause, a ceasefire, to allow humanitarian access and a breathing space so that the nascent process beginning in Geneva can take root in Syria and work towards a lasting political solution.
Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]
Clause 3: Authorised court and tribunal staff: legal advice and judicial functions
1: Clause 3, page 3, line 24, leave out subsection (3) and insert—
“( ) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
My Lords, I believe we have some settled agreement in your Lordships’ House on the constitutional system we serve, which is still much admired around the world. In that system, notwithstanding the peculiarities of your Lordships’ revising House, accountable primary legislators make our laws and independent judges apply them.
I fear that we have been lulled into a false sense of security on this so-called mouse of a Bill. We have been encouraged to wave it through your Lordships’ House without much of a squeak, but I fear none the less that it breaches the crucial distinction I just attempted to set out. It attempts to sneak through principal changes that, in my view, constitute a double delegation of legislative powers to unaccountable judges by way of the procedure rule committee—and ultimately not even to judges because in my experience, government lawyers will draft those rules, which will pass on the rule committee without much by way of amendment.
Secondly, judicial powers are to be delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges. That would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial staff, to employees of Her Majesty’s Courts and Tribunals Service. It is vital that Clause 3, which delegates judicial functions to authorised staff, is understood in the context of a much wider court reform agenda, and the significant austerity measures—because austerity is not quite over yet—that sit behind this.
Efficiencies generated by the proposed reforms will arise not only through the reduction of the court estate but through savings on judicial salaries. The Government’s Queen’s Speech promised a programme of reforms that would transform the way the United Kingdom justice system operates. Unlike last year’s Prisons and Courts Bill, which dealt with these proposed reforms head on, the courts and tribunals Bill is the beginning of a slower legislative drip-feed process. There has been no adequate parliamentary scrutiny of this broad programme of expensive modernising measures—even by the Justice Committee—nor indeed of the associated court closures and staff cuts.
The Bill currently provides that regulations under Clause 3 shall be made under a negative resolution procedure. This would allow for new rules of court stipulating which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience to take on those judicial functions. As the Bill stands, this delegation will come into force without any real parliamentary scrutiny. By providing that the regulations in the Bill be made under the negative resolution procedure, the Government are once again seeking to avoid proper scrutiny by democratically mandated legislatures, principally the other place. This amendment, supported by the Bar Council, attempts to ensure more constitutionally appropriate accountability and scrutiny, through at least the affirmative resolution procedure, of the potentially sweeping regulations to be made under Clause 3. Those regulations concern powers to make rules stipulating which judicial functions may be delegated and to whom, alongside appropriate stipulations regarding the qualifications or experience required before this member of the administration—potentially quite a junior member of Whitehall staff—be given these judicial functions.
As the noble Lord, Lord Pannick, who I see in his place, pointed out in Committee:
“The power which the Secretary of State or Lord Chancellor is being given”,
under the clause,
“includes a power to make ‘consequential provision’”.—[Official Report, 10/7/18; col. 878.]
Despite the Government’s promise to give further consideration to the issue during the previous debate, they seem to have offered only the assurance that the power will be limited to changes to statutory instruments. If that is the assurance, why should it not appear in the primary legislation? As a legislator, that seems an assurance worth having.
At Second Reading, the Minister said in response to concerns expressed about the lack of consultation and scrutiny of this ambitious reform programme that,
“the purpose of primary legislation is to implement law, not to review that which we can already do”.—[Official Report, 20/6/18; col. 2053.]
I once more respectfully disagree with that constitutional analysis, for to my mind the role of the legislative process is most certainly in part to review government policy and to restrain executive action, particularly when that policy has the potential—just the potential—profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, the Government’s drip-feed might erode some of our most fundamental institutions and our understanding of the rule of law. The safeguards that we are calling for on the powers created by this Bill are not unreasonable, or seeking to wreck the fundamental notion of reasonable delegation of non-contentious administrative functions. They are minimal if we consider that provisions in this so-called uncontroversial Bill have the potential profoundly to impact on our justice system. The relatively unrestrained double delegation of legislative and judicial powers that the Bill encourages is a slippery constitutional slope that we can, and ought to, resist.
My Lords, since Committee on 10 July there have been meetings and extensive correspondence with the noble and learned Lord’s department. The question arises on this amendment as to what is the ambit of the power. If it were as described by the noble Baroness, Lady Chakrabarti, one would have considerable sympathy with the amendment—indeed, I do have sympathy with it, but it needs a little more analysis.
When serving on the Delegated Powers and Regulatory Reform Committee, as I did for some years, we were astute always in not ruling out a negative resolution procedure in cases where the power was strictly limited, but insisting on an affirmative resolution where it was not. In the analysis that we have conducted I have been very grateful to the Bill team, and in particular to the Bill manager, Dominic Smales, for the careful and thorough way in which he in particular responded to my persistent and probably rather troubling questioning. What has concerned me is Clause 3(1), to which the noble Baroness referred, which states:
“The Schedule provides for authorised court and tribunal staff”—
it is subsection (b) that worries me—
“to exercise judicial functions where procedure rules so provide”.
“where procedure rules so provide”,
Then Clause 3(2) provides the Lord Chancellor with the power to make regulations,
“in relation to the Schedule”,
and the power is limited to,
“consequential, transitional, transitory or saving provision”.
It was the word “consequential” that provoked some criticism from the noble Lord, Lord Pannick, in Committee.
In the context of the Schedule, I was not sure how limited the power is, and was concerned that the proposed power will be subject to the negative resolution procedure only—hence my question. My concern arose particularly out of the width and ambit of new Section 67B(1) of the Courts Act, on page 10 of the Bill, which will give the power to make rules of court to the relevant rules committee. That is important because the Government’s response to my concern has been that rules of court, which they point out are subject to the negative procedure only, cannot be used to make additional changes to the Schedule, and it is to change the Schedule that this power is directed.
The Government therefore say that the supplementary power under Clause 3(2), which is described by them as “narrow”, cannot be used to make substantive changes to judicial functions delegated by the Schedule because such changes would be substantive and therefore not within the definition of,
“consequential, transitional, transitory or saving provisions”.
The Government say that the power is needed only to make very limited changes to other secondary legislation. They make the point—and I am not sure the noble Baroness grappled with this in her speech—that there is no provision for the amendment of primary legislation by regulations, which there would need to be if it were to have that effect.
There is also no power to make supplementary or incidental provision by regulations. The Government cite as an example of the power granted by this clause the power to make consequential provision such as the amendment of references in secondary legislation from “justices’ clerk” to “member of authorised staff”. If they are right that that is the kind of provision with which we are concerned, I do not suppose that anybody would press for the affirmative resolution.
I have set all this out in some detail because my concerns have been allayed by the Government’s explanations—if they are right—and for that reason, provided that the noble and learned Lord confirms the explanations that we have been given, I shall abstain on this amendment should it be put to the vote. So I would be grateful if the noble and learned Lord would, in addressing this amendment, confirm my understanding of the ambit of the proposed power—in particular the power to amend primary legislation—and deal with the Government’s intention for its exercise.
My Lords, it is very geeky to wonder whether secondary legislation amending a schedule should be affirmative or negative. It is rather like a storm in an egg-cup. But there is rather an important issue here. If I may for present purposes adopt what my noble and learned friend has recently said rather than repeat it, the issue that troubles me about this is in the Schedule itself. It makes very clear provision for the Lord Chief Justice to have various responsibilities. He may authorise a person to do this; he may do that; he may nominate the other, and so on. The whole Schedule contains a series of powers and responsibilities vested in the Lord Chief Justice.
The Schedule also includes a number of provisions which expressly say that the Lord Chancellor may not interfere in the exercise of these powers, for which, on page 11, new Section 67C provides a perfect example. I shall not burden the House by going through all the provisions. My concern is that it is not at all clear from the Bill that the Lord Chief Justice is to be consulted, let alone asked for his concurrence, with any of these proposed changes—and the proposed changes relate to issues over which the Lord Chancellor now has no statutory authority.
Since the changes—I shall use the word advisedly—in 2003, 2004 and 2005, the Lord Chancellor has ceased to be head of the judiciary. He no longer has any of the functions that former Lord Chancellors used to have. All those responsibilities are vested in the current Lord Chief Justice and, in relation to tribunals, the Senior President of Tribunals. Suddenly, there is a clear danger that, by exercising the powers given in Clause 3(3), the Lord Chancellor may seek at some stage in the future to transfer back to the Lord Chancellor powers that have been vested in the Lord Chief Justice.
My Lords, we are dealing here with a very sensitive subject: that of authorising court and tribunal staff to exercise judicial functions. The noble Lord, Lord Marks, emphasised that the question may well be the scope of the Clause 3(2) power to make consequential provision. I am still puzzled as to why the Minister says that it is a power only to amend subordinate legislation, because that is not what it says. It states:
“The Secretary of State or Lord Chancellor may, by regulations made by statutory instrument, make consequential … provision”—
that is the part that concerns me—
“in relation to the Schedule”.
I understand the Minister seeking to reassure the House, as he sought to reassure the Committee, that the power may be validly used only to amend subordinate legislation, but I would welcome an explanation as to why that is so.
My Lords, I am obliged for all the contributions that have been made with regard to this matter. Your Lordships will be aware that the power in Clause 3 allows the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to certain provisions for staff by way of regulations.
I say immediately that I am most obliged to the noble Lord, Lord Marks, because it would appear that we are being briefed by the same Bill team. That is hardly a surprise, but I am in a position to say that he has eloquently and clearly expounded the rationale for these provisions being in the Bill. I accept his point about how they are intended to operate as set out between Clause 3 and the schedule.
The power that we are talking about is constructed narrowly, both in regard to the nature of the amendments that it provides for and being in respect only of secondary, rather than primary, legislation. However, there seems to be some confusion about the extent of the provision. Perhaps noble Lords will allow me briefly to explain the interaction between the substantive power in paragraph 32 of the schedule and the consequential power in Clause 3(2).
The key substantive power in paragraph 32 is that the rules of court may provide for the exercise of judicial functions by authorised court and tribunal staff. It will therefore be the procedure rules that set out the details of which functions authorised staff may exercise, the qualifications and experience that they may require and any specific right of reconsideration should the relevant rule committee consider that one is needed. Rules are made by independent committees to govern procedure within courts and tribunals. All rules are made by statutory instrument subject to negative resolution in Parliament.
However, the procedure rules cannot be used to make all the necessary amendments to other secondary legislation, such as consequential changes to remove references within existing secondary legislation—I take as an example those to “justices’ clerks”, which will become redundant once these provisions are in force. For that, we will use regulations under Clause 3(2), which will in turn be subject to the negative resolution procedure. We could not use this consequential power to make substantive provision in relation to judicial functions.
Further, I refer to the width of the provision itself. The concept of an amendment that is consequential, transitional, transitory or saving is well understood, with many precedents. I should note that these terms are construed strictly by the courts. The power in Clause 3 is a narrow power so, although the rules may provide for a wide variety of functions to be exercised by authorised staff, it does not follow that the consequential power has wide application. In our case, this power is needed principally, as I say, to amend references in secondary legislation from, for example, “justices’ clerk” to “authorised officer”. So far, I think that we have identified about 200 references in over 60 pieces of secondary legislation that would need amendment; there may be more.
I come to the point raised by the noble Lord, Lord Pannick, as to which legislation may be amended. It is normal practice in legislation to say expressly when a power is to be used to amend primary legislation. The Government have no intention of using this power to amend primary legislation, so there is no express provision for such amendments in Clause 3. We have identified consequential amendments to primary legislation for these provisions, which are provided for in the schedule. We do not need, or seek, any further power to amend primary legislation in the Bill.
