That this House do not insist on its Amendments 4B and 4C, and do agree with the Commons in their Amendment 4D in lieu.
4D: Clause 12, page 16, line 30, at end insert—
“(b) after subsection (4) insert—
“(4A) Before making regulations under subsection (1A) that relate to costs orders under section 17, the Lord Chancellor must—
(a) consult—
(i) the Law Society,
(ii) the General Council of the Bar, and
(iii) such other persons as the Lord Chancellor considers appropriate, and
(b) publish an impact assessment in respect of the regulations.””
My Lords, these amendments relate to private prosecutions. I start by expressing my thanks to all noble Lords for their thoughtful contributions to the Bill throughout its passage.
I thank the Opposition Front-Bench team, in particular the noble Lord, Lord Sandhurst, and the noble and learned Lord, Lord Keen, for their scrutiny and for all the time they have given in these debates. The noble Lord, Lord Sandhurst, gave up his time on Monday to meet me and my officials and we had a productive discussion, for which I thank him.
I would especially like to express my sincere gratitude to the Liberal Democrat Front-Bench team, in particular the noble Baroness, Lady Brinton, and the noble Lord, Lord Marks of Henley-on-Thames, for their constructive, helpful and friendly engagement throughout this Bill. While we have not always agreed, it has been a real pleasure doing business with them.
It is clear that this Bill has benefited from the quality of scrutiny in this House and has been strengthened by the considerable expertise and insight contributed by Members of your Lordships’ House, both during debates and in the informal discussions we have had around the edges.
I turn to Motion A, relating to Amendments 4B and 4C, tabled in the name of the noble and learned Lord, Lord Keen. I am grateful to both Houses for the depth and seriousness with which Clause 12 has been scrutinised. I will briefly explain the Government’s position and set out the statutory assurances that we have brought forward for your Lordships’ consideration.
From the beginning, we acknowledged the concern about a possible chilling effect on private prosecutions and I reiterate the Government’s reassurances that this is not, and never has been, the intention. We recognise that Amendments 4B and 4C were aimed at encouraging scrutiny and bringing transparency in relation to any regulations that may be made to determine the rates at which private prosecutors can recover costs from central funds. The Government share those objectives. Where we differ is not on the importance of oversight but on the appropriate and proportionate legislative mechanism by which that oversight should be secured.
My Lords, I am going to intervene very briefly to say that it is good that an agreement has been reached on the difficult issue of the processes and arrangements relating to private prosecutions. As with many of the other issues we have discussed during the passage of this Bill, private prosecutions are a complex issue, and not one that can be resolved swiftly or even with a clause or two on the face of the Bill.
I thank the Minister for meeting my noble friend Lord Marks and me on a number of occasions during the Bill to discuss how we can set in place mechanisms to ensure that the Government’s changes will not have surprising or unintended consequences. My noble friend Lord Marks will talk about the details of those changes, which he proposed to the Conservatives at the previous stage of ping-pong; their amendment then reflected his proposal, for which we thank them.
I welcome the government proposals in Motion A. Amendment 4D includes the two key elements of any effective organisation: that there is data to inform decisions—in this form, an impact assessment that would be published—and that the Lord Chancellor must consult the Law Society, the General Council of the Bar and others considered appropriate. I hope that the Lord Chancellor will not use these methods just once. My noble friend Lord Marks has identified core action that will work elsewhere in the court system, where reform may well be needed.
As we come to the end of this Bill, I also want to put on record the support and help of Elizabeth Plummer in our Whips’ Office, and the many individuals and organisations who have worked with us, especially the offices of the London Victims’ Commissioner and the Victims’ Commissioner, Claire Waxman. We would not be where we are today without them, and I thank them.
Finally, I want to return to the discussions with the Minister. During the passage of the whole of the Bill, her officials have been enormously helpful and her personal willingness to discuss, both publicly at the Dispatch Box and privately in meetings, speaks volumes about her approach. I thank her for that and look forward to working with her again.
My Lords, I repeat and echo all the thanks that my noble friend Lady Brinton has just made to the Minister, her officials and all the others who have helped with this Bill. I was going to say this at the end, but I shall say it now—I am also enormously grateful to and in awe of the work of the noble Baroness, Lady Brinton, during the course of this Bill. Her dedication and thoroughness on issues that have concerned her and on which she has worked for many years has been awe-inspiring. Principally, I echo her thanks to the Minister for meeting us and, in particular, for meeting me after the first round of ping-pong last week to discuss our concerns. Notable has been the way in which she has recognised the risk of deterring private prosecutions by introducing inappropriate regulation of costs, and the way she and her officials have framed government Amendment 4D to Clause 12, laid in the Commons, which government Motion A today addresses.
