House of Lords
Thursday 24 February 2022
Prayers—read by the Lord Bishop of Coventry.
Oaths and Affirmations
The Duke of Norfolk took the oath, and signed an undertaking to abide by the Code of Conduct.
The following Acts were given Royal Assent:
Advanced Research and Invention Agency Act,
Dormant Assets Act,
Ukraine: NATO Membership
My Lords, the United Kingdom strongly condemns the appalling, unprovoked attack that President Putin has launched on the people of Ukraine. President Putin has chosen a path of bloodshed and destruction by launching this unprovoked attack on Ukraine. The United Kingdom remains firmly committed to Ukraine’s independence, sovereignty and territorial integrity within its internationally recognised borders. We fully support the partnership relationship between NATO and Ukraine, and we remain committed to the 2008 Bucharest Summit Declaration in which all NATO allies agreed that Ukraine will become a member of the alliance. In 2020, NATO welcomed Ukraine as an enhanced opportunity partner as a means of enhancing its interoperability and co-operation with the alliance in order to support Ukraine’s continuing programme of internal reform.
My Lords, those of us who have tried to help Russia through the Council of Europe, the Russia APPG et cetera, are bitterly disappointed that the categorical denials of any intention to invade Ukraine have been torn up, and we were not told the truth. I support the work of the Minister and ask whether, as a first step, he would consider recalling our ambassador in Moscow for consultations and suggesting that the Russian ambassador in London might also return to Moscow to find out why he was ordered to lie to us.
I thank my noble friend for his remarks, and I can share that, as I was coming to your Lordships’ House, the Foreign Secretary announced that she will summon the Russian ambassador to the Court of St James today. These are fast-moving events. I cannot comment on the specifics of what my noble friend raises, but we are working with key partners in NATO and our colleagues in the European Union. I have just this morning returned from the United Nations, and I think I speak for every single member of your Lordships’ House when I say that we unequivocally condemn the actions of the Russian state and of President Putin. Even at this juncture, it is time for him to withdraw. Peace over war is always a better option.
My Lords, I am taking the unusual step of intervening straight away just to echo the comments of the Minister. He knows that the Opposition fully support the Government in all their actions to ensure that the democratic sovereignty of an independent nation is protected. We should do everything in our power to support Ukraine and to ensure that we work with all of our allies to bring this to an end. He knows that later today the Prime Minister will make a Statement, and I know that we will have an opportunity to consider that ourselves. So I am not going to pose a question to the Minister; I just wanted to express our support for the Government’s actions to ensure that Russia is defeated on this matter.
My Lords, I thank the noble Lord. He and I spoke earlier this morning, when I updated him on key parts of the situation as it unravels. He is of course correct; I believe that my right honourable friend the Prime Minister will be addressing the country as I speak. There will be further opportunities during the day to raise questions on elements of our response to this unwarranted, unnecessary and unprovoked aggression of the Russian state against Ukraine and the Ukrainian people.
My Lords, would the Minister not agree that this demonstrates what some of us have said all along: that the question of Ukraine’s NATO status has always been a smokescreen and a pretence by Russia, which is in fact determined to destabilise Ukraine and prevent it becoming a stable democratic country? If that is the case, I hope that we will hear tomorrow from him and other Ministers how we will respond to what is after all a war of choice and a war of aggression, and thus a war crime.
The noble Lord speaks with great insight and experience. I assure him—indeed, all in your Lordships’ House—that the whole purpose of my being at the United Nations yesterday as part of the General Assembly debate was, again, because of the brinkmanship that was being shown by President Putin. He went to the brink and has now stepped over the line. We will of course outline further action and further details during the course of today. I understand from my right honourable friend the Chief Whip that a debate on Ukraine is also scheduled for tomorrow, and I am sure that we will be discussing further details of statements that will be made during the course of today.
My Lords, we on these Benches also support the Government in their reaction to the invasion of Ukraine, but we wonder whether it would be possible to go further; obviously, we will be discussing sanctions later. For example, one of the issues that has faced Ukraine for months is the attack on its cyber system. To what extent might NATO be able to give support from its Cyber Defence Centre of Excellence, which is based in Estonia?
My Lords, first, I thank the noble Baroness for her support. Again, it is important that there is a single unitary voice from your Lordships’ House and across both Houses of Parliament against this unprovoked Russian aggression against a sovereign state. On the issue of cyber, I was in Estonia about 10 days ago as part of our engagement on broader issues. I met our forces on the ground there and looked at our capabilities, including cyber. We are, not just through NATO but directly, offering the Ukrainian Government and Ukrainian people our full support. However, I would add that cyber is a challenge that is being met and felt not just by the Ukrainian people; we have felt it right here in the UK as well.
Will my noble friend keep reminding his colleagues that Russia is in some senses half an Asian nation as well as a European one, and that we need not only a united NATO, which I think we are moving towards, but the strong and full financial and commercial engagement of the great powers of Asia to establish the pariah status of Russia in Mr Putin’s mind?
My Lords, I agree with my noble friend and can assure him that, later today, I will host a meeting with the ambassadors of the UN Security Council members in the Court of St James. It is important that we see unity. Of course, we fully expect any resolution to be vetoed by Russia in the Security Council, but there will be further debates in the General Assembly in which we will look to show the maximum level of support across all nations.
The other thing that is often forgotten is the point made by my right honourable friend the Defence Secretary: around 1/16 of Russia’s border faces countries that are members of the NATO alliance. So we need to put this into context and perspective as well.
My Lords, I join the Minister and my noble friend Lord Collins in their condemnation of what is a crime against the peaceful people of Ukraine. It ought to be condemned at every turn. Suddenly in these circumstances we are talking about and debating the issue of NATO expansion, when it was not an issue at all. As the noble Lord, Lord Hannay, said, this plays exactly to Putin’s playbook. It is of advantage to him only because it distracts from urgent matters—namely, Russia’s problems, which are driving his criminal behaviour. President Biden, who, over the course of two decades of war in Iraq and Afghanistan, has grown sceptical about expanding US military commitments, has been open and honest with the Ukrainians about the unlikelihood of them meeting the current criteria for membership. Will the Minister do likewise and help to put this issue to bed now, so that we can concentrate on what is actually happening?
My Lords, I have already outlined the Government’s position on Ukraine’s NATO membership, as and whenever that might take place. Of course, there are certain criteria, which have been detailed and shared with the Ukrainians. If they meet those criteria, it is a choice for Ukraine to join NATO and for other member states to agree its membership. However, at this particular juncture, I agree with the noble Lord that our focus should be very much on the situation as it is unravelling. We offer Ukraine our full support in every respect and are working, together with our NATO allies and our partners across the European Union, in the context of the United States and others, to ensure that this message is received in Moscow very clearly: its actions were not just unprovoked but are an act of aggression against a sovereign state. Pull back, and pull back now.
My Lords, the Minister spoke of the importance of a unitary voice; of course, he is absolutely correct as far as this place is concerned. However, in his initial response he also touched on matters relating to the European Union. Is he aware that, yesterday, both Italy and Austria prevaricated in their support for sanctions? Indeed, Hungary is directly opposed to sanctions. What will the Minister do to encourage these states to come in line with what is the right thing to do?
My Lords, I can share that, among my meetings at the United Nations yesterday, I met the Foreign Minister of Germany. We welcome the decision made by the German Chancellor to pull back on Nord Stream 2. That shows the real sense of unity prevailing across Europe. It is my understanding that, later today, there will be an EU Foreign Affairs Council meeting, which will discuss the very issues that the noble Lord raises.
Higher Education: T-Levels
To ask Her Majesty’s Government what assessment they have made of the acceptance of T Levels by Higher Education institutions for candidates for admission to universities via the Universities and Colleges Admissions Service (UCAS) in the current application cycle.
My Lords, we recently published a list of higher education providers that will accept T-levels. Some 118 higher education providers, of which 78 are English universities, have so far agreed to accept applications from T-level students. This overall figure has increased from 75 since December last year, and we expect it to continue to grow.
My Lords, I thank the Minister for her very helpful response and the progress that has been made. Given the importance of students and parents having every opportunity to find out about T-levels, alongside other routes into intended careers, what further steps are the Government considering to better ensure that parents and students receive the right kind of information and advice at the right time? Might the Minister consider bringing together those with a specific contribution to make in addressing these and other issues to ensure the success and full take-up of T-levels in advance of the next admissions cycle?
In response to the last part of the right reverend Prelate’s question, I say that we would be delighted. We are already hosting a number of round tables, particularly with higher education providers, and would be glad to widen that circle and learn from his expertise and that of others like him. We are working hard to engage with the sector directly. We are providing support and resources so that students can find the course that is right for them.
My Lords, does the Minister agree that we need a better picture of universities— 115 is the figure I had found as well—that might sometimes offer only one or two courses? Students need a better picture of what they are signing up to and what they are removing themselves from if they take the T-level option. Will the Government look at how A-level options can work with the T-level, as they currently do with BTECs?
To the best of my knowledge there are no plans to look at the noble Lord’s second proposal, because a single T-level is equivalent to three A-levels, so it would perhaps be unrealistic to do that. We are obviously in the very early stages of T-levels. We currently have 11 T-level options, I think. There was some confusion in the early stages about some of the content of those courses and how that translated to universities. However, we remain optimistic about the potential of T-levels.
My Lords, does my noble friend agree that one of the most important aspects of T-levels is that students have to spend nine weeks of work experience with a local firm? This is quite difficult to find even in the great metropolitan areas, but in areas of deprivation and in rural areas it is very difficult indeed to find such placements. What inducements will the Government provide for firms in those areas to take part? I remind your Lordships of my interest as chairman of the Chartered Institution for Further Education.
I absolutely agree with my noble friend about the value of work experience and the whole philosophy of T-levels—that students undertaking them will be work-ready. I am aware that there has been disruption to opportunities for work experience—caused principally by the pandemic—but, having designed the qualification with employers, we remain confident that those opportunities will emerge.
My question follows rather well from the previous question. In the information to employers, the Government say:
“At the heart of each course, a 45-day industry placement will give you early access to the brightest talent entering your market”.
How are we going to ensure that this happens? The Minister has responded to that point, but what oversight will there be to ensure that this really is good-quality work experience?
My Lords, the Minister will appreciate that further education, technical education and engineering have had a devastating time over the last decade, with the failure of the Government to sustain anything like the resources which colleges needed. If we are to make a success of the qualifications, let us make no bones about it, that is what students and their parents and those who look after them will look at closely. They will be keen to see what credibility is attached to this development. Will the Government give the assurance that it will be a high priority?
My Lords, it is important that we make the T-levels the success that they should be for vocational education as a whole. I am not sure the Minister properly answered the question about rural areas, where there will be a much narrower choice of options and students will struggle to find employers who will give placements. Could encouragement be given to those employers through financial incentives?
My Lords, closely tied in with the emergence of T-levels is the fate of BTEC qualifications. Are the Government confident that the range of opportunities aside from A-levels that will be available to all students once T-levels have been phased in will be wide enough to encompass the many students who may have special needs or special abilities—sometimes those things go together—which are best served currently by BTEC? I ask particularly, given that the Government declined to extend the life of BTECs by more than a very short amount in the Bill.
I understand the noble Baroness’s concern. Of course we want to make sure that young people in this country have the range of opportunities that they deserve, and that the industries and employers get the range of skills they need to be able to deliver. The Wolf review and the Sainsbury review were clear that things needed to change in terms of technical and vocational qualifications, and we are addressing those recommendations.
I will try to answer that question twice. I can only reiterate what I said to the noble Lord, Lord Storey; namely, that local colleges will choose the courses most appropriate in their communities and work with employers to deliver those experiences.
My Lords, if T-levels are to be a success—we on these Benches very much want them to be—there are two issues. One has been raised by the noble Lords, Lord Lingfield and Lord Storey, which is the question of placements. The other is the question of recognition by universities. The list on the DfE website of the 118 higher education providers, which the Minister referred to, that will accept T-levels for entry is welcome and encouraging, but only 10 of the 24 Russell group universities are on that list. What are the Government doing to encourage more of these institutions to recognise T-levels, as a means of widening the access for young people from less well-off families to the more selective universities?
I will answer the noble Lord in two parts. First, we are working closely and engaging actively with a number of universities, including those in the Russell group. I am sure that he will share my pleasure in seeing that the number of applicants to universities in England from the most disadvantaged backgrounds rose by 10% year on year in January 2022, which is perhaps not an outcome we would have expected. Equally, the point of T-levels is to give the students who take them choice. For some students that will be university, for some it will be Russell group, for others it will be going straight into employment, and for others it will be further qualifications at different levels. Choice is essential.
National Food Strategy
My Lords, I declare my farming interests as set out in the register. The forthcoming government food strategy will set out the Government’s ambition and priorities for the food system, considering the evidence set out in Henry Dimbleby’s independent review and building on additional topics. We are actively collaborating across government to cover the entire food system, to consider the unforeseen challenges that the agri-food sector has faced in this last year since the independent review was published. We expect to publish the Government’s food strategy very shortly.
I thank the Minister, but I am disappointed that I did not get an answer as to the date, since it is now already two weeks since the agreement. I am glad that the Government agree that the food system is in urgent need of reform. There are many major risks to not acting. Our health is worsening, supply chains are fragile, and the climate and nature commitments cannot be met without more action on food. The NFS has created a rare moment of consensus across the board, which should be grasped by the Government. Do they agree that part of the food strategy White Paper will demand a commitment from the Government to follow through with a good food Bill which will set this stuff up as a framework for the future?
The food strategy is an attempt for the first time to draw together all different aspects of the food system. I am very admiring of the noble Baroness’s work, not least with the Food Foundation. I assure her that the Government will take any measures necessary, legislative or otherwise, to implement this very well thought-through piece of work. I regret that it was not published exactly within six months, but it will be published very shortly.
My Lords, I congratulate the Government on their work on the food strategy, and the noble Baroness and Henry Dimbleby on their work. Bearing in mind that we might be facing a humanitarian crisis in Ukraine, will my noble friend update the House on what measures we are taking to increase our self-sufficiency in food and our general food security? What measures are the Government taking to tackle the immediate pig crisis that we face with the difficulty of manning abattoirs and their slaughterhouses?
The Government have gone to great lengths to ensure that the latter problem has been resolved. As things stand, we have imported enough people to help with the processing of pigmeat, although there are still problems. It is too early to assess the issue concerning Ukraine. Some 75% to 80% of our seasonal workers come from Ukraine. It is uncertain at this stage whether the current situation will have any effect on that, but we are watching it very closely and talking to other countries as well.
My Lords, will the Minister guarantee that in the context of the national food strategy, those companies—I am sure he knows which ones they are—that have sought to manipulate meat and chicken products in various markets are excluded from trying to do the same in the United Kingdom’s markets. They have been very heavily prosecuted in other countries. Nevertheless, will he ensure that they are not allowed the freedom to exploit, in some cases illegally, the market opportunities in the United Kingdom?
The food strategy sits within the wider intention of the Government, with cross-party support, to ensure that we have the most sustainable and highest standards in all areas of food production. That requires the corporate organisations such as the ones that the noble Lord recognises to understand that there is no safe place for them if they break those rules in this part of the global economy.
My Lords, will the Government’s response also include a land use strategy, which was recommended recently by your Lordships’ Science and Technology Committee, in its report on nature-based solutions to climate change? Given the increasing pressure on land use, is it not important to recognise the pressure to grow more foods and fuels sustainably, and build houses and land for industry and infrastructure, alongside the need to set aside certain land for conservation of biodiversity? We need a land use strategy. Will the Government come forward with one?
This is a moment of almost revolutionary change in agriculture, not only in how we support and incentivise farmers but in how we produce food. What was so impressive about Henry Dimbleby’s work, and what will be reflected in the food strategy, is that we are looking at the entire food system—yes, the impact that our food production has on the environment but also the effect it has on people and diet, so the whole food chain.
It is this side. The national food strategy recognises that farmers need greater help to transition to more sustainable land use. Does the Minister understand the frustration of Minette Batters, who said at the NFU conference this week that rather than having a clear plan and vision for sustainable and productive farming, the Government are “repeatedly running” into short-term crises in the sector which they could have foreseen and pre-empted if there had been a proper food strategy backed up by the proper resources?
We are putting enormous resources into supporting farmers, incentivising them in a different but less prescriptive way than under the common agricultural policy. We are supporting an industry-wide attempt to ensure that we are eating better, healthier, more sustainable food. There will always be problems, but we have a remarkably resilient food supply system in this country which has ridden out some very difficult bumps in the road recently. We are not complacent. We are putting enormous resources, human and financial, into ensuring that we have a sustainable, long-term, well thought-through food system in this country.
My Lords, I apologise; I did not realise that it was the Opposition Front Bench speaking. The national food strategy is a fantastic piece of work, but it concerns me that the Government are pressing ahead with a ban on what they pejoratively call “junk food advertising”, which will damage our public service broadcasters, before they have published their comprehensive response to the national food strategy. Will the Minister put these proposals on hold until he comes forward with what will no doubt be an excellent and comprehensive strategy?
The Government have consulted widely on this and there is significant evidence that banning junk food advertising at certain times of the day on certain channels does have an effect on the younger elements of our society who are partial to junk food. I respectfully disagree with my noble friend. This is an opportunity to take a small step as part of a much bigger picture to protect people from unhealthy diets.
My Lords, I chaired the London Food Board, which produced the first London food strategy. In that, the biggest win for people and planet was to eat local food. This Government are not supporting our UK farmers but are buying food, which we can produce, from half way around the world. How is that helping our UK farmers?
Quite to the contrary, we want people to eat good-quality, sustainably produced food with high welfare standards. The intention is to enable farmers to produce that successfully in a global marketplace. Ultimately, it is the consumer who makes these choices. We want to ensure that we are giving farmers every support they need to continue producing the high-quality food that our consumers benefit from.
My Lords, Dimbleby’s strategy referred to the rising levels of food allergies, particularly among young children but also among adults. Given the increasing importance of support needed for those affected by food allergies, what discussions has the Minister had, or will he be having, with colleagues in the Department of Health and Social Care, regarding the establishment of a national allergy lead?
I will write to the noble Baroness with details of that. The food strategy is a comprehensive piece of work which looks at a lot of health-related matters. It is across government, and the Department of Health has been very closely involved in putting it together. I cannot tell her exactly whether there will be reference to food allergies in it, but there is certainly a lot of work going on in government on that subject.
My Lords, last week’s “Countryfile”, which has great influence, was very disturbing. It indicated that we were not giving proper encouragement to our own sugar beet industry but bringing in cane sugar from thousands of miles away. This supports what was said by the splendid noble Baroness, Lady Jones. Is this the case? If it is, we have got it wrong.