In drafting the Bill, we thought carefully about the extent of the power in Clause 3(2). The Prisons and Courts Bill, from which the clauses originated, included powers to make consequential provision and for such powers to be able to be used to amend primary as well as secondary legislation. As we have now identified the consequential changes needed, as I say, we do not intend to make any further changes to primary legislation. In drafting Clause 3, there was therefore no inclusion of the express provision to make such changes to primary legislation.
I am happy to give noble Lords an undertaking in Hansard that the power in the Bill will not be used to amend primary legislation. If a future Government attempted to do so, I would expect the Joint Committee on Statutory Instruments to bring this to the attention of Members of both Houses. I am content to give that undertaking without qualification, for the purposes of Hansard.
Can the noble and learned Lord not merely give the House an assurance that the Government do not intend to use the power to amend primary legislation but also tell the House that the Government’s intention and understanding is that the scope of this power in Clause 3 is such that it could not validly be used for that purpose?
I endeavoured to set that point out in my previous observations, but I am happy to repeat them. If the Government’s intention had been to seek the power to amend primary legislation then, in accordance with precedent and court decisions on interpretation, they would have included the express power to do so in Clause 3, as they did in the Prisons and Courts Bill. There is no intention of doing that and they have not included that power. I do not consider that such a power is available to the Government, in light of the way in which Clause 3 is carefully framed, so I have no difficulty with that.
The provisions that we have now made within the Bill for dealing with this by way of the negative procedure found approval with the Delegated Powers and Regulatory Reform Committee, which is of course charged with reporting on such provisions. It noted in its 29th report that there was nothing in the Bill to which it wished to draw the attention of the House. I am aware that in the past the Magistrates’ Association raised a point similar to that raised by the noble Baroness, Lady Chakrabarti, but I understand that once we—by which I mean the Bill managers—had explained the position, as they did to the noble Lord, Lord Marks, it withdrew its concerns because it appreciated the narrow scope of this provision. With that explanation, I hope that the noble Baroness will see fit to withdraw the amendment.
I am grateful to the Minister for his answer and to other noble Lords for their interventions, particularly the comments of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. I set out my broad concerns about the Bill, but I want to be distinct about this amendment in particular. I think that it was worth asking the Minister to set out in some detail not only the Government’s intentions in relation to this power but their view of the power, what they are able and not able to do and the fact that they are not able under this power to amend primary legislation. With that firm statement of belief on the law around this power and the intention, I am grateful to the Minister and happy to beg leave to withdraw the amendment.
Amendment 1 withdrawn.
2: After Clause 3, insert the following new Clause—
“Review of the delegation of legal advice and judicial functions to authorised staff
(1) Within the period of three years from the coming into force of this Act, the Lord Chancellor must arrange for a review to be undertaken on the impact of the implementation of the provisions contained within section 3 and the Schedule to this Act.(2) A report setting out the findings of the review must be laid before both Houses of Parliament.”
My Lords, this amendment would ensure that within three years of the coming into force of the Act the Lord Chancellor must arrange for a review of the impact of the implementation of its provisions, including provisions within what would by then be Section 3 and the Schedule. The report would have to be laid before both Houses of Parliament. We should bear in mind the potential perils of justice reforms without sufficient research, consultation and subsequent evaluation.
I hope noble Lords will forgive me reminding your Lordships’ House of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Public Accounts Committee made clear that, in bringing forward that legislation, the Ministry of Justice had not properly assessed the full impact of those reforms. That impact has proved devasting for some of the most vulnerable in our society who, as a result of that reform and those cuts, have almost been shut out altogether from the legal aid system of which we were once so very proud.
We are still awaiting the much-anticipated review of the operation of LASPO required after three to five years of implementation in 2013. The hope for the many thousands of people who have been locked out of our justice system due to the withdrawal of legal aid is that a sober assessment of LASPO might precipitate reform and recognition of the need to reverse some of the more destructive elements of that legislation. The Bach commission report—conducted by my noble friend Lord Bach—made many recommendations for reform, but we continue to wait for the Government to deliver on that statutory obligation to review and report.
The fact that the LASPO review has been delayed makes such mechanisms no less vital. For the same reasons of accountability and adequate evaluation of reform, we are seeking to ensure that this Government are obliged to assess and report on the impact of the reforms to our court system proposed by the Bill. The Bar Council has also expressed support for this amendment. I beg to move.
My Lords, this amendment would require the Lord Chancellor to arrange a review of the impact of the authorised staff provisions within a period of three years of the Act coming into force. As the impact assessment for these measures states, we will work closely with the rule committees and the senior judiciary to monitor the impact of any future assignment of functions and responsibilities to authorised staff. HM Courts & Tribunals Service is also committed to evaluating and testing the impacts of the reforms to courts and tribunals.
As noble Lords will be aware, the majority of the authorised staff provisions in the Bill are not new. Within the civil and tribunals jurisdictions, and in the magistrates’ courts and family court, staff can already be authorised to undertake a variety of judicial case management responsibilities. The exercise of judicial functions by staff is already kept under review. For example, earlier this year HMCTS conducted a review of the work of tribunal caseworkers two years after the role was created. We would expect the rule committees and the senior judiciary to continue to keep these provisions under review across the jurisdictions as they feel necessary, drawing on their relevant expertise to do so. We would expect the rule committee meeting minutes where authorised staff are discussed to be published where it is in the public interest to do so.
Where we are extending these provisions to a new jurisdiction—namely, the Crown Court—we expect the Criminal Procedure Rules Committee to conduct a review along the lines of those undertaken in other jurisdictions. It is right that the committee conducts the review; it is independent of government and its membership includes judges, lawyers who practise regularly in criminal courts and representatives of voluntary organisations with a direct interest in the work of the criminal courts. It is therefore very well placed.
The noble Baroness, Lady Chakrabarti, asked for more information about recent reforms. We are already committed to evaluating and testing the impact of our wider package of reforms to the courts and tribunals system. That evaluation will be published in due course.
The amendment is at best an unnecessary duplication of effort and resources. I hope I have been able to provide the noble Baroness with the appropriate assurance that the authorised staff provisions will continue to be kept under review in all jurisdictions. I trust that she will now feel able to withdraw her amendment.
I am grateful to the Minister for that. I am grateful that there is a continuing commitment to evaluate such reforms in future, notwithstanding the lack of evaluation of LASPO to date. Once more I feel that the fact that she has made that commitment in your Lordships’ House should give me and others some assurance, and we must make sure that we follow up on that assurance in due course. With that in mind, I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Schedule: Authorised court and tribunal staff: legal advice and judicial functions
3: The Schedule, page 6, line 36, at end insert—
“( ) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”
My Lords, I shall also speak to Amendments 4 and 6, which are consequential. These amendments in aggregate stipulate that authorised persons must have the following bare minimum legal qualifications: that they be a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, as recommended and drafted by the Law Society and supported by the Bar Council. This is a very minimal ask of the Government in the circumstances. It is a lower qualification threshold than is currently required for pupil supervisors or for solicitors to supervise an office.
Authorised staff who are not subject to the training, experience, ethos and oaths of professional judges could be performing judicial functions and employed directly by HMCTS. Even the concept of such delegation, as I said earlier, raises questions of independence. There is legitimate concern that they would inevitably be subject to administrative pressures—for example, meeting targets in a very difficult fiscal climate—and potentially subject to political pressures as well. Without some reasonable limit on who can be authorised, this delegation has, as I said, the potential—perhaps just the potential, but the potential none the less—to change an essential aspect of our judicial system.
I acknowledge that the relevant procedure rules committee will set out procedural requirements about who is empowered to carry out those procedures, but, as we have heard, the committees are made up predominantly of senior judges. This marks a growing trend towards forcing a judiciary that is already bearing the brunt of cuts to the MoJ’s budget also to have to mark its own homework. This has implications for the rule of law and for the independence of judicial decision-making. We also argue that such a shift may well fall short of reasonable expectations held by members of the public about the level of experience and independence of those charged with making judicial decisions—not least about their fundamental rights.
The draft Authorised Court Staff Qualifications Regulations which have been offered in response to those concerns offer only that authorised persons are legally qualified solicitors or barristers. The Bill policy statement provided by the MoJ states:
“We do not expect legal qualifications to necessarily be required for all the different types of judicial functions that authorised staff will carry out”,
so that assurance does not go very far. The Opposition, along with key stakeholders—in this case, the Law Society and the Bar Council—are clear that further qualification is necessary for authorised persons adequately to take on judicial functions of whatever magnitude and that minimum requirements ought to be included in the Bill.
I note that the Minister previously pointed out that three years’ post-qualification experience sets the bar higher than that currently required of assistant justices’ clerks, who currently tend to legal advice within magistrates’ and family courts. However, assistant justices’ clerks are not currently performing judicial functions. If the object here is to provide uniformity to the practice of delegation across all courts and tribunals, surely we should set the bar at least three years PQE.
One has to ask whether the reluctance on the Government’s part to set minimum qualifications just a little higher than nowhere is not due to fiscal concerns about HMCTS staff salaries. Once again, the Government are asking the public—on this occasion, users of our courts and justice system—to bear the burden of austerity, which we have only just been told is over. I beg to move.
My Lords, the noble Baroness has opened our debate on the amendment with considerable eloquence and a beguiling argument. We have approached the question of whether an authorised member of staff needs to be a qualified lawyer of stipulated experience with an eye on what the extent of the delegated powers of authorised persons would be. In particular, the concern that I expressed in Committee was that the delegated powers should not extend to taking away a person’s liberty, or to ejecting a person from his or her family home, or the family from that home, or to granting an injunction or an order for preserving evidence, which can have far-reaching consequences, or authorise searches of private premises.
It seemed to us that only a judge should have the power to take those serious steps, with the consequences that follow in relation to individual rights and freedoms. If the powers were to extend to any of those areas, it was abundantly clear that only a qualified lawyer of substantial experience should be entitled to exercise them.
However, in Amendments 5 and 12 in the next group, in the Minister’s name, which are in terms that we have sought and which we will support, the delegated judicial functions are to be restricted so as to exclude the removal of a person’s liberty, the making of possession orders in respect of a person’s home or a family home, or injunctions or orders for preserving evidence. In those circumstances, and given those amendments, we are not persuaded that it is necessary for the authorised person exercising the remaining powers—some of which are trivial, some minor and some of more substance—to be a qualified lawyer or one of particular experience.
We have concluded that we are content to rely on rules of court and delegation by the Senior President of Tribunals to ensure that authorised persons have qualifications that are commensurate with the tasks they are to undertake under their delegated powers. As the noble and learned Lord, Lord Neuberger of Abbotsbury, said in Committee:
“There will be many decisions where people with … requisite experience would be appropriate, but there will be others where less experience would be adequate for the decision-making.—[Official Report, 10/7/18; col. 882.]
It seems to us relevant that the purpose of this part of the legislation is to increase efficiency and—hopefully, and to everybody’s advantage—the speed of decision-making within the court and tribunal systems, while making some cost savings in so doing. Having a legislative requirement that all delegated decisions must be taken by qualified lawyers with a minimum experience requirement runs the risk of frustrating this objective. In spite of the noble Baroness’s eloquence, we will be abstaining on this amendment if she puts it to the vote.
My Lords, I do not wish to be impertinent. This is my first intervention and exchange with the Government Front Bench on any legislation. My diffidence is reinforced by the fact that I was not a functioning Member of the House in the earlier stages of this Bill. I note what the noble Lord, Lord Marks, said in relation to the minimum qualifications required, and quite correctly, he points out in anticipation of what the Government seek in Amendment 5 what an authorised person may not do. It is probably my fault, but I am not entirely clear what an authorised person may do. Once one knows what an authorised person may do, it might be possible to reach an intelligent conclusion on what the proper level of qualifications should be.