Last Wednesday, we sought consultation on the regulations proposed by Clause 12 and an impact assessment and, as the noble Baroness rightly points out, a response to that impact assessment was also sought. On consideration, and after the discussions we have had, we are completely content that the consultations proposed involving the Law Society, the Bar Council and anyone else the Lord Chancellor believes should be consulted, meet the need for consultation on the regulations proposed.
Importantly, the Government have agreed to publish an impact assessment, and I accept the assurances that that will be thorough and worked-through. The fact that we originally sought a response to an impact assessment may have reflected a procedural misunderstanding. I take the Minister’s point, however, that the response will be apparent when the regulations, such as they are proposed, are in fact made and the response to the impact assessment will be reflected by the Government’s laying of the regulations.
I also take the point—as do the Government—made last Wednesday by the noble and learned Lord, Lord Thomas of Cwmgiedd, that there may be some urgency to the introduction of such regulations, and that insisting on a government response to an impact assessment beyond publication of the proposed regulations may delay them. So we are quite content with the steps taken, or to be taken, by the Government. Crucially, however, no regulations will be made before the consultation and the impact assessment are complete. That is the most important point. This is going to be a meaningful exercise in consideration of what needs to be done.
My Lords, I thank the Minister for her Amendment 4D. This is likely my last appearance on the Front Bench though not, I anticipate, my last speech in this Chamber. I shall simply say that I have greatly enjoyed debating Home Office and justice issues, of which I have had practical experience both as a barrister and as a recorder and deputy judge. I have enjoyed sparring with the Minister, who some 20-plus years ago was a member of the Bar Council’s legal services committee when I chaired it. I continue to respect her ability and expertise, as demonstrated in all aspects of her portfolio in this House. It has been a pleasure to do friendly battle with her.
Moving on, private prosecutions are a vital safeguard within our justice system. They ensure that when the state cannot or does not act, victims, particularly charities, are not left without recourse. For charities, this mechanism is especially important. Fraud and theft—crimes that can often become cumulatively significant—divert funds from vital causes. They then erode public trust in those charities. With limited police and Crown Prosecution Service capacity, many such cases would, I fear, otherwise go unaddressed. Private prosecutions are therefore an essential backstop. They secure convictions and compensation without burdening public resources.
Crucially, the costs recovered from central funds are modest, and typically only partial. They represent a small proportion of overall public expenditure—just 0.18% of the overall legal aid budget. Yet recovery of the costs of private prosecutions enables charities to pursue recoveries that would otherwise be financially out of reach. If charities cannot rely on private prosecutions as a shield against theft and fraud, then we fear that the public will be unwilling to donate towards their causes.
Due to the importance of private prosecutions for access to justice, we tabled an amendment that Clause 12 do not stand part of the Bill on Report. Unfortunately, the Government cited financial privilege as a reason for rejecting the Conservative amendment.
My Lords, it has been a pleasure to bring the Victims and Courts Bill through this House; it is now another step closer to becoming law. The Bill will deliver on our manifesto commitment to support and protect victims, restore confidence in our justice system and implement swifter and fairer justice.
I cannot leave the Bill without taking the opportunity to thank all the officials in my department who have worked so hard to bring this legislation forward. I wanted to thank them all by name, but I was told I was not allowed to, so I shall have to settle with doing a group thanks. They worked late into the night, tirelessly and always good-humouredly, which is quite something.
In closing, I urge noble Lords to support the Government’s amendments related to private prosecutions, and I look forward to working with your Lordships in this House as we take forward the implementation of the Bill.
Motion A agreed.
Amendment 4C would require any such regulations to be subject to the affirmative procedure. The Government recognise the desire for parliamentary scrutiny, and we are committed to ensuring that any use of this power is subject to proper oversight. The question is not whether there should be scrutiny but what form of scrutiny is proportionate to the power that Parliament is being asked to confer.
As I have said on many occasions, Clause 12 is merely an enabling provision. Self-evidently, it does not itself prescribe rates, and, as matters stand, it is not yet possible to know the degree of technical complexity or granularity that future regulations may contain. To require in primary legislation the affirmative procedure in every eventuality would mean that there would have to be full debates in both Houses on regulations that may prove highly technical, detailed and/or operational in nature. The Government’s view is that such an approach would not represent a proportionate use of Parliament’s time, nor would it necessarily enhance the quality of scrutiny.