It is the Government’s intention to sustain a viable sugar beet industry. That involves not just farmers producing sugar beet but the four factories that we have in this country continuing to do so. If one or more of them were to close, we would be reliant on sugar produced in less environmentally sustainable ways from much further away, and my noble friend is entirely right to point out that it would be at a much higher environmental cost as well.
National Tutoring Programme
My Lords, more than 300,000 tutoring courses began last term, nearing the total figure for the whole of the previous academic year. We remain confident that the National Tutoring Programme is on track to deliver the ambitious target of 2 million courses this academic year. We are particularly pleased with the uptake of the school-led part of the programme, and we are working closely with Randstad to address the challenges in the tuition partner and academic mentor elements.
My Lords, has something not gone wrong with this immensely important programme? Is it not attracting criticism from experts, many of whom regard it as unduly bureaucratic and insufficiently resourced? Why have the Government not done more to involve independent schools? They want to play their part in this programme, in the spirit of the partnership between the two sectors of education which we all want to encourage. I declare my interest as president of the Independent Schools Association.
My noble friend makes a fair point about ensuring that the programme is as unbureaucratic as possible. I know that colleagues are working very closely with Randstad to try to simplify elements of the programme, and that work is happening at pace. I am also aware that a number of partnerships already exist between the independent sector and state-funded schools. We have very much followed the advice we were given by state-funded schools about structuring the programme.
My Lords, Neil Armstrong, the astronaut, was once asked what frightened him most about going into space. He said it was the idea that a thousand different component parts had been put out to the lowest possible tender. This is what has happened with the National Tutoring Programme. Is it not time to stop the complacency, put children first and cancel the contract?
I had not thought about Neil Armstrong for a while. I thank the noble Lord for the reminder, but I do not think that that is an accurate reflection. There is absolutely no complacency in the department about this contract. We are committed to delivering 2 million courses, and we are working extremely closely with Randstad to make sure this happens.
My Lords, what would the Minister say to Garry Ratcliffe, the chief executive of an academy trust of primary schools in a deprived community in Kent? One Saturday morning, 20 or so pupils were gathered together for their tutoring session and 10 minutes beforehand, it was cancelled. We hear from school leaders up and down the country about the poor quality of tutors, their lack of punctuality, “no show” and lack of specialist knowledge. Surely it is time that the financing of this programme be given directly to the schools. Independent schools could be involved to make this a really successful programme.
I remind the noble Lord that the bulk of the programme is being directly delivered by schools; that is what they recommended to government, and we listened. Some 230,000 tuition courses started through the school-led pillar, 52,000 through tuition partners and 20,000 through academic mentors. There is a reason for the blend of approaches. It is clearly unacceptable for a tutor not to turn up, and I hope that Mr Ratcliffe has been able to resolve that.
My Lords, the government figures are for courses which have started, but as the noble Lord pointed out, many of these courses cannot be completed because of no shows by tutors. Does the Minister have any figures for how many courses have been fully completed?
It is relatively early days. I do not have those figures with me, but I am happy to share them with the House if they are available. We will obviously be evaluating the programme, but I reiterate that the vast majority of the courses have been delivered in schools by school staff, so I am surprised at the suggestion that they have not been completed.
My Lords, what monitoring of outcomes and attainment has taken place with the current scheme? If this has happened, has it been broken down into categories, such as black and minority ethnic—including Gypsy, Traveller and Roma—disabled, girls and boys, so that we can see the real picture?
As I say, it is relatively early in the academic year. The programme started in September and if the noble Baroness looks at last year’s data, she will be aware that, even though there were no exams, the numbers taking these courses picked up very strongly ahead of the summer term. As I mentioned, we will be publishing the first stage of the evaluation in autumn 2022.
My Lords, can the Minister be sure that wherever the programmes are being delivered, there is sufficient emphasis on oracy—on speaking and listening? In many communities, particularly deprived ones, there may well have been a loss of confidence in speaking and even much slower language development. Of course, this underpins literacy and numeracy. It is clearly important that oracy should figure significantly in these tutoring programmes.
My Lords, the Minister’s bold attempts at boosterism cannot disguise the fact that the element of the National Tutoring Programme entrusted to Randstad is a car crash. I take no pleasure in saying that Labour warned of this last June, when the contract was awarded to a foreign company with little tutoring experience and no knowledge of our education system. The real tragedy is that the pupils who need it most are those who, in many cases, are being denied it. This was made clear by school heads when they gave evidence to the Education Committee last month, when they described the bureaucratic nightmare involved in trying to access the scheme. In words rather lengthier than those of my noble friend Lord Blunkett, will the Government now accept that this element of the National Tutoring Programme is failing and redirect its resources direct to schools, so that they can buy in resources to bolster their pupils’ recovery?
To reiterate, the Government are absolutely committed to this programme—the tuition and support should go to the children who need it most. We are working on a weekly basis with Randstad to address these issues. We have already made some changes, and improvements are coming through. We will not shy away from our responsibility to these children.
My Lords, the Government like to talk about being “world leading”. However, a survey by the National Association of Head Teachers found that one-fifth of those questioned rated the quality of tutors in the Randstad programme as low or very low, and 39% rated them as average. How can we possibly be achieving world-leading standards of education with such a low base, based on this privatised Dutch company?
I am surprised at the implicit criticism of a company being Dutch; the last time I looked, I think Randstad was pretty global, and I am sure that the noble Baroness would support a global outlook. I can only repeat that we are working with it on a weekly basis, and we are not going to accept second best. This contract, as is normal with many government contracts, is on a one year, plus one year, plus one year basis, with break clauses for both sides. Our priority is delivering for children.
My Lords, global companies are not always best placed for local delivery. I recall that one of the major outside contractors for test and trace was a company headquartered in Miami, whereas local health officers might well have known what they were doing much more quickly. The Government seem to have an overall bias in favour of outsourcing rather than insourcing, despite the clear evidence that outsourcing very often ends up more expensive and less effective. Is it not time that we began to look at the public sector, particularly local authorities, can deliver services, rather than constantly outsourcing them to more expensive external providers?
I just cannot agree with the noble Lord in this case. If we step back and think about what children need, there is more capacity in some schools and less in others to deliver tutoring support, which is happening incredibly effectively, but it is also clear that, in some areas, additional support is required, for example, where there are particular requirements for special educational needs or a particular intensity of this support. This programme was designed to be flexible and to address those needs. We are working with the provider to ensure that happens.
Arrangement of Business
My Lords, before we move on to the main business, I will update the House on business today and tomorrow in the light of events overnight in Ukraine. In doing so, I express my thanks to the usual channels for their co-operation. The current plan is that the Prime Minister will make a Statement in the House of Commons at around 5 pm. On that basis, the Leader of the House will repeat the Statement here at a convenient moment after 7 pm. The rest of the business will proceed as planned. The business tomorrow will be changed to a general debate on Russia/Ukraine, starting at 10 am. Members can sign up now on the Government Whips’ Office website. That list will close at 6 pm this evening. The three Select Committee reports that were due to be taken tomorrow will now be debated on Friday 11 March. I am very grateful to the noble Lords, Lord Lipsey and Lord Ricketts, and the noble Baroness, Lady Suttie, whose reports were due to be debated tomorrow, for their timely assistance this morning to allow this change to happen.
War Powers Bill [HL]
A Bill to make provision in connection with the deployment of UK Armed Forces outside the United Kingdom, overseas territories and Crown dependencies; to make provision for the approval by Parliament of a declaration of war by Her Majesty’s Government; and for connected purposes.
The Bill was introduced by Lord Lansley, read a first time and ordered to be printed.
Nationality and Borders Bill
Order of Consideration Motion
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 8, Schedule 1, Clauses 9 to 22, Schedule 2, Clauses 23 to 28, Schedule 3, Clauses 29 to 41, Schedule 4, Clause 42, Schedule 5, Clauses 43 and 44, Schedule 6, Clauses 45 and 46, Schedule 7, Clauses 47 to 84, Title.
Post Office: Horizon
Commons Urgent Question
My Lords, with the leave of the House, I will repeat an Answer to an Urgent Question given in the other place earlier this morning:
“I will update on Horizon matters since I last provided a Statement in December. I met with the BEIS Select Committee last month and last week the Select Committee published its interim report into the Post Office and Horizon IT scandal. The Government will consider the Committee’s recommendations and will respond in due course.
People need to know how this scandal came about and what protections are in place to avoid history repeating itself. That is why the Government established the Post Office Horizon IT Inquiry to investigate what went wrong. The evidence from postmasters who have participated since the inquiry hearings began last week has been harrowing to hear. I thank these postmasters for their courage and willingness to revisit the trauma they have experienced. Compensation cannot take away the suffering affected postmasters have experienced, but we are determined that each eligible person gets what is due to them and that it is paid as quickly as possible.
Of the 72 postmasters whose convictions have been overturned, over 95% have so far applied for an interim compensation payment of up to £100,000, of which 63 offers have been accepted and paid. The Government are pushing for final settlements for quashed convictions to follow as quickly as possible. Negotiations on the first two have begun. The Government are determined that all unjust convictions are quashed. The Post Office is reaching out to affected postmasters. The Post Office is also in discussion with other public prosecuting bodies responsible for the convictions of postmasters which may have relied on Horizon evidence to ensure that those postmasters are also contacted and enabled to appeal.
Offers have been made to over 40% of applicants and compensation has been paid to 764 postmasters who have applied to the historical shortfall scheme. Twenty-eight postmasters so far are proceeding through a dispute resolution process aimed at achieving acceptable settlements. At least 95% of cases should have been dealt with by the end of this year.
With compensation for overturned convictions and the historical shortfall scheme both well under way, the group of postmasters on whom my attentions are now focussed are those who exposed this whole scandal by taking the Post Office to the High Court. I know many honourable Members support the Select Committee’s view that it is unfair that they should have received less compensation than those who were not part of the case. I sympathise with that view too. I cannot yet report a resolution of that legally complex issue, but we are doing everything we can to address it.
The compensation which postmasters are due will exceed what the Post Office can afford. The Government are therefore stepping in to meet a good deal of the cost of that compensation. I recognise that this is an unwelcome burden on the taxpayer, but the House will agree that the alternative is unacceptable.”
I thank the Minister for repeating the response in the other place. The Horizon scandal is the UK’s biggest miscarriage of justice. The Minister has partly answered my question, but I will push him a little further on it because we are really keen to ensure that the 555 litigants who originally exposed this do not receive a lesser amount.
The judge-led inquiry into the scandal began this week, as the Minister said. He is right that we have heard some extremely moving testimonies. Can he confirm that the 555 litigants—the group who exposed this issue—will be able to claim full compensation and that the Government will spend some time and resources looking specifically at that? I appreciate that the Government are trying to achieve 95% by the end of the year, but now only 30% have had their claims processed. What pressure are the Government putting on the Post Office to speed the process up?
I thank the noble Lord for his excellent questions. On this, I agree with many of the points he made. Regarding the 555, who he rightly highlighted, as I said, they have been pioneers in this area. My honourable friend the Minister for Small Business is working at speed on this issue. They exposed the scandal by taking the Post Office to the High Court. They performed a huge public service by doing so, and I know that many noble Lords will support the Select Committee’s view that it is unfair that they have received less compensation than those who were not part of the case. I know that my honourable friend shares that view, and he has said that resolving that is the most important issue he currently faces. It is important to recognise that this is a legally complex issue because the case was settled in the High Court, but I know that officials and my honourable friend are working at pace to try to resolve it.
With regard to the historical shortfall scheme, things are slightly better than the noble Lord suggested; we are now up to 38% of the cases having been resolved. The Post Office’s best current estimate is that the scheme will cost £153 million across about 2,300 claims. It is important that we work through them as quickly as possible. Some of them are complex but they need to be worked through and resolved.
My Lords, I know the Minister has been working hard on this issue and he should be commended by all sides of the House on the effort that he is putting into it. The Statement says the Government are stepping in and that that is unwelcome. We should remember that the genesis of this problem came with faulty software and a system that did not work; it was made worse by the events that followed. We should also remember that Fujitsu, the company that provided that software, had revenues last year of over £20 billion, and we calculate that since 2013 the Government have awarded it a further £3 billion in contracts. Does the Minister share my surprise and indeed incredulity that Fujitsu has not been asked to provide some of the money that the Government are now unfortunately having to step up and pay?
I thank the noble Lord for his praise for me, but it is slightly unjust; it is the Minister for Small Business who is responsible for the Post Office and is putting in the hard yards on this issue, and I will certainly pass on the noble Lord’s commendations.
I have considerable sympathy for the view that the noble Lord, Lord Fox, outlines. A public inquiry is taking place and that is the proper place for blame to be apportioned. We all have our suspicions and views, but let us wait for the outcome of the inquiry to see exactly where fault lies—whether with Ministers, officials, Post Office executives, Fujitsu or whoever—and then we can take the appropriate action.
My Lords, it is a great pity that my noble friend Lord Arbuthnot cannot be here today because we all owe him an enormous amount for his work. That should be firmly on the record. My noble friend Lord Arbuthnot himself raised the point about Fujitsu the last time we discussed this issue. While it is of paramount importance that those who suffered are properly compensated—in so far as they can be, because they can never be fully compensated—that money should come not from the public purse but from those who supplied deficient goods, with anything that is left topped up by the public purse. I want to press a point that I have made several times to the Minister: it really is in everyone’s interest that we get this concluded as soon as we possibly can. People are still suffering and indeed still dying.
Again, I find myself agreeing in large part with my noble friend. I am happy to join him in paying tribute to my noble friend Lord Arbuthnot, and to the many other noble Lords on all sides of the Chamber and indeed Members on both sides of the House of Commons as well who have campaigned for many years to draw attention to this outrageous situation. Again, I do not really want to apportion blame until we have the results of the inquiry. The job of the inquiry is to find out who or what was responsible for the case. We all have our suspicions but let us wait and see what the inquiry comes up with and then draw the appropriate conclusion.
My Lords, I wholly endorse everything that has been said about Fujitsu and the possibility of applying the “polluter pays” principle in this area, as in others. Will the Government also consider the potential dangers of large bodies corporate—be they local authorities, the Post Office or others—abusing the ancient right for individuals and families of private prosecution? I urge the Minister and his colleagues to consider whether it is really appropriate for these bodies to be prosecuting serious crimes in their own interest in future.
The noble Baroness makes an important point. Certainly the Post Office has said it will not be conducting any further prosecutions. This is a wider question than this particular case, and it is not an area with which I am overly familiar. I know the question has been asked and other people are looking at it, but I will take it back to the appropriate department.
Have serious and sincere expressions of contrition been made by those who held senior management positions when this scandal took place? Have any of them offered to dip into their own not insubstantial financial resources to assist the process of reparation for those who have suffered so much?
It is a complicated picture. There are a number of different compensation streams. There are the original GLO participants who took the case to the High Court. The problem there is that that case was settled—the point that I was making earlier—although there is considerable pressure, with which I sympathise, for them to be compensated further. There is the historical shortfall scheme and then there is the compensation due to those who probably suffered more than anyone, in that they were prosecuted, found guilty and often jailed or bankrupted accordingly. So there are a number of different compensation streams, and we need to make sure that everyone receives the compensation they deserve.
My Lords, the Minister will be aware that we have previously raised the question of the powers of the inquiry. Obviously, the inquiry has got going, and quite significant information has already been released. My concern was—I think the Minister has answered this before, but I would like to get him to repeat it—whether the inquiry, although not being held under the Inquiries Act, has the powers to call all the evidence that it may require in order to get to the bottom of this. That includes not just Fujitsu but Ministers.
My understanding is that, yes, Sir Wyn has all the powers available to him. We would be happy to look at any further powers that he needs if he does not have them, but my understanding is that Ministers going back over the relevant period, officials, executives of the Post Office and Fujitsu will all be playing a part in the inquiry and giving evidence to it.
Dissolution and Calling of Parliament Bill
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Dissolution and Calling of Parliament Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, I thank your Lordships’ House for its expertise and careful work on the Bill. It has again demonstrated the constitutional, legal and political expertise that makes this House such a remarkable revising Chamber. The Government have valued those exchanges, as have I. I particularly thank the noble Baroness, Lady Smith of Basildon, the noble Lords, Lord Kennedy of Southwark, Lord Wallace of Saltaire and Lord Butler of Brockwell, the noble and learned Lord, Lord Judge, and the Front Benches for their co-operation and discussions.
We disagreed on the question of whether there should be a role for the other place over Dissolution. However, although we do not believe it is good practice for this place to seek to dictate procedure in the other place, we will of course now properly await their further opinion on this point. The Government will oppose your Lordships’ amendment in the other place, for all the reasons that I set out during the passage of the Bill. Our intention was to repeal the Fixed-term Parliaments Act, and that remains our intention.
In conclusion, I thank the dedicated Bill team for its hard work over so many months, which I am sure was appreciated by colleagues on all sides. I thank all noble Lords who have taken part for their dedication in scrutinising the Bill and for their courtesy in our many meetings. It has been an honour to assist the Bill’s passage and serve your Lordships, and I beg to move that the Bill do now pass.
My Lords, on behalf of my noble friend Lady Smith of Basildon, who is unable to be with us this morning as she is having a briefing at the moment, I thank the noble Lord for his usual courtesy in dealing with the House and for taking this Bill through it. I also thank the Bill team for the meetings that took place. As he said, we have had scrutinised the Bill well and made one change. We have sent that back to the other place, and we will wait for it to come back to us, and then we will have further debates on that. I know my noble friend is very grateful for the co-operation we have received on the Bill going through. I sat in on many of the debates, and the other Benches were fascinating to listen to. I think we have done our job well and properly, and we await the decision of the other place. I give our thanks to the noble Lord, other Members, the officials and the team in the Labour Whips’ Office for what they did.
My Lords, I add my thanks. It is important that we conduct legislation in the House, and off the Floor in between the different stages, in the way we did on this Bill and I hope will do also on the Elections Bill—a much longer and more complex Bill. Indeed, we discovered on Second Reading of that Bill yesterday that abolishing the fixed terms for Parliament has knock-on effects for third-party campaigning—a point made in yesterday’s debate. We in this House often deal with the complex interdependence of different aspects of the rules that govern our democracy. There will be a rising tide of opinion inside and outside Parliament that we need to look at some of these things fairly soon together, rather than in one chunk after another. I regret to repeat—the Minister will hear it yet again—that I did agree with the part of the Conservative manifesto that said there should be a constitutional commission. I hope it will be in the next Conservative manifesto, and I hope it will be in the manifestos of other parties and that it will then happen. Having said that, I look forward with interest to how the Commons will respond to the Lords amendment, and perhaps it will return here.