My Lords, as has been said, the purpose of this part of the Bill is to introduce a degree of flexibility and take the pressure off serving judges who are under considerable pressure at the moment, as we all know. It is right and proper that the officers who are appointed to carry out these very low-level judicial functions—and the principle is accepted—should have appropriate qualifications. However, echoing what the noble Lord, Lord Marks, said, the qualifications will be determined either by regulations or rules set down by the rules committee, which have to be put before this House, and approved by the Lord Chief Justice. Given the large number of low-level decisions which will be involved in this case, rather than fettering either of those bodies by legislating on the sort of people who can do this job, why not leave it to the Lord Chief Justice and the rules committee or the regulations? Our minds in this House cannot cater for these circumstances because, as the noble Lord said, we do not know all the types of orders which these people might be expected to make. We will have the regulations and we will trust the Lord Chief Justice and the Senior President of Tribunals.
My Lords, I am all in favour of flexibility and entirely understand the argument, in relation to the exercise of judicial functions, that we should be careful not to prescribe conditions that are more appropriately left to the rules committee and the Lord Chief Justice. I have more difficulty with Amendment 3, which concerns the function of giving legal advice to judges. We are concerned here with paragraph 14 of the Schedule. As I understand it, Amendment 3 seeks to impose a minimum standard for those who perform the function of giving legal advice to judges. I have some difficulty in understanding how that function can appropriately be performed by someone who does not have at least the minimum qualification of three years’ experience post qualification as a solicitor, barrister, or chartered legal executive. Unless the Government are able to say that they envisage this function being performed by someone who does not have that minimum qualification, I see great force in Amendment 3.
Amendment 4 is slightly more difficult, as it is concerned with the same function—giving legal advice—but in relation to justices of the peace. It may be that that minimum standard is not appropriate to that function. I will listen carefully to what the Minister says about that. Amendment 6 is concerned with a different question: the function of actually performing relevant judicial functions, which the noble and learned Lord, Lord Neuberger, has spoken about. I am most troubled by the issue raised by Amendment 3.
My Lords, as a former judge of the family court, I wonder in what circumstances such judges—district judges, circuit judges or even possibly High Court judges—might need the advice of those who were not themselves qualified lawyers. I find that difficult. I see no difficulty with justices of the peace—that is perfectly obvious—but at the moment I cannot see how any family court judge, at any level, should be advised on legal issues by someone who is not legally qualified. I would be grateful to the noble and learned Lord for explaining what he sees this applying to, and in what circumstances.
My Lords, these amendments relate to two elements of the Bill. Amendments 3 and 4 require that any authorised person who gives legal advice to lay judges or judges of the family court must be legally qualified and have more than three years’ experience post-qualification. Amendment 6 makes the same requirement of staff carrying out judicial functions.
The qualifications for staff giving legal advice have been set out in regulations since 1979. They remain substantively the same today: broadly, one must be a barrister or solicitor or have passed the necessary exams to become one. The qualifications will continue to be set out in regulations and subject to parliamentary scrutiny. We are not proposing any changes to that process. Allowing qualifications to be set out in regulations has not resulted in a lowering or lessening of this bar. Amendments 3 and 4 would, however, raise it to a height that is unnecessary and could adversely impact on the diversity of legal experience in our courts.
In our draft regulations, which we published ahead of Committee stage, we are proposing to take the opportunity to modernise the qualifications required for legal advisers by adding to those eligible to give legal advice fellows of the Chartered Institute of Legal Executives—CILEx—and those who have passed the necessary exams to be fellows. The addition of CILEx fellows highlights the danger of all three of these amendments. Prescribing qualifications on the face of the Bill means that, should an alternative route to legal qualification emerge, adding this qualification to these provisions could only be achieved through primary legislation.
I turn to the point raised by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, about Amendment 3. One might be in a circumstance where a judge would need advice from somebody with less than three years’ qualification. It may be exceptional—for example, a judge might reasonably ask for advice on procedure. Legal advisers must know, understand and apply the law, and advise judges and magistrates accordingly. The bar we have had in place for almost 40 years has worked perfectly well, and our current legal advisers are providing an excellent service.
Requiring three years’ post-qualification experience would restrict the avenues through which people can qualify as lawyers and would also exclude experienced legal advisers. Amendment 6 takes a similarly one-size-fits-all approach, but for the qualifications needed for staff to exercise judicial functions. The difficulty with this is that it does not allow for a variety of qualifications to mirror the variety of tasks that staff may carry out. I stress that the exercise of judicial functions by authorised staff is not new anywhere but in the Crown Court. Courts and tribunals staff already carry out judicial functions in the Court of Appeal, magistrates’ courts and family courts, as do registrars and caseworkers in the tribunals. Some of these staff are legally qualified; others are not. For example, there are specialist registrars in some of the tribunals, such as the tax tribunal, where tax specialists are not legally qualified. Their qualifications depend on the work they are carrying out—as in any job—and many of them already exercise the jurisdiction of our courts on a daily basis.
As my noble and learned friend Lord Keen said in Committee, the kinds of tasks authorised staff already carry out—and could undertake more of in future—are largely preparatory or interlocutory. These staff support the progression of cases: getting things ready for court and working out what the court should do. Their work will ensure that hearings and trials are as effective as they can be and that our courts, tribunals and resources are put to best use.
Perhaps that goes some way to answering the question from my noble and learned friend Lord Garnier about the sorts of roles these authorised members of staff will undertake. It is right that we have sought to carve out those roles that we feel they should not undertake. However, the number of roles they could undertake is extremely broad. The level of qualification that staff need should vary according to the work they do. The Bill allows the procedure rule committees to set the requirements as to the qualifications or experience of authorised staff exercising judicial functions. This is the right approach. The committees are best placed to assess the requirements for their jurisdictions in light of the functions that they permit authorised staff to carry out.
Amendment 6 would require that someone carrying out the simplest of tasks, such as changing the start time of a hearing, must be a qualified and experienced lawyer. This is plainly unnecessary. The judiciary is ultimately responsible for authorising court and tribunal staff to exercise judicial functions, and will do so only if satisfied of their competence. An applicant’s formal qualifications will be checked before appointment, and their judgment, skills and knowledge assessed by a supervising judge or senior lawyer before any authorisation can take place.
For the reasons that I have set out, I hope that the noble Baroness, Lady Chakrabarti, will feel able to withdraw her amendment.
Once again, I am grateful to the Minister and other noble Lords for that interesting and illuminating discussion. I would like to take this opportunity to welcome the noble and learned Lord, Lord Garnier. He is a first-rate lawyer, judge and parliamentarian, and I have no doubt that he will make many important contributions in your Lordships’ House.
The noble Lord, Lord Marks, nailed the basic thrust of the objections to this group of amendments: they fly in the face of efficiency and cost savings. Less was offered, I am afraid, by way of reassurance as to the quality of justice that the public may look forward to as a result of this Bill.
As always, I am grateful to the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for pointing out the slight anomaly that legal advisers to the judiciary need not be qualified lawyers. That is perhaps a little strange, and points to the underlying motive behind this draft legislation.
Anyone who has spent any time in a magistrates’ court will realise that very serious decisions about people’s lives are made in that jurisdiction, under a great deal of pressure. Therefore, I do not share the relaxed approach to the training and qualifications required to be a legal adviser to lay magistrates or justices of the peace. None the less, I do not want to trouble your Lordships’ House with a Division that is doomed due to lack of support from the noble Lord, Lord Marks. So, with a somewhat heavy heart, I beg leave to withdraw my amendment.
Amendment 3 withdrawn.
Amendment 4 not moved.
5: The Schedule, page 10, line 19, at end insert—
“but does not include a function to which any of the following subsections applies.(2) This subsection applies to any function so far as its exercise involves authorising a person’s committal to prison.(3) This subsection applies to any function so far as its exercise involves authorising a person’s arrest, but it does not apply to the issue of a warrant (whether or not endorsed for bail) for a person’s arrest in order to secure that the person attends court proceedings relating to an offence of which the person has been accused or convicted in a case in which no objection is made by or on behalf of the person to the issue of the warrant.(4) This subsection applies to the function of making an order to recover possession of a building, or part of a building, which is occupied as a dwelling by—(a) the person against whom the order is made, or(b) the person’s spouse, civil partner or dependent child aged under 18,but it does not apply to the making of an order in a case in which no objection is made by or on behalf of the person against whom the order is made to the making of the order.(5) This subsection applies to the function of granting an injunction under section 37 of the Senior Courts Act 1981.(6) This subsection applies to the function of making an order under section 7 of the Civil Procedure Act 1997 (order for preserving evidence etc).”
My Lords, in moving Amendment 5, I will speak also to Amendment 12, standing in my name. I am most obliged to the noble Lord, Lord Marks, for his engagement, not only with me but with the Bill team, in consideration of the issues he raised in Committee and the time he took to discuss how we could address the concerns he mentioned during the debate on earlier amendments. As he indicated, the purpose of these amendments is to place in the Bill a limit to the functions that authorised staff may carry out by specifying certain functions that they will not be permitted to undertake. We consider that there are certainly judicial functions that authorised staff should not be permitted to exercise, particularly where these relate to deprivation of liberty or repossession of residential property. We have therefore brought forward amendments in response to the concerns that were raised.
Amendment 12 would prevent the Tribunal Procedure Committee enabling authorised tribunals staff to carry out functions that involve authorising a person’s committal to prison or arrest, or the granting of an injunction. Amendment 5 provides that similar restrictions will apply in the courts, subject to certain exceptions. Amendment 5 also prevents the relevant rule committees allowing authorised courts staff to make orders for repossession of residential property where the case is contested, and making search orders. Whether authorised staff may exercise other functions beyond those prohibited by this amendment will, as indicated, be for the independent rule committees to decide.
I hope that these amendments will find support across the House. I beg to move.
My Lords, the noble and learned Lord has indicated that we support these amendments, and indeed they respond to concerns that I raised. I indicated in Committee, and in discussion and correspondence with the department since, that I did not see the need to restrict the ambit of delegated functions in a way that could prevent authorised officers extending time for the service of documents, or making consent orders of a procedural nature in substantial civil claims.
However, I was extremely concerned that an authorised officer should not have the power to: make orders taking away the liberty of the subject; make a possession order that would have the effect of depriving someone, or their family, of their home; take the serious steps and risk the far-reaching consequences of granting injunctions; or make orders to preserve evidence—which, as I said earlier, could involve searches of private premises.
I am very grateful to the noble and learned Lord, and to the Bill team, for their consideration and acceptance of the principles I have made. Amendments 5 and 12 respond fully to our concerns and we support them.
My Lords, as far as I am concerned, this is the good news in this afternoon’s proceedings. I am very grateful to the Government, assisted by the noble Lord, Lord Marks, for responding to some of the gravest concerns about the gravest decisions that ought not to be delegated to non-judicial persons. I have been trying to suggest that there is an ocean of difference between purely procedural decisions and those that could have, for example, the effect of depriving an individual of their freedom. Without limits on who can be authorised, and what powers can be delegated, measures such as those that we have been discussing could have a very profound effect on the nature of our judicial system. Such a profound change really requires proper scrutiny by parliamentarians.
The stated intention of the policy is to improve the efficiency of the Courts Service by diverting judges’ time from routine tasks, to allow them to focus their time and expertise on more complex matters. Matters of personal liberty and of people’s homes should surely be considered in that higher order of decision-making. That is why I am particularly grateful for having been heard by both the noble Lord, Lord Marks, and by the Government, in relation to concerns raised at earlier stages and in discussion.
While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for delegation, covering each tribunal and eventuality—particularly as these roles cover a broad range from the administrative to the determinative, depending on the jurisdiction—we can surely all agree that functions that might deprive a person of their home or their liberty are never appropriate for this kind of delegation. These particular limitations really are the bare minimum. It is worth noting that, in his civil courts structure review, Lord Justice Briggs drew the line at caseworkers making any dispositive decisions, which he saw as being a purely judicial role.