The negative procedure strikes the right balance. It ensures that regulations are laid before Parliament and are subject to scrutiny, including by the Secondary Legislation Scrutiny Committee, and that they may be prayed against, debated and annulled where either House considers the substance of the regulations, the supporting evidence or the consultation undertaken to be insufficient. That procedure preserves Parliament’s ability to intervene where there are genuine concerns, while allowing the detail of implementation to be addressed in a practical and efficient manner.
I turn to Amendment 4B, which would require the Ministry of Justice to publish an impact assessment prior to the laying of regulations. Again, I wish to make it clear that the Government believe in the importance of transparency and evidence-based policy-making. That said, as drafted, this amendment is not appropriately framed for the established process. Proposed new paragraph (b) appears to be based on a misunderstanding of how impact assessments operate. The Government do not respond to an impact assessment; rather, an impact assessment is published alongside a consultation to inform it. It is then updated to reflect the final position when the Government respond to the consultation and bring forward regulations. That is the established and proper process.
However, we have listened carefully to the strength of feeling expressed in your Lordships’ House about the need for proper evidential underpinning and stakeholder engagement before any rates are set. For that reason, we are now tabling an amendment in lieu that embeds those objectives effectively by placing clear, workable and enforceable requirements in statute.
First, the amendment will place in primary legislation a statutory duty requiring the Lord Chancellor to consult before laying any secondary legislation to set rates. This will not be a discretionary power but a legal obligation. The consultation will be full, thorough and public, engaging those with relevant expertise of those who may be affected, as well as those who may be affected—for example, charities and specialist lawyers. As part of the process of setting any rates, the Government will publish a full response to the consultation. This will not be a box-ticking exercise. The Government remain open minded about where the rates should be set. The consultation will take place at a formative stage, allowing evidence to inform and shape the rates in a meaningful way.
Secondly, the amendment requires that an impact assessment be published before any regulations are made. This will provide Parliament, and others with an interest in these matters, with a clear assessment of the likely effects on any groups affected by the proposed policies. Overall, the amendment in lieu will embed consultation, evidence gathering and impact analysis directly into the statutory framework governing the exercise of this power. It will ensure that the decision-making is transparent and accountable, while preserving the necessary flexibility for an enabling power to operate proportionately and effectively in practice.
I hope that this explanation demonstrates that the Government have listened, reflected and responded constructively to the concerns raised by your Lordships’ House. The alternative approach we now propose strikes the right balance between parliamentary oversight and practical administration, while ensuring that any rates set are founded on good evidence and tested through full and open consultation. I beg to move.
Granted, the Government have not conceded the affirmative resolution but, following a favourable consultation and a positive impact assessment, I accept that that is a secondary consideration. I also accept the points made by the Minister on proportionality. We are content that the Government have met our concerns and we will support Motion A.
Having mentioned my thanks to my noble friend Lady Brinton, I also extend my thanks to others in this Chamber, including those on the Conservative Front Bench, who have been helpful in achieving what is now a much better Bill than the Bill that came to this House.
My noble and learned friend Lord Keen instead tabled an amendment in lieu. That amendment would have achieved the following. First, it would have ensured that an impact assessment was launched on the potential effect of Clause 12, with particular regard to its consequences for charities and victims’ access to justice. Secondly, it would have constrained the Government in exercising their regulation-making powers until after a response had been published to the impact assessment. Thirdly, it would have required such regulation to be subject to the affirmative procedure of both Houses.
The amendment in lieu offered by the Government today partially fulfils at least the first two of those aims. It would require the Lord Chancellor to consult the Law Society, the General Council of the Bar and other bodies considered appropriate before publishing an impact assessment. I suggest that charities as well as private prosecutors themselves would fall under this final category. There is no reason why not.
I thank the Minister in the other place for confirming that the Government will publish a full response to the impact assessment before setting any rates. That assurance is most welcome. Unfortunately, however, there is no provision that regulations made under Clause 12 will be subject to the affirmative procedure. The Minister in the other place said that, given that it is unclear how complex the structure of the rates will be,
“it would be disproportionate to mandate a process that risks lengthy debate”.—[Official Report, Commons, 20/4/26; col. 88.]
We argue that precisely because of the novel and complex nature of these regulations, the affirmative procedure is all the more important and in no way disproportionate. To reject it is to undermine proper transparency and accountability. However, I recognise that the Government have moved some real way on the issue of private prosecutions, so we will not oppose their amendment in lieu today.
The Conservative Party will always champion access to justice and the rule of law. We therefore keenly await the publication and findings of the impact assessment. We are also grateful for the co-operation and discussions that we have had with representatives of the Liberal party in this place and the impact that has had on the whole Bill and on the particular aspect of private prosecutions. I look forward to the Minister’s response.