My Lords, I join in thanking everybody. I have two points, one serious and one less so. One is an entirely private thought, so nobody is listening to me saying this: I hope the Commons has enough time to look at the issues that arise in relation to this Bill. The other is of particular thanks to the noble Lord, Lord Lisvane, who is not in his place, for reminding me of a lesson I learned when I did English language grammar—gosh, does that still exist? I was taught the auxiliary verbs “shall”, “should”, “will”, “would”, “may”, “can”, “must” and “do” and to appreciate the difference between “shall” and “must.”
My Lords, I have just a small observation on the suggestion of the noble Lord, Lord True, that we were somehow telling the Commons to alter its procedures or advising it on its procedures in relation to this Bill. What we have done is say to the House of Commons that we are an unelected House, but we want it to think again whether it is wise for it, the elected House, to say, “No, we don’t want these powers of Dissolution at all. We think it is important they are carried out by the monarch.” I think that is a development without precedent anywhere in the world—the legislature saying it does not want these powers and wants to give them back to the monarch. That does put a slightly different construct on what we are asking the Commons to consider.
Bill passed and returned to the Commons with an amendment.
Russia (Sanctions) (EU Exit) (Amendment) Regulations 2022
Motion to Approve
My Lords, we laid this instrument to strengthen our response to the grave situation that we face today in Ukraine. Sadly, the need is now greater than ever. As stated by my right honourable friend the Prime Minister, we will be tightening the ratchet in response to Russia’s aggressive actions. Noble Lords will be aware that my right honourable friend will make a Statement in the other place at 5 pm today, where he will set out in further detail the work of this Government on this important issue. As noble Lords will also be aware, the Statement will be repeated here at a convenient time after 7 pm. Therefore, at this point in time, I cannot go into any further detail on the specifics of our response in advance of those Statements being made.
We are seeing the situation playing out as many of us feared it might. President Putin has used disinformation, lies and false flag activities to justify his unprovoked and unjustifiable invasion of Ukraine. Later today the United Kingdom, working with international partners, will bring forward an unprecedented level of sanctions to punish this aggression and persuade those around Mr Putin that this is frankly the wrong thing to do. We will continue to stand in solidarity with the Ukrainian people.
Sanctions announced by the UK and our allies are already having an impact, as we have seen today with direct impacts on markets and the rouble, which has stooped to a record low. These sanctions are impacting and will impact Russia. The institutions that prop Mr Putin up and the people around him should take note. The decision to invade a sovereign territory, Ukraine, is unjustified and will be met with an unprecedented and universal response, which is already under way.
Mr Putin has been clear that he wants to recreate a Russian empire and claim back places he defines as Russia, but these places he describes are sovereign states in their own right. Let us be absolutely clear: Ukraine is not part of Russia. The fantasy Mr Putin is trying to play out of tsarist expansionist Russia must be stopped now. I assure your Lordships that we will bring forward an unprecedented, co-ordinated sanctions response to punish this appalling decision.
For your Lordships’ information, I say that the G7 will meet later today to discuss the severe co-ordinated sanctions we will be imposing on Russia. Ukraine, of course, is not a NATO country, but we will help it with self-defence. We are talking with other leaders to co-ordinate our response, as well as our response when it comes to sanctions. The solidarity of NATO is clear. We stand together. That is why the UK and other NATO states have been moving troops to our NATO allies. We will continue to support the legitimate Government of Ukraine and, importantly, the people of Ukraine in their self-defence against this attack by Vladimir Putin. We will use every lever under our control in pursuit of that end.
The legislation follows the “made affirmative” procedure set out in Section 55(3) of the Sanctions and Anti-Money Laundering Act 2018. The statutory instrument amends the Russia (Sanctions) (EU Exit) Regulations 2019. It allows the Government to impose sanctions on a much broader range of individuals and businesses who are or have been involved in
“obtaining a benefit from or supporting the Government of Russia”.
These include those that, first, carry on business as Russian Government-affiliated entities; secondly, carry on business of economic significance to the Government of Russia; thirdly, carry on business in a sector of strategic significance to the Government of Russia; and, fourthly, businesses that own or control, or act as a director, trustee or equivalent of, one of these entities.
It is very clear from the events of last night that Russian aggression against Ukraine is part of a long-term strategy. If we give ground now, or we try to accommodate illegitimate Russian demands, Russia’s strategy of aggression—we fear—will not end here. Who will be next? Russia, if we were to give way, would be emboldened. President Putin’s focus would simply move on to the next target. What is being done is an attempt to turn back the clock to years gone by, and perhaps a mythical past, to rebuild the Russian sphere of influence. We must be absolutely firm in our response.
As my right honourable friend the Prime Minister will set out in more detail to the nation later this afternoon, what we do today will shape European security for many years to come. Together, we must rise to this moment, and we must stand united with Ukraine and with the people of Ukraine. In the Revolution of Dignity, it was the Ukrainians who risked their lives to choose freedom; they fought for democracy. I am determined that we will continue to support them in that choice which they made for themselves. I therefore commend the regulations to the House and would also share once again that it is our intention, as I said at the start, to go much further.
Amendment to the Motion
My Lords, first, I sincerely thank the Government and the Opposition Whips for agreeing that there should be some extra time for this important debate, in light of the current situation. I also thank the Minister for his introduction and for the helpful conversations we have had informally. I hope that he will take the opportunity of listening to the debate—I know he always does—and then passing on some comments and suggestions to his colleagues in the FCDO and to the Prime Minister—and I hope he may be able to answer some questions without pre-judging what the Prime Minister might say later.
The situation is unpredictable. Today is a really dark day for Ukraine, and for Europe and the world as a whole, because the future is now terribly unpredictable. I know some Ukrainian MPs who are delegates to the Council of Europe Parliamentary Assembly, as my noble friend does as well, and I fear for them. They will be among the targets if things go wrong in Ukraine, because they have stood up at the Council of Europe and elsewhere and fought the cause of Ukraine very valiantly.
It is clear that the current sanctions have not deterred Putin. The Foreign Secretary said—I think rather infelicitously—that some sanctions had to be “left in the locker”. It is now clear that, while they have been in the locker, they have had little or no effect. So we must now immediately extend our sanctions, and I am glad that the Minister has indicated that that is the intention. We must intensify our co-ordination with the United States, the European Union and other countries.
First, I suggest that we need to expand the list of Russian oligarchs subject to sanctions. The European Union unanimously agreed to target 27 individuals and entities who are playing a role in
“undermining or threatening the territorial integrity, sovereignty and independence of Ukraine”.
Yet, so far, we have sanctioned only five banks and three Russian billionaires. We must extend to at least the European Union’s 27—and beyond, I hope.
The Minister has indicated in a letter to us all that the Government are planning to introduce legislation to prevent the Russian Government from raising finance. This needs to be done urgently. I ask the Minister: can he confirm that this legislation will be brought before both Houses of Parliament at a very early opportunity, so that it is not allowed to drag on?
We should also introduce export controls on Russia, stopping shipments to Russia of microchips, computers, consumer electronics, telecommunications equipment and other items made anywhere in the world if they were produced using US, UK or EU technology. Most importantly of all, we must disconnect Russia from SWIFT. Russia is heavily reliant on SWIFT due to its multibillion exports of hydrocarbons denominated in US dollars. The cut-off would terminate all international transactions, trigger currency volatility and cause massive capital outflows. In my view, and the view of people far more expert than me, it would probably be the most effective action we could take—yet it has not even been mentioned by the Government so far.
We should also sanction luxury property in the United Kingdom.
I am grateful for that support from the other side. Russian businesspeople and officials accused of corruption or links to the Kremlin own at least 150 huge properties in the UK, worth £1.5 billion, according to Transparency International. I accept that there would be some difficulties in doing this, and it would require significantly more resources for our law enforcement agencies, but it should be looked at and I think it should be done.
I also agree that we should target the members of the Duma, the Senate and the Presidential Council. The Minister has indicated that they are compiling evidence, but I hope they will do it quickly because, unlike the oligarchs, they actually advise Putin. Sanctioning the western luxuries they all enjoy—I have seen them enjoy property, schooling and holidays in Europe and the US—will cause a groundswell of discontent. I see some of them as Russian delegates at the Council of Europe. They are parroting the words of Putin; they are his voices in the Council of Europe. I will come back to that in a minute. Mr Tolstoy and Mr Kalashnikov —strange names, but they are very familiar—are hardliners and people we should be dealing with. The only likely way that Putin can be replaced is by people in Russia, and I hope we can make sure that pressure is put on them to do that.
We should also look to provide further lethal and non-lethal aid to Ukraine and neighbouring nations such as Poland, Latvia and Lithuania. We could assist further with intelligence surveillance reports. I know from my time on the Intelligence and Security Committee how good our intelligence agencies are. We can do that without directly entering the conflict and sending troops.
Finally, the leader of the UK delegation to the Council of Europe, John Howell MP, has suggested that we should now expel Russia from the Council. That is a move I would support, as one of the UK delegates to the parliamentary assembly. I hope the Minister, who has the Council of Europe in one of his many and increasing responsibilities, will look at this, because it needs to be done in a co-ordinated way— not just by the parliamentary assembly but by the Governments of the 46 other countries.
Putin needs to know that we are going to take these strong actions and take them now to stop him in his tracks and prevent any further aggression and the inevitable bloodshed that will result. I move this amendment.
My Lords, I rise briefly. I take comfort from what my noble friend the Minister has said and pay tribute to the resolve being shown by the Prime Minister and the Government—but they need to do more, as the noble Lord, Lord Foulkes, has said.
This is not new. Litvinenko was poisoned in 2006 not a mile from here; Salisbury, Skripal, et cetera, took place in 2018; the invasion of Georgia, Abkhazia and South Ossetia, took place in 2008, and Crimea in 2014. We must understand the pattern here. As the noble Lord, Lord Foulkes, and I think my noble friend the Minister agree, we must take action now and it must be really dramatic.
I refer my noble friend to a debate that took place in the other place led by my right honourable friend David Davis about lawfare, and how people living in London took Catherine Belton to court for libel for having the temerity to suggest that various oligarchs were in league with Putin. The book is called Putin’s People, and her costs were £1.5 million. I hope that all the lawyers who were working for the oligarchs hang their heads in shame. I do not notice many lawyers here today. Of course we want the rule of law, but we do not want our liberal values used against us, and that is what has been happening.
I also refer my noble friend and the House to—I am sure people watched it—a television programme called “McMafia”, with James Norton. Of course, it was fiction—we all understand that—but it was fiction based on fact. We need to wake up in this country. Putin has been running rings around us and around the West; he has been testing our resolve and has found it wanting. Now is the time to seize the initiative. The noble Lord, Lord Foulkes, is absolutely right: a lot of this high-end property, both in London and elsewhere, was bought with looted money. We need to seize it, freeze it and then get the lawyers to work and see where the money came from. We might need legislation to do that, but we cannot sit back and say this is business as usual. There is a war in Europe in our lifetime. We must act now.
My Lords, I congratulate the Minister on his opening statement. We all believe that sanctions must be tougher and go much further. I agree with everything that my noble friend Lord Foulkes has said, particularly in relation to SWIFT. That is a very good mechanism for bringing Putin and the rest of his mob to reality.
Having visited Ukraine pre pandemic, and having worked with NGOs there, which have wrought such wonderful, positive changes, I urge the Minister, through his department and others, and the embassy in Ukraine, to work very carefully and closely with these NGOs. In particular, might I make a plea for those NGOs working on LGBT issues? When we look at the history of Russia under Putin, and its views and treatment of minorities—particularly the LGBT+ minority—they and we have much to fear, so anything the Minister can do in this regard will be welcomed, not only by friends and sympathisers in this country, but by those NGOs and individuals who currently feel vulnerable and under great threat in Ukraine.
My Lords, I always think about the inadequacies of the Government’s response to the Intelligence and Security Committee’s Russia report. I recall the paragraph that talks about the penetration of our society and politics by people from these autocratic states, which, to some extent
“cannot be untangled and the priority now must be to mitigate the risk”.
We now need some much more decisive action from the Government to mitigate that risk and to see how far we can untangle this.
I was very struck by the inadequacy of the Government’s response to that report in the following respect. The Intelligence and Security Committee recommended that the Government should publish the evidence that they had collected on foreign penetration of British politics. We know that that has happened on the right and on the left: on the hard right and on the hard left. The Government’s response was that they had
“seen no evidence of successful interference”
in British politics. That is a phrase that I would love to have drafted if I had been a civil servant: it lets them completely off the hook. There clearly is evidence of foreign penetration, whether or not it has been successful, and the Government should now publish that in full.
I will ask the Minister a question about the Crown dependencies and the overseas territories. We are now extending—and there are more to come—sanctions against Russians close to Putin, and their money. Much of the money that has come through the London laundromat has gone on to the Crown dependencies and the overseas territories. When the British Government, as the sovereign, enforces sanctions, what happens to the Crown dependencies and the overseas territories? Do we ask their permission? Do we suggest that they might possibly consider that it is desirable to follow within the next few months, or do we, as their sovereign, say that on a matter as important as this, they must now follow?
My Lords, I rise to ask one very specific question about the impact of sanctions, but before I do that, I would like to associate myself with the earlier remarks commending the Minister on his introductory description of where we are and why we should roundly condemn Russia’s actions. He got the tone of that exactly right, and we need to continue with that.
I am conscious that, later today, we will take the Statement from the Prime Minister and have an opportunity to debate that, and we will have a long debate tomorrow. I therefore intend to restrict myself to sanctions, although I share all the ambitions of previous speakers that we will be able to extend our influence on a legal basis against the interests of people who are supporting this dreadful and inexcusable criminal behaviour that is taking place as we speak.
Here is my question. These sanctions need to be meaningful. I carefully read the debate on them in the other place, and I have read the letter that the Minister sent to us all thereafter, which deals with a number of the technical and legal points that were raised in that debate, some of which have been repeated here today. I am clear that nowhere in that debate did the Minister say at any point what the three persons mentioned in the sanctions on Tuesday—Gennady Timchenko, Boris Rotenberg and Igor Rotenberg—are not able to do today that they were able to do on Monday; nor did anybody say what impact these sanctions would have on any of those relatively small banks. They may be very important, but what are those banks not able to do today that is within our jurisdiction that they were able to do on Monday?
I raised this issue with the Leader of the House when that Statement came on Tuesday to your Lordships’ House. I said specifically that I recognised that this was a framework for the sanctions to be made, but the implementation of them depended on a suite of legislation, not only for their existence but for their actual use properly for the purpose for which they were designed. She gave me a very comprehensive answer, but the answer was all, “We have plans to”, “We intend to”, “We are working on”, “We are looking at”. I am not quoting her exactly, but it was all prospective.
We need to put into position a suite of powers that will then allow us to do what we need to do, so as we debate these sanctions, we should not kid ourselves that we are having an impact on Putin or any of his acolytes today, but we may have in the future. Interestingly, today, before the Prime Minister makes the Statement to the House of Commons, it is being reported that he is promising massive sanctions designed—and this is the interesting phrase—“in time” to hobble the Russian economy. Why do we not already have the ability to change the way in which Companies House practises and its ability to pour out shell companies that people can use to hide their assets? Why do we not have anti-money laundering legislation that is used in an impactful way to prevent the sort of stuff that is going on? Why do we not already recognise that we have people in the City of London who make a significant living out of facilitating all of that sort of behaviour, and they do it openly, with nameplates on the door that tell people that that is what they are doing?
It is important that the Government recognise that what we are doing here is legislating for potential, but it is not potential that will be impactful, although it may, for a couple of days, affect the sentiments of the stock exchange.
My Lords, a few days ago, I was in the House of Commons at a meeting of the All-Party Parliament Group on Russia at which the ambassador said quite clearly that Russia had no plans to invade. That can lead to only two conclusions: his Government do not tell him what they are doing or he was not telling us the truth. There can be no other conclusion in the middle.
I am very sorry that we are where we are today because, as the noble Lord, Lord Foulkes, will know, I worked pretty ceaselessly in the Council of Europe to try to get the Russians back on side. I worked in the legal affairs committee with them and said to them “Look, if you want to be in the Council of Europe, you’re very welcome, but basically you have to underline and support what we are trying to do”. In a very short temporary period as chair of legal affairs, I was instrumental in getting a couple of rapporteurships allocated to the Russian delegation. I spoke to it about the need to reflect the values of the council in producing the report. In other words, being a rapporteur was not a licence to print Russian propaganda but an opportunity for members of the Russian delegation to show that they were prepared to produce reports reflecting the views of the council in a legal and human rights situation.
What has happened overnight is absolutely dreadful—there is no other word for it—because it destroys many months of work that has taken place, particularly outside the United Kingdom. Members may have noticed that on numerous occasions I have urged the British Government to work with their French and German counterparts because I thought that the French and German foreign ministries were trying very hard to lead Russia to a place where it would settle its disputes with Ukraine through the Minsk process, negotiation and talk.
I am sure that it is recognised today in Berlin and Paris that that has failed. At the beginning of this week, I had lunch in this House with some German politicians who were hopeful of it working. They pointed out to me that Nord Stream 2 had been put on hold, not cancelled, and it could be revived. We talked about it, and one of the points that was made was that, of course, it goes two ways: it can bring gas from Russia and, once it is in the European gas network, it can pump it back. Indeed, some of my German interlocutors said that one of the guarantees that they could give would be that, if Russia threatened Ukraine’s gas supplies, Germany could supply it with gas. I mention that because it shows that, right up to the last minutes, the foreign ministries in Europe were trying to find a peaceful solution.
However, we now have to be firm because, as the peaceful solution has not worked, it cannot be said that no consequences flow from what has happened. So, clearly, we not only have to have sanctions, but if we are going to have sanctions that work, they have to be agreed among the larger players in Europe. That, frankly, means that we have to do what has been suggested about the overseas territories and we also have to stand up and be quite firm with Hungary and Austria because countries that are making large profits out of Russia have to realise that they are either in a European solidarity pact or on the other side. They cannot be on both sides at once.
I say to my own party that it has to stop taking Russian money. Indeed, it has to stop taking foreign money. Looking at the United States, I discovered a long time ago that you cannot donate to American political parties. At one point, I tried to donate a sum of money to the American Democratic Party, but it was refused on the grounds that I had no standing in American elections. It would be very simple for us to say that there could be no donations to British political parties from any person or group that did not have standing with the British electorate.
We really need to look at this because I am afraid that, beyond this House, there is great cynicism about politics and money. We are largely seen as being in it for what we can get out of it. In my Conservative association, I have heard jokes about the Prime Minister playing tennis at so many hundred thousand pounds a match. This is not the way to run a democracy.
It has a consequence, which is that there is a lot of impunity. People look and say, “Oh, well they don’t mean it. They are not doing much—a couple of banks and three individuals”. We really have to sit down and say, “Do we intend these sanctions to work?” We have to realise that many of the Russian people in London with Russian money have bought golden visas and are proudly walking around with British passports. When the Home Secretary talks about taking citizenship away from people who break the norms of British society without telling them, I wonder whether she has considered looking at some of these people because surely they are in the wrong as well.