All delegated functions in the civil jurisdiction are routine case-management functions, and are often confined only to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination, and a party may request a reconsideration of any decision of a legal adviser within 14 days of being served a notice of that decision. Are these not reasonable restrictions to have been placed on delegated functions in criminal proceedings? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. In addition to concerns around transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court has to reconsider these decisions at a later stage in the process.
I give the Government due credit for having gone some way towards addressing real concerns raised at the Lords Committee stage with an amendment that prohibits the delegation of decisions affecting people’s homes and personal liberty. We wholeheartedly support these government amendments, which are very welcome; none the less, they highlight the potential hidden dangers in an apparently benign Bill.
Amendment 5 agreed.
Amendment 6 not moved.
7: The Schedule, page 11, line 8, at end insert—
“67BA Exercise of relevant judicial functions: reconsideration of decisions (1) Before making rules of court that provide for the exercise of relevant judicial functions by authorised persons by virtue of section 67B(1), the authority with power to make the rules must take the following steps in relation to each of the functions in question.(2) The authority must consider whether the rules should include a right for the parties to proceedings in which a decision is made by an authorised person exercising the function to have the decision reconsidered by a judicial office holder.(3) If the authority considers that the rules should include such a right, it must include provision to that effect when it makes the rules.(4) If the authority does not consider that the rules should include such a right, it must inform the Lord Chancellor of—(a) its decision, and(b) its reasons for reaching that decision.”
My Lords, as well as moving Amendment 7, I shall speak also to Amendments 9, 10 and 13, which stand in my name. When the Bill was in Committee, there was a general desire to see more safeguards on the face of the Bill and greater transparency around the process of making court and tribunal procedure rules. The Government have listened to these concerns and, after further discussion, we have tabled these amendments.
The purpose of the amendments is to require the committees, when making any rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. This means that the rule committees would have to consider whether each judicial function should be subject to a right to reconsideration. Furthermore, the amendments require that, if a rule committee decides against the creation of such a right in the rules that it makes, it will have to inform the Lord Chancellor of its decision and the reasons for it.
The amendments should be read alongside existing statutory provisions relating to the making of court and tribunal rules. The committees are under a statutory obligation to,
“consult such persons as they consider appropriate”,
before making rules. If, following consultation, a rule committee chose not to include a right to reconsideration in its rules, it would have to inform the Lord Chancellor of this and, as I indicated, it would also have to give reasons for the decision. The Lord Chancellor would then have two options: either to ask the committee to reconsider its decision, as he has the power to ask the rule committees to make rules, or, if he agrees with the committee, to lay the rules in Parliament. In doing so, we would expect the Lord Chancellor to set out, in the Explanatory Memorandum to accompany the statutory instrument containing the rules, the committee’s rationale for not including a right to reconsideration. The amendments would therefore ensure much greater transparency in the decision-making process.
Our amendments would ensure that the jurisdictional rule committees continued to play a full part in determining the most appropriate mechanism for reviewing decisions by authorised persons. I hope that in the light of these amendments the noble Baroness, Lady Chakrabarti, will consider her position with regard to her Amendments 8 and 11, which fall within this group, but perhaps I can defer that and allow her to state her position with regard to those amendments.
One obvious example is the issuing of a summons. Such persons issue about 2.5 million summonses at the instigation of public authorities each year. If every one of those applications for a summons was the subject of judicial reconsideration, with the kind of time limits alluded to in Amendments 8 and 11, the delays involved would be enormous. There are other means by which, in due course, a party may seek to challenge the issuance of such a summons. I take that as one clear example of where it would not be appropriate for there to be judicial reconsideration.
My Lords, I shall speak to Amendment 8 and to Amendment 11, which is consequential, both of which were drafted by the Bar Council.
Clause 3 and the Schedule to the Bill provide for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. This would allow decisions that are currently made by independent judges to now be made by employees of Her Majesty’s Courts & Tribunals Service. The Bill provides that authorised staff will be independent of the Lord Chancellor when carrying out these delegated judicial functions, but they will remain court staff and will not take the judicial oath of independence.
Amendments 8 and 11 would ensure that a party to any decision made by an authorised person in the execution of relevant judicial functions or of a tribunal—by virtue of Section 67B(1) or paragraph 3 of Schedule 5 respectively—may apply in writing within 14 days of the service of the order to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.
A statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge was recommended by Lord Justice Briggs in his 2016 report Civil Courts Structure Review: Final Report. That right is currently already provided for, for example, in the tribunal procedure rules. Lord Justice Briggs said:
“The creation of an extensive right to have the decisions of Case Officers considered by a judge has from the outset been regarded as the natural safety valve for concerns about what was … described as the delegation of judicial functions to persons who are not judges”.
As a minimum safeguard, the right of consideration has the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if the right of appeal were, for example, created. It is important to point out that this consideration on the papers by a judge is not the same as a full right of appeal. It has the additional benefit of going further than a right of review, guaranteeing judicial oversight of a decision which a right of review would not ensure.
Crucially, this statutory right would also ensure compliance with Article 6 of the European Convention on Human Rights—the right to a fair trial—surrounding decisions affecting people’s rights by an independent and impartial person, which is not a member of court staff. It is a proportionate safeguard relevant to the new powers created by the Bill. Your Lordships are aware that Article 6 provides that the determination of a person’s civil rights and obligations or any criminal charge against them must be undertaken by an independent and impartial tribunal established by law.
The requirements of independence apply not only to the tribunal but also to any judge or other officer authorised by law to exercise judicial power. As the Ministry of Justice acknowledges in its memorandum on the Bill,
“In considering independence, … guarantees against outside pressures are relevant – as is the question whether the body presents an appearance of independence”.
In that human rights memorandum, the MoJ suggests that it is intended that,
“case management decisions which it is proposed these authorised members of staff will be able to take will be uncontentious and not of sufficient importance to engage Article 6”.
However, case management decisions can have a significant impact on shaping the issues, progress and ultimate outcome of the case. For example, a decision on the appropriate timescales within which a party should take a step in proceedings may be significant, as failures to comply with that timescale can subsequently lead to some or all of the party’s case being struck out.
Furthermore, the Ministry of Justice’s fact sheet on the delegation of functions to non-judicial staff states:
“In future, we expect that authorised staff will be able to carry out a range of functions and responsibilities, including case management powers and some mediation roles”.
This suggests that it is envisaged that such staff will have a role beyond merely making non-contentious decisions on purely procedural matters in future.
The Government’s welcome amendment excludes some functions from delegation, but there are still others that may be significant to the progress and outcome of an important case. Such functions—for example, the issuing of an arrest warrant to secure a person’s attendance in court—can still be delegated to non-judicial staff.
In Committee, the Minister argued that a blanket right to reconsideration across all jurisdictions will not work in practice, as it will add significant cost and delay to the process on the basis that a dissatisfied party will inevitably apply for reconsideration by a judge, thereby negating the benefits of delegating decisions to staff. However, this objection was dealt with by Lord Briggs in his Civil Courts Structure Review: Final Report. He accepted that,
“an unfettered right of reconsideration will be a necessary long-stop”.
He also cited evidence from real-life precedents, suggesting that where such a right exists elsewhere, the number of reconsideration applications is low. Surely that should continue to be the case, particularly if, as the Ministry of Justice suggests, the decisions being made by authorised staff are properly non-contentious.
The Government’s concession, placing an obligation on the relevant rule committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns than their concession on delegated functions themselves, such as the safeguard in relation to a person’s liberty in their home. In fact, the Government’s concession here replicates the fundamental problem with the effect of the Bill. Placing the obligation on the rules committee, which ultimately does not have the budget to fund the Courts Service, delegates a legislative duty to an unaccountable body.
We on this side of your Lordships’ House strongly believe that Parliament has a legitimate role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection for the right to a fair trial. Consequently, I urge noble Lords to support our amendments, which have already been endorsed by the Law Society, the Bar Council and the Equality and Human Rights Commission. They propose a statutory right to judicial reconsideration for any party to a judicial decision made by an authorised person, or non-judge. This would afford stronger protection for the right to a fair trial and guarantee the independent and impartial determination required by Article 6.
My Lords, in Committee I spoke in favour of a blanket right to judicial reconsideration of all delegated decisions of authorised persons, much along the lines suggested just now by the noble Baroness, Lady Chakrabarti. During the debate, and after I had spoken, I was gently chided—if I may put it that way—by the noble and learned Lord, Lord Neuberger of Abbotsbury. He said that he sympathised with my view, stating that,
“the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice”.
However, he went on:
“Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for such an appeal seems to me, again, to be questionable. While I absolutely see the requirement for a right of appeal, I would have thought that, again, it would be better to leave it to the rule committee”.—[Official Report, 10/7/18; col. 890.]
I stress, as has been stressed before, that rules made by the rule committee have to be laid before Parliament, and are subject to annulment if Parliament so decides. The question is, then: how far do the amendments tabled by the Government in this group ensure that a right of judicial reconsideration will apply, when such a right ought to apply?
The noble and learned Lord, Lord Keen, suggested meeting the need to provide for judicial reconsideration by introducing requirements for the rule-making bodies to consider and work on the judicial reconsideration specific for each type of function. Amendments 7 and 13 reflect the Government’s thinking on that. The rule-making body will first have to consider and decide whether rules delegating functions should, in respect of each delegated function—that is important, because they are function-specific—include a right to judicial reconsideration. Secondly, if the rule-making body considers that the rules should include such a right, that body will be compelled to include it, so the right will stand. Thirdly, if the rule-making body considers that the rules should not include such a right, the body should be compelled to inform the Lord Chancellor of its decision and reasoning. Not only are these function-specific arrangements, but they meet the point that there would be no judicial reconsideration.
I was initially concerned when I saw these amendments that they would stop there, without providing for what the Lord Chancellor should do when informed of a decision by a rule-making body not to include a right to judicial reconsideration. But the Lord Chancellor has the power to require rules to be made. It seems to me that if the Lord Chancellor is of the view—being answerable to Parliament and having to lay rules before it—that a rule-making body is wrong in failing to provide for judicial reconsideration, he may be expected to require appropriate rules to be made. That is enhanced by the fact that, if he decides that they are right, he will have to come back to Parliament and say so. In my view, that meets the point made by the noble and learned Lord, Lord Neuberger, while providing for the introduction of rights to judicial reconsideration and delegated decisions where appropriate.
I do not see that there is a contravention of Article 6 simply because a judicial decision is delegated to an authorised officer. That would be a matter of consideration of the particular function and delegation and the presence of a right of appeal. A decision taken by someone who is not a judge is not necessarily a decision by a non-independent party. Indeed, in private litigation between parties, I can see no reason why a decision by an authorised officer should not be a decision by an independent party compliant with Article 6.
My Lords, I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness. The Criminal Procedure Rule Committee and the other ones—the civil, family and tribunals committees—are independent bodies. They look at and scrutinise everything with a great deal of care. They are representative of all interests in litigation. For example, the Criminal Procedure Rule Committee has a number of defence lawyers and people from other aspects of the criminal justice system who proceed with great care to look at what is before them. It was suggested that they are unaccountable. I say on this amendment that the provisions for having to consider the right of reconsideration and then reporting that to the Lord Chancellor informing him of the decision and reasons is a traditional form of explanatory accountability.
Secondly, we ought to take into account the fact that, in our system of justice, the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date. I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees. For example, there are areas where it has proved difficult to modernise and to reform the system—for example, for extradition appeals, where provisions put into primary legislation made the system almost unworkable. Certainly what was in the primary legislation in relation to videolinks and the protection of vulnerable witnesses proved a great obstacle.
I therefore urge your Lordships to consider that this amendment, as my friend the noble Lord, Lord Marks, said, provides the right balance. It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation. It is always difficult to think of issues on the spur of the moment but, for example, one of the areas that troubles courts quite often is the short time limits if you have a recalcitrant party. It might be that, in very restricted circumstances, a rule committee would say, “This is the kind of area where a reconsideration is not necessary when a final extension has been given”. But the important point is that I urge your Lordships to trust the rule committees, particularly now that there is this additional safeguard.
I am obliged to all noble Lords for their contributions. The Government’s position remains that the independent procedure rule committees, comprised of experts and practitioners from each jurisdiction, are best placed to decide whether a right of reconsideration is needed for each judicial function that staff are permitted to exercise. Similarly, they are best placed to determine what such a right should look like. In that context, I gratefully adopt the observations of the noble and learned Lord, Lord Thomas, the former Lord Chief Justice, and of the noble Lord, Lord Marks.
The approach taken in Amendments 8 and 11, tabled by the noble Baroness, Lady Chakrabarti, would impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice. For example, the amendments would allow a person 14 days to apply for reconsideration. Why would a 14-day limit apply across all jurisdictions and for every judicial function that authorised persons are permitted to exercise, some of which are entirely straightforward case management and preparation duties? Indeed, the noble and learned Lord, Lord Thomas, referred to time limits. What happens if you have a request to adjourn a hearing due to take place the following day? If it is refused, you then have 14 days for reconsideration. In other words, it would automatically be successful because of this blanket provision. That is just one of many examples.
Each jurisdiction has its own ways of working and needs mechanisms for reviewing decisions that can respond to this. For example, the rule committees in the civil and tribunals jurisdictions have already built in a specific right to judicial reconsideration of decisions made by authorised staff. The magistrates’ courts and the family court have their own existing mechanisms for reviewing various decisions. These amendments, as proposed by the noble Baroness, would cut across all those existing provisions.
I mentioned an example in response to a query from the noble Lord, Lord Pannick. The magistrates’ courts issue something in excess of 2 million local authority summonses every year. If there were a right to reconsideration in every one of those cases, where would we begin and end with regard to the administration of such applications? Indeed, in the magistrates’ courts, there are already a number of ways for a defendant to challenge a case in which a summons has been issued. He or she can make an initial argument to the court hearing the case that the summons should not have been issued. You can contest the substantive application made by the local authority. There is even the possibility of judicial review. The matter is already covered.
Creating a mandatory right to apply for judicial reconsideration of the decision is not only unnecessary but would also be burdensome and ineffective. It is in these circumstances that I reiterate that it is appropriate, as other noble Lords have observed, that these matters should remain with the independent procedure rule committees and that I again commend Amendments 7, 9, 10 and 13. I invite the noble Baroness, Lady Chakrabarti, not to press her amendments in this group. I cannot commit to reflecting any further between now and Third Reading on these matters, so if the noble Baroness wishes to test the opinion of the House, she should do so now.
Amendment 7 agreed.
8: The Schedule, page 11, line 8, at end insert—
“67BA Right to judicial reconsideration of decision made by an authorised personA party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising a relevant judicial function, by virtue of section 67B(1), may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”
My Lords, once more I am grateful to all noble Lords who have contributed to the discussion, which once again highlighted the fundamental differences on the principles in this Bill between some of us on each side of this House. I have tried hard not to be completely disruptive to the idea that certain, non-contentious, administrative decisions might be delegated as part of modernising the justice system in the 21st century, but I have heard no satisfactory response to the recommendations by Lord Justice Briggs.
These judicial decisions that will be delegated will be uncontentious or contentious. If it is the latter, Article 6 rights are engaged and, with the greatest respect to the noble Lord, Lord Marks, I cannot see how junior members of court staff—potentially not even three years post-qualification in their legal experience, and employed by the Government—are going to be independent and impartial for the purposes of satisfying Article 6.
The assurance that I am given in response to this concern is that I should put trust in the rule committees to make judgments about which decisions that have been delegated to these junior staff should and should not be subject to reconsideration by a judge. My concern is that the rule committees will be under the same pressure that the judiciary is under in relation to all this. It is a pressure with which I sympathise and which has been reflected eloquently in contributions to this debate by noble Lords and noble and learned Lords in particular.
At the end of the day, the rule committees do not have the access to the budget that would make it possible to ensure reconsiderations where they are required. Therefore, it seems rather unfair to put the pressure on the committees. The committee may feel that it has no choice because it cannot fund a system of adequate judicial consideration, which is because it cannot fund an adequate justice system in this country. That is not a state of affairs that I believe your Lordships’ House would want to sanction. With that in mind, I beg to move and seek to test the mood of the House.
Amendments 9 and 10
9: The Schedule, page 17, line 43, at end insert—
“Schedule 5 (Tribunal Procedure Rules) is amended as follows.”
10: The Schedule, page 17, line 44, leave out “In Schedule 5 (Tribunal Procedure Rules),”
Amendments 9 and 10 agreed.
Amendment 11 not moved.
Amendments 12 and 13
12: The Schedule, page 18, line 27, after “paragraph” insert—
““function” does not include—(a) any function so far as its exercise involves authorising a person’s committal to prison or arrest;(b) any function of granting an injunction;”
13: The Schedule, page 18, line 28, at end insert—
“After paragraph 28 insert—“Delegation of functions to staff: reconsideration of decisions28A(1) Before making Rules that provide for the exercise of functions of the First-tier Tribunal or Upper Tribunal by authorised persons by virtue of paragraph 3, the Committee must take the following steps in relation to each of the functions in question.(2) The Committee must consider whether the Rules should include a right for the parties to proceedings in which a decision is made by an authorised person exercising the function to have the decision reconsidered by a judicial office holder.(3) If the Committee considers that the rules should include such a right, it must include provision to that effect when it makes the Rules.(4) If the Committee does not consider that the rules should include such a right, it must inform the Lord Chancellor of—(a) its decision, and(b) its reasons for reaching that decision.(5) In this paragraph “authorised person” and “judicial office holder” have the same meanings as in Chapter 2A of Part 1 of this Act (see section 29A).””
Amendments 12 and 13 agreed.
My Lords, I begin by paying tribute to Baroness Hollis of Heigham, who was a Minister in this House from, I understand, 1997 to 2005. Baroness Hollis was a formidable Minister—I know because I was a shadow Minister for Social Security during some of that time. I remember her as a fantastic champion of the welfare system, women’s rights and in particular women’s pension rights. I feel privileged to have known her.
By leave of the House, I shall repeat as a Statement an Answer given to an Urgent Question in another place by my right honourable friend the Minister for Employment.
“Mr Speaker, I note the precise wording of the Urgent Question from the right honourable gentleman, for whom I have a great deal of respect. I know he cares deeply about welfare matters and is an excellent chair of the Work and Pensions Select Committee. Of course he, his committee and the whole House have a right to hold the Government to account, and that includes the Department for Work and Pensions. I do not wish to be unhelpful in my response. However, some of the matters that he may be alluding to are the subject of speculation in the media. There has been a great deal of speculation around universal credit in the last few days. I cannot comment on speculation.
When it comes to rollout, we have long said that we will take a slow and measured approach to managed migration. That is why we will continue to take a ‘test and learn’ approach, acting on feedback and improving the system as it rolls out. By December 2018 universal credit will be in every jobcentre in the country. People who are making new claims to our benefits system now apply for universal credit rather than being put on the old system. Next year we will start the wider process of moving people from the old benefits system on to universal credit. The process will begin later next year in a measured way with no more than 10,000 people moved over, to ensure that the system is working well for claimants and to make any necessary adaptations as we go. We have said for a long time now that the managed migration process will take place from 2019 to 2023.”
My Lords, I start by thanking the Minister for her kind comments about my erstwhile colleague Baroness Hollis. It is with regret that we have the absence of her voice for our deliberations today. She had unparalleled experience on universal credit. She was determined, she was passionate, and her oratory rang out across this Chamber. I fear that we will not see her like again.
Universal credit is causing severe hardship for many people claiming it. Over the past two weeks, conflicting statements from the Government have caused real confusion about the impact it will have on people who are required to move across to claim it in the next phase. First, we were told that austerity was over, then that families on low incomes are in danger of losing up to £200 a month as a result of transferring to universal credit. Next, the Prime Minister said that nobody would be worse off, but the Secretary of State contradicted her the following day. This morning, we had the BBC report—I understand the Minister’s position on that—saying that the Government are planning changes to the universal credit system that will include the end date for the rollout being put back by a further nine months. This is the sixth time since 2013 that this benefit has been recalibrated.
Is the reported delay to the start of the next phase the result of the warnings that the Government have received from right across the voluntary sector and expert organisations that their draft regulations are simply not fit for purpose? Will they now publish their impact assessment of that next phase? How will the changes reported by the BBC affect the savings that universal credit is expected to make for the Treasury? How many households currently claiming legacy benefits will be worse off between now and 2023 as a result of making a new claim for universal credit? Together with dozens of disability and advice organisations, we call for a halt to the rollout of managed migration until it is fit for purpose.
My Lords, I am grateful for the noble Lord’s questions. Let me say straightaway that we have not been recalibrating anything. He will be aware that there have been a number of PQs in the past few months. There was a Written Ministerial Statement in June this year, wherein we set out very clearly that from the beginning of next year, we want to move to managed migration in a very slow and careful way. We want to be sure that we get it right, that the right systems are in place. As we also made clear to the Social Security Advisory Committee, we will not begin to introduce managed migration, which is those who are on existing benefits—the legacy system, as we call it—rather than those who are new to the benefit system who are going on to universal credit, until July next year. That has long been the case.
We are now waiting for the end of the rollout of the system into every jobcentre by the end of December this year. We are also now in receipt of some important recommendations made by the Social Security Advisory Committee as a result of our proposals to it with regard to managed migration regulations, which we hope to lay before the House in the near future. We are now considering those recommendations very seriously and I will report to this House in the very near future.
The most important answer that I must give straightaway is that a key point for the managed migration regulations, which we will bring forward, is to protect the most vulnerable. We are not halting any rollout. Our concern is to protect the most vulnerable— those who cannot work, those with severe disabilities—through the severe disability premium and careful full transitional protection through migration on to universal credit.
My Lords, I am grateful to the Minister for repeating the Statement. I concur with her tribute to Patricia Hollis. She was an integral part in the creation of this legislation and delivered a complete masterclass in parliamentary scrutiny in the 2012 committee which I was privileged to share with her. She will be missed.
Can I confirm that there will be no delay in the publication of the managed migration regulations and that the Social Security Advisory Committee report will be published in due time? There should be no delay in either of those two things. Some of us are a little surprised that the recent controversy about the cuts has suddenly blown up, because it has been painfully obvious since 2012 that a moment would come when these things would bite and things would get really tough in terms of financial hardship for low income families.
I will make two points. First, I am now really worried about the requirement for managed migration people to have their benefits turned off and then to make their own application. We need to seriously look at these regulations to make sure that there is automaticity of transfer to universal credit, and then we can sort out the difficulties afterwards. Otherwise, hardship will be exacerbated.
The other thing I will say strongly to the Minister is that Church Action on Poverty has produced a very interesting report indicating that the safety net that was available in 2012, according to its research, has been slashed. Community care grants and crisis loans totalled more than £200 million a year, and we are now at the stage when the Government have just announced £37 million as the total amount of money for universal support across the country. Frankly that is not enough to prevent hardship occurring in ways that will hurt families in the future. The House will need to turn its attention to these things during consideration of the managed migration regulations.