So I say to the Minister: I will back the sanctions. I am sorry that we have come to this point. I am sorry that the Russian state does not realise that common sense, decency and good practice should lead it to pursue what it sees as its legitimate expectations, but we do not, through a path of peaceful negotiation. What has been done is no longer acceptable in international politics, and we should make that very clear. All I ask is that the Minister co-ordinates with his European colleagues and we have a united European view, in so far as we can, on this matter.
I will make a short contribution. In this very interesting debate, mention has been made of Russians who have obtained funds by corruption and who come to this country and buy property or otherwise invest. Is the Minister confident that these regulations confer power to act against such persons? As he said, the only change that is made by these regulations is to give power to take action against those who have obtained
“a benefit from or supporting the Government of Russia”.
As the Minister rightly said, that concept is narrowly defined in new Regulation 6(4). The fact that you have obtained vast wealth by corruption in Russia, and you have come here and bought property or engaged in other economic activity, is not necessarily sufficient to bring you within the scope of these regulations, as I read them, but I would be delighted if the Minister tells me that I am wrong.
My Lords, I welcome the Minister’s statement, and will be brief. I am also very grateful to the Government and the usual channels for enabling us to have a debate tomorrow. However, it is true that the regulations we are discussing today—which I think the whole House supports—are out of date. Indeed, I do not know when my noble friend drafted his amendment, but my guess is that everything has been overtaken by the events we woke up to find this morning.
What is going on is not just war of a kind that many of my generation never thought we would see, but also a battle of ideas and information. This morning, I watched Russia Today. I am not in favour of banning it, because it is interesting and important to know what the other side—as it were—is saying about this conflict. To give it credit, I saw a report from Berlin which listed the overwhelming criticism by European leaders on what is happening. However, I am sure that the Foreign Office and the Government are monitoring what the Russian people are being told. I put it to the Minister that we should do more to influence public opinion, because sanctions, if they are to work, are not going to work just on the people at whom they are aimed. The world is a rather more sophisticated and international place than it used to be. There will be people in Russia who are eager to understand more about what we are saying has happened and for us to use our power of information to counter the disinformation that they are being fed.
I wish to be identified with the remarks of the noble Lord, Lord Foulkes, and the Minister in particular, and all other noble Lords who have spoken today. I am prompted to ask a question in response to a remark made by the noble Lord, Lord Foulkes: that it is up to the people of Russia to determine the country’s future. Of course, he is right. However, I am tempted to ask the Government whether nothing short of regime change would be a practical solution. The Minister might wish to at least consider that point at some stage.
I think that a message ought to be passed to the British ambassador in Moscow that the time has possibly come when her husband might wish to relinquish his post as the executive director of the Russo-British Chamber of Commerce, both in Moscow and London. It probably does not stand well with the issues with which we find ourselves in today’s world.
Is the time now coming when we should prepare the people of this country for war? What action, therefore, are the Government taking to protect the security of the UK’s energy, cyber networks, food and general defence, given the complete breakdown in relations with Russia?
My Lords, I have a quick question for the Minister. It is a little wide of the regulations but related to it: the hole in the dyke could be Switzerland. Have we had conversations with Switzerland, and are we going to close any holes there?
Following on from the noble Viscount, Lord Waverley, I rise briefly to ask my noble friend the Minister a question. The hostilities against Ukraine started with cyberattacks. There have been multiple cyberattacks and ransomware attacks on at least one firm of which I am aware in North Yorkshire, but FatFace and a number of other companies as well. What advice are the Government giving to companies, local authorities and, not least, the infrastructure network—to which the noble Viscount referred—to ensure that we can keep ourselves safe from such cyberattacks at this time?
My Lords, I will be very brief. Of course I support the comments from my noble friend Lord Foulkes. However, in relation to the Council of Europe, I hope the Government, in doing what they are currently doing—although they need to go a bit faster, as many noble Lords have said—are thinking about an exit strategy. We need one. While we are cutting ourselves off from Russia because we are almost at war, it is still important that the dialogue continues between us. It is also important that we understand the feeling from the people in Ukraine—as well as the people in Russia, as the noble Viscount, Lord Waverley, said. I hope that the Minister will keep the dialogue open as long, and as widely, as he can, because getting out of a war is extremely difficult.
My Lords, like other Peers, I welcome the introductory remarks made by the noble Lord, Lord Ahmad. Clearly, from these Benches, we stand in solidarity with the people of Ukraine. Like the noble Lord, Lord Browne of Ladyton, I intend to focus my remarks almost exclusively on the question of sanctions and the statutory instrument before us. However, I also want to touch very briefly on the issue of the Council of Europe.
These Benches support the views of the noble Lord, Lord Foulkes, and his amendment because, while the passing of the statutory instrument is necessary today for sanctions to be effective, there is a very real question about whether the sanctions go far enough. In his opening remarks, the Minister said that the Prime Minister is proposing to give a Statement this afternoon and he will go further, so the Minister cannot pre-empt that. This is fully understood. However, if your Lordships’ House were to support the amendment put forward by the noble Lord, Lord Foulkes, then it might be the quickest time in history when the House of Lords has voted on something. If we hear the Prime Minister doing something rather more effective and expansive, we might all be able to celebrate the fact that swift action has been taken.
Overnight, we received the letter from the Minister which has been referred to and in which he says:
“Since announcing the package on Tuesday, both the speed and level of co-ordination between the UK and its allies on these sanctions has taken the Russian elite by surprise.”
If the Russian elite were taken so much by surprise, and we went from potential mobilisation to full-scale invasion of Ukraine, what does that tell us about the way that they have responded? Do the Government really think that the elite have been taken so much by surprise that they have acted precipitately, or have they not really been taken by surprise? The sanctions proposed so far by the United Kingdom seem very limited. Other countries have done far more; as the noble Lord, Lord Foulkes, pointed out, the European Union imposed much wider sanctions overnight.
Yesterday, at Questions, the noble Lord, Lord Goldsmith, stressed that the UK was acting
“in lockstep with our allies”.—[Official Report, 23/2/21; col. 218.]
If that is the case—without pre-empting what the Prime Minister will say this afternoon—could the Minister reassure the House that the UK will indeed work with our European Union allies to ensure that our sanctions are at least as broad and deep as theirs?
Could the Minister perhaps reflect on the question of Russian membership of the Council of Europe? Some of the criteria for Council of Europe membership relate to human rights and the rule of law. What on earth is Russia doing in the Council of Europe? Should we not be at least considering suspension of its membership? It might not be a sanction which falls within the statutory instrument, but it would be a sanction. Have the Government thought about it?
My Lords, of course these sanctions were laid in a different context. Earlier today, I said that the Opposition fully support the Government and will continue to support them in all their actions against Russia. We should be in no doubt, as the Minister said, that this is an assault on a democratic and sovereign European nation. It is an act of war in no one’s interests. We will fully support all the necessary action.
However, while we welcome the Statements that are going to be made—and we are going to have a four or five-hour debate tomorrow when we can make our contributions—it really is important that we work in a fully co-ordinated way. I certainly welcome the ministerial statement on G7 co-ordination, and the fact that the noble Lord has spent much of his time recently building relationships with allies more broadly than just across Europe and the G7, which will be vital if we are going to stand up to this act of aggression.
I have a couple of other points to make. I share the concerns of my noble friends Lord Browne and Lord Foulkes, about what possible action will be included. I know the noble Lord has given a commitment that action will be ramping up as strongly as possible, but we need to consider every possible action beyond sanctions. I pick up the point made by the noble Lord, Lord Pannick, about the actions we might want to take on illicit finance and some of the oligarchs who operate here. I hope the Minister can assure us that the Government have all the necessary powers to take action. If they do not, let me assure him that the Opposition will support every step taken to ensure that the United Kingdom has the necessary powers to act, and we will co-operate with the Government to ensure that this is done as speedily as possible.
During our discussions earlier this morning, no one will have been surprised that the photographs, pictures and newsreels from Ukraine were pretty appalling, and of course there will be a humanitarian crisis developing. Indeed, it has already developed: people are escaping the bombs, and I hope the Minister can assure us that we will take all possible steps to provide humanitarian support, particularly for those fleeing the conflict. I share the view about ensuring that we hit the Russians with the strongest possible economic sanctions, and the SWIFT financial mechanism is something we should obviously explore. I know the Minister will not be able to make any commitments today in advance of Statements and the consideration we will be giving tonight at 7 pm, so I will not carry on, but I reassure the Minister that he has our full support in the proposed actions that are to come.
My Lords, I am very grateful to all noble Lords for their support for the position of the Government, but to be frank it is the position, and rightly so, of our country, which stands united against the aggression of Vladimir Putin in terms of what has happened overnight. The noble Lord, Lord Pannick, made a specific point about what is in front of us—with his legal prowess, I know that is what he is focused on—but as I said in my opening remarks, events have superseded where we are today. While this was tabled, rightly, as a debate on what had already been laid before us, equally, as I have already alluded to, there is more to be done in this area. Statements that will be made later by my right honourable friend the Prime Minister will certainly detail the extent to which further action can be taken.
I can share with the noble Lords, Lord Foulkes and Lord Pannick, and others that we are also looking closely at the economic crime and corporate transparency Bill. The noble Lord, Lord Collins, knows that I have advocated strongly for this, and my right honourable friends the Prime Minister and the Foreign Secretary have recently reaffirmed the Government’s commitment to bringing it forward. This legislation will, of course, significantly enhance our ability to clamp down on dirty money in the UK by reforming Companies House, a point made by the noble Lord, Lord Wallace. It will also require foreign companies that own property in the UK to reveal their beneficial ownership, a point made by my noble friend Lord Robathan. As we heard from the Prime Minister on 2 February, we are committed to bringing this legislation forward; however, as I said at the start, there are certain things I cannot pre-empt, so I will not go further, but I assure noble Lords that that is very much on our agenda.
My noble friend Lord Balfe rightly raised various issues concerning people of Russian origin. I say at the outset that we need to be very clear that our argument is not with the Russian people. There are people in our country who are dual nationals—British nationals of Russian origin who are British citizens. Many of them are critics of Mr Putin, and I am sure I speak for every Member of your Lordships’ House when I say that it is completely wrong to in any way put everyone together. This is a clear action by President Putin, and that is what we should be calling out.
The noble Lord, Lord Browne, spoke about the implications for those individuals already mentioned. Of course, we are in the process of freezing assets and imposing travel bans on the individuals already named. He raised a wider point about the impact that our sanctions have had under various regimes. We have sanctioned 81 individuals and entities—for example, those involved in human rights violations. I think sanctions do have an impact. They send a very strong message to different parts of the world—whether in the context of human rights or as we broaden the issue to include corruption and illicit finance—that we are ready to take action, particularly on the assets of people who may be resident here in the UK, or indeed by restricting their travel. This does have an impact.
The noble Lord, Lord Foulkes, raised the issue of members of the Duma and the Federation Council. We are looking closely at those who voted in support of annexing parts of the two republics—the illegal annexation—and I will share information with noble Lords on specific names and institutions as we move forward. The noble Lord, Lord Wallace, asked whether the statutory instruments will apply to the OTs. I can confirm that they will automatically apply to the OTs and Crown dependencies, and we will be co-ordinating with them. The noble Lord knows from our time spent considering the Sanctions and Anti-Money-Laundering Bill the importance of pursuing public registers, as they have all now committed to doing.
The noble Lord, Lord Browne, the noble Baroness, Lady Smith, my noble friend Lord Balfe and others said that action must be co-ordinated in order to be effective. This has become part of my own mantra, as the noble Lord, Lord Collins, knows well: sanctions are only good enough when they are co-ordinated with our partners, and I assure noble Lords that we are working very closely with them. Yes, because of certain legislative extensions and broadening of legislation, there are certain sanctions we have not applied, but we are working very closely with our European partners, the United States, Canada and Australia to ensure that there is co-ordinated activity in this respect, and that international co-operation will remain at the heart of UK sanctions policy. We will continue to work very closely with the EU and other international partners to tackle these shared objectives. I assure the noble Baroness, Lady Smith, that, as I said in answer to a question earlier this morning, I recently discussed this specific point with the German Minister.
The noble Lord, Lord Wallace, asked about the Russia report, to which the Government have published their response. I listened carefully to his concerns, and he is right that we have seen the impact of Russian interference around the world and the cyberattacks that have been generated, to which my noble friend also referred. My noble friend also asked about support to Ukraine. Of course, we are working with them, but to be clear, when I met the Ukrainian Foreign Minister yesterday, as well as the physical intervention—which turned from an incursion into what is now an invasion of the sovereign territory of Ukraine—the issue of disabling all communications in Ukraine and how best we can mitigate such action was very much part of our discussions.
The noble Lords, Lord Foulkes and Lord Collins, and other noble Lords raised the issue of SWIFT and what could be imposed and what that would mean. What I can say at this juncture, without going into detail, is that, simply put, we have not ruled anything out in terms of sanctions. What we are proposing, and certainly what will be heard later, will be a toughening up of our sanctions regime. We are very conscious to identify all those entities and individuals with strong links to the Kremlin.
The issue of disinformation was also mentioned briefly. The Russian Government are—and since the events of last night continue to be—conducting an aggressive set of information operations against Ukraine and, indeed, NATO. It was that particular disinformation that they used as a trigger to launch the invasion into the sovereign republics of Ukraine.
The noble Lord, Lord Cashman, raised an important issue about human rights. He knows how central this is to my own thinking. On Monday, I hope, events prevailing, to be at the Human Rights Council, where I will have various discussions with key partners on what more we can do within the context of the multilateral system. The noble Lord is, of course, right that the issue of human rights within Russia has been a particular challenge. Indeed, my noble friend talked about the opposition within Russia. We do not need to go further than the appalling treatment of Mr Navalny to see how Mr Putin has first suppressed internal opposition and has then moved, as we saw last night, to suppressing democratic progression in other near neighbours.
I assure the noble Lord, Lord Cashman, that we are using our sanctions regime. Indeed, in December 2020, we announced designations of Russian individuals and entities responsible for the torture and murder of members of the LBGT community in Chechnya specifically. In that regard, I thank the noble Lord and the noble Lord, Lord Collins. We have worked very closely on these issues, and they remain very much at the forefront of our mind.
On the broader issue of freedom of religion or belief, we have again seen the appalling suppression of the rights of Jehovah’s Witnesses, for example, in Russia, and we will continue to focus with our international partners on how we can act further in this respect.
I said at the start of this debate that events had overtaken us. Rightly, we need now to look at the here and now. In doing so, what my right honourable friend will detail later today will reflect many—
I was very much coming to that. I met John Howell and discussed what our approach should be. Again, this was in advance of recent events. As the noble Lord and noble Baroness will know, I regard the Council of Europe as an important way of engaging with those countries which perhaps we would not normally engage with through other institutions. The issue of whether Russia should remain part of it will, of course, be a matter for the Council of Europe. I have noted very carefully what the noble Lord has said in this respect.
One thing that I have always retained from my own experience of diplomacy is the importance of continuing to communicate in some shape or form. What was very clear to me with Russia yesterday at the United Nations was that when the Secretary-General of the United Nations rightly—I am sure noble Lords agree—condemned Russian actions, and this was in advance of what happened last night, even he became the subject of extreme criticism from the Russian representative. That was coming from a P5 member of the Security Council of the United Nations, which was set up to ensure that we address the scourge of aggression and conflict.
Let us not forget in particular the aggression and conflict that took place in Europe. Sitting there in the chamber and listening to what was unfolding in front of us, it was very clear. In my later meeting with the Secretary-General, he again reflected that this was perhaps the biggest challenge he had faced during his tenure, not least because it was being initiated by a permanent member of the UN Security Council, a body that was created to address conflict and sustain peace.
I thank the noble Lord, Lord Foulkes, for our earlier discussion and for his understanding. The noble Baroness, Lady Smith, said that we should see firm and complete action on the amendment that has been proposed. I hope that through the assurances that I have provided to the noble Lord outside the Chamber, as well as in my statement and the remarks that I have been able to share with noble Lords today, he will be minded to not press his amendment.
Equally, I assure noble Lords that as Minister responsible for the FCDO’s business in your Lordships’ House in what is a fast-moving, fluid situation—I have already shared this with the noble Lord, Lord Collins, and it is extended to other Front-Bench spokesmen in this respect—I will continue to engage directly not just in your Lordships’ House but outside the Chamber to ensure that I share the most up-to-date information and the action that has been taken. One thing that is very clear to me from the two sessions we have had thus far in your Lordships’ House is that unity is needed, and unity is what I hope is being heard from this Chamber and from the other Chamber by the Russian people. I also hope that we are providing hope to the Ukrainian people in the current challenges and the conflict and aggression they are facing.
I thank the Minister for his, as usual, comprehensive and very helpful response. While I am tempted by the suggestion from the noble Baroness, Lady Smith of Newnham, to press this so that we are ahead of the game, as it were, my head has not been turned by my successful vote earlier this week. In light of the Minister’s very helpful response and the assurances that he gives privately as well as publicly, and the fact we will have the Prime Minister’s Statement repeated at 7 pm this evening and a whole day’s debate tomorrow, I think it will help to express the way in which this House, this country, is united against the Russians if I withdraw my amendment.
Amendment to the Motion withdrawn.
Judicial Review and Courts Bill
Committee (2nd Day)
Relevant documents: 20th Report from the Delegated Powers Committee, 12th Report from the Constitution Committee, 10th Report from the Joint Committee on Human Rights
Clause 3: Automatic online conviction and penalty for certain summary offences
24: Clause 3, page 4, line 28, at end insert—
“(1) Before this section may come into force, the Secretary of State must—(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction option and penalty for certain summary offences;(b) lay before Parliament the report and findings of this independent review; and(c) provide a response explaining whether and how such issues which have been identified will be mitigated.”Member’s explanatory statement
This amendment would require a review of the potential impact of Clause 3 before it can come into force.
My Lords, Clause 3 of the Bill sets out a new code, which is to become new Sections 16G to 16M of the Magistrates’ Courts Act 1980, which provides for a new procedure. I will summarise it relatively briefly. First, it enables those accused of certain summary non-imprisonable offences to be offered an automatic online conviction option; secondly, it enables such an accused to plead guilty online; thirdly, it provides for such an accused to be convicted as a result of such an online plea; fourthly, it provides for the penalty for such a conviction to be determined at a figure to be specified in regulations; fifthly, it provides for the endorsement of a driving licence with points, as appropriate; sixthly, it provides for compensation to be payable up to a maximum specified figure, the amount to be determined by the prosecutor; and finally, it provides for the payment of prosecution costs and a surcharge of the amount specified for the offence. That is not defined but is to be specified in regulations and could vary for different offences and circumstances. As to the question of appeal, it is intended by new Section 16M that a magistrates’ court may set aside a conviction or penalty under the procedure if it is unjust.
My Amendment 24 calls for an independent review of the potential impact, efficacy and operational issues on defendants and on the criminal justice system of these provisions. That is not prompted by unqualified hostility to the idea of a simple, streamlined online option to deal with low-level offences that are voluntarily admitted by offenders. On the contrary, if that is properly introduced, with suitable safeguards, I see considerable benefits to these provisions.
Rather, my amendment is an expression of concern that the full personal consequences for people likely to be convicted and penalised by these new means have not been sufficiently considered. They need to be fully considered before the new procedures come into operation.
There have been several impact assessments on the Bill, one of which was targeted on its criminal procedure measures, including these—but it is limited in scope. That is not a criticism of the MoJ; it is in the nature of such impact assessments that they explain what the measures proposed will do and consider what they call the “monetised” and “non-monetised” costs and benefits of the measures proposed. But the assessment is, if I may so describe it, extremely clinical.
The non-monetised costs of measures in Clause 3 are described in the impact assessment in fairly stark terms. The first part of the measures, the online pleas, are described as having the following non-monetised costs for legal aid agencies:
“There is a cost for the LAA associated with changing their service design to ensure that legal representation is available for defendants indicating a written/online plea, where duty solicitors will no longer be engaging with defendants at the first magistrates’ court hearing. Currently this cost is not monetised, as the LAA are exploring a number of different change options.”
For the CPS:
“There may be additional administrative costs … as the new processes will mean more activities are moved online. However, until the future service design model for the CPS has been finalised, these costs cannot be quantified.”
On the online conviction and sentence provisions, the assessment states:
“There will be IT costs to HMCTS for the development, operation and maintenance of the online system. However, as it is not possible to isolate these costs from the wider costs of digitisation and modernisation under the HMCTS Reform programme, they cannot be monetised … There may also be a perceived lack of fairness in the new system insofar as it is no longer means-tested, allowing those with higher incomes to reduce the imposition they receive.”
That last paragraph is the only real mention of the personal non-monetised costs of these provisions.
Right at the outset, I accept that a great deal of the impact will depend on the regulations and the way in which the system operates in relation to offenders. The amendments from the noble Lord, Lord Ponsonby, pick out some of the possible pitfalls. He addresses the difficulties faced by disabled and unwell defendants; those with vulnerabilities or disabilities. He addresses the need for legal representation, which might of course mitigate many of the difficulties for defendants involved in this procedure. But will simple legal representation and its availability address not just the question of cost but the difficulty in accessing legal aid? There is also the rather more nebulous question of whether defendants will take the trouble to get representation or land themselves in difficulties by proceeding without it until it is too late. They may decide not to get representation because the new procedures are online and relatively simple.
There are also wider problems of the defendant’s understanding of not just the process but its consequences. How will digitally excluded offenders deal with the process? Later, we will come to the question of digital assistance in civil proceedings, but those who are unable to access online proceedings easily will find this extremely hard. How many people will be accused and plead guilty for convenience only, because they are faced with an online procedure, when they might not plead guilty were they better informed? How far will defendants understand the consequences of the online conviction that will follow a plea of guilty, and how far will they be aware of the financial consequences? At the moment, it is entirely unclear how far defendants pleading guilty will do so without knowing the financial implications of conviction. It would be helpful if the Minister could indicate whether the regulations will require that all the financial consequences of conviction will be spelled out when the option of online conviction is offered, given that penalty, prosecution costs, compensation and surcharge are likely to be determined only after the plea.
There are other consequences that need consideration, which online processes may make more difficult. The court will lose the opportunity, which I regard as valuable, to identify and address problems for the defendants it penalises. In personal proceedings, justices can see the defendant and can consider for themselves any difficulties and consequences. How do we address that?
There will also be problems with how fines, compensation and costs will be paid. How far have the consequences for families been considered? The impact on defendants and their families of having to pay even relatively small sums can sometimes be underestimated. Another issue that arises is the effects on families of enforcement measures when fines have been levied and compensation and costs have been ordered to be paid. These can amount to quite significant sums which, for people in want of means, are very difficult to raise. Enforcement measures can be far more severe than the financial penalties originally imposed.
How far will the convictions, penalties and consequences reduce or eliminate the opportunity for defendants to get assistance from local authorities and other agencies for them and their families? Perhaps the Ministry of Justice has in mind to ensure that these issues are thoroughly addressed before the regulations come into force, but I fear that they may not be addressed at this stage or even then, and this work needs to be done. I invite the Minister to address these issues not just in his response now but over the period pending Report.
Turning to another subject, my Amendment 25 draws attention to a particular issue; I have raised it with the Minister, who kindly said he would consider it. It arises out of new Section 16G(3), which provides that a notification “purporting” to be given by a person, or the person’s legal representative, is to be treated for the purposes of subsection (2) as a notification given by that person. In other words, if the court gets a notification that appears to come from the accused person, it is to be treated as coming from that person. There is at the moment no provision for an unjust conviction or penalty to be overturned before it is in place—so, although the magistrates can overturn an unjust conviction and can do so presumably on the basis that the wrong person was penalised, that does not happen until the conviction has already happened and the penalty has been imposed.
The subsection to which my amendment is addressed would allow a forged or fraudulent notification given by, for example, a vengeful neighbour or anyone who is hostile to the intended accused, to take effect as an intended plea of guilty, exposing the wrong person to conviction and penalty on the strength of it, and to the stress, worry, problems at work and everything else that that can involve. My amendment would permit a person who denies making what appears to be a notification in his name to give notice to the court of that denial, whereupon the court would have an obligation to determine whether the notification was genuine. I would be grateful to hear whether the Minister has had a chance to consider how we might give effect to that purpose.
Perhaps I might raise a point with the Minister. As I understand the scheme of Clause 3, this automatic online conviction procedure is going to apply only to those offences which are set out in regulations made by the Lord Chancellor, as in new Section 16H(3). The Lord Chancellor has a discretion as to which offences are here relevant. That is by contrast with the provisions set out in Chapter 2 for online procedures generally in relation to civil proceedings, where under Clause 21 the Lord Chancellor may make regulations determining which proceedings the online procedure applies to. But under Clause 21(6) he or she may make regulations only with the concurrence of the Lord Chief Justice, or the Senior President of Tribunals.
Noble Lords in this Committee may recall—certainly the noble Lord, Lord Beith, will recall—that this was the consequence of amendments which we tabled as a result of a report from the Constitution Committee which stated that it was appropriate for the Lord Chancellor, in the civil context only, to provide for particular matters to be subject to the online procedure if there was the concurrence of the Lord Chief Justice. My question to the Minister is whether it would not be more appropriate in this criminal context, in order to provide added protection for individuals for the sorts of reasons indicated by the noble Lord, Lord Marks, if the Lord Chancellor was required to have the concurrence of the Lord Chief Justice before specifying the appropriate criminal offences. I say that with the understanding that we are talking only about summary offences, as in new Section 16H(4). Nevertheless, it may be more appropriate to require the concurrence of the Lord Chief Justice.
I am struggling to remember as far back as Second Reading of this Bill, but I did say at the time that Clause 3 was designed to save money in the courts system, and that the main savings would arise from people who pleaded guilty but who should have pleaded not guilty. The risk is so obvious that I am surprised that there are no safeguards or legal protections included in Clause 3. People need to have legal advice; they need to know whether they have a valid legal defence prior to deciding whether to plead guilty or not guilty. Whether someone has a legal defence is not obvious or straightforward; if it were, we would not have lawyers and judges—including lawyers of the huge talent that we have here in your Lordships’ House. The mishandling of all those Covid prosecutions shows how badly the system can get it wrong when things are not clear: there were thousands of wrongly issued fines and wrongful convictions by magistrates.
Defendants need independent, quality legal advice prior to deciding their plea, and the lack of any such safeguards in Clause 3 makes me wonder how it has got so far without this problem being exposed by the Minister, because the risks are even greater for vulnerable groups, such as those with learning disabilities. The pressure of avoiding going to court might make pleading guilty online feel like the safer option, and the cost of getting a lawyer might make the online guilty plea seem like the best option. There is nothing in these proposals to ensure that vulnerable people are supported in making informed decisions. So the potential for disaster is huge, and there should at the very least be signposting by the Government to independent legal advice, screening for vulnerabilities, and checking whether people are eligible for legal aid. I ask the Minister whether the Government are going to bring amendments along these lines on Report. It is potentially a sensible idea, but I would like to see it work well for defendants, and for that there will have to be some changes.
My Lords, I agree with the final sentence of the noble Baroness, Lady Jones. We all want to see this system work well, and we all want to see adequate safeguards. It seems to me that the safeguards may be built into the regulations, but of course we can build in further regulations and safeguards through the process we are going through now. We are not hostile to these procedures as such; we are just concerned that proper safeguards are built in, either through primary legislation or the regulations.
The noble Lord, Lord Marks, set out fully the broad gamut of issues relating to these types of online convictions, where people plead guilty and receive a computer-generated sentence based on certain summary, non-imprisonable and relatively minor offences. All noble Lords who have spoken raised the point about the ramifications of people making guilty pleas because it seems easier to just get it out of the way, and that the possible consequences of having that criminal conviction, even though it is a non-recordable conviction, are not readily known.
I spoke about this point when I had a meeting with the Minister last week. The wording in the Bill is “recordable offences” and I made the point that there are plenty of offences which are recorded, but they are not recordable in the sense of going on the Police National Computer. For example, when I sit in court as a magistrate and deal with people who have non-recordable offences such as evading train fares, the information is available to me that they have previous convictions for avoiding train fares. I am aware of that information, even though it is not a recordable offence, and that will obviously have an impact on the sentence I give to the person who has not paid their train fare for a second or third time. So there is a distinction between offences which are recorded and offences which are recordable.
I will briefly run through the amendments in my name. As the noble Lord, Lord Marks, said, they are trying to mitigate the possible problems with this approach, to which all noble Lords have spoken. Amendment 26 would require all accused persons considered for automatic online convictions to be subject to a health assessment and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online. Under Amendment 27, the automatic online conviction option would be available only if the prosecutor is satisfied that the accused has engaged a legal representative. Amendment 28 would exclude any recordable offences from the automatic online conviction option. Amendment 29 would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18 years old.
As the noble Lord, Lord Marks, said, those four amendments in my name attempt at this point to probe the Government’s response to the potential pitfalls of this approach, to put in adequate safeguards for vulnerable people and children and to make sure that people do not plead guilty out of a sense of convenience. I was particularly taken by the argument used by the noble Lord about ensuring that, when people plead guilty, they know the full ramifications of the possible costs of their guilty plea. As he said, there is the cost of the fine itself, the cost of the prosecution and the cost of the victim surcharge, and all those numbers add up. When one sits as a magistrate, one has discretion over the fine and the costs but no discretion over the victim surcharge, so it is not a straightforward calculation. Depending on the means of the person one is dealing with, one would make a suitable adjustment.
After one has put the fine in place, one puts in place a collection order. This is where you give a specific and direct warning to the person you have just fined that, if they do not pay the money, there is a power for debt collectors or bailiffs to come to their house to collect goods to the same value. I go on and warn them that that makes things more expensive because the bailiffs also charge their costs. So there is quite a bit of procedure that one can adjust when one is sentencing, according to the nature and means of the person in front of you. The noble Lord, Lord Marks, asked a good question: how will this online procedure have the flexibility that the in-court procedure has to make sure that a fair disposal is reached?
My Lords, I will first deal with the general argument for Clause 3, not least because the noble Baroness, Lady Chakrabarti, gave notice that she would oppose the Question that Clause 3 stand part of the Bill.
As we have heard, Clause 3 creates an alternative new automatic online conviction and standard statutory penalty procedure for some single justice procedure cases. I should say at the outset that it comes with a number of safeguards. I assure the noble Baroness, Lady Jones of Moulsecoomb, that, as the noble Lord, Lord Ponsonby, fairly said, we all want to see the system work well. This is about putting in place a system that is appropriate and fair.
The procedure would provide defendants aged over 18 and companies that wish to plead guilty to specified offences the additional option of accepting a conviction and pre-agreed standard penalty online without the involvement of the court. Importantly, prosecutors will offer this to defendants only in cases that they consider can be dealt with appropriately through this procedure. It is unlikely even to be offered in cases where, for example, there are aggravating factors or the defendant is a habitual offender.
The procedure is entirely optional on the part of the defendant. Defendants can choose to have their case heard in court at any time before they accept a conviction. Defendants who opt in to using this procedure will be guided through the process and provided with all the information they need to make an informed decision, including—the noble Lord, Lord Marks, made this point—the consequences of accepting a conviction and the full details of the prospective fine. I will say a little more about that in a moment.
Finally, the Criminal Procedure Rules will make provisions for a short cooling-off period to allow defendants to withdraw their conviction if they later change their minds. Separately, the court will have power to set aside a conviction or penalty if it is unjust, for example, in the event that the defendant plainly did not understand the consequences of their decision to accept the conviction.
With that background, let me turn to the amendments. First, I will pick up the points made by the noble Lord, Lord Marks. He raised a number of aspects and asked whether these measures have been properly considered. I assure him that they have. I will try to respond to his points now, but I am conscious that we have had some engagement on these matters before today and I am happy to continue with that if specific questions remain after today, but I will try to deal with them.
The noble Lord asked whether the defendant will receive information about the consequences of a conviction. The answer is yes. Defendants will be provided with all the information they need to make an informed decision, including details of the evidence against them, the potential consequences of choosing this route and the full details of the prospective fine and additional elements, such as the surcharge, costs, compensation and, if appropriate, penalty points. As the noble Lord, Lord Ponsonby, mentioned, they will also receive the details of the enforcement regime, which is part of the decision-making process.
Amendment 24 would require the Secretary of State to commission an independent review of the potential impact of the new automatic online conviction and standard statutory penalty process on defendants and the criminal justice system. Although I recognise people’s concerns about making sure that this works properly, I suggest that we need to see the process work before we can assess its impacts. We are proceeding with caution. As the noble Lord, Lord Pannick, said, only three offences will initially be selected for Clause 3: failure to produce a ticket for travel on a train; failure to produce a ticket for travel on a tram; and fishing with an unlicensed rod and line. These offences have been carefully selected because they are relatively straight- forward and simple to prove, with no complex grounds and a high degree of consistency in sentencing. Against the background of those offences, this enables us to monitor the way the procedure works and look at it carefully before we consider applying it to any other offences. I will come to the point made by the noble Lord, Lord Pannick, a little later but I have it.
Amendment 25 aims to provide for an additional safeguard against fraud for convictions accepted under the new automatic online conviction and standard statutory penalty procedure. It has always been the case that someone could submit a guilty plea while claiming to be the defendant; in fact, there are examples of this even under the current procedures. Defendants who are offered the option of having their cases resolved through this new online procedure will receive a notice that is similar to the existing single justice procedure notice. That will include a unique case number that defendants will be asked to provide when logging on to the online system alongside various personal details, such as their postcode and date of birth. Whenever any of those details are subsequently altered, the case will be flagged for an HMCTS adviser to check. Turning to the point made by the noble Lord, Lord Marks, in the event that a malicious third party managed to obtain a defendant’s case number and personal information, pled guilty and accepted the conviction all without the defendant’s knowledge, the court would have a statutory power to set aside that conviction.
With respect to the amendment, I mentioned earlier there is also the cooling-off period. That will give defendants who have either pleaded guilty or find out that somebody else has done so in their name, the opportunity to withdraw their agreement to accept a conviction. That, plus the general power of the court to set aside a conviction where it is unjust, is a sufficient response to and protection for that scenario.
Amendment 26 would require all defendants considered eligible for this new automatic online procedure to undertake a physical and mental health assessment. Prosecutors will offer defendants this option only once they have considered all the facts of a case and the circumstances of the defendant. As I said, the court also has the power to set aside a conviction if a defendant did not understand the consequences of their decision to accept it.
This amendment would be completely at odds with current practice. There is no obligation or requirement for a physical and mental health assessment under the single justice procedure or for a traditional hearing in court. One thing that we know about mental health in particular is that a person can seem perfectly okay between 10 am and 11 am but they are actually suffering from a significant mental health issue. We therefore do not have that built into our procedures in every case at the moment. The unintended consequence of this amendment would be to make it more difficult to access what is meant to be a simpler and more straightforward way of resolving a case.
Amendment 27 would require all defendants to have engaged a legal representative. Our intention here is that the procedure should be sufficiently simple for people to use without legal assistance. I suggest that the amendment is unnecessary. It would contradict current practice. Generally, cases of this type do not qualify for or attract legal aid and the vast majority of defendants in these cases already represent themselves, whether under the single justice procedure or in court.
I can assure the noble Lord, Lord Ponsonby, that defendants will be advised of their right to obtain legal advice under this procedure and will be entitled to request a full trial and obtain legal representation—usually at their own expense if there is no legal aid—at any time during the process.
Amendment 28 would restrict the application of this procedure to non-recordable offences, as the noble Lord, Lord Ponsonby, said. In this context, “recordable offences” means an offence for which the police are required to keep a record on the police national computer. We have already specified in legislation that for an offence to be eligible under this new procedure it will have to be summary-only and non-imprisonable. It would also have to be relatively straightforward and simple to prove, with no complex grounds and a high degree of consistency in sentencing.
We have no intention of extending this procedure to any recordable offences, which are inherently unlikely to be suitable to meet these criteria in any event. The three offences initially proposed are all non-recordable offences. The appropriate place for specifying further eligible offences is secondary legislation, which would need to be debated and approved in Parliament.
This might be a convenient moment to respond to the point from the noble Lord, Lord Pannick, about concurrence with the Lord Chief Justice. The short answer to that point is that, as with the single justice procedure, it is for the Government and not the judiciary to determine which offences are included under the new procedure. However, when it comes to implementation, we will continue to work with the judiciary on this and many other matters in the Bill. I respectfully do not accept that it would be right to pass the pen either on a concurrence or any other basis to the Lord Chief Justice when deciding which offences to include.
I am grateful to the Minister. That was the point that I was seeking to make. The last time the online procedure Bill came before Parliament, in 2019, this Committee debated very carefully whether it was appropriate to allow the Lord Chancellor to determine which civil matters should be dealt with online. Your Lordships’ Constitution Committee recommended that it was inappropriate for the Lord Chancellor to decide such matters. This House debated and the Government gave way. The Minister’s predecessor —not quite his predecessor—the noble and learned Lord, Lord Keen, who was speaking on behalf of the Government, accepted that it was appropriate for the concurrence of the Lord Chief Justice to be required. Why does the Minister think it is different in the criminal context? I suggest that there is even greater sensitivity in the criminal context than in the civil context and that the concurrence of the head of the judiciary is required.