I thank the noble Lord and say straightaway that there will be no delay to the publication. Indeed, because we have to see these regulations on the statute book by the end of this year, it is very important to ensure that they are laid shortly and that we can debate them in your Lordships’ House. We very much hope that, unlike the package of £1.5 billion in extra support for universal credit that was introduced in another place following the Budget last autumn, the managed migration regulations will not be rejected, as the package was last autumn.
It is important to remember that we introduced a package that made advance payments quicker and easier for people to access. They could have a 100% advance up front for their first month’s claim, with no interest to repay for 12 months. We scrapped the seven-day waiting period and introduced a two-week run-on for people receiving housing benefit, with a cash payment that was not repayable. We are helping more than 500,000 people by protecting severe disability premiums.
That package was rejected in another place. Let us hope that this managed migration package will be supported in another place and in your Lordships’ House, because we want to protect the severely disabled, those with health conditions and those who genuinely need our support. We, too, are surprised by the recent controversy, because we are trying to do the right thing to support the right people. Benefits will not be turned off. We will be very careful to ensure that there is a transfer. That is why we will introduce the system slowly and carefully. We are using six months of next year to try to get this right.
My Lords, I echo what has been said about my noble friend Lady Hollis. She was an inspiration.
This morning, at a meeting of the APPG on universal credit, organisations working with claimants around the country were unanimous that so-called managed migration—as the noble Lord, Lord Kirkwood, made clear, it will not be managed on behalf of claimants—should not go ahead until UC’s design flaws are rectified, especially inflexible monthly assessment, which is creating huge problems. Will the Minister undertake to look at these problems as a matter of urgency? UC needs to be recalibrated.
My Lords, I do not recognise the word “inflexibility” when it comes to universal credit. The whole point of the system is to take six different benefits and put them into one simple one that tracks people’s circumstances on a monthly basis, rather than leaving people with no contact, sometimes for literally years, under the legacy system. We are spending £3.1 billion on transitional protections for 1.3 million claimants to ensure that no one loses out at the point of transition. This will ensure that no families receive less money than they do today. We are spending an additional £1.4 billion on protection for 500,000 disabled people receiving disability premium.
Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018
Motion to Regret
That this House regrets that organisations concerned with the human rights and welfare of children were not consulted about the decision to extend the maximum length of juvenile covert human intelligence sources authorisations from one month to four months, as provided for in the Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 (SI 2018/715).
Relevant document: 35th Report from the Secondary Legislation Scrutiny Committee
My Lords, I declare an interest as a former controller of covert human intelligence sources—CHISs—or police informants as they are otherwise known, although I have never controlled child CHISs. As I approach my fifth anniversary in this place, I hope that noble Lords will accept that tabling a regret Motion is not something I do lightly. The Government have introduced regulations that appear to weaken and/or not provide enough protection for children employed by the police as CHISs. Both the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights have raised concerns about the whole regime of police using children as CHISs. As a result, on 18 July, we debated a take-note Motion, moved by a member of the Secondary Legislation Scrutiny Committee, in Grand Committee.
There are three main concerns. The first is that a child aged 16 or 17 can be recruited as a police informant without a parent, guardian or appropriate adult being present, even though it is illegal to interview a child of those ages under caution about a criminal offence without such a person being present. The parent or guardian of a child under 16 does not have to be present when a child is recruited as a police informant but, in that case, an appropriate adult must be.
Secondly, the period for which a child can be authorised as an informant by these new regulations has been extended from one month to four months, although the authorisation has to be reviewed every month. The authorisation must be given by a very senior police officer or equivalent, but to date we have not been able to get a clear answer on what the difference is between a one-month authorisation being extended on a monthly basis and a four-month authorisation that is reviewed monthly. Either the safeguards are being weakened, in that the review is less thorough or is conducted by a lower-ranking officer, or there is no need to change the previous arrangement, where an authorisation had to be extended monthly.
The explanation—knowing that the authorisation is only for one month could limit how the child could be deployed—does not hold water. I speak from operational police experience. In seeking the original authorisation, the deploying officer could explain that the deployment is going to last several months and that the officer will be asking the senior officer to extend that authorisation. The senior officer could then indicate whether he would be minded to do that, taking account of how dangerous the assignment is and the impact on the child. In my experience, it would be much easier for a senior officer not to extend an authorisation than it would be for him or her to pull the plug on a four-month authorisation which he or she had already given, as doing so would not call the original authorisation into question.
At the same time as this apparent weakening of the safeguards, the Minister says people are becoming involved in more serious crime, such as child sexual exploitation, violent gangs, drug dealing and terrorism. It therefore appears that the dangers faced by child CHISs is increasing while the safeguards are either insufficient or being weakened.
The third issue concerns Article 3 of the UN Convention on the Rights of the Child, to which the UK is a signatory. It states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.
The text refers to the best interests of “the child”—not “all children” or “society as a whole” but, in this case, to the child being used as a child informant. When can it be in the interests of that child to be asked to return to the paedophile, the criminal gang, the county lines drug dealer or the terrorist group in order to provide information to the police, given that the child is obviously in danger in those situations? These are not my concerns alone; some are shared by the Secondary Legislation Scrutiny Committee and the Joint Committee on Human Rights.
Before debating the take-note Motion in Grand Committee, I gave notice to the Minister of the points the Government should cover in that debate—namely, the three issues I have just outlined. Despite this, and numerous interventions during that debate, the Government appeared to be unwilling, or unable, to answer the questions. Why were child informants afforded less protection than criminal suspects? What is the difference between extending a monthly authorisation and a four-monthly authorisation reviewed monthly? And how is the deployment of a child CHIS compliant with the UN Convention on the Rights of the Child?
To be fair to the Minister—who is not only very competent but somebody I like on a personal level—she is not the only one. There is ongoing correspondence between the chair of the Joint Committee on Human Rights and the Minister of State for Security and Economic Crime; the chair has not yet received satisfactory explanations from that Minister either.
Last week, I had the pleasure of meeting both Ministers together, at the same time; the official from the Home Office who is leading on this issue was also present. At this meeting—albeit that it was a meeting for another purpose, at the end of which I ambushed them—I again set out the three issues on which we have yet to receive a satisfactory answer.
There are no longer any excuses for the Government not to answer these questions. Our duty in this House is to hold the Government to account. When they are unable or unwilling to account for their actions, as happened during the take-note Motion debate, the Government cannot be expected to get away with it. My regret Motion is as much about sending a message to the Government that this House will hold them to account, despite their inability or unwillingness to account for their actions, as it is about the substantive issues. That having been said, there are other noble Lords, outside organisations and members of the public who are very concerned about the whole idea of using children as police informants. Indeed, one children’s organisation is crowdfunding to take the Government to judicial review over the use of children as CHISs, which it believes is incompatible with the United Nations Convention on the Rights of the Child.
There are worrying signs here of a direction of travel. Not only do the Government appear to be sacrificing the rights of children in exchange for information, but they appear to be prepared to sacrifice people’s right to life by not insisting on death penalty assurances when the UK provides evidence to foreign law enforcement bodies—not just in one-off cases, but if necessary to secure data exchange treaties. The latter issue is for another day, but let us hope the Government are not prepared to sacrifice peace in Northern Ireland in exchange for a Brexit agreement. I beg to move.
My Lords, I am a member of your Lordships’ Secondary Legislation Scrutiny Committee, and somehow it has fallen to me to voice the concerns of the committee. It was I who spoke in the debate in July to which the noble Lord, Lord Paddick, referred. This order was presented to the committee as a matter of administrative convenience: extend the authorisation from one to four months and you reduce administration—simple. Perhaps it is because many of us are parents that we wondered why juveniles were being used in covert activity in the first place. The Explanatory Memorandum spoke of safeguards but not how they would be implemented, and it was silent on the number of juveniles involved. We requested more details, but we were still not satisfied, and so the committee decided to report this regulation to the House, both in our weekly report and in a Motion to Take Note—that was the debate in July.
During this process, it became apparent that juveniles were being used for far more dangerous activities than just checking on shopkeepers selling alcohol to minors, including activities relating to serious crime, drugs and terrorism. These activities put them in danger of violence and sexual assault, and all sorts of associated mental, physical, psychological and educational problems. Together with other noble Lords, we spoke of our concerns in the debate in July. The Minister sought to reassure us with more detailed safeguards, but many of us remained concerned.
Meanwhile, I was contacted by Rights Watch UK. It was concerned that human rights and the rights of the child were being ignored, and suggested that we should refer this to the parliamentary Joint Committee on Human Rights. After the debate, your Lordships’ committee did this, and the Joint Committee took it up with the Government through a series of questions. Its members share our concerns about the safeguarding of juveniles and what they call scope creep. As the noble Lord, Lord Paddick, said, this correspondence continues and there are meetings. This view is shared by another children’s charity: Just For Kids Law. It has contacted me and its lawyers have issued a pre-action letter to the Home Office seeking judicial review on this matter. During this time, there has also been press coverage, and I have received several letters from concerned parents.
As I said, the history is important because, at each stage, the Government have introduced further support for the juveniles and more detailed safeguards. For example, the numbers involved are now recorded; the authorising officer will weigh the intelligence benefits against the potential negative impact on the juvenile; and there will be more judicial and police scrutiny, and at a higher level. However, we remain unsure how consistent this will be across the various police forces and how it will be properly carried out.
The task of your Lordship’s Secondary Legislation Scrutiny Committee is to judge whether these reassurances and changes are sufficient. But it is for the House to decide whether this is a proper activity for juveniles and whether our police, judicial and security services provide adequate support and supervision.
This is not a party-political matter. As the noble Lord, Lord Paddick, explained, it is a security issue, a human rights issue and a rights of the child issue. Before the Government ask us to enact this legislation, with the increased assurances which they have given, I hope they will wait to see what comes out of the human rights correspondence and the judicial review. I feel sure that this is the view of most people in the House, and I look forward to hearing what the Minister has to say.
My Lords, I am pleased that my noble friend Lord Paddick has moved this Motion. I should declare an interest: I am a trustee of the organisation Safer London, which works to prevent and address young people’s involvement in crime, including running a gang exit programme for the Metropolitan Police and now MOPAC. In that role, I recently undertook some quite basic safeguarding training; safeguarding is of course very relevant to this issue. It seems to me that the thinking about safeguarding has developed; I wonder whether the thinking about the use of young people in the role of covert human intelligence sources has developed in tandem.
I asked somebody who I know through Safer London about this issue, and I was given the following example, which I think well illustrates the concerns that have been expressed. A young woman of 17, who was described to me as “on the edge of care”, whose parents were separated and who had been between boroughs, was exploited by a man who—this is very common—she thought of as her boyfriend. He was selling a group of girls, including her, for sex. The police were looking for information on him and she was left in her situation so that she could provide information. In other words, she was exploited by him and continued to be exploited by him, and was, arguably, exploited by the police. Eventually, she witnessed a murder. She was drawn into it, and not just as a witness, as she was asked to dispose of clothes and other items afterwards. How was her consent to this tested? No significant adult in her life knew of her involvement, and we must ask ourselves what qualifies a police officer to make the assessment that is needed here. This is obviously a question of training, but the officer making the assessment must also be independent from the particular investigation. I, for one—and this is nothing other than common sense—find it hard to believe that officers can easily put aside their loyalties to police colleagues in the investigation for which they have responsibility.
What is the position of corporate parents of a child in care? So many young people who are caught up in crime are, or have been, in care, or have low-level learning difficulties. Crucially, what support is given after the event? This is no doubt one of those muddy situations: a perpetrator may also be a victim, or a victim may be a perpetrator. I am told that it is not that uncommon for the police to offer witness protection in exchange for assistance—or, at least, they are very often asked to do this. As I say, it is quite a muddy situation.