My Lords, I am grateful for that further explanation of the point and will happily reflect on it. At the moment, I stand by the point I made a moment ago, which is that it is right in principle for the Government to be able to decide which offences are included under the new procedure. Of course, we discuss with the Lord Chief Justice and other elements of the judiciary how these offences will be managed in practice. As the noble Lord, Lord Pannick, knows, the operation of the courts is run essentially under a concordat agreement between the Lord Chancellor and the judiciary. I will look again at Hansard and go back to the discussion which somebody who was not quite my predecessor was involved in. For present purposes, that is my answer to the noble Lord.
Just on that—and by the way, I did not speak earlier because the case was made so well by the noble Lord, Lord Marks, and I think it is a kindness to the Committee at this stage not to duplicate concerns and comments—to develop the point from the noble Lord, Lord Pannick, and to comment on his conversation with the Minister, it is not for the Government to decide, is it? It is not actually the Government’s position that it is for them to decide which offences are covered by the new procedure, because mercifully the Government have said that there will be parliamentary procedure and regulations. It is for Parliament to decide.
Is not the point that when Parliament looks at these regulations that are made in the future, by a future Lord Chancellor who may not take such a measured approach as the Minister is taking now in relation to which offences are to be included, Parliament would benefit from regulations that come with the advice and endorsement not just of the Government of the day but of the senior judiciary?
I should say, first, that when I mentioned the noble Baroness in my speech, I was not making the point that she had not risen. I wanted her to appreciate that I had taken on board that she was opposing the clause. When I say “the Government”, of course I mean “the Government with the authority of Parliament”. We are looking at a Bill and that is taken as read. Ultimately, the question is: is it necessarily right for Parliament to say that we cannot proceed unless we know that the LCJ is on board? I suggest that it is quite proper in this case for Parliament and the Bill to say, “This is a power which can be exercised by the Lord Chancellor and no concurrence is necessary.” As I said to the noble Lord, Lord Pannick, I am happy to look at this point, but that is the current position which I adopt.
I was going to make one more point on Clause 4 and Amendment 29, which seeks to raise the age of eligibility for the Section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18. This procedure has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. I am not aware of any issues of concern being raised in relation to under-18s during the whole of that time.
The purpose of Clause 4 is to ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station. It maintains the age criterion that already exists. That comes with an array of safeguards for children, which I will not read into the record because I apprehend that members of the Committee will be well aware of them. I suggest that the amendment would therefore create confusion by applying different rules to a well-established procedure since 1957 simply because the defendant is being charged in a different way. I do not think that that is a distinction with a difference, if I can use that legal phrase. It also fails to take into account the special safeguards in place to ensure that the rights of children are protected.
For those reasons, I urge noble Lords not to press the various amendments.
Before I consider our position, can I just ask when the cooling-off period is likely to kick in. In other words, does it start immediately upon the indication of a plea of guilty or will it be following the conviction that is a consequence of the online plea?
My Lords, I will give an answer, but I will check it and if I get it wrong I will write to the noble Lord. I think the way it works is that it will be immediately after conviction. The conviction is almost instantaneous with submitting the online form because it is an online procedure. Therefore, the cooling-off procedure would start immediately after conviction and would run from that time. Indeed, I have just received a message to say that that is correct.
I am grateful to the noble Lord for that clarification; I will consider it.
I will of course withdraw the amendment at this stage, but I see the process that we have had today as calling for continuing discussion. Although it is helpful to know from the Minister that the financial consequences will be spelled out precisely in the offer, he did not address the non-financial consequences—the personal consequences—in enough detail. Of course I take his point that, at this stage, this procedure will apply only to travelling on trains without a ticket, what used to be called riding on trams without a ticket or unlicensed fishing. In those circumstances, limited to those three offences, the consequences might not be as serious as they otherwise might be, but since the statute refers to all summary-only, non-imprisonable offences, it potentially goes very much wider. It would be very helpful if, during continuing discussions, we were assured about the criteria that would be applied in much more detail for its application to future offences because one can see the distinction simply from the offences that he mentioned and we cannot be sure what will happen.
The amendment tabled by the noble Lord, Lord Pannick, seems to have a great deal to commend it. He raised it as a query to the Minister. If there were an amendment to that effect on Report I rather expect that it would have a lot of support in the House. Having said that, I beg leave to withdraw the amendment.
Amendment 24 withdrawn.
Amendments 25 to 28 not moved.
Clause 3 agreed.
Clause 4: Guilty plea in writing: extension to proceedings following police charge
Amendment 29 not moved.
Clause 4 agreed.
Clause 5 agreed.
30: After Clause 5, insert the following new Clause—
“Review of the single justice procedure
(1) Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.(2) A review under subsection (1) must consider—(a) the transparency of the single justice procedure in line with the principle of open justice,(b) the suitability of the use of the single justice procedure for Covid-19 offences,(c) prosecution errors for Covid-19 offences under the single justice procedure and what redress victims of errors have.(3) The Secretary of State must lay a copy of the report before Parliament.”
My Lords, in introducing this group, I thought I would tell the Committee about my experience of sitting as a single justice magistrate dealing with Covid emergency legislation about a year ago. I dealt with fixed penalty notices handed out to people who broke the emergency legislation. The fine was £60, but if it was paid within 14 days it was £30. If that was not responded to the defendants received a letter saying that they should either turn up to court or respond to the letter or the matter would be dealt with by the single justice procedure.
I sat at my dining room table as a magistrate and I dealt with 30 trials in the morning. I convicted 29 of the 30. The prosecution case was the police officer’s note, which I had up on my screen so I could read it. There was no defence case because the defendant had not turned up. I then went on to sentence, which was a £100 fine, £100 in prosecution costs and a £34 victim surcharge, so £234 to pay and a collection order. That is what I did 29 times out of 30 last summer. It was a special time. It was a difficult procedure to go through, but we need to be very conscious of the difficulties and potential pitfalls with these types of procedures. Having said that, and given that example, I believe there are occasions and types of cases where it is appropriate.
Both my amendments make the same point in trying to build in suitable reviews of the procedure to ensure it acts fairly. Amendment 30 states:
“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”
My noble friend will speak to her Amendment 37. Amendment 54 says:
“Before section 43 may be commenced, the Lord Chancellor must—
(a) undertake a consultation with relevant stakeholders regarding the proposed abolition of local justice areas under that section, considering in particular the impact on the principle of local justice,
(b) lay before Parliament the Report and the findings of such consultation, and
(c) provide a response explaining whether and how such issues which have been identified would be mitigated.”
To say a few words on Amendment 54, magistrates arrange themselves in local justice areas. There are nine local justice areas in London. It is a historical way of organising magistrates, if I can put it that way. I understand that there are arguments on both sides. I also understand, from talking to the Minister and his officials last week, that there will be extensive consultation and further legislation on this matter if it is taken forward. Nevertheless, I beg to move.
My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.
Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.
Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.
I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.
My Lords, I will make two separate points. First, Amendment 54, tabled by my noble friend Lord Ponsonby, relates to Clause 43, which abolishes local justice areas. It says that the Lord Chancellor must,
“by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.”
I assume that the thinking behind this is that it would be convenient if all justices were appointed, say, for England and Wales and not to a local justice area, and training, deployment and other issues should be dealt with on a national basis.
I do not know what is planned, but I do know from my experience as Lord Chancellor that being a Justice of the Peace in a particular area is of very considerable importance. I also know that people are appointed as magistrates because they are committed to their local community, and that people being trained and deployed together over a period of time in a particular area is also incredibly important to local justice.
This looks to be a very wide-ranging provision which may well have been thought out in full, but I should be grateful if the Minister explained the thinking, and what is being done about recruitment, deployment and training.
I see merit in the proposal of my noble friend Lord Ponsonby that there be an inquiry or investigation of some sort into what is going to happen. I do not know what form that might take, but it is well worth looking into. I imagine that his is a probing amendment, in order to see that this issue is best thought out. There may be other methods by which one can ensure that, before this wide-ranging proposal is made and implemented, we know where we are going and it does not demoralise the magistracy, where morale is not necessarily that high at the moment. I should declare an interest, in that my wife is a judge who is responsible for training and, in part, deployment in Bedfordshire.
Secondly, and separately, I strongly support the proposition from my noble friend Lady Chakrabarti. She has tabled a probing amendment to give the Minister the opportunity to put the Government’s position: what are they doing about the lack of confidence in the criminal justice system, particularly but not only in relation to the prosecution of sexual offences? Everybody in this Chamber knows that the figures for prosecutions of serious sexual offences against women are lamentable and have got worse. A few days ago, the Director of Public Prosecutions said that reforms have been made and things are going to be much better. People are doubtful about this. As with local justice, it is really important that the Government set out what they are doing. If there is a widespread sense that this is not enough, even though my noble friend says that hers is simply a probing amendment, a proper, across-the-board inquiry into how crimes against women are dealt with may well be appropriate.
My Lords, as a former magistrate, I warmly support the first point made by my noble and learned friend. The differences in offences, their nature and conduct vary enormously in general, from area to area and region to region. To understand not only the offence but its cause and, therefore, what a suitable disposal might be is really important.
My Lords, the amendments in this group seek reviews or consultations in three quite disparate areas. The first, in Amendment 30 tabled by the noble Lord, Lord Ponsonby, concerns the single justice procedure. The second, in Amendment 37 from the noble Baroness, Lady Chakrabarti, concerns a call for an inquiry into the treatment of women and girls in the criminal justice system. The third, in Amendment 54 in the name of the noble Lord, Lord Ponsonby, concerns local justice areas.
First, as to the single justice procedure, there is no reason in principle to oppose Clause 5, which is the related provision in the Bill. It simply extends the procedure to corporations—and it is probably an anomaly that it did not apply to corporations in the first place. Many of the points that I made during consideration of the first group, relating to a review of the new online procedure, also apply in respect of the single justice procedure. It would be sensible for the single justice procedure to be the subject of the same review, consultation and consideration as the new online procedure.
I join the noble Baroness, Lady Chakrabarti, in thanking the noble Lord, Lord Ponsonby, for his helpful account today, and the help that he gives to the House generally as a practising magistrate and with his very important experience in the magistrates’ court. The magistracy is an extremely important part of our criminal justice system. I forget the precise statistic, but magistrates’ court deal with some 96% of all criminal cases. They are a crucial point of disposal.
I accept, as he did, that the single justice procedure has been of considerable use in minor cases generally, but he also pointed to the impersonality of that procedure and the lack of flexibility that it has in dealing with particular cases. It is valuable in minor cases and in cases such as television licence evasion, which I understand is one of the areas for which it is used. It has been particularly helpful with Covid regulations during the pandemic. However, we should not forget that imposing financial penalties remotely—for example, in the case of television licence evasion—can end up with people being severely penalised for failure to pay and even sent to prison. There is also significant evidence that that particular offence and its enforcement affect women disproportionately.
This brings me to the second area in which a review is sought in this group, Amendment 37, tabled by the noble Baroness, Lady Chakrabarti, which seeks a judicial inquiry into the criminal courts’ treatment of and service to women and girls. The noble and learned Lord, Lord Falconer, spoke to it too. In debates on the Police, Crime, Sentencing and Courts Bill, now back in the other place for further consideration of our amendments, I moved an amendment seeking the establishment of a women’s justice board. It had significant and widespread support around the House, and for me it is a matter of great regret that despite having the personal support of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Ponsonby, the Labour Party was not prepared to vote for the measure. If the measure had been supported by the Labour Party, we might have succeeded on that Division. That is a major reform for which I will continue to press. I hope that the support of those who supported it across the House in that Bill will continue to be forthcoming in future attempts, because it is one way to have a significant effect on addressing the difficulties of women and girls within the criminal justice system. Meanwhile, I of course support the noble Baroness in her Amendment 37.
Amendment 54 mandates consultation with relevant stakeholders about the abolition of local justice areas before that abolition under Clause 43 can come into effect. I see the merits of abolishing local justice areas. It will remove the boundaries between such areas, which—as the Explanatory Notes suggest—are largely artificial. That ought to enable magistrates’ courts to work on a more unified or at least a more collaborative basis and manage their work more logically. However, I listened with care to the note of caution introduced by the noble and learned Lord, Lord Falconer. If it is intended by the abolition of local justice areas to destroy the local base of the magistracy, that would be a great step backwards. It is very important that magistrates are dispensing, are seen as dispensing, and understood as dispensing, local justice. While I am completely understanding of the proposal to alter the artificial boundaries so that courts can collaborate on wider areas or narrower areas as appropriate, so that the artificiality is removed, it is very important to preserve the local justice principle. I expect that we will hear more from the Minister about the consultations that have already taken place on this issue in response to the amendment, and I look forward to hearing what he has to say. I hope that he will address that point with care.
I strongly agree that the magistracy is essentially a local service built up by knowledge of the area in which magistrates are asked to administer justice. It would be an extraordinary development to cut that out, because the knowledge of what is going on in their area is a source of strength to the magistracy in issuing judgments which, as has been pointed out, are a very high proportion of the total number dispensed throughout the country. On the other hand, I can see that sometimes a technical relief from the particularity of the boundary may be important. Perhaps that can be done without losing the principle of the locality of the magistracy.
I support what the noble Baroness, Lady Chakrabarti, said about the help that we are getting in this respect, having here a practising magistrate who knows the difficulties that arise and can be dealt with by personal experience. I also support the idea that we must have some system for noticing what the difficulties of different people are in relation to the courts, particularly women and girls. I imagine that this has to do with the treatment given by the courts, not particularly the question of certain types of crime that may not always be getting the result that we might expect in various situations.
My Lords, the amendments in this group, Amendments 30, 37 and 54, all deal with reviews of the criminal justice system or criminal court procedure. I will take them in turn.
Amendment 30 would require the Secretary of State to commission a review and publish a report on the effectiveness of the single justice procedure. The review would consider the transparency of the procedure and its use in the prosecution of Covid-19 offences. Let me begin by allying myself to the comments of the noble Baroness, Lady Chakrabarti, and thanking the noble Lord, Lord Ponsonby, for his service as a magistrate, and for what that service gives us in these debates: a real, from-the-front-line addition on how things are going. Since that has been raised, I also thank more generally all magistrates. As the noble Lord, Lord Marks, said, they are the backbone of our criminal justice system. During the pandemic, they went above and beyond to keep the wheels of justice turning.
On the substance of the single justice procedure, I should first make it clear that a case dealt with under the single justice procedure is dealt with in the same way as any other case, except that a single magistrate can deal with it and, as we have heard, the hearing need not be in public. The magistrate must comply with the same legislative safeguards as all other proceedings, and the Sentencing Council’s sentencing guidelines apply in the same way. Importantly, as with the previous group, the single justice procedure is entirely optional. Also, all processes are reviewed regularly to ensure that it is easy to navigate and accessible. Following consultation, the single justice procedure notice has recently been revised to make it even clearer for users.
We have also worked closely with the media to ensure that this procedure is accessible and open, because justice in this country is public justice. While the criminal procedure rules require all courts to give certain additional information on individual cases upon request from the media and other interested third parties, courts are currently obliged to give more information on cases prosecuted under the single justice procedure. That would include the prosecution’s statement of facts and the defendant’s statement in mitigation if there was one.
In addition, a list of pending single justice procedure cases is published each day online and is available to the public. The media also receive a more detailed list of these cases so that they can report on them if they so wish. So, actually, the media receive more information about cases dealt with under this procedure than traditional proceedings, where they get the information only if they actually turn up to the hearing. As I am sure the noble Lord, Lord Ponsonby, would confirm, it is now quite rare that local newspapers turn up. So, far from reducing transparency, the online procedure actually increases it, and I am sure that everyone in the Committee would agree that that is a very good thing.
On the suitability of the single justice procedure, I am not aware of any evidence to suggest that the error rate is higher under the single justice procedure than under traditional court proceedings. Of course there is an error rate, but the question is whether it is higher. As with all cases dealt with by the magistrates’ courts, safeguards are in place to address errors where they occur—people are human, and there will always be errors, I am afraid. If an error is made by the court, whether upon conviction or upon sentencing, the court will always reopen the case, notify the defendant and correct the error as quickly as possible. I know that work was done at speed with both police forces and court staff to reduce error rates in Covid-19 prosecutions.
Amendment 54, on the local justice review, would require the Lord Chancellor to undertake a consultation on the proposed removal of local justice areas,
“considering in particular the impact on the principle of local justice,”
and lay a report before Parliament. There are currently 75 local justice areas, and we think that these restrict efficient operation of the criminal justice system because work and magistrates cannot be easily moved between them.
Therefore, the removal of local justice areas will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. But I underline “local”, because the noble and learned Lord, Lord Falconer of Thoroton, and the noble Baroness, Lady Whitaker, made some very valid points about the importance of the local magistracy, which my noble and learned friend Lord Mackay of Clashfern echoed. I confirm that magistrates will still be assigned to a home court, which will ensure that there is a close nexus between the magistrate and the locality.
The change will give magistrates the flexibility to work in other courts, should they wish to do so. But, so far as listening is concerned, proximity between the courthouse and the offence will continue to be the primary consideration for where the trial will take place. But the change will allow for other factors to be taken into account where it is appropriate to do so; for example, the relative speed at which a trial could be arranged or the convenience of the location for other court users.
There will be full consultation with HMCTS, magistrates and other relevant criminal justice and local authority partnerships to discuss and agree new arrangements that are specific to local areas and better suited to local needs. Indeed, HMCTS is already discussing this with the Magistrates’ Liaison Group. The changes will not be enacted until that consultation has taken place.
Ultimately, it will be for the Lord Chief Justice and the judiciary to determine what new arrangements are to be put in place and to what extent they will differ, if at all, from the current arrangements. Under Section 21 of the Courts Act 2003, the Lord Chief Justice and the Lord Chancellor already have a statutory duty to ascertain the views of lay magistrates on matters affecting them.
Without unduly delaying the Committee, I will say a word about the magistracy. On recruitment, I hope that noble Lords have seen a recent campaign, this year, to recruit magistrates, trying to dispel preconceptions about what a magistrate does and, I respectfully say, what one looks like. People have a preconception about what magistrates look like; they should look like the people in this country. We have sought to recruit 4,000 more magistrates, which would be the largest recruitment in the 650-year history of the magistracy. We have also increased their retirement age so that, if they want, they can sit up to 75.
We think that these measures provide the opportunity to improve and enhance the magistracy and its leadership structures, which will now more closely align with the Crown Court. There will still be local training, but, where appropriate, we may have national training as well. But magistrates will be involved in the development of all these areas—
I am grateful to the Minister. Does he think that he ought to consider the impact that would flow from removing local justice areas, when we already find that taking cases to the furthest point within a local justice area—because there is a particularly well-equipped courtroom there, say—means that magistrates are finding that most of the cases they will be asked to sit on are taking place 50 or 60 miles away? It is extremely difficult to recruit magistrates who are prepared to accept that distance, and it does not do much for local justice.
Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—
The legislative form that this is taking, in Clause 43(1), is:
“Local justice areas are abolished.”
The Minister referred to things on the edges, such as greater flexibility between areas and particular courthouses being suitable, all of which sound quite sensible. But it is very hard to think that that requires the wholesale abolition of local justice areas. Echoing what the noble Lord, Lord Marks of Henley-on-Thames, said, could the Minister tell us what consultation has taken place already and led to the conclusion that the solution to, and the right way to deal with, what appear to be problems around the edges is to abolish local justice areas altogether?
First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.
I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.
Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.
We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.
On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.
Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.
In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.
I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.
My Lords, I thank all noble Lords who have spoken in this debate. I have to admit that Amendment 54 provoked more comment than I was anticipating. I particularly thank my noble and learned friend Lord Falconer for his observations about the importance of local justice areas, and my noble friend Lady Whitaker for her experience of local justice areas. The same point was made by the noble and learned Lord, Lord Mackay.
I understand that there needs to be a balance between getting rid of artificial boundaries and recognising the importance of locality. While the point made by the noble Lord, Lord Beith, about rural local justice areas is absolutely right, where people have to travel a great distance, in a big conurbation such as London I personally feel very much connected to the area where I sit as a magistrate.
I want to add one extra point to this debate, which I understand will be going on, about the importance of the pastoral role of the Bench chairman. I sit as a chairman for the Greater London Family Panel, and quite literally every day I deal with pastoral matters for my magistrate colleagues. It is a very important role and one that my colleagues appreciate. I think it is important that that role should continue in some way, because it is a way of maintaining the morale of magistrates within a particular area. I beg leave to withdraw the amendment.
Amendment 30 withdrawn.
Clause 6: Written procedure for indicating plea and determining mode of trial: adults
31: Clause 6, page 11, line 13, at end insert—
“and has received the advice of a legal representative prior to submitting a plea.”
My Lords, in this group of amendments we are dealing with offences triable either way and determining the mode of trial. I will go through all the amendments one by one and then make some rounding-up comments at the end.
In Amendment 31, the provisions in Clause 6 would apply only to persons charged with an offence who had received the advice of a legal representative prior to submitting a plea. In Amendment 32, the provisions in Clause 6 would apply only if the court had been provided with a physical and mental health of the accused, confirming that the written procedure would not impede the ability of the accused to understand or effectively participate in proceedings.
Amendment 33 would ensure that an accused person was informed about not only the consequences of giving or failing to give a written indication of a plea but the potential legal and practical consequences of pleading guilty. Amendment 34 would remove cases involving children and young people from the provisions of Clause 9. In Amendment 35, Clauses 6 to 9 would expire two years from when the Bill was passed, unless Parliament passed a resolution to retain those clauses.
Amendment 36 is in the name of my noble friend Lady Chakrabarti, and I will leave her to speak to it. Amendment 36A would ensure that the new increased magistrates’ sentencing powers were subject to regular reporting on their impact, including with respect to those with protected characteristics, every four months.
Clause 8 stand part would delete Clause 8, removing from the Bill the written procedure for children for indicating a plea and determining the mode of trial. Clause 14 stand part would delete Clause 14. That would be consequential to opposing the question that Clause 8 stand part of the Bill and would remove from the Bill the involvement of a parent or guardian from the proceedings conducted in writing. These are all probing amendments.
What I shall say in the round is that allocation decisions are often quite technical. It is often the case that defendants do not particularly follow the niceties of the argument when one is making allocation procedures. That is true with both adults and youths. Nevertheless, it is certainly my experience that a contested allocation procedure really focuses the mind of the court and of the defendant on the severity of the matter that you are dealing with. So, while one could argue that it is a procedural matter that does not require someone to be present in person in certain cases, that is true sometimes, but in my experience there are some closely contested allocation procedures where the full engagement of the defendant is vital in order to make a decision appropriately.
Particularly when it comes to people with mental health problems or vulnerabilities and the like, I have certainly been in court when, if I may use the expression, “the light goes on” and they understand the seriousness of the position that they are in, and it is because of the allocation procedure. So we ought to be very careful about doing a lot of these procedures administratively or online, without the defendants present or without them being fully involved in the process. If you do that, you lose an opportunity to fully engage the defendant in the process that is happening in court. My experience, in both adult and youth courts, is that one of the greatest problems is making sure that defendants fully engage in the process. In my experience, allocation decisions are an example of where people sometimes fully engage and, as I said, the light goes on and they understand the seriousness of their position. I beg to move.
My Lords, I shall speak to Amendment 36 in my name. I also support Amendment 36A in the name of my noble friend Lord Ponsonby. I declare an interest as a member of the council of JUSTICE, the all-party law reform organisation, and a British agent of the International Council of Jurists, along with many other Members of the Committee and your Lordships’ House.
Notwithstanding the praise that we all rightly heaped on my noble friend and his fellow magistrates in the earlier group, I am a passionate believer in the right to jury trial. I suspect I am not alone in that in this Committee. Juries are not perfect; however, I have defended jury trial, sometimes against Governments of both stripes, for at least 20 years. I hope I do not need to rehearse for too long why it is such an important right. It is not just because people believe in it. People want to be tried for serious matters that will send them to prison for a long time and destroy their reputations, and lives in many cases, not just because they want to be convicted by their peers; it is also important for trust and confidence in the justice system that it is not always seen as primarily about more-deprived and working people in the dock being adjudicated over by middle-class professionals like this Committee. As a third point, my experience of people who have served on juries is that it is a really important part of public service and engagement that people from a broad range of communities can ideally participate in. It is a very important glue for our country and the rule of law. I hope that did not need rehearsing, and I will stop on it there.
I note that in more controversial debates, for example around the Human Rights Act and its survival or not, some of the Minister’s colleagues—and indeed the current Justice Secretary—have said that one of the ways in which the Human Rights Act might be improved on would be with greater entrenchment of the right to jury trial. That is said on the one hand yet, on the other hand, provisions are taken to extend the sentencing powers of magistrates, which is ultimately a significantly broad back door to undermining jury trial.
I understand that the Government are concerned about the backlog. I certainly understand that the backlog in the system has been exacerbated by the pandemic. But if the Government did not share some of my concerns, they would not have added the so-called off switch in the other place that is now to be found in Clause 13. I am concerned not just in principle because of my belief in jury trial, but in practice as to whether the measures in the Bill will actually do what the Government are hoping. First, will these measures really save 1,700 sitting days in Crown Courts by enabling 500 jury trials to be switched to magistrates? Is that really a credible figure? Even if it is, we think that it would represent a saving of only 1.6% according to recent courts service estimates. Secondly, there is a presumption that defendants will not exercise their right to opt for a jury trial, which they are more likely to do if the benefit of a lesser sentence is not a temptation to take the magistrates’ court option. Thirdly, I am really concerned about whether there will be sufficient and appropriate training for magistrates if we are to double their sentencing powers. That is the rationale behind Amendment 36 and, quite possibly—I will not speak for my noble friend Lord Ponsonby—part of the rationale for Amendment 36A as well.
My Lords, I express my support for Amendment 36A. When I was a member of your Lordships’ Constitution Committee we looked into the impact of the pandemic on the criminal courts. What was striking about our activity was the difficulty we had in extracting from the Ministry of Justice any valuable, reliable statistics on what was happening in the criminal justice system. To have a specific statutory obligation to produce data on this important subject is essential if Parliament is to know what the impact of these new provisions will be.
My Lords, I support all the amendments in this group. My support comes from my experience as a magistrate, and I appreciate the endorsements of the role of the magistrate from all around the Committee. As those who frequent magistrates’ courts will know, they are places where invariably vulnerable and some other defendants are simply not able to understand or cope with the requirements of the legal system, as my noble friend Lord Ponsonby described, so effectively they do not have a fair trial. With regard to increasing the powers of magistrates in Clause 13, magistrates too are not experts, and that is partly the point of them. In my view, the safeguards in Amendments 35 and 36 would be very useful against inadvertent injustice.
My Lords, I have very considerable concerns, which have also been expressed by the Delegated Powers Committee, about the Secretary of State being able in effect to double the length of time that a prison sentence can last in relation to both summary offences and either-way offences. How long a person goes to prison for as a result of a magistrates’ court sentence is a considerably important factor in determining which cases are tried by a jury and which are tried by the magistrates’ court. If there is to be a change in the powers of the magistrates’ court of this dimension, it should always be done by primary legislation and not by regulatory powers. I oppose the proposal that the Secretary of State could in effect double the sentencing power of the magistrates’ court and think that should be left to primary legislation. For that reason, I support the amendment tabled by the noble Baroness, Lady Chakrabarti.
My Lords, as a non-lawyer, I have listened to much of this debate before and today and I think this Government are going too far in taking into ministerial powers decisions which should come before Parliament. This is another example of that. I do not want the Secretary of State to be able to do this without Parliament discussing seriously what it means. Parliament ought to be much tougher about its powers being taken into the Executive.
I was first elected to the other place in 1970. Since then, Parliament has become increasingly less powerful and increasingly the Executive have increased their power. I do not believe that the Secretary of State should have this power. I believe it should be Parliament. What is more, I believe that the public think it should be Parliament. Only with the consent of the public does the legal system work.
I usually come here to ensure that lawyers do not do things a bit on their own in legal matters, and I think I am the only non-lawyer here, but I wish to say—I apologise to the noble Lord, Lord Ponsonby, a fellow recalcitrant individual. It seems to me that we have to be much tougher about things that look small because, in aggregate, they become very dangerous, because the public will lose their belief in the fact that the legal system is independent except that it is dependent on the good sense of the elected Parliament and the House of Lords in ensuring that the Executive do not overstep the mark. I do not want this Government to overstep the mark in this or any of the other things they seem to wish to take unto themselves.
My Lords, the first two amendments in this group, Amendments 31 and 32 from the noble Lord, Lord Ponsonby, would add requirements that an adult accused should have received legal representation and had a physical and mental health assessment confirming their capacity to understand the meaning and consequences of a guilty plea in order to participate in proceedings before the court seeks an indication of a guilty plea in writing. Amendment 33, also from the noble Lord, Lord Ponsonby, would require information to be given to the accused as to the consequences of a guilty plea. These are similar to some of the issues we have canvassed before this afternoon. But, again, I support the principle of these amendments. They are directed at the proposition that before a court proceeds to accept a guilty plea, it must be satisfied that the accused has full capacity and understands the consequences.
These are complex proposals, and the consequences of a guilty plea are challenging to understand. They may, for example, include the consequence of being committed to the Crown Court for sentencing under new Section 17ZB of the Magistrates’ Court Act 1980. It is important to understand how these points are going to be addressed in practice, and I hope the Minister will help us with that.
As for the next amendment from the noble Lord, Lord Ponsonby, I agree with him that taking a guilty plea from children, as proposed by Clause 8, is unacceptable, and I support him in opposing that clause and, consequently, in opposing Clause 14, which would, independently as well as consequently, water down the involvement of parents and guardians in child cases. That involvement is, I suggest, extremely important. There are two principal reasons for my opposition. First, it is extremely difficult to guarantee that a child of whatever age under 18 will fully understand the proceedings or consequences before giving an indication of a guilty plea. Secondly, a criminal charge often brings matters, risks and difficulties that are faced by particular children to the attention of the court when they attend court. That gives the court and other agencies an opportunity to address those difficulties, and that opportunity ought to be available and taken as soon as possible and before any question of indicating a guilty plea arises. For the same reasons, I support Amendment 34 in relation to Clause 9, which would permit allocation hearings in respect of children or young people to proceed in the absence of the accused. That does not seem appropriate.
These are difficult provisions for indicating a guilty plea in writing, and as I have said, it is difficult to see how they will work in practice. While they may prove to be inoffensive if introduced, the sunsetting provisions in Amendment 35 are surely sensible. If our concerns turn out to be groundless, Parliament can revisit the procedures on the basis of evidence of how they have worked out in practice and make them permanent or extend them. Otherwise, they ought to lapse after two years, as is suggested in the amendment.
I turn next to Clause 13, permitting the extension of a magistrate’s sentencing powers. I cannot, at the moment, for the life of me see why the noble Lord, Lord Deben, and the noble and learned Lord, Lord Falconer, are not right to say this is a matter that ought to be considered discretely and independently by Parliament, rather than having delegated powers enable the Secretary of State to increase magistrates’ sentencing powers at a later date by executive action. That does not seem appropriate, and no good reason has been advanced for why that should be right.
As to the threat to jury trial considered by the noble Baroness, Lady Chakrabarti, I share her belief that increasing sentencing powers is likely to lead to more, rather than fewer, defendants opting for jury trial. The greater sentencing powers of magistrates would lead only to defendants taking their chances with a jury trial rather than staying in a magistrates’ court, and forfeiting what has been traditionally the incentive to stick with the magistrates—that they are likely to impose a shorter sentence and unlikely to commit for sentence.
As a matter of principle, I am instinctively opposed to increasing the sentencing powers of magistrates. At the same time, along with many who have considered the evidence, we are strongly opposed to short prison sentences. Against that, there is a serious risk that a move to permit 12-month sentences, when previously six-month sentences were the maximum that could have been imposed, will increase the use of custodial sentences of a longer period where community sentences would be more appropriate. I find that a difficult issue to face. We should be concentrating on increasing the use of community sentences; and increasing magistrates’ powers to 12 months for a single offence is entirely wrong. But I wait to see how the Minister approaches this change and justifies it.
My Lords, I am grateful to all noble Lords who have taken part in this debate. It covers a number of different points, but, essentially, it focuses on the procedure for triable either-way cases and the recent announcement that the Government intend to extend magistrates’ courts’ sentencing powers from six months to 12.
Let me start with amendments to Clause 6 —Amendments 31, 32 and 33. They all seek to add further safeguards to Clause 6, but I hope to explain why the Government consider them to be unnecessary. I share the concern of the noble Lord, Lord Ponsonby, to ensure that defendants are able to seek legal representation in criminal proceedings at the earliest opportunity. The central point here is that a defendant is unable to proceed with the new online procedures without the support of a legal representative. That is because the online procedures we are dealing with here are made possible through the common platform, which is currently not accessible by individual defendants. So, as currently, legal representatives would be needed to access the platform, and they will then be able to help identify whether a defendant has particular vulnerabilities or does not understand the process even after explanation.
Defendants, as in a previous group, will be under no obligation to accept an invitation to proceed online. They can choose to discuss these matters at a traditional court hearing if they should so wish. Where a defendant fails to take up the offer of engaging online, the proceedings will simply default back to a normal court-based procedure. Furthermore, the court itself will be able to stop an online proceeding and call an in-court hearing if it has any concern or would like the defendant, for whatever reason, to attend court in a contested case. That would include cases where, for example, the court had concern about a defendant’s mental health or mental capacity, or where, for any other reason, the court considered online proceedings inappropriate.
Amendment 33 would require that defendants are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. Of course, getting a criminal record is not something that should ever be taken lightly, but Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea.
Where a defendant does decide to proceed with the online procedure, all the communication that would take place between the parties and the court to facilitate effective case management, which would otherwise take place in court, can take place online. A defendant will, for example, still be able to seek an indication of whether a custodial sentence would be likely if they were to plead guilty and were dealt with at the magistrates’ court. Further, any online indication of plea—and that is what we are dealing with, an indication of plea—will remain just that, an indication. A defendant is able to withdraw it at any time before their first appearance at a hearing in court. They will still need to enter a binding formal plea before the court at that hearing and any online indication of plea cannot be admitted as evidence in later proceedings. So I suggest that we have enough safeguards in place to ensure that defendants are appropriately supported.
Given that there has been some recent press coverage of the online procedure, I reiterate the important point I made earlier: the principle of open justice will be maintained for cases dealt with under this new online procedure. Magistrates’ courts will publish the result of these proceedings in the usual way and, and I said earlier, various measures in the Bill will actually mean that the press get more material here than they would from a traditional format.
Amendment 34 to Clause 9 would prevent the courts having a power to proceed with trial allocation decisions for children who fail to appear at their hearing without an acceptable reason and where it would have been in the interests of justice to progress the case. It is important that all cases, but particularly cases involving children, are progressed as expeditiously as possible, so that interventions to tackle offending are not delayed. This provision recognises that with the increased vulnerability of child defendants there will need to be additional safeguards.
Clause 9(5) creates a new, but clearly defined, set of circumstances that would enable a court to allocate a child’s case in their absence. A point to underline is that these conditions are far more stringent than those prescribed for adults, even though children cannot elect for jury trial.
There are essentially five conditions. The first is that the child has been invited, but failed, to provide an online indication of plea and that, in accordance with Clause 14, the court should, where appropriate, have made sure that the child’s parent or guardian was aware of the written proceedings. The second condition is that the child has then also failed to appear at the subsequent allocation hearing. The third is that the court must be satisfied that the child was served with adequate notice of the hearing or had previously appeared at a hearing and was therefore aware of the proceedings. The fourth condition is that the court does not consider that there is an acceptable reason for the child’s failure to appear. The fifth is that the court must be satisfied that it would not be contrary to the interests of justice to proceed to allocate the case in the child’s absence. There are a number of other existing safeguards—I will not go through them all—for example, when a child is arrested, the law requires that a parent or guardian must be notified as soon as possible. For prosecutions initiated by summons or postal requisition, the notice is also sent to the child’s parents or guardian.
Amendment 35 would add a sunset clause, which would essentially switch off the provisions in Clauses 6 to 9 two years after Royal Assent, unless Parliament passed a resolution to prevent it. I understand that the intention is to ensure that defendants are not disadvantaged, but I suggest it is unnecessary for three reasons.
First, as the Committee will appreciate, magistrates’ courts already have powers to allocate in the defendant’s absence. The online procedures are already used effectively in magistrates’ courts; we are simply extending the circumstances in which these powers can be used. Secondly, these measures do not replace current tried and tested procedures; they offer more options to defendants to save time and reduce the number of unnecessary appearances at court. If a defendant does not want to go online, the proceedings simply default to the usual court-based proceedings on their allotted hearing date. Thirdly, as I have said, there are safeguards to protect defendants who need protection, particularly children but also others, recognising that we have a distinct youth justice system.
Like all procedures, these measures will be closely monitored and subject to regular review by the Criminal Procedure Rule Committee. I agree with the noble Lord, Lord Ponsonby, that it is essential that the defendant is fully engaged with all stages of the criminal justice process, and we think these procedures will enable that still to happen.