My noble friend’s Motion regrets the lack of consultation with organisations concerned with human rights and the welfare of children. I suspect all of them would have raised similar points, and probably made the point that 16 year-olds are often not very mature, and indeed, neither are 18 year-olds. I do not know where vulnerability stops. To indicate how vulnerable young people might feel, I gather that it is not unusual for someone who was a gang member and is in a young offender institution to request segregation—solitary, in other words—because of fear of other gang members in the same institution.
The JCHR, of which I am a member, raised a number of issues with the Home Office, and my noble friend has referred to them. I was startled to discover in a response from the Security Minister that there were no national statistics about the use of juvenile CHISs, although I gather that there will be from now on. A central issue, of course, was the welfare of the child. We are told that this is kept “in mind”—I quote those words from the Security Minister—in considering changes to the 2000 order, and that this is paramount, which of course it is ethically and legally. The Security Minister’s letter uses the term “proportionate”. I accept that that was in a particular context but how does one reconcile proportionality with paramountcy?
The Minister referred to research and I looked online to see whether I could find it. It seems not to be openly available, although I found an abstract which mentions “institutional nervousness”, suggesting an aversion to the risks associated with the use of juveniles which the author of the research writes might not always be justified. He then goes on to say:
“The study also illustrated the challenges that the police face in properly assessing risks (particularly the competence of officers to assess the psychological and moral risks that are always associated with the use of CHIS)”,
and crucially it argues for further research.
I am prepared to acknowledge that there is a place for some use of juveniles. The police go into schools to recruit underage children to buy from off-licences. I am slightly queasy about that but the person who told me about the young woman I mentioned said that she was happy enough for her son to be involved in this. However, that is very different from the situations that many of us are worried about. I will simply say that answering the question of the paramountcy of the welfare of the child by,
“noting in particular the potential for positive life outcomes for young people who engage with policing in this way”,
seems to be pushing the point much too far.
My noble friend was right to bring this matter to the House and I support the Motion.
My Lords, until about a year ago I was the Chief Surveillance Commissioner. I shall make a few observations in this debate, largely repeating what I said way back in July.
There are occasions when youngsters can sensibly and safely be used as CHISs. There are occasions when they help in the investigation of crime, and they sometimes work so that crime is prevented. That said, we need to recognise that a number of safeguards are in place—but the question is whether the safeguards are as complete as they should be. They include that an authorising officer in the context that we are considering is always, in every police force, at least at the level of assistant chief constable. This is not a responsibility discharged by relatively junior—or indeed even quite senior—officers. It is a situation in which the inspectors, as they used to be in the surveillance commission, always look at every case involving a juvenile CHIS with particular attention, for all the obvious reasons. However, it is problematic.
The question I have asked, and shall continue to ask, is why on earth we do not have a double-lock system to address all anxieties about whether even assistant chief constables may be as objective as they should be—bearing in mind their responsibilities for the investigation and prevention of crime—in balancing the safety, the welfare and the long-term safety and welfare of the juvenile CHIS. One way is to deal with this process in a way that is perfectly well understood—it certainly was in the surveillance commission and is obviously still understood to this day under the new arrangement. The judicial involvement in this process should not be after the inspection has taken place and the inspectors have reported to the Chief Surveillance Commissioner so that he can make a judgment. Instead, after the senior officer has decided that this is an appropriate situation in which to use a juvenile CHIS, the decision should then be considered by one of the judicial commissioners, who undoubtedly—this is not an implied criticism of assistant chief constables—will be focused more significantly on the protection and the needs of the young CHIS than perhaps a police officer might be.
It is a question of balance. It is a safeguard which could be introduced—unless things have changed dramatically—with little difficulty. Judges are used to giving authorisations for all kinds of elements involved in, if you like, the secret world, and this would be one more. Very few juveniles are used for this purpose and therefore it should not be a burden. I would love to hear the Minister’s answer as to why this should not happen.
The regret Motion, of course, is focused on a different point. I say to the noble Lord, Lord Paddick—to whom I forgot to apologise for not being here when he opened the debate: I ask him to forgive me—that there is a failure to keep us informed on this issue, and that is what I regret.
My Lords, I thank the noble Lord, Lord Paddick, for moving his regret Motion. I pay tribute to my noble friend Lord Haskel, who first alerted your Lordships to this issue. The House is also grateful, not only on this issue but generally, for the work of the Secondary Legislation Scrutiny Committee, which scrutinises every instrument that comes before Parliament. It is able to get into what a particular instrument does and then, by engaging with a Minister and through its reports, bring matters of concern to the attention of the House.
Covert surveillance is an important tool that is used to provide the evidence needed to prevent and detect crime. It is necessary, as there may be no other way to get the intelligence needed. Having said that, we have to have proper codes of practice in place and, where that involves young people under the age of 18—who are still legally children—it is of particular concern and importance. We have to ensure that children’s rights are protected and that there are adequate protections in place to take care of their physical and mental well-being and that proper risk assessment is undertaken.
The regret Motion before us rightly expresses regret that organisations concerned with human rights and the welfare of children were not consulted about the decision to extend the maximum length of juvenile covert human intelligence sources authorisations from one month to four months. The Home Office certainly got its presentation of this change wrong. It used terms such as “administrative convenience”, which does nothing to reassure Members that the Government have got the balance right here. What should be of paramount importance is the welfare of the child being used as a covert intelligence source.
As we have heard, this issue was debated in the Moses Room in July—a debate led by my noble friend Lord Haskel—and during that debate I posed a number of questions to the noble Baroness, Lady Williams of Trafford, and I shall pose some more today. I hope she is able to give more reassurance to the House when she responds to the debate shortly.
Can the Minister explain carefully why the decision was taken to extend the term from one month to four months? Can she tell the House how the Government have satisfied themselves that these proposals satisfy Section 1 of the Protection of Children Act 1999 and the Convention on the Rights of the Child, which the United Kingdom ratified in 1991? Can she say how she has satisfied herself that the safeguarding and protection of the children concerned while they work as covert human intelligence sources is delivered? I am sure that she would not have brought this here if she were not personally satisfied.
Moving on to risk assessments, can the Minister tell the House how the rights of the child are protected? Can she outline what specific training or expertise a police officer or other security professional would have in respect of understanding the needs and rights of the child? In what circumstances would it be acceptable for someone who could represent the interests of the young person to not be present during meetings with the handler?
Can the Minister also deal with the issue of consent? How do we make sure that the consent is appropriately understood and given, both where the child’s parents or guardians are informed and in those instances where the parents are not informed or aware of what is happening? Indeed, they could be the people the child is seeking to monitor. The noble and learned Lord, Lord Judge, also raised important points that need answering by the Minister when she responds.
In conclusion, this is a very sensitive and important area of policy affecting vulnerable young people in some very difficult circumstances. It is right that the House uses every device available to it to assure itself that the Government have put the correct and adequate protections in place. Again, I thank both my noble friend Lord Haskel for raising this issue in the first place and the noble Lord, Lord Paddick, for tabling the regret Motion that has enabled us to debate it.
I also thank both the noble Lord, Lord Paddick, for introducing the debate and the noble Lord, Lord Haskel, for his work in bringing this issue to the committee’s attention in the first place. He may think that I am not really thanking him, but I am—it is important for your Lordships’ House to discuss these matters, particularly one such as this which has been in force for the past 18 years and only recently amended ever so slightly.
The debate allows me to both reiterate the importance with which the Government view the safeguarding of those small numbers of young people authorised as covert human intelligence sources and restate the enhanced safeguards that support the juvenile CHIS authorisation framework. We have recently strengthened those safeguards further, as noble Lords have mentioned.
I recognise the concern about the power more broadly, which has been remarked on before not just by me but by other noble Lords. The deployment involved is very small—it is unlikely to reach double figures. However, it is not a new concept. The 2000 order and the various iterations of the CHIS code of practice have governed the use of juvenile CHIS for almost two decades, ensuring that where it is necessary to authorise juveniles as CHIS, an enhanced authorisation and risk assessment is applied. I hope that the debate will assure noble Lords that the existing regime and our amendments to provide a legal framework place the welfare of the CHIS as the primary consideration; the interests of the child have been and will be paramount.
I will start by addressing the question of the noble Lord, Lord Paddick—the noble Lord, Lord Kennedy, asked me a very similar one—on why we have extended the authorisation for the juvenile CHIS from one month to four months and why we are increasing the period between renewals at a point when CHIS are being deployed in increasingly dangerous situations. Secondly, he asked why, when a monthly review of the case is required in any event, the review could not just continue to consider renewal of the authorisation—that is a question that the noble Lord, Lord Paddick, has now posed to me twice.
Maybe at this point it would be useful to clarify something that has been misunderstood about this issue. When the Regulation of Investigatory Powers Act, or RIPA, and the associated safeguards around the use of juvenile CHIS were taken through Parliament in 2000, it is important to note that no restrictions were placed on the use of this power. I am not saying that as a cheap point, but to illustrate how we have enhanced some of the safeguards. It is the case, and always has been, that the decision whether to deploy a CHIS is an operational matter. As I have said, public authorities do so very rarely and only where necessary and proportionate, and where they are satisfied that the welfare of the child is being protected.
While we have been very clear that these changes are in part a response to shifts in crime methodology and types since this legislation was introduced some 18 years ago, I would like to avoid creating the impression that the regulations laid before Parliament this summer somehow enable or facilitate a step change in the range of cases in which the juvenile CHIS can be deployed. They do not; they simply enhance the safeguards to ensure the juvenile CHIS can be adequately protected in the rare circumstances in which they are used. We consider the change to the authorisation period to be an enhancement of the safeguards, rather than a reduction.
That takes me on to the second part of the question, which is also one that the noble Lord, Lord Kennedy, asked. Providing for an authorisation period of four months rather than one month enables the applicant to far more clearly set out how the CHIS will be expected to perform their role, and to deliver the investigative results over a reasonable timeframe. It allows the applicant to provide a fuller picture, explaining in detail why such an authorisation is necessary and proportionate in planning that deployment.
It is probably important to note that the chair of the JCHR put it very succinctly in her recent letter to the Security Minister, phrasing the reasoning, which the JCHR sees the logic of, as,
“the achievement of results is driven by the assignment rather than by the need to justify the next month’s extension”.
I think she makes a very important point. In response to the noble Lord, Lord Paddick, who asked about the reply to the chair’s second letter, I understand that it is on its way to her imminently.
The fact that the authorisation no longer needs to be formally renewed on a monthly basis means that the review, which the code of practice requires to take place at least monthly, can focus more heavily on the welfare aspects of the young person. It will of course consider whether the authorised conduct continues to remain necessary and proportionate, and these reviews will also help inform consideration of whether it is necessary and proportionate to renew the authorisation at the four-month interval. I think the noble Lord, Lord Paddick, might want to intervene there.
I am very grateful to the Minister. Can she clarify? Under the old system, the assistant chief constable or equivalent would have to renew the authorisation every month; under the new system, it is my understanding that the assistant chief constable will only be involved every four months if there is a renewal and is not involved on a monthly basis as under the old system.
I have this answer somewhere, if the noble Lord will bear with me. It is a statutory requirement for the authorisation to be at the rank of assistant chief constable. I think the noble Lord knows that. The monthly review is not a statutory requirement, but as a further safeguard we have included it in the updated code of practice.
I understand that the monthly review is done by the assistant chief constable. Have I still not answered the noble Lord’s question? The monthly review might be carried out by the authorising officer, but it is not a statutory requirement.
I do not know whether the noble Lord has that right or wrong. I will have to come back to him on that point. Just so he does not think I am derelict in my duty, I did ask that question but I will have to come back to him on it.