The noble Baroness, Lady Chakrabarti, spoke to Amendment 36 on magistrates’ court sentencing powers. I have read the briefing from Justice on this and the other measures in the Bill. Amendment 36 would remove Clause 13, which provides a power to vary the limit on the length of sentence that a magistrates’ court may give in the future to either six months’ or 12 months’ imprisonment. This amendment seeks to prevent the extension of magistrates’ court sentencing powers through existing provisions in the Criminal Justice Act 2003 and the Sentencing Act 2020.
The extension of magistrates’ court sentencing powers will enable more cases to be retained in magistrates’ courts, enabling those cases to be heard more quickly. We estimate that this will free up around 1,700 sitting days in the Crown Court each year. Since I was asked, I will say a little more about that. First, we estimate it will move up to 8,000 sentencing hearings from the Crown Court to the magistrates’ court, resulting in a reduction in the Crown Court backlog of about 1,700 cases. Secondly, because those 8,000 cases no longer have to be heard in the Crown Court, it would free up for other work over 1,700 sitting days a year, which, if used for trial work, would provide for an extra 500 jury trials a year. I am conscious that I used the number 1,700 twice in different contexts, but I have checked and that is deliberate and correct. The modelling is based on the number of sentencing hearings that would now be retained in magistrates’ courts, estimated at about an hour each, which amounts to about 1,700 sitting days. That is based on current election and appeal rates. Further detail will be published in the impact assessment when the extension is switched on.
I assure the noble Baroness, Lady Chakrabarti, that nothing here undermines jury trial. We had a separate discussion in the human rights context about the importance of jury trial, and I have made my and the Government’s position clear. Just as I thanked the magistracy, I should also thank all those people who turned up during the pandemic to sit as jurors and the court staff who enabled those trials to take place. They went above and beyond. This jurisdiction was one of the first—perhaps the first—in the world to reinstitute jury trials during the pandemic. We should be proud of that in our criminal justice system, and a lot of people put a lot of work into that to make it happen—court staff, judiciary, jurors and legal professionals.
Clause 13 allows the flexibility to reduce the maximum sentence that may be given by the magistrates’ court back to six months, if it looks like there are adverse impacts. We are not pressing ahead regardless. I listened carefully to the points made by the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Deben, but let us put this in context. As outlined in the allocation to Crown Court guidance and good practice, magistrates, subject to issues of complexity, can already keep the cases affected by these measures for trial. The extension of sentencing powers will therefore serve primarily to increase the number of cases the magistrates’ court can sentence. Because we are increasing magistrates’ powers only in relation to individual triable either-way offences, tried summarily, there is no change to the maximum penalty available for these offences, just to which court can give sentences between six and 12 months in length.
As to the Secretary of State’s powers to switch it on and off, we believe that it is necessary to take this power to ensure flexibility in the future should significant unsustainable pressures arise as a direct result of extending the sentencing powers of magistrates’ courts. We set out in the delegated powers memorandum that we think it is appropriate to take a power to increase the limit back to 12 months again to allow the benefits of the policy to be maintained if solutions can be found to address any pressures.
The noble Baroness, Lady Chakrabarti, asked about training for the new powers. I assure her that we will revise sentencing guidelines for magistrates’ courts, and magistrates, district judges and legal advisers will also receive additional training. That is, of course, designed by the Judicial College, not by government Ministers, and is rolled out by HMCTS. On the point made by the noble Lord, Lord Marks, about short sentences, the sentencing guidelines continue to apply. We all know what that means: you cannot give a custodial sentence unless there is no other proper option and, even when you give a custodial sentence, you have to suspend it unless an immediate custodial sentence is the only option. Those are the protections built in.
Amendment 36A seeks to require reporting to Parliament every four months on the operation of the increased sentencing powers, including data on the impact on sentencing outcomes and a breakdown of outcomes for those with protected characteristics. There is a drafting point here. Clause 13 does not actually commence the sentencing powers, but provides the power to reduce the limit down to six months or increase it back to 12 again in the future, but that is a drafting point. The two main points here are, first, that the increase in sentencing powers does not change the maximum penalty available for each offence: it is only which court can give a sentence of up to 12 months’ imprisonment. Defendants will also retain the right to elect for trial in the Crown Court. Secondly, we will monitor the impact of the extension. That will be ongoing and regular. So far as data is concerned, and on the point made by the noble Lord, Lord Pannick, we publish quarterly data on custodial sentences and average sentence length in criminal courts and will continue to do so. There is now further relevant data in the public domain, which he may not have had time to pick up yet. In particular, I refer to the cross-criminal justice system scorecards, which are now published each quarter, and criminal justice outcomes data, which is also released quarterly. With that additional data, therefore, on top of the data that we published historically, we believe it would be disproportionately burdensome to publish the additional data suggested by this amendment.
Finally and briefly, I turn to the proposal that Clauses 8 and 14 should be removed from the Bill. Clause 8 would provide a defendant under 18 years of age with the option of indicating a plea and determining mode of trial in writing online. Clause 14 would require the involvement of a parent or guardian. I have already set out the various safeguards for children, and, where a child chooses to provide an indication of plea online, courts will have to make sure at the first hearing that the child has understood the decision and confirms a written indication of plea before proceeding any further with that case. That is an important safeguard at the very first court hearing. I hope that I have set out why the Government believe the amendments are unnecessary, and I invite noble Lords not to press them.
My Lords, I find myself in a somewhat invidious situation regarding Amendment 36. I thank the Minister for defending the position of the Government and I speak against my noble friends who questioned the increase in magistrates’ sentencing powers. Having said that, I accept the more general point—or more principled point, if I can put it like that—of the noble Lords, Lord Deben and Lord Marks, and my noble and learned friend Lord Falconer, that the changes should be done by primary legislation rather than in the way in which the Government are proposing to do it here.
I shall just make a couple of points regarding magistrates’ sentencing powers. Magistrates in youth courts sentence up to two years. I have done that once in 12 years as a youth magistrate. Magistrates in adult courts, for more than one either-way offence, can currently sentence up to 12 months. The difference is that it is on multiple offences that you get to the 12-month maximum, rather than on the single offence, which is the proposed amendment. I do that very infrequently: I could probably count on the fingers of one hand in 14 years as a magistrate when I have sentenced 12 months on multiple charges. It really does not happen that often. Nevertheless, the Minister made a fair point when he said that the Government will monitor the impact of this proposed change. I am sure that people will keep a very close eye on whether these sentencing powers are being used in any inappropriate way, but I really cannot see it happening. Nevertheless, I am happy for the Government to monitor the change. I beg leave to withdraw Amendment 31.
Amendment 31 withdrawn.
Amendments 32 and 33 not moved.
Clause 6 agreed.
Clauses 7 and 8 agreed.
Clause 9: Powers to proceed if accused absent from allocation hearing
Amendment 34 not moved.
Clause 9 agreed.
Amendment 35 not moved.
Clauses 10 to 12 agreed.
Clause 13: Maximum term of imprisonment on summary conviction for either-way offence
Amendment 36 not moved.
Clause 13 agreed.
Amendment 36A not moved.
Clause 14 agreed.
Amendment 37 not moved.
Clauses 15 and 16 agreed.
Schedule 1 agreed.
Clauses 17 and 18 agreed.
Schedule 2 agreed.
Clause 19 agreed.
Schedule 3 agreed.
Clauses 20 to 23 agreed.
38: After Clause 23, insert the following new Clause—
“Power to make certain provision about dispute-resolution services
(1) This section applies to Online Procedure Rules which provide—(a) for the transfer by electronic means of information held for the purposes of an online dispute-resolution service to a court or tribunal, or(b) for a court or tribunal to take into account, for any purpose, steps that a party to proceedings has or has not taken in relation to an online dispute-resolution service.(2) The Rules may be expressed so that their application in relation to a particular service depends on things done by a particular person from time to time.(3) The Rules may, for example, refer to such services as—(a) appear from time to time in a list published by a particular person, or(b) are from time to time certified by a particular person as complying with particular standards.(4) In this section—“online dispute-resolution service” means a service accessible by electronic means for facilitating the resolution of disputes without legal proceedings;“particular person” and “particular standards” include, respectively, a person of a particular description and standards of a particular description.”Member’s explanatory statement
This new clause enables Online Procedure Rules to allow things done by third parties to determine the application of the Rules to particular online dispute-resolution services.
My Lords, I am conscious that there is another amendment in this group, Amendment 39, in the name of the noble Lord, Lord Ponsonby of Shulbrede. I hope the Committee will find it helpful if I speak to my amendment and then respond in the normal way to the noble Lord’s amendment.
Both amendments relate to the new Online Procedure Rule Committee, OPRC, created by the Bill. Amendment 38 seeks to give, by way of a new clause, greater flexibility to the Online Procedure Rule Committee when it comes to establishing standards relating to dispute resolution conducted online before court proceedings are initiated. This will enable parties who try to resolve their dispute online prior to commencing legal proceedings to then transfer into the legal process in a seamless and efficient way if it proves impossible to resolve some or all of their dispute. The key point is that the IT processes will enable these pre-action dispute resolution processes to roll over into the online legal processes where that is necessary, saving parties time and cost in preparing a new claim. I am grateful to members of the Committee who have taken time to engage with me on this proposed government amendment.
The Master of the Rolls, as the Committee may be aware, has on a number of occasions laid out his vision for a more modern and efficient justice system which makes maximum use of new online processes. The Bill as drafted without this amendment allows the Online Procedure Rule Committee to establish standards which external dispute resolution providers must satisfy in order for data to be transferred into the court process. That committee will also be able to provide rules for the court or tribunal to take into account regarding the compliance or otherwise of parties to proceedings with pre-action standards. That is similar to what already happens under the Civil Procedure Rules, where the court can look at the compliance of parties with pre-action protocols.
In future, we anticipate that there will be a range of pre-action dispute resolution services which meet these standards, so that prospective litigants will be able to select and engage in online dispute resolution before any formal proceedings begin, with a view to resolving their dispute. Enabling and encouraging parties to resolve disputes out of court is something this Government are very focused on, and I am sure it is not a party-political issue: I think there is general support across the Committee for that. Incentivising parties to engage in online dispute resolution before commencing legal proceedings means that only cases which really require judicial consideration will come before a judge. That reduces pressure on courts, reduces backlogs, resolves cases more quickly and, frankly, enables litigants to get on with their lives. The effect of this amendment is therefore modest, but it is important because it enables the committee, rather than having to maintain in the rules a list of individual dispute resolution services, to instead signpost to third party online dispute resolution services that meet the standards laid down by the committee.
As I said at the start, there is another amendment in the group and if the Committee is happy, I will respond to it after other noble Lords have spoken to it.
I shall quickly speak to Amendment 39, in the name of my noble friend Lord Ponsonby, which seeks some assurances from the Minister on how this will work in practice. We accept the good intentions of the Government in this, and we welcome Ministers making it clear that they understand that not everyone is going to be able to use online procedures and some may feel that assistance in starting or progressing their case is needed. We support the extension of digital procedures, but we think it is very important that users receive an equal service no matter which channel they engage through.
We know that, despite the best intentions of everybody involved, everyday pressures on the ground can sometimes conspire to make unavailable the assistance that, ideally, we would all like to see, or to not deliver it in an appropriate way. We have tabled this amendment because we want assurances from the Minister about provision for digitally excluded people. Research from Lloyds Bank indicates that some 16% of the population do not have the skills to participate digitally. I have colleagues on the Labour Front Bench whom I frequently assist with Divisions, so I do hope they never find themselves subject to these procedures. It is not always obvious, though, who is going to need this support—I am not going to name names. Those who, ordinarily, might be able quite easily to access services online might struggle when dealing with complex issues because they are at a time of extreme crisis in their lives. Others, I am sure, could take great advantage of being able to complete processes digitally. We need to be confident that we are not putting in place systems that leave some individuals disadvantaged.
In Committee in the Commons, there was a long discussion about this issue, whether the definition in the Bill of those who need support was sufficient, and whether paper-based processes should be available on demand. Can the Minister assure us that a user-centred approach will be taken at every stage and in every case, so that the means of engagement is always appropriate to the individual and is offered, rather than that which may be most convenient for the service provider?
I am slightly nervous about the emphasis on the service seeking to direct as many users as possible through primary digital channels and this becoming the priority for the service, even when an individual may not feel completely comfortable with that approach. I know that during earlier stages of the Bill, Ministers have been as reassuring as possible on these points, but we still need more reassurances about the practical reality. Perhaps the Minister can say how he intends to monitor implementation of these measures, so that we can make appropriate interventions should the need arise.
My Lords, the Minister rightly said that his Amendment 38 is a modest one, but this group of amendments raises more general concerns, as the noble Baroness, Lady Chapman, has just explained.
The noble Lord, Lord Deben, may be interested to know, in the light of his earlier observations, that Clause 19 gives the Minister a power to make rules that require that specified kinds of legal proceedings “must” be conducted, progressed or disposed of by electronic means. The Minister could say, in principle, that all cases in the Court of Appeal of a civil nature will not be conducted by oral hearings; they will disposed of by pressing a button on the computer, and the judge will then decide. That is quite a remarkable power, the noble Lord may think.
The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.
When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?
In relation to that point, it is absolutely plain that the wording of Section 19 applies to any sort of civil proceedings, including family proceedings. So it is plainly envisaged that this goes beyond simply money claims. Can the Minister describe the sorts of family proceedings that will be dealt with by the Online Procedure Rules and online processes? In particular, is it envisaged that this is to be restricted to the actual process, for example of getting a divorce or judicial separation, as opposed to proceedings that relate to the division of assets upon judicial separation or divorce, proceedings in relation to wilful neglect to maintain and any proceedings—in both private and public law—relating to children?
Secondly, and separately, I want to make a much more minor point. I understand that one of the things the Master of the Rolls has in mind in relation to Amendment 38 is that dispute resolution services must be used before, or as part of, the online process. The services envisaged by the amendment will themselves be online, so purveyors of online dispute resolution services will become quite significant players in the civil justice system, and perhaps in the family justice system as well. The rules may include a provision that the goodness or quality of those services can be
“certified by a particular person as complying with particular standards.”
To be helpful, in a way, the amendment says that
“‘particular person’ and ‘particular standards’ include, respectively, a person of a particular description and standards of a particular description.”
Can the Minister indicate who will determine whether the online dispute resolution services, which may become something that you as a litigant must engage with, meet an adequate standard? Will it be a judge, an official or some independent body? I would be interested to know what the Government’s intentions are in relation to that.
My Lords, I am sorry to rise again, but I want to respond to what the Minister was indicating to me: that, under Clause 19(6), it would be open to a litigant in civil proceedings to choose not to proceed by electronic means even if the rules otherwise so required. What Clause 19(6) actually states is:
“Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”
As I understand it, this means that, if the claimant or defendant is legally represented, they can be compelled to proceed by electronic means. So, if the Minister were ever to return to the Bar, which would of course be a great loss to Parliament, and were I to have the pleasure of appearing against him in a case in the High Court, the Court of Appeal or the Family Division, the Lord Chancellor could, by rules, specify that those proceedings are to be conducted by electronic means and that the normal course of advocacy in court—I of course declare my interest as a practising barrister—would not take place. That is why I am particularly concerned that the Minister can assure the House that the ministry has no intention of applying these rules to the Family Division, the High Court and the Court of Appeal other than in small claims cases—that is, cases involving sums of up to £25,000—which is what the noble and learned Lord, Lord Keen, told the House in 2019.
My Lords, I will speak first to government Amendment 38, which makes provision for pre-action dispute resolution services and procedures to be taken into the overall procedure within the Online Procedure Rules. In principle, we particularly welcome this recognition of the importance of alternative dispute resolution procedures in the civil justice context. We accept the Government’s point that it is even more important in the context of online procedures, where modernisation and simplicity of approach are at the forefront of the Government’s aims, than it is in the context of conventional procedures to make provision for online alternative dispute resolution procedures to be brought into the overall picture.
However, what is proposed is a power only; it is not even really a template, as the noble and learned Lord, Lord Falconer, pointed out, although not in those words. We simply stress how important it will be, in the context of the Online Procedure Rules, to integrate the arrangements to facilitate ADR into online procedures in a clear way. The noble and learned Lord pointed out particular areas where the provisions were very unclear about who would be responsible for those procedures and how they would be authorised, but I would welcome clarification from the Government as to how they propose to proceed in that regard.
Amendment 39 on online procedural assistance in the name of the noble Lord, Lord Ponsonby, which was moved by the noble Baroness, Lady Chapman of Darlington, and to which I have added my name, is comprehensive. At its heart is the aim in proposed subsection (1) of introducing a statutory duty to provide assistance to those who need help navigating online procedures. That is an adjunct to the importance attached to them in the Bill itself. We of course accept that the Government intend to ensure the availability of assistance with the new procedures and we welcome the introduction of these online procedures. We were also reminded by the noble Lord, Lord Pannick, of the limitations of the procedures that the noble and learned Lord, Lord Keen, promised when he was Advocate-General and we last debated these procedures. Our concern is that what the Bill proposes is very much wider and could, as the noble Lord, Lord Pannick, pointed out, cover family proceedings, proceedings for injunctive relief—almost any proceedings of whatever magnitude. However that might be, the importance of online assistance becomes greater with the importance of the proceedings to the parties.
The noble Baroness, Lady Chapman, talked about digital exclusion by virtue of skills, but it is not only a question of skills. She is absolutely right that many people are unable to handle digital technology through age, disability or vulnerability, as well as, of course, through lack of education or simply not having kept up with advances in technology. There is also the lack of availability of fast broadband and an inability to access the internet in the way those of us who live in areas of fast broadband are becoming completely used to. There is the availability of technology and computers. The answer might be that people can go to their local library, but for many people in rural areas, local libraries are very distant and lacking in decent equipment. It is not enough to say that anybody can access a computer.
That ties in with the financial abilities and means of people who may be litigants. If they do not have the equipment, as well as not having the skills, they cannot access it. For us, the cardinal principle is that no one, however unable to access digital procedures without help for whatever reason, should be disadvantaged by the new procedures. That can only be answered by a duty upon the Lord Chancellor to provide digital and online assistance. There needs to be assistance to a sufficient level that every litigant understands the procedures and how they are to be implemented and is able to have personal, telephone or remote appointments, whatever is necessary, to enable them to participate in procedures at every stage online. As per our amendment, this also means assistance with language in terms of interpretation or translation for those for whom English is not their first language.
An important part of our amendment is the prescription of an annual evaluation of online procedural assistance and the collection of information about how it is proceeding. I add only this: we are concerned to see that it will remain possible to take all steps in proceedings by paper means. This has been promised by the Government, as the noble Lord, Lord Pannick, pointed out. I am confident that the number of those requiring step assistance by paper proceedings will reduce as time passes. However, the ability to take all steps on paper, at any stage, must remain. This is essential to honour the fundamental principle of our justice system that we preserve universal access to enable people to enforce and defend their rights.