I turn to the second question, which was not about the changes that we have made but about the existing distinction in the safeguards, where an appropriate adult must be present in all meetings with a juvenile under the age of 16, but not for those aged 16 and 17. The noble Lord compared this with rules around the interview of juveniles under caution, where interviews of all under-18s require an appropriate adult to be present. I point out that 16 and 17 year-olds can absolutely request that somebody be present—a social worker, an appropriate adult or even a lawyer—but it is not mandated. That probably will not satisfy the noble Lord, but the law recognises that parental responsibility diminishes as a child matures. There are therefore a number of areas where the law treats over-16s differently from under-16s. For example, they can apply for their own passports or join the military.
Internal police guidance on deploying juvenile CHIS contains detail on how to safeguard and promote the well-being of the juvenile CHIS, including how to assess their maturity and capacity to give informed consent, which the noble Lord, Lord Kennedy, mentioned, a requirement to ensure that handlers are properly trained to deal with young people—they have day-to-day responsibility for the CHIS and must raise any issues surrounding matters including the safety and welfare of the CHIS with those responsible for authorising their deployment—and requirements to consider all aspects of safeguarding the young person.
Yes. Any officer dealing with a juvenile will have safeguarding training.
The enhanced risk assessments required before a CHIS is tasked are reviewed and updated throughout the duration of an authorisation, and are also updated after an authorisation is cancelled and where contact is maintained with the CHIS. This applies to all juvenile CHISs, regardless of age, but it really should not be taken that the vulnerability of all those aged under 18 is not taken seriously when considering deployment as a CHIS. Rather, the risk assessments are made on a case-by-case basis by those charged with day-to-day dealings with the CHIS, including on their safety and welfare, and who are charged with relaying this to the authorising officer, who also has a role in this assessment.
In a recent letter to the chair of the JCHR, the Investigatory Powers Commissioner, Lord Justice Fulford, provided clarity on what his inspectors considered when inspecting public authorities which have authorised juvenile CHISs, and confirmed that the detailed focus of his inspectors is on the “duty of care”.
Turning to the very specific comparison, I think we are probably talking about a different scenario—one where the juvenile could be charged with an offence, and convicted or given a caution. With a juvenile CHIS, we are talking about a very different scenario. A child would need to give or confirm their consent to take on the role, and is under no obligation or pressure to act as a juvenile CHIS.
The third question raised by the noble Lord, and also by the noble Lord, Lord Kennedy, is how the needs of the specific child are prioritised, particularly with the UN Convention on the Rights of the Child in mind. The UK ensures that the principles of the convention are considered and realised through the approach taken in legislation and other measures, ensuring that the child’s rights and interests are safeguarded.
On the previous point made by the Minister about there being no pressure put on a young person to act as a CHIS, is it possible, when a young person has come to the attention of the authorities—or may have committed a crime—that it would be suggested to the child that matters would not be proceeded with if they were to act as a CHIS instead?
I understand the noble Lord’s point. It would be unwise for me to stand at the Dispatch Box and say that that was the case, because I simply do not know. I can find that out. It would be rather cynical to take the view that these children, who are perhaps not perfect in many cases, would be deployed just on the information that officers could get out of them or as a quid pro quo for leniency over other matters in which they may have been found wanting.
I am just trying to understand the situation. It would be nice to hear from the noble Baroness at some point—maybe she can write to us. It should obviously always come to the attention of the authorities through various means, such as intelligence. However the authorities come to it, what are the circumstances such young people would find themselves in with the authorities?
I will certainly write to the noble Lord on that matter.
The legal framework governing the authorisation and the use of the juvenile CHIS, when taken as a whole, is clearly capable of being exercised in a way which is consistent with the UN Convention on the Rights of the Child. The 2000 order, the supporting guidance provided in the CHIS code of practice and the internal guidance applied by public authorities seeking to use juvenile CHISs, all ensure that the welfare of any juvenile being considered for deployment as a CHIS is the paramount consideration.
Each part of the legislative framework is designed to ensure that the authorisation of a CHIS under the age of 18 is subject to enhanced safeguards, reflecting the need to consider the welfare of the child. The Regulation of Investigatory Powers (Juveniles) Order 2000 requires enhanced risk assessments to accompany any decision to use a juvenile CHIS, which are updated to reflect developments during the course of the deployment. They take into account the physical and psychological welfare of that young person, and are also updated after the deployment if contact is made.
The police will also have regard to their broader safeguarding responsibilities when making these decisions, which was the point raised by the noble Lord, Lord Kennedy. Indeed, the National Strategy for the Policing of Children and Young People, endorsed and published by the National Police Chiefs’ Council in 2015, says:
“It is crucial that in all encounters with the police those below the age of 18 should be treated as children first. All officers must have regard to their safety, welfare and wellbeing”,
as required under Sections 10 and 11 of the Children Act 2004 and the United Nations Convention on the Rights of the Child.
As I said, internal police guidance on deploying juvenile CHISs contains detail on how to safeguard and promote their well-being, including how to assess their maturity and capacity to give informed consent, a requirement to ensure that the handlers are properly trained to deal with young people and requirements to consider all aspects of safeguarding the young person. This includes giving particular care to planning for the safety of the young person and maintaining that level of safety throughout the duration of the deployment.
The use of juveniles as CHISs, while not commonplace, is not a new development. The 2000 order and various iterations of the codes of practice have governed the use of juvenile CHISs for almost two decades. However, insufficient regard has been given to the importance of the independent oversight that commissioners have previously provided and now provide, ensuring the appropriate and lawful use of juvenile CHISs by the relevant public authorities. Such oversight includes inspecting public authorities, with the inspectors considering the detail of each case involving juveniles as CHISs.
In particular, I am sure that I am not alone in welcoming the undertaking given by the Investigatory Powers Commissioner, Lord Justice Fulford, to report on the issue, which I am sure will be extremely valuable. He has been able share some preliminary information, which I am sure noble Lords will be interested to hear. Twenty-eight returns covering a total of 43 forces in the period January 2015 to October 2018 show that 14 juveniles have been authorised as CHISs in the UK. The vast majority were aged 17 at the time of their authorisation and no juvenile has been authorised below the age of 15. I hope that that gives noble Lords some comfort. The commissioner has noted that the use of the juvenile CHIS is not taken lightly. In the majority of instances, the types of criminality on which they have provided information in the past three years are markedly serious and include murder, gang violence, high-level drug supply and the possession or use of offensive weapons.
The commissioner also considers that senior authorising officers take their responsibilities in this context very seriously and that the statistical returns provide considerable confidence that, against a backdrop of only occasional use of juveniles as CHISs, a significant number of requests are refused. He has found that the young person is either already voluntarily participating in the relevant criminality or has been compelled to be involved. He gives by way of example members of violent gangs or victims of child sexual abuse who are trying to escape and wish to help others similarly placed to get away from their abusers. He observes that the police have responsibilities under the government initiative, Every Child Matters, and will be expected to take into account the safeguarding principles that should underpin all decision-making in relation to authorisation of a juvenile as a CHIS.
Finally, the commissioner has also confirmed the rigorous nature of the oversight provided—although I am sure that there is no doubt about that. He notes that, if his inspectors have material concerns about an authorisation, these will be raised, discussed and set out in the inspection report. He states that there have been no concerns of relevance during the period from 2015. He notes that it would appear, therefore, that the safeguards have been effective, with the result that no case has been brought to his attention in which a juvenile CHIS has been inappropriately used, to their detriment.
I turn to the various questions that noble Lords have raised. The noble Lord, Lord Paddick, referred to the legal action being brought. We have received and responded to a pre-action letter from the children’s charity, Just for Kids Law, relating to the use of the juvenile CHIS. Noble Lords will understand that it would not be appropriate to comment at this stage.
The noble Baroness, Lady Hamwee, talked about consultation with organisations involved in safeguarding. There is no requirement to consult publicly on changes to the 2000 order, but we consulted broadly with the operational community, and the Investigatory Powers Commissioner’s Office was also involved in these discussions. All those who use juvenile CHISs have a duty of care to the CHIS. The duty is to safeguard children and young people, and this was taken into account as part of the consultation.
I understand that it would be police operational, but I will clarify for the noble Baroness whether operators in the children’s sector were also involved.
The updates to the CHIS code of practice in 2014 and 2017 were subject to formal public consultation, with no concerns raised about either the use of juveniles as CHISs or the safeguards that apply. But this provision has been in place for 18 years and it has probably had more scrutiny in the last two months than it ever had during those 18 years—and that is a good thing.
The noble Baroness, Lady Hamwee, also outlined an absolutely harrowing case study. I understand that those issues, if we are talking about the same ones, are being considered by the undercover police inquiry and that the Home Office is co-operating fully with the inquiry. We have responded to requests for information and have given the inquiry access to our files and records.
The noble and learned Lord, Lord Judge, raised the issue of further oversight. I think that I went through that point when we last debated this. It would not be a simple matter; it would be one for primary legislation. Nevertheless, I take his point. I hope he feels that, under the leadership of Governments of different political colours, the safeguards have been enhanced and are robust, and that there is strong and effective oversight in the form of Lord Justice Fulford.
The noble Lord, Lord Kennedy, talked about the public consultations on the provision. It was subject to statutory public consultations—most recently in 2017-18—and views from all were absolutely welcome. It is not incompatible with existing legislation—but, as I have just said, this House has given it more scrutiny than any other.
I have two more scraps of paper. The noble Lord, Lord Paddick, asked about the authorising officer. The authorising officer should, where possible, be responsible for completing subsequent renewals and any other related security or welfare issue—but I do not think that that answers his question. I now know what that question was, and the other scrap does not answer it, either, so I will get back to him on that specific point.
This House has given this really serious issue the time, scrutiny and questioning that it deserves, after 18 years of it passing largely unnoticed by either House of Parliament. I thank the noble Lord, Lord Haskel, for raising this in the first instance and the noble Lord, Lord Paddick, for raising it today.
My Lords, I too thank the noble Lord, Lord Haskel, and the Secondary Legislation Scrutiny Committee for bringing this provision to the attention of the House. As he said, using children in this way puts them in danger, and if any of us were in any doubt about that, the harrowing story that my noble friend Lady Hamwee told the House clearly indicates that.
The noble and learned Lord, Lord Judge, made the important point that surveillance commissioners formerly and now judicial commissioners review the deployment of child CHISs after the event. There is now a recognised definition of a child as a person under 18. We should be talking about child CHISs, not juvenile CHISs, in this debate. An eminently sensible suggestion was made. Under the Investigatory Powers Act, many surveillance powers are subject to the double lock whereby both a senior officer and a judicial commissioner agree to the use of the surveillance technique. Why can that not be used in this case?
The Minister kept talking about the enhanced safeguards provided by these regulations. We still do not know whether the independent senior officer—the assistant chief constable—will be looking at these cases every four months instead of, as previously, having to look at them every month because the assistant chief constable could authorise for only one month at a time. We still do not know who is doing the review. If it is being done by the officer who applied to the assistant chief constable, rather than by the assistant chief constable himself or herself, I do not think anybody could describe that as an enhanced safeguard.
The Minister said that a child being interviewed under caution for a criminal offence is not comparable with being recruited as a CHIS. It is far more dangerous to be recruited as a CHIS than it is to be interviewed. The fact that 16 and 17 year-olds can be recruited as CHISs without an adult being present but cannot be questioned about a criminal offence does not strike me as an enhanced safeguard. Whether the legal framework governing the authorisation and use of juvenile CHISs, when taken as a whole, is clearly capable of being exercised in a way that is consistent with the UN Convention on the Rights of the Child is an issue that the courts will be asked to consider. Therefore, on that question we perhaps do not need to take things further today.
I am very grateful to the Minister not only for the time to debate this twice, once in Grand Committee and once in the Chamber, but for the time she has spent discussing these issues with me and trying to clarify what we need on the record. Unfortunately, I do not feel that we have got there this evening. There are unresolved matters which the Minister has agreed to write to noble Lords about. At this stage, I beg leave to withdraw the Motion.
House adjourned at 6.28 pm.